g^w Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE 8CH0dL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1819.M16 1880 A •ffatlse on the law of merchant shippi 3 1924 022 429 652 TREATISE ON THE LAW. MERCHANT SHIPPING. DAVID MACLACHLAN, M.A., OP THE MIDDLE TEMPLE, BABRLSTEH-AT-LAW. THIKD EDITION. LONDON: WILLIAM MAXWELL & SON, 29, FLEET STREET, E.C. ^ata §ookstIItrs vtiti ^nblis^ws. MEREDITH, EAT, & LITTLEE, MANCHESTER ; HODGES, FOSTER, & CO., AND E. PONSONBT, DUBLIN; C. F. MAXWELL, MELBOURNE AND SYDNEY. 1880. LONDON : BRADBURY, AGNEW, &■ CO., PRINTERS, WHITF.VRTARS. PEEFACE TO THE THIED EDITION, A NEW edition of tMs treatise being demanded, I have again endeavoiired to make it -wortliy of the favour bestowed upon it by tlie profession and the public both, at home and abroad. The latest deeisiohs ail^ the statutes of the present year have been incorporated in the "body of the work. A decision deeply involving the shippiag interest has been pronounced for the first time in the course of cen- turies upon the effect of the Sue and Labour Clause in the Insurance Policy of the common form. The House of Lords have held in the case of Lohte v, Aitchison that salvage is not recoverable under that clause. As that decision has been arrived at without reference to ancient usage in the language, and in contradiction to the proper sense of the terms. of the Clause viewed in the light of such usage, I think I am justified in saying that the decision cannot be sustained. By the key to such ancient usage which I have supplied in an appendix to the Chapter on Salvage^ the matter is submitted to public judgment. VI PREFACE TO THE THIRD EDITION. In the same appendix I have been able on the clearest evidence to assign the origin of the Policy in that form for the first time to its true date, — ^to the age, that is, of Henry YI., say about the year 1460, — always hitherto assumed to be of the time of Elizabeth, if so early. Henceforth, it may well be allowed that this instrument is by birthright and ancient precedence entitled to be known as The EsraLisH Policy. D. MACLACHLAN. 11, King's Benoh Walk, Temple, 9ft November, 1880. PEEFACE, The following treatise, planned upon the order of the subject, opens with the acquisition of ship property, and those dealings with it, when acquired, which are recognised and sanctioned by law. It passes from this to the various relations of the owners in connection with such property — among themselves, with their agents, to the world at large, the mariners in particular, and generally to the owners of other ships that may be met with on the maritime highway. Thus far it comprises only those dealings and relations, legally considered, which begin and end immedi- ately in the possession of this description of property, forming what may be regarded as the first grand division of the subject. The second division is concerned with the commercial purpose of ship-property, and all those obligations which are severally contracted by the owner and the freighter in the employment of it for that end, whether expressly stipulated between them at the first, or implied by law, from the relation thus formed, in con- nection with the course of subsequent events. The subject, in this view of it, appeal's distinctively massed about a few centres, presenting for the investigation of it a plan that easily admits of the full discussion of particulars, whilst it naturally combines towards the general development of the whole, and is immediately accessible in any part of it to a mere stranger. The complete conception of a work of this nature comprehends a variety of subjects not hitherto considered within the same treatise. Ships regarded as property, although engaging so large an amount of British capital, did not enter into Mr. Abbott's scheme. The General Maritime Law and the Law of Nations, touching international questions, have heretofore been dismissed with the casual notice of a few decisions ; and yet, as administered in the Prize Court, they ajBfect shipping, and merchandise, and the VIU PREFACE. profits of the carrying trade ; being universal in the applicability of their principles, and bearing sensibly, in their effect, upon the interests of communities, and the prosperity of nations. Per- ceiving the importance of these and other subjects of inquiry to the work that I was meditating, I embraced the undertaking to the full extent, and have endeavoured to embody my conception in the following pages. Upon the Maritime Law of Great Britain, more than on any other single subject, a writer is obliged, not needlessly as to some it might appear, to multiply references to other systems of maritime law, and to the works of those who have commented upon them. This is due partly to the state in which our law is found, and partly to the purpose which it contemplates in common with other national maritime codes. The law maritime of this country has been for centuries an unwritten law ; and, notwithstanding recent legislation of an im- portant character, it continues in the bulk to be an unwritten law still. The development of it during that period has been gradual, as there was occasion ; and the origin of much of it may be traced, by the similarity it bears, to what is famiharly known as the general maritime law of Europe. This general law exists nowhere . as a written system. In all its leading principles, it is recognised by the jurists of every maritime country, and is transfused to some extent into every maritime code. Into our own system to a much greater degree it enters, not merely in the form of positive law, but as productive germ and animating spirit. Upon any question, therefore, still in controversy under the maritime law of this country, recoui'se to the principles of the general maritime law is both natural and common ; and for the purpose of identify- ing any alleged principles with the general system appealed to for their authority, it is often indispensable to refer to the general consent of the maritime codes and juridical commentaries of other European nations. Moreover, by this regard to foreign maritime jurisprudence, the general policy is sustained in the particular application of a law which contemplates foreign intercourse by sea as an object of the traf&c it controls, — at once conservative of British property, and confirmatory of foreign rights that have been acquired under its sanction. The municipal law, contemplating no such object. PREFACE. IX but framed for the citizen, and occupied solely with the relations that multiply within the same independent commonwealth, is hostile to foreign intercourse ; and consequently under a conflict with other laws of that nature it needs must resort to the Comity of Nations, not for a governing principle, but for a temporary concession that leaves these conflicting laws as hostile as before. The law maritime expressly with a view to intercourse with other nations, commissions and announces the agent through whom it is to be conducted, and governs that intercourse when it takes place. The validity of his acts is dependent upon its sanction; and the foreigner is secure of no advantage obtained in prejudice of the Master's public authority. This treatise was originally intended, upon the suggestion of the publisher, to have been founded on the fom'th edition of Abbott on Shippiug, the last of that work for which its eminent author held himseK responsible. Upon this impression the announcement of it appeared ; and I availed myself of assistance from that edition to the extent of fifty pages and notes, greatly altered, and distributed in various parts of this volume. But at an early part of my progress, I entirely abandoned that intention, believing that I could treat the subject more satisfactorily upon a plan altogether my own, than by endeavouring to recast Abbott's work with a different arrangement. To do this, indeed, would have destroyed the identity of that treatise without compensating any one by the value of the result. For the present work, therefore, I am entirely responsible. The plan upon which it is founded has been explained ; and for details the reader may consult a full analysis at the head of each chapter, and a careful index of subjects at the end of the volume. In treating of the Master I have considered his authority and duties as an agent of the owners, apart from his authority and duties on board as a Master Mariner. In that, I hope to be justified in the judgment of the profession and by the convenience of those who consult the work ; but for a large section of his duties which essentially enter into the performance of certain X PREFACE. contracts, and could not conveniently be considered apart, I must refer to the various Chapters on Passengers and Affreightment. The undertaking which I am now concluding was entered upon with anxious thought. It involved a wide range of inquiry and considerable variety of subject ; and much of the ground to be occupied was entirely new. I dare not assume that no error has been made in the course of performance, and that nothing has been omitted of all that was implied in my engagement. But all that anxious care and hopeful labour could effect for a work of this kind I have tried to accomplish ; and the result, such as it is, I now respectfully submit to the judgment of the Profession and the Public. DAVID MAOLAOHLAN. 3, Beick Couet, Temple, 2Uh October, 1860. The following Editions of Treatises have been used for the references in this Volume. Abbott on Shipping (cited by the Author's name merely) ; 4th edit. 8vo. Lond. 1812. by Shee {cited with the Editor's name, or the number of the edition) ; 10th edit. 8vo. Lond. 1856. ; 7th American edit, by Perlcins (referred to by the page in the margin) ; 8vo. Boston, U.S. 1854. Arnould on Insurance, by Maclachlan ; 5th edit. 8vo. Lond. 1877. Baily on General Average ; 8vo. Lond. 1851. Beawes' Lex Mercatoria ; 6th edit. 4to. Lond. 1813. Bell's Commentaries on the Law of Scotland ; when not otherwise distinguished, the 6th edit. 8vo. by Shaw, Edinb. 1858, is referred to ; the 3rd edit. 4to. Edinb. 1816-19, is cited by the edition. Principles of the Law of Scotland ; 4th edit. 8vo. Edinb. 1839. Benecke on the Principles of Indemnity ; 8vo. Lond. 1824. Benjamin on Sale, 2nd edit. Lond. 1873. Blackburn on Sale ; 8vo. Lond. 1845. Boulay-Paty, Droit Maritime ; 8vo. Paris, 1834. Bynkershoek, Qusestiones Juris Privati. ; Qusestiones Juris Publici — Opera Omnia ; fol. Lugd. Batav. 1767. Casaregis, Discursus Legales de Commercio ; 2nd edit. fol. Venetiis, 1740. Chitty on Bills of Exchange, by Eussell and Maclachlan ; 10th edit. 8vo. Lond. 1859. Cleirac, Us et Coutumes de la Mer ; 4to. Bourdeaux, 1661. Coote, K. H., on Mortgages ; 3rd edit. 8vo. by E. Coote. Lond. 1850. Domat, Loix Civiles ; nouvelle edit. fol. Paris, 1777. Emerigon, des Assurances, par Boulay-Paty ; nouvelle 6dit. Rennes, 1827. The Author's treatise on Contrats k la Grosse, is included in the second volume under the current page, and reference to each work is made indifferently by the Author's name merely, and the volume with the page. Erskine's Institutes of the Law of Scotland, by Ivory ; fol. Edinb. 1828. XU BOOKS OF EEFEBENCE. Favard-de-Langlade, edition of the Code de Commerce, including the Expose des Motifs relative to each portion as it was brought under the consideration of the Corps Legislatif ; 8vo. Paris, 1807-12. Godolphin, View of the Admiral Jurisdiction ; 12mo. Lond. 1661. Grotius, de Jure Belli et Pacis ; varior. edit, by Barbeyrac. Amst. 1720. Hautefeuille, des Droits et des Devoirs des Nations Neutres en temps de guerre maritime ; Svo. Paris, 1848-49. Holt, on Merchant Ships and Seamen and Maritime Contracts ; 2nd edit. 8vo. Lond. 1824. Kent, Commentaries on American Law (referred to by the page in the margin) ; 9th edit. Svo. Boston, U.S. 1858. Kuricke, de Assecurationibus, in the Fasciculus Scriptorum de Jure Nautico et Maritimo, of J. G. Heineccius ; 4to. Halae. Magd. 1740. Loccenius, de Jure Maritimo, in the Fasciculus Scriptorum de Jur. Naut. et Marit. of J. G. Heineccius ; 4to. Halae. Magd. 1740. Lowndes, General Average, Svo. Lond. 1S73. Magens, on Insurance ; the second volume containing a collection of foreign maritime ordinances, some of which are of too recent date to be included in the work of M. Pardessus ; 4to. Lond. 1755. Malyne's Lex Mercatoria ; 3rd edit. fol. Lond. 1686. Marshall, on Insurance, by C. Marshall ; 3rd edit. Lond. 1823. Martens, G. F., des Armateurs, les Prises et surtout les Eeprises ; Svo. Got- tingue, 1795. Prdcis du Droit des Gens Modeme de I'Europe, avec des Notes de M. S. Pinheiro-Ferreira ; nouvelle 6dit. Svo. Paris, 1831. MoUoy, de Jure Maritimo ; Svo. Lond. 1682. Ortolan, Theod., des Regies Internationales et Diplomatie de la Mer ; Svo. Paris, 1845. PaiUiet, Manuel du Droit ; 4to. Paris, 1824. Pardessus, de Droit Commercial ; 5th edit. Svo. Paris, 1840. — — Collection des Lois Maritimes antdrieures au XVIII" sifecle {cited Pardess.) ; 6 vols. 4to. Paris, 1828-45. Park, on Insurance, by Hildyard ; Svo. Lond. 1842. Parsons, on Shipping ; Svo. Boston, U.S. 1859. Phillips, on Insurance ; 3rd edit. Svo. Boston, U.S. 1853. Pothier, (Euvres de, par M. Bugnet ; Svo. Paris, 1845-48. Louage Maritime, comprising des Chartes-parties, de Louage des Matelots, des Avaries, in vol. 4 ; Pret k la Grosse, vol. 5 ; de I'Hypothfeque, vol. 9. Pothier, Pandectse ; fol. Lugd. 1682. Roccus, de Navibus et Naulo Notabilia ; edit, nova, 24mo. Amst. 1708. Eodriguez, de Concursu et Privilegiis Creditorum in" bonis debitoris ; foL ' Venetiis, 1664. Sedgwick, on the Measure of Damages ; 2nd edit. Svo. New York, 1852. Selden, Mare Clausum, Opera Omnia — by Wilkins ; fol. Lond. 1726. Sheppaid's Touchstone, by Atherley ; Svo. Lond. 1826. Stair's Institutions of the Law of Scotland, by More ; 4to. Edinb. 1832. BOOKS OF REFERENCE. Xlll Stair's Institutions of the Law of Scotland, by Brodie {cited with the Editor's name) ; fol. Edinb. 1826-31. Stevens, on General Average ; 5th edit. 8vo. Lond. no date. Story on Agency ; 8vo. Lond. 1839. on Conflict of Laws ; 2nd edit. 8vo. Lond. 1841. on Prize Courts, by Pratt ; 8vo. Lond. 1854. Stracclia, de Nautis, Navibus, et Navigatione (et Tractatus varii) ; 12mo. Colon. Agripp. 1576. Sugden, on Vendors and Purchasers ; 13th edit. 8vo. Lond. 1857. Valin, Nouveau Commentaire sur ; TOrd. de la Marine du mois Aout, 1681 ; 4to. Kochelle, 1766. Van Leeuwen, Censura Forensis Theoretico-praotica ; 4th edit, by de Haas ; fol. Lugd. Batav. 1741. Van der Linden, Institutes of the Laws of Holland, by Henry ; 8vo. Lond. 1828. Vattell, Law of Nations, by Chitty ; 8vo. Lond. 1834. Vinnius, in Pecldum ad Rem Nauticam ; 8vo. Lugd. 1647. in Iiistitutiones Imperiales ; 4to. Amst. 1665. Voetius, J., ad Pandectas Commentarias ; fol. Hagae, 1734. Welwood, Abridgement of Sea-Lawes, 4to. Lond. 1613. Weskett, on Insurance ; fol. Lond. 1781. Wheaton, on International Law ; 6th edit. 8vo. by Lawrence. Boston, U.S. 1855. CONTENTS. PAGE Preface to Third Edition v Preface vii List of Works referred to xi Table of Cases cited xix Table of Statutes cited xl CHAPTER I. Ships as Property 1 CHAPTER II. The Evidence of Title 73 CHAPTER III. The Owners .... 95 CHAPTER IV. The Agents 130 CHAPTER Y. The Mariners 198 CHAPTER VI. Pilotage, Towage, Safety Provisions, Damage .... 273 CHAPTER VII. Passengers 322 XVI CONTENTS. PAGE CHAPTER VIII. Afifreightment 341 CHAPTER IX. Performance under Affxeightment 406 CHAPTER X. Payments under Affreightment 452 CHAPTER XI. Non-Performance under Affreightment 534 CHAPTER XII. ■ Stoppage in Transitu 587 CHAPTER XIII. Salvage 608 CHAPTER XIV. General Average 653 CHAPTER XV. Of Competing Liens 70i APPENDIX. — t — Table of Contents 709 Schedule of Repeals 720 Merchant Shipping Act, 1854 (17 & 18 Vict, c, 104) . . .711 Schedule of Forms gOg Agreement for Home Trade Ship §35 Agreement ifor Foreign-going Ship 337 Regulations for Discipline §3g Seaman's Allotment Note g^O CONTENTS. XYU PAGE Instructions for Apportionment of Salvage 841 Merchant Shipping Repeal Act, 1854 (17 & 18 Vict. c. 120) . • 843 Merchant Shipping Act Amendment Act, 1855 (18 & 19 Vict. c. 91) 845 Billsof Lading Act (18 & 19 Vict. c. Ill) 848 Passengers Act, 1855 (18 & 19 Vict. c. 119) . . . .849 Admiralty Court Act, 1861 (24 Vict. c. 10) 879 Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63) 882 Passengers Act Amendment Act, 1863 (26 & 27 Vict. c. 51) . . 899 Merchant Shipping Act, 1854, Amendment Act, 1867 (30 & 31 Vict. c. 124) -903 County Courts Admiralty Jurisdiction Act, 1868 (31 & 32 Vict. c. 71) 906 Merchant Shipping (Colonial) Act, 1869 (32 Vict. c. 11) . . 909 County Courts Admiralty Jurisdiction Amendment Act, 1869 (32 & 33 Vict. c. 51) 911 Passengers Act Amendment Act, 1870 (33 & 34 Vict. c. 95) . 912 Merchant Shipping Act, 1871 (34 & 35 Vict. c. 110) . . . 912 Merchant Shipping Act, 1872 (35 & 36 Vict. c. 73) . . . 914 Merchant Shipping Act, 1873 (36 & 37 Vict. c. 85) . . . 917 Merchant Shipping Act, 1876 (39 & 40 Vict. c. 80) . . . 923 Shipping Casualties Investigation Act (42 & 43 Vict. c. 72) . . 934 General Rules for Investigations into Shipping Casualties . . 935 Merchant Seamen (Wages and Rating) Act (43 & 44 Vict. c. 16) 941 Merchant Shipping (Carriage of Grain) Act (43 & 44 Vict. c. 43) 945 Bottomry Bond on Ship and Freight 947 Bottomry Bill on Ship, Freight (and Cargo) .... 947 Respondentia Bond on Cargo 948 INDEX 951 TABLE OF CASES CITED. PAGE 18 159 658 660 635 201 36 501 445 356 • V. Royal Mail Steam Packet Co. 444, 530, 580 AJamson v. Newcastle Stm. Ship Freight Abigail, The Acatos V. Burns Achard v. Ring Acraman v. Bates Actif, The Adair v. Young Adam v. Kerr Adam Vanstock, The Adams, The V. Hall Ins. Assoc. Adderley v. Cookson Addison r. Overend Adelaide, The, Bose 583 329 125 572, 577 573 277, 282 576 109 129 102 Admiral Boxer, The, Jones Adonis, The, Gottschalk Afina van Linge, The African Steamship Co. v. Swanzy Agincourt, The Mahon, 204, 241, 245, 256 Agricola, The, Grayson 280, 282, 283 Aid, The, Teasdel 620 Aitkin v. Bedwell 206 Akerman v. Humphery 605 Albert Crosby, The 143, 144, 214 Albion, The (Lush Ad. 282) 287, 611 Turnbull 625 Aloenius v. Nygren 558 Aldriohu Simmons 279 Aldworth v. Stewart 330 Alers V. Tobin 155, 156, 440 Alexander, The (6 Jiir. 241) 110 — Ages 576 Larsen 142, 144 Tate 55, 57, 67, 108, 149, 167 Dowie 105, 126, 130 Simms 105 615 704, 705, 706 83 587 594 190, 191 612 Alfen, The, Jacobsen Aline, The Alison's case Allan V. Creditors of Stein V. Gripper — '■ — V. Sundius Alma, The Alsager v. St. Katherine's Dock Co. 388, 434, 512 Alston V. Herring 415, 446 Amalia, The 122 America, The, Sherhorne 563 PAGE American Ins. Co. v. Center 157 , The 315 Amerique, The 616, 619 Amies v. Stevens 539 Amos V. Temperly 499 Amphitrite, The, Morgan 236, 241 Audalusian, The 75, 76, 124, 313 Anders Knape, The 611 Anderson v. Clai-ke 398, 399 V. HiUies 518 V. Pitcher 385, 422, 662 Andrew v. Moorhouse 453, 468, 510, 521 V. Kobinson 196 Anglo- African Co. v. Lamzed 414 Egj-ptian Co. v. Rennie 3, 7 Annapolis, The 279, 287 Ann, The 101 Ann and Mary, The 318 Anna Catharina, The, Wupper 564 Anna Christiana, The 497 Anna, The 109, 145 Annandale, The 72 Aneroid, The 145 Annett u Carstairs 111 Anon. (1 Camp. 492) 38 (2 Campb. 320, n.) 236 (1 Ld Raym.) 224 (2 Shower, 283) 519 (2 Eq. Cas. Ab. 98) 582 Apollo, The, Bottoher 566 Karstadt 574 Tennant 100 Appleby v. Dods 224 AquQa, The, Lunsden 612, 619, 630, 631, 640 Arab, The 248, 254, 707 Araminta, The 220, 225, 243 Ardiucaple, The, M'Leod 627 Argentina, The 604 •Arkle u Henzell 89 Armadillo, The 61 Armroyd v. Union Ins. Co. 482 Ai-mstrong u Smith 231 Arthur, The, Kathbone 569 V. Barton 142 Ashcroft V. Crow Orchard Colliery Co. 527, 530 Ashley v. Pratt 426 Ashmall v. Wood 144 Ashworth v. Stanwix 260 Asiatic, The 323 Atalanta, The, Klein 567, 5t)8 Atkinson v. Bell 4, 5 i: Cotesworth 503 6 2 XX TABLE OP CASES CITED. PAGE Atkinson v. Newcastle Waterworks 207, 258 V. Stephens 155, 156, 439, 686 Atkyns v. Burrows 229 Atlantic, The 244 Atlas, The, Clark 51, 56, 149, 150 Kimbell 497,663 (31 L. J. (Ad.) 210) 617 Attorney-General v. Case 280 Attwater, In re 3, 6 Attyu Parish 353 Atwood V, Case 266 V. Sellar 676, 677 Audley v. Duff 422 Augusta, The, De Bluhn 53, 54, 57, 60, 62, 147, 148, 149, 150 Aurora, The, Lindherg 149, 564 Australasian Steam Navigation Co. v. Morse 168 Austi'alia, The 166 Australian Direct Navigation Co., Me, 211 Avery v. Bowden 420, 450, 477, 658, 559 Baglehole v. "Walters Bahia, The Baillie v. Moudigliani Baker v. Gray V. Jardine 14 428, 430, 474 467, 483, 493 6,7 20 523 576, 677 Bailey v. D'Arroyave Baltazzi v. Ryder Baltic Merchant, The, Smith 240, 243 Baltica, The, Pygelstrom 661 Baltimore, The, Baker 613, 615, 622 Bannister v. Breslauer 358 Barhara, The, Chegwin 152 Barclay v. Y'gana 413 Baring v. Day 633 Barker v. Highley 185 V. Hodgson 420, 444, 477, 530, 534, 544, 558 Barnardiston v. Chapman 101 Baron Holberg, The, Blom 318 Ban-ett v. Dutton 523 ■Ban-ick v. Buha 420, 450, 568 Barrow v. Coles 402, 604 Bartlett v. Pentland 196 Bartley, The, Stothard 620 Bastifall v. Lloyd 526 Batavia, The 248, 249 Bateman v. Phillips 355 Bates V. Todd 394 Baxter v. Leland 432 V. The Earl of Portsmouth 9 Beale v. Thompson 230, 231, 455, 554 Beatsou v. Haworth 426 V. Schank 382 Beattie v. Lord Ebury 11 Beavan, J.G., in the goods of 266 Beaver, The, Conner 426 Grierson 229 Bedford v. Backhouse 47 Beech v. Jones 333 Beecham v. Smith 215 Behn v. Burness 363, 367, 368, 374, 542, 543 BeUby v. Kaper 274 V. Shepherd 274 V. Scott 275 PACE Belcher v. Capper 342, 343, 344, 347, 348 Beldon v. Campbell 54, 111, 139, 142, 143, 145 Belgic, The Bell V. Bank of London V. Blyth V. Humphries V. Jutting -0. Kymer V. Puller Belle, The, Betts Belshaw v. Bush Benares, The, Brown Benedict, The (Spinks, P. C. 314) Bengal, The Bennett v. Moita Benson v. Blunt 118, 314 43, 80, 82 81 107 193 500 584, 58.5 638 518 249, 703, 704 561 248 282 530 ■ V. Duncan V. Heathorn V. Schneider Benyon v. Cresswell Beresford v. Montgomerie Bergstrom v. Mills Berkeley v. Hardy 0. Watling Bemal v. Pim Berndston v. Strang Bernon, The, Dunn Best V. Saunders Beta, The Betsey, The, Goodhue Hay Murphy Thompson 52, 683 183 385, 447, 453 31, 77 437 231, 554 353 394 435, 614 592, 597, 603, 607 556, 563 Betsey Gaines, The, Wilson Bexwell v. Christie Beynon v. Godden Bickertou v. Burrell Biddulph V. St. John Bilbao, The Bingham v. Garnault Bird V. Brown Birkley v. Presgrave Birley v. Gladstone Birt V. Barlow Bishop V. Ware Black Boy, The, Devey Prince, The V. The Bakers of Glasgow V. Kose 181, 533 304 674, 678 63, 702 571, 572 616 319 16 184, 504 356 46, 48 314 205 598, 602, 606 664, 671, 679, 692 435, 512 436, 512 614 319 2 513, 618 Blackett v. Koyal Exoh. Assur. Co. 17, 386, 386, 672 Blaine v. The Ship Charles Carter 61, 62 Blake, The^ -Hadden 131, 240, 244, 245 Blakeney, The Blakey v. Dixon Blakie v. Stembridge Blanck v. Solly Bland, Ex parte Blasco V. Fletcher Blanshard, In the matter of Bleaden v. Charles Blech V. Balleras Blendenhall, The, Barr Blenheim, The Blessing, The 264 453, 468, 510, 521 131, 413, 414, 415 487 113 427, 428, 465 100 333 522 614, 628 320 248 Blight v. Page 444, 534, 542, 544, 554 583 TABLE OF CASES CITED. XXX PAGE Blower v. Great "Western Kailway Co. 432, 470 Bloxam v. Sanders 590, 592, 600, 601 Bluck V. Gompertz 36 Blyth V. Smith 157, 390, 407, 439 Boddingtons, The, Noyes 53, 54, 147, 149 Boedes Lust, The, Sybraudts 554 Boehm v. Bell 20 Bohtlingk v. Inglis 592, 597, 603, 605 Bold Buocleugh, The (Harmer v. BeU) 68, 321 Bolina, The ' 318 Bolingbroke v. Swindon Local Bd. 118 Bolton V. Lane. & York. Railway Co. 692, 594 Bonaparte, The, Andersen 56, 57, 147, 151, 152, 153, 155, 159 Bond V. Nutt 376 Bonita, The 162, 166 Boone v. Eyre 363, 365, 373, 541 Bornmann v. Tooke 373, 541 Borrowman v. Drayton 370 Borussia, The, Christiansen 290 Boson V. Sandford 100, 131, 135 Bottomley v. Bovill 268 V Forbes 385 Boucher v. Lawson 11 9, 135 Bourne v. GatliflFe 121 1). Mason 220 Bousefield v. Creswell 196 Boussmakar, Ex parte 568 Bovil V. Hammond 103 Bowoher v. Noidstrom 118, 260, 277, 279 Bo wen v. Fox 89 V. Owen 226 Boyce v. Bayliffe 204, 330, 331, 332, 611 v. Douglass 125 Boyson v. Chapman 39 V. Gibson 37, 42 Bradford v. Williams 363, 384 Bradhurst v. Columbian Ins. Co. 673, 674 Bradley v. Dunipace 396, 439 V. Goddard 192 Bragg V. Anderson 426 Bramley v. Alt 15 Brandon v. Nesbit 558 Brandt v. Bowlby 402, 440, 604 Branston, The, "Wilson . 330, 611 Brass v. Maitlaud 446 Brereton v. Chapman 526 Breslauer v. Barwick 359 Bridgwater, The 250 Brierly v. Cripps 103 Brig, Sarah Ann, The 163 Briggs V. Wilkinson 107, 111, 112 Bright V. Cowper 542 Bristow V. Whitmore 106, 144, ISl, 210, 211 Britain, The, Allison 617 British Columbia Mill Co. v. Nettleship, 394, 585 British Empire, The 616 British Empire Ship. Co. v. Seames 113 Broad v. Thomas 188 Brodie«w. Howard 96, 107, 111, 113, 342 Brooks V. Dorr 230 Brouard v. Dumaresque 49, 112 Brough V. Whitmore 17 Broughton v. Broughton Brouncker v. Soott Brown v. Batemau V. Byrne v. Gaudet V. Hare V. Johnson V. Kewley V. Milner 0. MuUett V. Nairne V. North PAGE 183 525 7 393, 521 443 398, 401 379, 523, 526 518 230 279 192 517 V. Powell Duffryn Steam Coal Co. 394 304 684 106, 466, 508 104 378 9 542, 545, 547, 583 394, 398 157 V. Smith V. Stapyleton V. Tanner V. Tapscott V. Tayleur Browning v. Eean Bruce v. Mcolopulo Bryans v. Nix Bryant v. Commonwealth Ins. Co. Buck V. Rawlinson Buckle V. Knoop Buckley v. Barber Buller V. Fisher Bulwer, The, Brown Bunney v. Poyntz Burgon v. Sharp Burmester v. Hodgson Burness v. Hopper Burnett v. Bouch Burns v. Chapman Burton v. Pinkerton Bushell V. Beavan V. Bushell Busk V. Davis V. Fearon Butler V. Wildman Butterfield v. Forrester Button V. Thompson Buxton V. Snee Byfield, The, Forster Byrne v. Pattinson V. Schiller Bywell Castle, The Caffarini v. Walker CahiU V. Dawson Caldwell v. Ball Caledonia, The Callander v. Olericks Calypso, The, Schultz 572 . (2 Hagg. Ad.) 613 Cambrian Stm. Pkt. Co. Ex parte 8 Cambridge, The, Barber 242, 243 ■ V. Anderton 163 Camden v. Anderson 40, 604 Cammell v. Sewell 64, 156, 157, 169, 171, 178, 201, 430 Campbell v. Hooper 9 V. Rickards 194 V. Thompson (2 Hare, 140) 36, 39, 42 V. Thomson (1 Stark. 490) 156, 440 Campion v. Colvin 394, 614 224 464 38 538 241 618, 593, 603 138, 360 522 466 188, 190 253 218, 242 355 47 591 52, 58, 159 660, 680 311 231, 241 68, 139 575 485 619, 520 314 526 197 393, 399, 404, 433 210 193, 194 xxu TABLE OP CASES CITED. Canadian, The, Dixon Gannan v. Meabiirn Capper 1). Forster • 1). "Wallace Card V. Hope Carew's Estate, In re Carey v. The Kitty Cargo ex Argos Capella Galam Hamburg Honor Schiller Sultan "Woosung Carl Johann, The Carl Walter, The, Schmidt Cai'oliua, The Caroline, The, Doah Carpue v. London and Brighton Ey.Co. 338 Carr v. Gray 513 V. Jackson 356, 369 V. "Wallaohian Petroleum Co. 369, 370, 445, 543 Carrier Dove, The 282 Carron, The 317, -318 Carrnthers v. Payne 3, 4 V. Sydebotham 278, 280 PAGE 282 157 447, 457 380, 476, 527 131, 182, 183 16 234 443, 544, 584 617 428 159 612 621 52, 56, 159 621, 338 118, 121 560 227 567 Carter v. Boehm Cary v. King V. White Castelli v. Cook Castilia, The, Stewai-t Castle V. Playford Castrique v. Imrie Catharina, The Cathcart, The Catherine Chalmers, The 194 645 55, 141, 142, 144 102 242, 258 591 70 61 39, 41, 42, 51 414 of Dover, The, Dawson 305, 309 Catley v. Wintringham 438 Cato V. Irving 28, 40, 43, 50, 85, 112 Catts V. Herbert 282 Caughey v. Gordon & Co. 181, 533 Cawthom v. Trickett 525 Cecnie, The 57 Celt, The, Taylor 314, 315 Ceylon, The, Mulao 24 Champion, The 614 Chandelor v. Lopus 9, 10 Chandler v. Grieves 228 Chaney v. Payne 275 Chapman u Callis 35, 169 ■ V. Royal Netherlands Stm. Navig. Co. 307 1>. Walton , 193, 194 Chappell V. Bray 185 —, V. Comfort 525 Charles, The 613, 615 Charles Adolphe, The 287 Charleton v, Cotesworth 181 Charlotta, The; Nesser 614 Pasqnal 639 EUiott 570, 575 Charlotte, The (6 C. Rob. 386) 566 Koltzenberg 566 Charlotte Sophia, The, Moller 576 Chavasse, Ex parte 645, 680 Cherry.'. Bank of Australasia 11 Chester, The, Lawson Chetah, The Chieftain, The Chimaera, The Chinnery v. Blackbnrne PAOK 314 619 211 704 43, 504 Christiana, The (3 W. Rob. Ad. 27) 289 — Larsen 279, 282 Christiansberg, The, Vanderweyde 577 Christie, Ex parte 126 V. Craig 102 V. Lewis 342, 344, 346, 347 Christin v. Ditchell 390 Christina Maria, The, Kehnrock 567 Christine, The, Schwartz 561 Christoflfersen v. Hansen 369 Christopher, The, Slyboom 21 Christy v. Row 466, 467, 499 Chryssys, The, Moraiti 574 Churchward v. Palmer 310, 317 City of Brooklyn, The 313 Edinburgh, The, Eraser 617, 632 London, The, Campbell 317, 318 ^ — Reynolds 237 Cilarence, The 318, 319 Clarisse, The, Brun 614, 620 Clarke ii. Barnewell 432 — — V. Speuce 2, 3, 6, 25 Clason V. Simmonds 426 Clay V. Harrison 590 Clayards v. Dethick 278 Clementson v. Blessig 558, 569 Cleopatra, The, Paton 316 Clifton, The, Lightbody 618, 619 piipsham v. Vertue 364, 371, 54l, 543 Closmadeuo v. Carrel 362 Clutterbuck v. Coffin 214 Clyde Navig. Co. v. Barclay 283 Coates 1). Eailton 595 Cochran v. Retberg 526 Cochrane v. Fisher 377 Cockbum v. Alexander 447, 456, 468 V. Wright 448 Coggs V. Bernard 406, 413, 414, 443 Cognac, The, Ewen 57 Cohen v. Hinckley 424 V. Paget 192 V. So. East. Ry. Co. 340 Cohn V. Davidson 407 Cole V. Meek 445 Coles V. Trecothiok 187 Colleu V. Wright 359 Collier, The 616 Collins V. Lamport 43, 45, 112, 113, 366 Columbia, The, Thornton 631 Weeks 570, 571, 572, 574, 577 Columbian Ins. Co. v, Ashby 673 Columbine, The 614 Colvin V. Newberry 344, 348 Comet, The, Adams 22 Mix 572, 575 Commercial Stm. Ship Co. v. Boulton 626 Connor v. Smythe 529 ConoUy v. Parsons • 15 Conquest, The 373 Constable's Case 640, 641 • V. Cloberie 373, 541 TABLE OP CASES CITED. XXUl Constantia, Tlie (10 Jur. 845) 62, 153, 254, 692, 702, 703, 706, 707 Holbeck 52, 568 Cook V. Jennings 483, 542 Cooke V. Wilson 355, 356, 413 Cooker v. Child 355 Coombs V. Mansfield 40, 42 Cope V. Doherty 121 Copenhagen, The, Mening 32, 33, 493, 495, 563, 676 Coppin V. Braitliwaite 327 Corban v. Downe 413 Corbin v. Leader 329 Corkling v. Massey 367, 368, 374, 453 Cornfoot v. Fowke 13 Covomatidel, Tlie, Anderson 620, 621, 622 Cort V. The Anibergate Ry. Co. 558 Couch V. Steel 207, 258, 259, 260, 328, 329, 416 Conlthurst v. Sweet 185, '464 Countess of Harcourt, The, Bunn 216, 224, 242 Courtney, The, English 250 CoHsine Marianne, The, Deboer 564 Coventry v. Gladstone 605 Covington v. Roberts 659, 681 Cowasjee v. Thompson 392, 393, 693, 603 Cox V. AUingham 84 • — V. Hickman 107 Coxe V. Harden 399, 400, 401, 604, 605 Coxon V. Great "Western Ry. Co. 409 Cram v. Aiken 668 Cranston v. Marshall 324, 330 Craven v. Ryder 393 Green v. Wright 208 Cremidi v. Powell 676 Croockevvit v. Fletcher 360, 364, 374 Crooks V. Allan 685 Croptou V. Pickernell 523 Cross V. Eglin 445 V. Pagliano 191 Crosse v. Gardner 10 Crouch V. Lond. and North- West. Ry. Co. 446 Crow V. Falk 522, 546 Crowder v. Austin 15 Cro'we V. Rogers 220 Cuming v. Brown 397, 604, 605 Cunard v. Hyde 200, 445 V. Van Oppen 189 Cunningham v. Dunn 444, 624, 545 Curling 1). Long 453, 465, 475, 477, 483, 491, 493 V. Robertson 110 CuiTan V. Wood- 142 Curtis V. Perry 40 V. Williamson 132 Cuthbert v. Gumming 385, 447, 463 Cutter V. Powell 224, 231, 236, 239, 363 Cybele, The 638 Cynthia, The 62, 168 (2 Prob. Div. 52) 118, 314 Czech u Gen. Stm. Navig. Co. 409, 538 Dakin v. 0x1 ey Pale V. Hall Dalgleish v. Hodgson Dalton V. Irvin Danckebar Africaan, The Dandy v. Turner Danneborg, The Dante, The Dantzic Packet, The, Darby v. Baines Daring, The David Luckie, The Davidson v. Case V. Cooper V. Swynne 449, V. Mure I'AGR 449, 469, 470, 474, 478, 542 406, 431, 840 574 Smit 188 660 Tanner Da Costa v. Edmund V. Newnhara Daioz, The 385, 666 319, 677, 682 280, 283 Davies v. Mann V. McVeagh Davis V. Garrett V. Jolmston V. Williams 135 61 614, 617 97, 182 703 251 105, 507 36, 214 363, 373, 383, 394, 466, 468, 541, 582 542 311, 338 527 371, 424, 425 100, 184 84 De Cuadra -y. Swann 428 D'Eguino V. Bewicke 421 De Garay v. Clagget 422 De Harte v. Stevenson 125 De Mattos v. Gibson 43, 49, 112, 366 De Pothonier v. De Mattos 503 De Rothschild v. Royal Mail Steam Packet Co 539 De Silvale v. Kendall 466, 476, 510, 519, 620, 521 Dean v. Hoc;g 342, 343, 344, 347 ■ • V. McGhie 43, 105, 106, 604 Dederer v. Delaware Ina. Co. 269 Deffel V. Brockelbank 373 Degg V. Midland Ry. Co. 260 Deguilder v. Depeister 57 Delamainer v. Winteringham 230 Depau V. Ocean Ins. Co. Deslandes v. Gregory Despatch, The, Cooper Dewell V. Moxon Diana, The, Greig 277, 279, Runke 492, — (1 Dods. Ad.) Dickinson v. Jardine V. Kitchen Dimech v. Corlett 364, Diplock V. Blackburn Dixon V. Baldwen V. Ewart -0. Hovill V. Reid V. Yates Dobell V. Stevens Dobree v. East India Co. V. Schroder Dobson V. Droop V. Lyall Dockwray v. Dickenson Doddington v. Hallett Dodge V. Bartol Doe V. Martin V. Paul Dolder v. Ld. Huntingfield Domett V. Beckford 355, 356 313 138 282, 283 556, 678 445 692 43, 49, 113 365, 366, 368, 371 181, 532 594 38, 39 195 268 2, 591, 593, 604 13 443 129 532 54, 63, 149 125 96, 108 668 12 36 555 498, 499 XXIV TABLE OF CASES CITED. Domett V. Young Donaldson v. Forster ■ V. Thompson PAGE 162 386 21 445 124, 340 638, 639 84 617 18,37 Donna Marianna, The Doolan v. Midland By. Co. Dorothy Foster, The, Sowden Dorrett v. Meux Dosseitei, The Douglas V. Russell Dowell V. Gen. Steam Navig. Co. 310, 311 Dowthorpe, The, Lofty 51, 68, 153, 154, 706, 707 Doyle V. Dallas 162 Dracaohi v. Anglo-Egyptian Nav. Co. 604 Draco, The 58 Dree Gebroeders, The, Vandyk 557, 563 Dresser v. Norwood 12, 13 Drew V. Bird 498 V. Nunu 221 Drie Vrienden, The, Cassens 575 Droese & Co. v. Suart & Simpson 150 Druid, I'he, Newton 118, 260 Drummond's case 30 Duchess of Kent, The.Tsrewby 244, 245 Duckett V. Satterfield 545 Duero, The 409 Duke of Bedford, The, Morris 57, 702 Manchester, The 277, 617 Norfolk V. Worthy 14 ■ — ■ Sussex, The, Forss 278, 289, 290 Dumfries, The, Thompson 314, 318 Duncan u Benson 155, 156, 430, 439 {See Benson v. Duncan.) V. McCalmont 63 11. Tindall 40 Dundee, The, Holmes 17, 118, 124 Duustan v. Paterson 254 Dunvegan Castle, The, Howard 147 DurreU v. Bederley 194 Duthie V. Hilton 466, 470 E. U., The E. Z., The Ealing Grove, The, Falconer, 241, Eai-1 of Auckland, The Eglinton, The, Hutton Earl Grey, The (1 E. & Ad. 180) — — Topham Earle v. Harris V. Rowcroft Eastern Belle, The East Lothian, The Eastman v. Harry Ebenezer, The, Varwell Eden, The, Parsons Edmond, The 54, Edward, The, Bartlett — V. Trevellick Edward Oliver, The Edward Hawkins, The Edwards v. Brewer 590, 592, 594, V. Child V. HavUl Edwin V. The East India Co. The, Robertson Effort, The 613, Ekins V. The East India Co. Elden v. KeddeU 616 312 245, 246 274, 280 612 617 626 376 238, 269 26 312, 317 414 312 278 148, 508 567 242 703 287, 615 600, 603 224 142 443, 458 211, 253 614, 627 161 PAGE Eleonora Catharina, The, Kreagh 639 Charlotta, The, Osterman 226 Elephanta, The 61 EUzabeth, The (8 Jur. 365) 285, 611 (Dods. 408) 217, 263 Gull 229, 230, 235 Nowell 574 Eliza, The, Ireland 242 The, Weddell "63, 702 Eliza Anne, The 19 Eliza Cornish, The 32, 33, 64, 87, 158,164, 165, 166, 168, 169, 177 Ella, The Ellen V. Topp Ellens, The Two Ellershaw v. Magniao Elliott V. Von Glehn V. "Wilson Ellis V. Hunt V. Lafone V. Pearce V. Thompson V. Tiirner Elsebe, The, Maas Elsworth V. Woolmore Emancipation, The, Tucker Emanuel, The, Soderstrom Emerson v. Howland Empire of Peace, The Empress, The Enchantress, The Endraught, The, Bonkins Energy, The England v. Davidson Englishman, The Eolides, The, Malngram Erichsen v^ Barkworth Ericsson, The, Lowber Ernst Merck, The, Kruger Esk, The Esposito V. Bowden 109 365 110 402, 592, 596^ 601 363 425, 426 587, 699, 605 360 327, 332, 335 324 118, 136 18, 565 2U 56, 57, 69, 60, 149, 150 497, 666 230 54 39 617 566 288, 289 219 303 320 433, 449, 523 314, 316 561 296, 315 449, 477, 545, 555, 557, 558, 559 Eugene, The, Bourne 613, 614 European and Australian Mail Co. v. Royal Mail Steam Packet Co. 113 European and Australian Mail Co. v. P. & 0. Steam Navigation Co. 31, 45 Evangelissimos, The 634 Evangelistria, The 102 Evans 1). Edmonds 11 V. Forster 525 V. Hutton 541 V. Legg 365 V. Marlett 403 1). Morgan 220 ■ V. Williams 140 Evert, The, Everts 566 Everth i:. Hannani 268 Ewbank v. Nutting 158 Ewell Grove, The, Burton 619, 627 Exchange, The, Ledet 576 Exeter, The, Whitford 63 Expert, The 124 Fairlie v. Fenton 356 Faith V. East India Co. 347, 435, 612, 614 Faithful, The 56 TABLE OF CASES CITED. XXV PAGE Falcon, The, Atkins 21 Falk, Ex parte 594, 604 V. Fletcher 391, 893, 397, 607 Falkner v. Earle 393 Fanny and Elmira, The, Hicks 162, 164 Fanny M Carvill, The Farmer v. Davies V. Legs Farnworth v. Hyde Farrant v. Barnes Faulkner v. Ritchie Favourite, The, Lambert Fawcus V. Sarsfield Fawkes v. Lamhe Fearon v. Bowers Featherston v, Wilkinson Feise v. Wray Felix, The Fenix, The Fenn v. Harrison Fenton v. City of Dub. Stm. Pkt. Co. 350 303, 310 113, 139 200 162 446 268 612 407 355 433 585 594, 601, 603 432, 438 636 138 Fenvvick v. Boyd V. Schnialz 454, 477 523, 546 Feret v. Hill 13 Fergusson v. Fyil'e 104 Ferouia, The 181, 211, 212, 702, 703 Figlia Maggiore, The 352, 416 Fisher i>. Smith 195 Fitch ». Sutton 127 V. Weber 30 Flad Oyen, The, Martensen 20, 21 Fleet V. Murton 386 Fletcher v. Alexander 686, 687 — V. Bowsher 11, 12 V. Braddick 321 V. Gillespie 413 V. Inglis 538 V. Kylands 535 Flint V. Woodin 15 Florence, The 610, 611 Flower v. Young 111 Follett V. Delauy 28, 40 Forbes, Ld. u. Deniston 48 Ford V. Cotesworth 380, 444, 523, 545 Fortitude, The, Douglas 251 Fortuna, The, Koedt 493, 496 Ehode 570 • Verissimo 445, 563 Forward v. Pittard 115, 431, 535, 538 Foster v. Charles 11 V. Colby 393, 398, 434, 435, 512, 515, 516, 517, 525 V. Frampton 594, 595, 596, 599 v. Hale 39 Fowler v. Knoop 398, 522 V. Kymer 597 V. M'Taggart 597 Fox, The 570 Fragano v. Long 393, 413 Frances, The, Syme 102 Francesco v. Massey 358 Francis and Eliza, The 612 Franciska, The (1 Spinks, 111) 570 Franconia, The 118, 123, 304 Franklin v. Hosier 7, 113 Fraser v. Hopkins 111 V. Telegraph Construction Co. Frau Margaretha, The, Struer PAGE Frazer v. Hatton 213, 215, 216, 218 V. Marsh 112, 343 Freard v. Dawson 200 Frederick, The, Hearn 226, 230, 241 Tliurman 285, 611 Frederick Molke, The, Boysen 565, 569, 570, 577 Freedom, The 400 Freeman v. Baker 10, 11 V. Cooke 12 v. East India Co. 157 V. Taylor 366, 371, 373, 424, 543 French Guiana 18 French v. Backhouse 105, 185 V. Gerber 358 V. Newgass 366 Frick V. Miller 225 Friends, The, Bell 231 Creighton 494, 495 Friendship, The, CoUard 567 Froutine v. Frost 225, 243, 246, 247 Frost V. Knight 230, 546 V. Oliver 107, 110, 111, 145 Fry V. Chartered Bank ol' India, London, and China 498, 517 Fuller V. Abrahams 16 V. Wilson 13 Furley v. Bates 591 Furnell v. Thomas 523 Furtado v. Rodgers 545, 558 Fusilier, The 621 Gabarron v. Kreeft Gadd V. Houghton Galatea, The Gale V. Laurie Gallagher v. Piper Galloway v. Jackson Gardner v. Cazenove V. Lachlan 399, 401, 433, 592 355, 356 286, 611 17 260 353, 503, 530 S9, 42, 43, 504 353 V. McCutcheon 181, 386, 532 V. Salvador 162 V. Senhouse 426 Garnam v. Bennett 140 Garrard v. Cottrell 333 Garrett v. Handley 355 V. Melhuish 470 Gatliffe v. Bourne 438 Gazelle, The, Hurst 319 Geipel v. Smith 426, 476 General Iron Screw Collier Co. (Limited) V. Sohurmauns 121, 620 General Steam Navigation Co. v. British and Col. Navigation Co. 281 General Steam Navigation Co. i). Lond. & Edin. Shipping Co. 280 General Steam Navigation Co. v. Slipper 370, 449, 545 General Steam Navigation Co. v. Tonkin 318 General De Caen, The 282, 283 General Hamilton, The, Flinn 577 General Palmer, The, Thomas 285 Truscott 611 George, The (9 Jm. 670) 314 Banifer 247 _ . Roberts 283 567 I George Home,The, Young" 216,217,224,242 XXVI TABLE OF CASES ClTtD. Getlier v. Capper 362, 455, 458, 459, 460 Gibbon v. Mendez 486 Gibbons v. De Buisson 529 ■ V. Eule Gibbs V. Charletcn V. Gray V. Potter Gibson v. Bradford V. CaiTutliers V. Crick V. Gore ' V. lugo V. Sturge V. Small Gienar v. Meyer Gilbert v. Guiguon Gilby V. Copley Gilkisoni). Middleton 352, 414, 453, 510, 187 131 446, 603 121 336 587, 589, 590, 592 190 9 43, 89 462, 463, 464, 478 410 250 400 355 512, 515 325, 326 415, 446 333 159, 163 283 461 Gillan v. Simpkin Gillespy v. Thompson Gillett V. Nippon Gipsy, The Gipsy King, The, Campbell Giraldes v. Donison Girolamo, The, Guiranovich 118, 121, 277, 278, 282, 313, 318 Gladstone v. King 202 Glaholm v. Barker 129 — V. Hays 364, 371, 372, 373, 377, 541, 542, 543 Glascott V. Lang 63 Glasgow, The 163, 164, 165 Glasgow Packet, The, Kicoll 614, 617 Gledstanes v. Alien 614, 516 Glenduror, The 619 Glengaber, The 615 Glenmanna, The 57, 159 Glyn & Co. v. E. & "W. India Dk. Go. 437 Godfrey v. Furzo 399 Goede Hoop, The, Van Thuysen 563 GoSv. Clinkard 414 Goldimg, Davis & Co., Ex parte 604 Goldschmidt v. Whitraore 269 Golubchick, The, Bernardos 248, 250 Gondolier, The, Ehodes 220, 245 Good V. London Steamship Owners' Pro- tection Assoc. 640 Gordon v. Morley 421 Gore V. Gardner 54, 148 Gorham v. Sweeting 268 Gorsuch V. Cree 12 Gosfabrick, The 54, 110, 144 Gosling V. Higgins 541 Goss V. Quinton 7 V. Withers 23 Gould V. Oliver 445, 666, 667 Governor Raffles, The, King 611 Govier v. Hancock 221 Graham v. Barras 377 Grainger v. Martin 688 V. Dent 374 Grant v. Norway 13, 394 Gratitudine The, Mazzola 90, 150, 163, 154, 155, 156, 157, 427, 430, 439 Graves v. Sawoer 100 Gray v. Carr 357, 359, 435, 525 PAGE Grazebrook, In re 545, 580 Great Pacific, The 52, 59, 61 Great Eastern, The 112, 251 Great-Western Ey. Co. v. Eedmayne 308, ' 586 Greaves v. W. Ind. & Pacific Stm. Ship Co. 519 Green v. Bartlett ' ' 189 V. Baverstock 15 V. Briggs 96, 105, 106, 114, 131, 184, 185, 504 V. Eoyal Exchange Assnr. Co. 159 Greening, Ex parte 38 Gregory v. Christie 425 V. Piper 118 Gribble, Ex parte 186 Griggs V. Austin 326, 520 Grill V. Gen. Iron Screw Collier Co. 409, 638 474 558 401 184 455, 460 142 400, 401, 602, 604 Griswold v. New York Insurance Co. v. Waddington Groning v. Mendham Guion V. Trask Gumm V. Tyrie Gunn V. Eoberts Gurney v. Behrend Gustaf, The 8, 703 Gute Gesselschaft Michael, The, Kolzen- berg 566 Haabet, The, Vette Hackwood v. Lyall Haddow v. Parry Hadley v. Clarke 230, 444, 534, Hagedorn v. Bell Haule V. Smith Hall V. Brown V. Cazehove 11. Gray V. Janson V. Wright Hallett V. Wigram 372, 373, 385, 439, 440, Halley, The Halmerson v. Cole Halsey v. Albertuszen Haly V. Goodson Hamburg, The 66, 147, 165, Hamilton, The, Eodman Hammond v. Anderson V. Blake V. McCrie '■ V. Eogers 277; Hamond v. HoUiday Hankow, The Hannaford v. Himn Hansdn v. Meyer 434, V. Eoyden Happy Eeturn, The, Woolcock Harder v. Botherstone Hardgraft v. Hewith Hardy v. Grant V. Sproule Harley v. Milward Harma;n v. Anderson V. Clarke 416 111 395, 397 544, 654, 555 21 397, 603 360 377, 641 12 386, 676 534, 644 677, 681, 682, 683 279, 280 167 285, 611 100, 102 169, 177, 428 493 593 275 437 279, 282 188 281 206 613, 591 220 612 138, 145 280 221 107 666 699 449, 62.3 TABLE OF CASES CITED. XXVll Harman v. Gandolpli V. Mant PAGE 531 449, 523 321, 633, 702, 705 20 Harmer v. Bell Harmony, The Harratt v. Wise 572, 574 Harries v. Edmonds 419, 584 Harriot, The, Sontrice 616 Harris v. Carter 218, 220 V. Dreesman 444, 530 0. Owner's of Franoonia 304 • V. Searamanga 691 V. "Watson 218 Harrison, Ex parte 96, 107 V. Corporation of Southampton 220 , V. Garthorne 368 V. Jackson 35 o ■ V. Wright 388 Hart V. The Little John 231 Hartfort v. Jones 632 Hartley v. Pon&oiiby 219, 242 Hatsall V. Griffith 126 Havelock v. Geddes 369, 372, 383, 410, 454, 487 268, 416 • V. Hancill • V. Bockwood Hawkins v. Cooper Hay V. Le Neve Haycraft v. Creasy Hayraan v. Moiilton Hayu v. CuUiford Hayton v. Irwin Heai-t of Oak, The, Crawford Heathorn v. Darling Hehe, The, Cole Hampton 21 311 304, 310, 314 9 158, 166 394, 540 527 57 54, 55, 148 285, 611 55, 58 694 427, 638 638 110, 144 104, 107, 184 83 Heinekey v. Earle Heinrioh, The Helen, The, Marshall Helena Sophia, The Helme v. Smith Hemmings v. Smith Henderson v. Comptoir d'Escompte de Paris 400 Hcnrio and Maria, The, Baar 21, 22, 24 Heurick and Maria, The (1 C. Kob. 148) 572, 574 Henry v. Newcastle-npon-Tyne 274 Reed, The 707 Hern v. Nichols 12 Hemamau v. Bawden 235 Hero, The, Howard 54, 57, 60, 62, 147, 150 Hersey, The, Grimwood Herstelder, The, De Koe Herzogin Marie, The Hetherington v. Graham Hewison v. Guthrie Hewitt V. Sturdevant Heyman v. Parish Hibhert v. Carter V. Pigou Hibbs V. Ross Hibernia, The Hibernian, The Hickie v. Rodocanachi Hicks V. Palingtou 53, 147, 148, 249, 702 21, 560, 561 250 221 618 96 268, 420 397 421, 562 111 318, 681 279 105, 503, 508 670 Hicks V. Shield Higgins V. Senior Hilbery v. Hatton Hill, Ex parte V. Audus V, Idle V. John V. Kitching V. New River Co. V. Wilson Hills V. Sughrue Hillstrom v. Gibson Hillyard v. Mount Hinckley v. Walton Hipwell V. Knight Hirst V. Peirse Hoare v. Clement Hobart v. Drogau Hobbs V. Hannam Hochster v. De Latour 230, Hodgkin, Ex parte H odgkinson v. Eernie Hodgson V. Loy 587, Hoffnung, The, Rask Schmidt Hoghton, The, Brady Holderness v. Lainport V. Raiikin V. Shackels Holl V. Piusent HoUingworth v. Brodrick Hoist V. Pownal Holstein, The, Jobs Hoop, The, Cornells (5 C. Kob. 75) Hooper v. Gumm V. Lusby V. Perly Hope, The, Hepburn Horacastle Jones Norman Hopper V. Burness Horlock, The Horn V. Bensusan V. Gilpin Horncastle v. Earran Homeyer v. LushingJ:on Horsley v. Rush Hoskins v. Pickersgill V. Slayton Hossack V. Gray Hotham v. East India Co. Hough V. Mauzanos Houghton, Ex parte Hovill V. Stephenson How V. Kirchner 435, 453, Howard v. Castle V. Hudson V. Shepherd — V. Tucker Howland v. Ship Lavinia Hoyt V. Wildfire Hubbersty v. Ward Huoks V. Thornton Hudson V. Bilton . — V. Ede 381, 386, PAGE 519, 520, 521 355, 356 12, 13 504 129 523 622, 523 192, 193 314 691 444, .445, 544 380, 526 224, 239, 240 424 372 104 68 610 268, 349 450, 546, 558 42, 75 321 590, 597, 603 493, 678 570 224 37, 81, 82 3 105, 107, 114 192 276, 427 596, 696 496, 497, 661 545, 555, 656 493 13, 32 105 231 314 633 567 632 440 26, 37, 41 522 101 518 194 353 17 139 274 469 365 38, 40 415' 466, 509, 521 15 12 397, 438 394 326 230 394 269 376 420, 444, 523 546 XXVUl TABLE OF CASES CITED. Hudson V. Guestier V. Stewart Hughes V. Morris Hull of a Few Ship, The Hull V. Franklin Insurance Co. Hulle V. Heightman Humble v. Hunter Hunifrey v. Dale 384, Hunlocke v. Blacklowe Hunter i;. Fry 367, V. Parker 163, V. Potts V. Prinsep 158, 354, 475, V. "Wright Huntley, The Huntress, The, Stinson Hui-st V. Usborne Hurtige Hane, The, Dahl Hurtin v. Union Insurance Co. Hussey v. Christie 63, 68, 139, Hutchinson v. Coombs V. Guion V. Tatham V. Wright V. York, Newcastle, wick Eailway Co. Hutton V. Bragg 342, 344, Hyde v. Trent Navigation Co. PAGE 22 31 40 58 157 230, 250 356 385, 386 363 445, 453 201, 353 431 430, 465, 482, 492 126, 127 57 639 366 573, 574 482 144, 210 230 415 355, 386 504 and Ber- 269 347, 512 115, 431, 438 Ida, The 54, 58, 118, 149 Idle V. Eoy. Exch. Assur. Co. 162 Imina Bauman, The, Vroom 565, 567 Immanuel, The, Eysenberg 565 Imperial Ottoman Bank v. Cowan 370 India, The 109, 615 Indian Chief, The, Skynner 556 Industrie, The 318 Industry, The, Davis 611 Ingham v. Agnew 424 Inglis V. Buttery 2 V. Usherwood 603 Innisfail, The 312 Innisfallen, The 39, 42, 51 lona, 'J he 282 Ireland v. Livingstone 370 Iron Duke, The 313 Irving V. Clegg 447 Isabella Brand, The 214 Isabella Jaoobina, The, Sovergren 496, 554 Isabella, The, Monro 611 Itinerant, The, Russell 312, 313 J. C. re Jackson ii. Isaacson V. Nichol V. Sims V. Union Marine - V. Vernon Jaggers v. Benning James Armstrong, The James Cook, The, Jougain James, The V. East India Co. V. GrifBn 211 498, 519 595, 597, 605 233 Insurance Co. 371, 543 43, 112 107 621 574, 576 318 367 594, 596; 603 PAGE James v. Jones 344 V. London and S. "W. Eailway Co. 129 Jamieson v. Laurie 523 Jan Frederick, The, Bloedorne 561 Jan Hendrick, The ' 561, 616 Jane, The, Birkley 55, 59, 60, 144, 150 - - 613, 625 Hudson . (Ir. Ad.) Jane Bacon, The Janet Wilson, The, Skinner Jeanne Marie, The Jecker v. Montgomery Jeffrey v. Legendra Jenkins v. Heycock V. Hutchinson V. Power Jenkyns v. Brown V. Usborne 39, 42 286, 288 703 570 18, 23 422, 562 276 359 195 401, 592 590, 601, 602, 604, 605 703 224 396 525 Jenny Lind, The Jesse V. Roy Jessel V. Bath Jesson V. Solly Jeudwine v. Slade 9 Job V. Langton 676, 677, 680, 681, 682 Johann Christoph, The, Bohss 561 Johannes, The 620, 622 John, The, Hay 62 John Dunn, The, Place 124 John & Thomas, The, Baxter 226 Johns V. Simons 142 Johnson v. Black 110 — V. Broderick 230 V. Chapman 667, 671 ■ - V. Greaves 445 V. Machielsne 250 V. Royal Mail Steam Packet Co. 43, 112 V. Shippen 58, 60 Johnston v. Benson 539 Jolly V. Young 385, 455 Jonathan, The, Goodhue 702, 703 Jones V. Adamson V, Brooke V. Holm • V. Hough V. Jones V. Just V. Littledale V. Nicholson Jonge, The, Lambert Jonge Andries, The, Steffens 523 333 370, 445, 449, 545 391, 392 594 11 356 268, 269 639 285, 611, 616 617 416 - Bastiaan, The ■ Jan, The, Schnil Margaretha, The, Klausen 497, 566 ■ Petronella, The, Kens 572 Pieter, Tlie, Musterdt 556, 564, 576 565, 566 157 611 207, 242, 258, 329 564 11 67 57 Tobias, The, HUken Joseph V. Knox Joseph Harvey, The, Paddock Josephine, The (Swab. Ad. 152) Fish Josling V. Kingsford Jourdain v. Miville Joy V. Kent TABLE OF CASES CITED. XXlX PAGE Joyce V. Williamson 61 Jubilee, The 629 Jufli'ouw Louisa Margavetha, The 556 Juffrow Maria Sohroeder, The, Greenwold 570 577 Julia, The (Lush. Ad. 224, 233) 277^ 283 286, 289, 290 576 223, 249 250 280 497, 575 241 315 59, 68, 113 Juliana, The, Ogilvie Julina, The Juno, The Beard Jupiter, The, Croshie Henok Justin V. Ballam Kain v. Old Karnak, The Katharina, The Kathleen, The Kay V. Wheeler Keane v. The Gloucester Kearon v. Pearson Kearslake v. Morgan Keates v. Earl of Cadogan Keay v. Fenwick Keith V. Burrows Kell V. Ajiderson Kemp V. Clark V. Halliday Kempton v. Cross Kendall v. L. & S. W. Railway Co. 13 55, 56, 147, 149, 150, 154, 155 581 476 431, 540 229 444 518 12 107, 114, 127 48, 515, 517 526 354, 397, 499, 525 679 432, 470 355 57, 59, 167, 168 507 435, 437 517 254 36 105, 106, 504 401, 403, 604 Kennedy v. Gouveia Kennersley Castle, The Ker V. Osborne Kerford v. Mondel Kern v. Deslandes Kerr v. Haynes Kershaw v. Cox Kerswell v. Bishop Key V. Cotesworth Kidston v. Empire Insurance Co. 428, 431, 656, 660 Kiell, re 604 Kierlighett, The, Spoerewig 21 Killarney, The 274, 278 King V. Franklin 204, 330 V. Lowry 107 Kingalock, The 616 Kinter's case 17, 35, 414 Kirchner v. Venus 435, 453, 466, 510, 512, 513, 521 Kirk V. Gihbs 445 Kish V. Cory 358 Kitchen I). Irvine 43, 49, 113 Kleinwort v. Cassa Marittima of Genoa 56 Knight V. Cambridge 269 v. Faith 162 V. Hughes 333 Kopitoflf 4!. Wilson 368,407 Kreuger v. Blanck 370 La Bonne Amitie 19 La Mignone 19 La Purissima Conoepcion 21, 565 PAGE La Ysabel, Bozzo 58, 151 Lackington v. Atherton 591, 599 Lacon v: Litfen 41, 42 Ladbroke v. Crickett 56 Lady Campbell, The, Beetham 245 Lady Durham, The, Stuart 249 Lady James v. East India Co. 445, 454 Lady Worsley, The 617, 618 Laiiller v. Burlinson 2, 3 Laing v. Glover 424 V. HoUoway 526 Laird v. Pim 558 Lake v. Butler 254 Lamb v. Burnett 206 —V. Durant 96 Lambert v. Liddiard 426 Lang 1). Anderdon 327 Langfort v. Tiler 2 Langton v. Horton 17 Lano V. Neale 17, 35 Latouche v. Ld. Dunsaney 47, 48 Laugher v. Pointer 279 Laveroni v. Drury 406, 431, 540 Lavinia, The, v. Barclay 58 Law V. HoUingsworth 201, 274, 276, 278 Lawrence v. Sydebotham 426 L'Esperance 628 Le Conteur v. Loud. & S. W. Railway Co. 124 Le Cras v. Hughes 20 Le Grand Terrein 19 Le Jonet 610 Le Louis, Forest 19, 564 Le Neve v. Le Neve 48 Leary v. Lloyd 94 Leask v. Scott 605 Leatham v. Terry 507 Lebanon, The 558 Lebeau v. General Steam Navig. Co. 395 Leda, The 620, 635 Leeds v. Wright 594 Leer v. Yates 526, 531, 532 Legatus, The, Beazley 320 Leidemann v. Schultz 385, 444, 531 Leland v. The Ship Medora 61 Leman v. Gordon 326 Lempriere v. Pasley 38 Lemuella, The 211 Lennard v. Robinson 355 Lenox v. United Ins. Co. 668, 672 Lethulier's case 384, 387, 421 Leuw V. Dudgeon 409 Levy V. Costerton 419 Lewin v. East India Co. 443 Lewis V. McKee 500 V. Marshall 387, 448 V. The East India Co. 114, 185 Leycester v. Logan 129 Lichfield Union v. Greene 603 Lickbarrow v. Mason 391, 397, 399, 587, 604 Liddard v. Lopes 476, 530 Liebart v. The Emperor 58 Ligo, The, Ligo 314, 318 Lilly V. Ewer 422, 562 Lima, The, Fewson 205, 244, 245 Limerick, The 144, 211, 212 Limland v. Stephens 230, 242 XXX TABLE 03? CASES CITED. PAGE Limpus V. Lond. Gen. Omnibus Co. 118, ', , TOO Linda Flor, The 249, 704, 707 The, Melcher 316, 320 Lindo V. Eodney S48 Lindsay v. Gibbs 105, 106, 114, 185, 608 Lion, The 282 Lisette, The, Steg 576, 578 Lister v. Van Hansbergen 359 Litt V. Cowley 605, 606 Lively, The, Chickley 613 Liver Alkali Co. ■;;. Johnson 115, 116 Liverpool Borough Bank i). Turner 40 ■ Marine Credit Co. v. Wilson 41, 48, 106, 507 Lizzie, The 56, 147 Lloyd V. Gen. Iron Screw GoUier Co. 409, 538 1>. Guibert 64, 170, 176, 179, 180 Lochiel, The, Miles 54, 148, 149, 150 Loohlibo, The, Boyd 277, 283 Lockhart v. Falk 369 Lookwoods, The 618 Lockyer v. Offley 416 Lohre v. Aitchison 639, 644, 666 London Merchant, The, Laker 626, 627 — & S. W. Railway Co. v. James 124, 129, 340 Londondeny, The 314 Lord Cochrane, The, Smith 156 Lord Forbes v. Denistori 48 Lord Gosford v. Robb 353 Lord Melville, The 304 Lothian v. Enderson 366 Louisa, The, Higginbotham 492, 612, 639 Lowther Castle, The, Baker 206, 256 Luard i). Butcher 519 Lucas V. Dofrien 591, 599 V. Nockells , 434, 512, 518 Lucena v. Craufnrd 20 Luckie v. Forsyth 104 Luke V. Lvde 428, 468, 473, 479, 483, 488, 494, 495, 503 Luscomb V. Prince 230 Lustre, The, Finlay . 612, 639 Lutwidge v. Grey 428, 469, 477, 479 Luxford V. Large 311 Lyon V. Mells 368, 390, 406, 408, 409, 410 Lysney v. Selby 10, 13 Lyster v. Payne 42 Maanss v. Henderson 197 M'Andrew v. Adams 370, 371, 424, 541, 543 MacAndrew i>. Chappie 371, 543 Macbeath v. Haldemand 360 M'Calmonti). Rankin 28,40 M'Carthy u Abel 607 M'Connell v. Murphy 445 M' Donald v. Joplmg 243 M'Ewan 1). Smith 605 Macfarlane v.. Giaunocopulo 196 Macintosh v. Mitcheson 144 Mcintosh V. Sinclair 526 M'Gaw V. Ocean Ins. Co. 475 Machell, Ex parte 100 M'Intosh V. Slade Mackenzie v. Pooley V. Rowe JAGK 276 110 344 Macklin v. Waterhouse 115 Mackrell v. Simond 483 M'Kune v. Joynson 222 McLaren, re 593, 595 McLean v. Fleming 393, 394, 435, 512, 513 McIjcUan v. Gumm 13 M'Manus v. Crickett 118, 260 V. Lane, and Yorksh. Rail. Co. 409 M'Taggartu Kymer 592 Madison, The, Frost 567, 568 Madonna D'Idra, The, Paphagica 249, 258, 702 Magalhaens v. Busher 421, 562 Magee v. Atkinson 366 Maid of Auckland, The 308 Major V. White 416, 416 Mallard v. Duke of Argyll 518 Mallough V. Barber 195 Malta, The, Young 237, 246 Malton V. Nesbit 338 Manby v. Scott 221 Manch, The 617 Manfield v. Maitland 519, 520, 521 Mangertoii, The (1 Swab. Ad. 123) 315 Mann v. Forrester 197 Manning v. Gist 422 Marcardier v. Chesapeake Ins. Co. 269 March v. Pedder 114 Margaret, The, Heard 563, 566 Nunn 248, 249 Tomison 100 Margaret Mitchell, The 148, 157, 168, 163, 164, 165, 166, 201, 202 Margaretha Magdalena, The, Predborn 565, 566 Maria, The, Kilstrom 614 Mouses 576 Paulsen 564, 565, 567 Witt 277, 282, 283 (1 W. Rob. Ad. 96, 106) 279, 280 Maria Luisa, The 635 Maria Magdalena, The 20, 667 Marianna, The, Posadilla 564 Marquaud v. Banner 349, 509 Marquis of Huntly, The, Molisson 623 Marriott v. Anchor Reversionary Co. 45, 113 Marsden v. Reid 426 Marsh v. Pedder 518 Marshall, Ex parte 333 V. De La Torre 386, 529 V. Montgomery 231 V. Wilson 60 Martha, The, Martin 493 Martineau v. Kitching 59i Mary, The 290 Mary and Susan, The 557 Mary Ann (10 Jur. 255) 5.6 Mary Ann, The, Ferrier 612 (L. R. 1 Ad. 8) 211, 703 (9 Jur. 95) 249, 702, 703, 706 TABLE 01" CASES CITED. XXXI PAGE llal^y Hounsell, The 303, 810 Mashiter v. BuUor 466, 475, 477, 521 Mason V. Le Blaireau 610 Massachusetts, The, Pritohard 277, 283, 314 Master v. Miller 36 Master of Trinity House i\ Clark 346 319, Matchless, The Matthews v. Gibbs V. Lowther Maxima, The Maydew v. Forrester Meadows v. Tanner Medeiros v. Hill Medina, The Meggie, The Meg Merrilies, The Meibuhr v. Prichard Meiklereid v. West Mellish V. Motteux Mellona, The, Beale ilellors v. Shaw Melomane, The Melville v. De Wolf Menetone v. Gibbons Mentor, The, Williams Mercantile and Exchange Bank stone 394, 435, 460, 515, 517 Merchant Shipping Co. v. Arinitage" 467 Mei-curius, Tlie, Gerdes 569, 571, 572, 577 • Meinoke 497, 566 Mestaer v. Atkins 188 Metcalfe v. Britannia Ironworks Co. 381, 433, 465, 476, 538 Meteor, The 282 Meyer v. Dresser 396, 467, 541 Meyerstein v. Barber 397, 404, 405, 433, 436, 437 Michael v. Fripp Mierbrodt v. Fitzsimmon Miles V. Dawson V. Gorton Milford, The Miller v. Brant ~ V. Titherington — V. Woodfall 319 428, 502 419 43 193, 194 16 .^)74, 580 616 100 626, 633 192 221 14 320 260 18 231 152 0, 574 Glad- Mills V. Ball Milvain v. Perez Milward v. Hibbei't Minerva, The, Bell 29, 91 437 4, 25 591 250, 251 246 656, 667 105, 460, 475, 507 594, 596, 603 357, 358 666, 669 215, 216, 217, 223, 242 196 286, «87, 617 Miuett V. Forrester Minnehaha, The Mirabita v. Imperial Ottoman Bk. 619 Miranda, The 615 Mitchel V. Me 403, 604 Mitchell V. Darthez 460, 466, 478, 481 V. Foe V. The Orozimbo V. Scaife Mitcheson v. Nicol V. Oliver 9( Moakes v. Nicolson Mobile, The, Ponsonby Moffat V. East India Co, 229 229 515 445, 460 !, 107, 110, 112, 113, 142, 342 591 226, 282 326, 468 PAGE Moir V. Ro5-al Exch. Assur. Co. 377 MoUer v. Living 462 V. Young 434, 499, 613 Molly, The 19, 33 Molton V. Camroux 9 Moneypenny v. Hartland 188 Moore v. Harris 540 Moores v. Hopper 354, 399 Moorsora v. Bell 522 r. Greaves 455 ■ V. Kymer 498, 499 ■ V. Page 447 Moran v. Jones 680 Morewood v. Pollok 121 Morison v. Gray 399 Morris v. Levison 370, 445, 453 V. Martin 221 V. Robinson 158, 166 ilorrison u. Gen. Steam N"avig. Co. 310, 318 ^. T*^,,^^„^ Aty TAK ,354 504, 508 20 ' t'. I . Vanzeller Sanderson v. Busher V. Symonds 349, 414 276 150 352, 416 565 209 556 57 154, 611, 615, 616, 619, 623, 702 425 567 269 157 425 149 427, 538 350, 352, 416 354, 397, 498, 499, 525 390, 421, 562 36 125 Sands v. Child Sanguinetti v. Pacific Stm. Navig.. Sansom v. Rhodes Santa Anna, The, Larrina Cruz, The, Picoa Co. 358 324 560 24 616 Santipore, The Santissitoa Coragao de Maria, The, Carneiro 563, 566 Santos V. Brice 363 Saracen, The 701 Sarah, The - 619 Sarah Christina, The, Gorgenaen 416, 565, 566, 567 Sarah and Bernhardus, The 20, 566 Sarah Jane, The ■^. 613, 617 Saratoga, The " 287, 611 Sargent v. Morris 355, 403 Sarguy v. Hobson 156, 683 Sarpedon, The 621 Saunders, D., in the goods of 266 V. Drew 519 Saunderson v. Jackson ■ 11 Savage u Foster 13 Saville v. Campion 347 Scaife v. Tobin 434, 692 Scaramanga v. Stamp 426 TABLK 01' CASES CITED. XXXV Sceptre, The Schack V. Anthony Schilizzi v. Deny Schloss V. Heriot Schmaltz v. Avery PAGE 381, 433, 476, 588 368, 390 356 Schmidt v. Roy. Mail Stm. Ship Co. 685 Schneider u Hnath 12, 14 Scholeiield r. Eichelberger 558 Schoone Sophie, The 19 Schotsmans •!'. Lane. & York. Ky. Co. 592 Schuster v. Fletcher 680 V. McKellar 348, 393, 400, 593 Scott V. Irving 196 V. Libby 581 V. Miller 181 u. Pettit 594 V. The Greenwich -233 Scout, The 615 Scrutton v. Cliilds 335, 444 Scudamore p. Vandenstene 355 Soull «. Briddle 163 Sea JSTymph, The 318 Searle ■!■. Scovell 157 Sedgeworth v. Overend 125 Seeger v. Duthie Segredo, The. Seller v. Work Seliiia, The Seringapatam, The Servants v. James Sevin v. Deslandes Seymour v. Greenwood Shadforth v. Cory ■ V. Higgin Shakerley v. Pedrick Shallcross v. Oldhara Shand v. Sanderson 398, Shank, Ex parte Shannon, The, Higginsoii Sharp V. Gibbs V. Gladstone Sharpley v. Hnrrell Shee p. Clarkson Shepard v. De Bernales Shepeler v. Durant Shepherd v. Harrison V. Kain ' V. Kottgen V. Pybus V. Wright Shepherdess, The, Miller Shepley i). Davis Sheridan v. New Quay Co. Sherwood v. Mcintosh Shield V. Wilkins V. Davis Ship Carpenter, The, Meyer Shipton D. Thornton Shore v. Wilson Short V. Simpson - V. Spademan 363, 364, 521, 528, 541, 547 {See Eliza Cornish, The. ) Shubrick v. Salniond Sickens v. Irving Sieveking v. Maas SiiTken v. Wray Sigard v. Roberts 193, 194 702 316 97, 104 366 118 525 374, 542 228 181 435, 516, 517, 525 113 312, 318 374, 376 105, 507, 682 57 195, 196, 197 498, 499 558 401 10, 14 671 11 692 574, 578 591 401, 433 229 379 468 566, 567 428, 430, 502, 503 387 400 355 374 138, 360, 449, 477 427 594, 602 230, 241 Sills v. Brown Silver Bullion, The Simmonds v. Hodgson Simmons v. Swift Simonds v. White PAGE 311 617 59, 60 593 691, 692 Simpson v. Dunoannon's Creditors 6 Sims V. Bond 126 V. Brittain 126, 186 Sinclair v. Bowles 8 Siordet v. Brodie V. Hall 329 535 639 25, 31, Sir Francis Burton, The, Hare Sisters, The (5 C. Rob. Ad. 155) 32, 33, 87, 563 (1 Prob. Div. 117) 314 Sjoerds v. Luscombe 544, 583 Skiblander, The 619 Skinner v. London and Brighton Ry. Co. 338 Slanes v. Parker Sleigh V. Sleigh Slubey v. Hayward Small V. Moates Smidt V. Tiden Smith V. Boutoher — — V. Brookline, The V. Clarke — V. De Silva V. Fen-and V. Fuge V. Goss -v. Gould 54, 60, V. Hughes V. Kirby V. Lay V. Matthews V. McGuiie 225 286 593 342, 509, 512, 514, 516, 601 ('. Mounsey V. Nugent V. Pickering V. Plummer V. Readshaw V. Shepheid V. Sieveking — V. Watts V. Wilson V. Wright Smout V. Ilbery Smurthwaite v. Wilkins Snee v. Prescott Snell V. Marryatt Soames v. Lonergan r. Sugi'ue Soares v. Rahn v. Thornton Soblomstein, The Softly, Ex parte Soglasie, The Fischer Soldergreen v. Flight Somerset, The Somes V. British Empire Shipping Co. 8, 163 Soome V. Gleen 57 Sophia Cook, The 57 Sophie, The, Gustavus 142, 144 Sorensen v. The Queen 560, 561, 599 c 2 354 187 242 15 107 114 111 595, 605 ), 62, 148, 149, 150 12 122 182 39 111, 360, 419, 450, 530, 583, 584 321 537 38 210 422 535, 538 498, 615, 525 10 477, 486, 542 668 221 400, 600 587 390 375, 419, 542 163 53, 54, 55, 148 265, 269 478 42 561 434, 513 20 XXXVl TABLE OF CASES CITED. PAGE Southampton, Ld. v. Brown 355 Steam Colliery Co. -o. Clarke 455, 545 Spaight V. Farnworth 466 Spalding v. Ending 605 Spanish and Portuguese Screw Steam Ship Co. V. Bell 5 Sparkes v. Martindale 333 Sparkler, The, Brown 638 Sparrow v. Paris 374 Speering r. Degi'ave 139 Spence v. Chodwick 540 Spes, The, Cornells 574 Spirit of the Ocean, The 36, 37, 51, 123 Spitta V. Woodman 194 Splidt V. Bowles 43, 354, 504 Staadt Embden, The, Jacobs 21, 416, 560, 565, 566 Stainbank v. Penning • V. Shephard 52, 56, 60, 149 52, 56, 57, 60, 149, 150 268, 269 154 419, 477, 583, 584, 585 125 280 369, 407, 410, 411, 418, 449 Stapleton v. Haymen 31, 37, 39, 41 Star of India, The 319 Stavers v. Curling 363 Steamboat Waverley v. Clements 67, 69 Steel V. Lester 118, 349 Stamma v. Brown Standard, The Staniforth v. Lyall Stanley v. Ayles Stanton v. Banks V. Eichardson V. Schomberg v. State Line Steamship Co. Steene Bille, The Stephens v. Price Stert, The, Johnson Stettin, The Steuart v. "Wilkins Stevenson v. York Stewart v. Aberdein V. Eddowes 337 368 570 543 576 281 10 522, 530 196 31 •i;. Greenock Ins. Co. 105, 507 V. Eogerson 372, 378, 444, 546, 583 V. West India and Pacific Steam- 6 218 354, 524, 525 20 169 605 142 355, 477, 542, 543 210 362 531 634 333 100, 101 3, 25 114, 186, 518, 603 214 523 370 282, 283 ship Co. Still V. Myrick Stindt V. Eoberts Stirling v. Vaughan Stokes V. Carne V. La Eiviere Stoneliouse v. Gent Storer v. Gordon Storey, Ex parte Stowe V. Quemer Straker v. Kidd Strathnaver, The Stratton v. Mathews Strelly v. Winson Stringer v. Murray Strong V. Hart Strother v. Barr Struck V. Tenant Strugnell v. Friedriohsen Stuart V. Isemoiiger Stucley V. Baily Success, The, Smith Sullivan v. Morgan Sully V. Duranty . ■ 1). Frean Susan, The (6 C. Eob. 461) The, Hamilton Sutton V. Mitchell Swainston v. Garrick V. Clay Swan, The, Bring Swanwick v. Sothem Sweet V. Pym . Sweeting v. Daithez V. Pearce Sydney Cove, The, Fudge 53, Syeds v. Hay Sj'lph, The Syria, The Tamvaco v. Simpson Tanner v. Heard V. Phillips V. Scovell PAGE 35 563 230 384 325 567, 568 245 120 415 3 616, 618 592 590 461, 630 196 63, 248, 249, 702 438 314, 317 315 518 49 106, 504 593, 594 114, 499, 518, 519 526 Tapley v. Martens Tapscott V. Balfour Tarrabochia v. Hickie 363, 364, 366, 368, 371, 372, 541, 543 Tartar, The, Tharp 59, 60, 62, 150 Tate V. Meek 342, 347, 509, 513, 514, 516 Taylor v. Ashton 13 V. Blair 253 V. Briggs 385 V. Bullen 11, 14 ■ V. Clay 444, 530 V. Crowland Gas Co. 254 V. Curtis 659, 681 V. Liverpool and Great Western Steam Co. 540 Teed v. Baring 126 Telegraph, The 310, 317, 318 Temperley v. Brown 522 Test, The, Brown 242, 245, 246 Teutonia, The 381, 426, 427, 476, 537, 542, 546 Thacker v. Moates 143, 144 Thames Iron Works & Shipbuilding Co. v. Patent Derrick Co. 6, 7, 8 Tharsis Sulphur, &c., Co. v. CuUiford 352 Thellusson v. Fergusson 376 Thetis, The 18, 118, 608, 613, 619, 625 633 Thiis V. Byers 523 Thomas Blyth, The 619 Thomas v. Clarke 445, 447, 456, 457 V. Lewis 182 Thompson v. Beale 554 V. Brown 360 V. Dominy 397 V. Fiuden H3, 114, 131, 185 — V. From 318 ■ V. Gillespey 369, 376, 407 • V. Havelock 181, 532 V. North Eastern Eailway Co. 278 V. Eowcroft 105, 230, 507, 554 TABLE OF CASES CITED. XXXVll PAGE Thompson v. Eoyal Exchange Assurance Co. 61 ■». Small 434,511,812 V. Traill 393 Thomson v. Davenport Thorn v. Bigland Thomely, The Thomett v. Haines Thorogood v. Bryan Thrift V. Youle Tibbald V. Hood Ticonderoga, The Tigress, The Tilley V. Thomas Tindal v. Bell Tindall v. Taylor 356 11 312, 318 15 Tirzah, The Tobin V. Crawford Toivo, The Topaz, The, NicoU Topham v. Braddick Toulmin v. Anderson V. Inglis 540 112 290 433 272 320, 333 383, 388, 394, 449, 477, 483, 511, 512, 582 303, 310 499, 500 54 565 185, 203 269 269 542, 554, 583 591 414 245, 246 278 626 612 160 567 8 Touteng v. Hubbard Townley v. Crump Towse V. Henderson Train v. Bennett Transit, The Traveller, The, McClear Trelawney, The, Lake Tremenhere v. Tresilian Trende Sostre, The, Misaen Trent and Humber Co., In re Trent and Mersey Navigation Co. v. "Wood 432, 535, 538 Trewhella v. Eowe 112, 169 Trickey v. Lame 325 IMdent, The (1 Ecc. & Ad. 217) 314 Simson 54, 58, 148, 151, 706 Triheten, The, "Wallen 570 Tripp V. Armitage 3 Tronfion v. Dent 156, 157, 158, 431 Troubadour, The . 112 True Blue, The, Eoberts 616 Trustees of Liverpool Borough Bank v. Turner 40 Tucker v. Humphrey 594, 601 Tuff V. Wannan TuUy V. Howling V. Terry 310, 318, 338 375, 543 465 Turner v. Trustees of Liverpool Docks 403, 592, 597, 601 Turpin v. Bilton 193, 194 Tutela, The, Eeintrock 572, 578 Twee Gesuster, The 19 Twee JuflFrowen, The, Etjes 566 Twining v. Morrice 16 Two Ellens, The 46, 51, 68, 135 Two Friends, The 610, 611, 614, 630 Two Sisters, The, Davison 241, 247 Udell V. Atherton 12 Ulster, The 314 Undaunted, The 616 Underwood V. Ld. Court own 46, 48 Uniao Vencedora, The 159, 163 Union Bank v. Lenanton 32, 75, 87 I PAGE Union The (Lush. Ad. 138) 702 (1 Spinks, 164) 570 United States v. Bags of Co£fee 72 II. Guillen I 557 Unwin v. Wolesley 360 Urania, The, Walker 638 Usher v. Lyon 275 Valente v. Gibbs 530, 547 Valieri v. Boyland 396 Vallance v. Dewar 425 Vallejo V. "Wheeler 268 269, 344 Van Baggen v. Baines 378 Van Casteel v. Booker 398, 592 Van Omeron v. Dowiok 157 Vauderplank v. Miller 311 Vanner v. Frost 104 Venus, The 557 Verdon v. Wihnot 423, 562 Vernon, The, Gimblett 282 Vertue v. Jewell 603, 605 Vianna, The 314 Vibilia, The, Richardson 54, 55, 67, 108, 144, 148, 149, 150 Vicars v. Wilcocks Victor The Victoria, The (Edw. Ad. 97) Mallaburn 320 163 20, 21, 22 317, 318 423, 562 563 574 214 613, 615 313 55 312 310, 317 155, 157, 430, Victorin v. Cleeve Vigilantia, The, Gerritz Eeynaert Vincent v. Cole Vine, The, Jay Virgil, The, Wilson Virgin, The Virgo, The Vivid;, The Vlierbooni v. Chapman 466, 478, 482, 492, 496 Volant, The, Merchant 68, 124, 321 Vrede, The 611 Vrouw Henrietta, The 493 Vrouw Judith, The, Volkerts 569, 574 Vrow Anna Catharina, The, Mahts 493, 557, 563 Vrow Elizabeth, The, Probst 563 Vrow Johanna, The, Okhen 571, 574, 578 Vrow Margaretha, The, Crigsman 560, 561 Vrowmina, The, Behrends 250 W. F. Saflford,.The Wagstail V. Anderson Wahlberg v. Young Wait V. Baker Waite V. North Eastern Wake V. Harrop V. Hillary Wakefield, The Walker v. Jackson V. Kirchner Wall's case Wallace v. Breeds V. Fielden 53 — V. Hardacre — ■<). Telfair Walley v. Montgomery Walshe 1'. Provan 701, 702 158, 349, 352 304 399, 402, 592, 604 Eailway Co. 338 359 21 167 395 518 30 591 , 56, 58, 142, 147, 148, 150, 151, 201 38 194 401, 592 603, 605 106, 503 XXXVIU TABLE OP CASES CITED. AValthew v. Mavrojani "Walton V. Fothergill V. The ITeptiine PAGE 680 182 233 Vansteafl, The, Morton 638 War Onskan, The, Biedumpel 639 Ward V. Ames 230 V. Beck 39, 41, 42, 504 V. Felton 499 Warden v. Mourillyan Wardrop-Sims, The, Jones Waring v. Oox Warren v. Peabody Warrior, The (Liish. 376) 'Wataga, The Waterhen, The Waterloo, The, Birch Watkins v. Maule Watson V. Christie V. Duykinck V. Shankland -i). Swann V. The Eose Watt,- The Watts, Ex parte Waugh V. Morris Waverley, The Way V. Milestone Wear Packet, The Webb V. Brooke V. Thompson Webster v. De Tastet ■ V. Seekamp 438 304 399 448, 458, 459 610 109, 145 101 609, 615 38 204, 206 326, 520 519 355 231 613, 629 476, 488, 542 616 103 618 155 422, 562 211 110, 115, 142 'Wegener v. Smith 397, 524, 525 Weguelin v. Cellier 460, 500, 515 Wells V. Osman 237 Welvaart Van Pillau, The, Bolter 571, 572, 577 Wentworth v. Outhwaite 590, 593, 594, 595 Werldsborgaren, The, Lagerholm 496, 554 West V. Turner 253 Westerdell v. Dale 68 Western v. Wildy 59, 61 V. Wright 115 Westminster, The 632 Westmoreland, The, Brigstock 216, 240, 241, 242 Westwood V. Bell Westzinthus, In re Wheeler v. Bavidge V. Collier Wheelton v. Hardisty White V. Lady Lincoln V. Parkin V. Wilson White Star, The Whitehead v. Anderson 197 397, 605 541, 543 15 363 203 387 214 287 592, 595, 596, 600, 605, 606 Whitfield v. Parfitt 42 Whitney v. New York Firemen Insurance Co. 475 Whitwell V. Perrin 114, 185, 186 Whitworth, re 593,594 Wiggett V. Fox 260 Wiggins 1). Ingleton 235,286 V. Johnston 459 Wight, The, Forde 562 Wilcocks V. Union Insurance Co. 269 PAOE 13 492, 678 497 89 r-.-.., 51 ' .w '.'i/>i 4 68, 210 .■,..072 •194 188, 189', 192 56, 58, 147, 202 Wilks V. Backe 353 William Beckford, The, Muirhead 619 William (Lush. Ad. 199), The 211, 226 William Money, The 248 Williams v. African Steam Ship Co. 121 V. Allsup 8, 45, 112 Wilde V. Gibson Wilelmina Eleanora, The, Mohr Wilelmina, The, Carlson Wiley V. Crawford Wilkes V. Sannion Wilkins v. Bromhead V. Carmichael V. Despard Wilkinson v. Coverdale V. Martin — v. Wilson - V. Brig Hope ■ V, East India Co. - V. London Assurance Co, • V. Shee - v.- Sorrell ■ V. Steadman Williamson v. Allison V. Page Willis V. Cooke ■ V. Palmer 228 446 688 424 47 59, 61 10 142 336 43, 106, 154, 504, 508, 509 WiUison V. Patteson 556, 557 Wilmshurst v. Bowker 590,. 603 Wilson V. Bank of "Victoria 659, 677 ' V. Canada Shipping Co. 315 V. Dickson 123 V. Foderingham 543 V. Hicks 419, 583, 584 v. Lane. & Yorkshire Ey. Co. 586 v. Lend. Italian & Adriatic Steam Navig. Co. 436 V. MiUar 167 V. Newport Dock Co. 308 — V. Eankin V. Wilson V. Zulueta Winder v. Wise Windle v. Barker Winter, Ex parte Softley V. Haldimand V. Mair Wiseman v. "V"andeputt V. Westland "Wobum Abbey, The Wolf'!). Summers Wolfe V, Claggen Wood V. Bell V. Hamilton V. The Brigantine Nimrod 200 509 215 572 367, 445, 453 42 453, 510 192 587 47 282 326 259 2, 3, 4, 5, 6, 7, 25 Woods V. Eussell Woodward v. Miller Woolley V. Eeddelien Worms V. Storey Worsdell, re Wright V. Crookes V. Hunter V. Lawes V. New Zealand Ship. Co. V. Wilson Wrightson v. Hudson 242 6, 7, 25 15 371, 378, 444 368, 419, 427, 439 595 9, 13 96 596, 605 I'j 522, 528, 530 14 ':.: 47 TABLE OP CASES CITED. XXXIK PAGE Wyatt V. The Mavquis of Hertford 114, 186 111 Wylde V. Hopkins Xavier, The Xenos i'. Wickham 19 195, 196 Ya Macraw, The. {See Glasgow, The.) 163, 164, 165 Yallop, Ex parte 38, 40 Yates V. Duff 324, 385 V. Hall 235 V. Meynell 347, 509, 513, 514, 516 PARE Yates V. Kailston 342, 347, 509, 513, 514, 516 Yorkshireman, The, Forman 319 Young, Ex parte 96, 107 i>. Brander 107, 111, 169 V. Fewson 207, 329 Zelden Rust, The, Eozonna 566 Zephyr, The, Arrowsmitli 616 Zephyrus, The, Blake 615, 620 Zeta, The 642 Zodiac, The, Scott 57, 59, 67, 108, 113, 168 Zwilchenhart v. Henderson 499 TABLE OF STATUTES CITED. PAGE PAGE 3 Edw. 1 641 43 Geo. 3, o. 113 641 4 Edw. 1, St. 2 641 (!. 160, ss. 34, 35 670 17 Edw. 2, c. 11 640 45 Geo. 3, c. 72 639 27 Edw. 3, St. 2, e. 13 641 ss. 16, 17 670 1 Rich. 3, 0. 1 39 49 Geo. 3, c. 122 641 27 Hen. 8, c. 10 39 51 Geo. 3, c. 80 214 28 Hen. 8, c. 15 262 52 Geo. 3, o. 39 274, 278 8 Eliz. 0. 13 641 53 Geo. 3, c. 159 17, 120 43 Eliz. c. 2 214 54 Geo. 3, c. 107 214 21 Jas. 1, c. 16, ss. 3, 7 252 56 Geo. 4, c. 139 214 12 Chas. 2, c. 18, s. 10 73 1 & 2 Geo. 4, c. 76, ss. 1, 4, 5, 18 635 16 Chas. 2, c. 6 271 6 Geo. 4, i;. 110 42 22 & 23 Chas. 2, c. 11 271 s. 45 42 s. 7 272 c. 125 274, 278, 279, 281 29 Chas. 2, o. 3 39 7 & 8 Geo. 4, c. 29, ss. 17— 20 641 s. 5 39 c. 30, ss. 5—9 641 • .-i. 7 39 s. 10 641 ». 23 266 s. 11 641 7 & 8 Will. 3, c. 22, s. 17 73 9 Geo. 4, 0. 14, s. 7 2 4 Anne, c. 16, .s. 16 251 11 Geo. 4 & 1 Wm. 4, c. 20 266 s. 17 251 c. 68 124 s. 18 251 2 & 3 Wm. 4, c. 40 266 s. 19 251, 252 3 & 4 Wm. 4, 0. 42, s. 3 252 4 & 5 Anne, c. 3, s. 17 251 s. 4 252 s. 18 251 0. 55 32 6 Anne, c. 2, s. i 46, 47 c. 63 214 7 Anne, u. 5, s. 3 30 5 & 6 Wm. 4, c. 19, s. 7 243 12 Anne, st. 2, c. 18 641 a. 9 243 4 Geo. 1, L-. 12 641 c. 41 155 7 Geo. 1, c. 21 53 6 Wm. 4, c. 14 253 11 Geo. 1, c. 29, s. 6 641 7 Wm. 4 & ] Yict. c. 26, s. 9 35 2 Geo. 2, c. 36 243 s. 11 266 s. 3 243 1 & 2 Vict. c. 110 253 s. 6 243 3 & 4 Vict. c. 56 74, 92 s. 9 243 c. 65 165 s. 13 236 s. 3 51 4 Geo. 2, c. 21 30 s. 5 144 s. 1 30 s. 6 108. 110. 634 7 Geo. 2, c. 15 119 s. 11 616 12 Geo. 2, i;. 15 345 7 & 8 Viot. c. 2 262 26 Geo. 2, u. 19 641 c. 101 214 13 Geo. 3, c. 21, s. 1 30 c. 112, s. 17 235 22 Geo. 3, e. 25 670 s. 16 253 ss. 1 & 2 155 ». 50 236 26 Geo. 3, c. 59 597 8 & 9 Viot. c. 89 28, 32, 77 c. 60 74 s. 10 79 c. 63 266 s. 11 79 c. 86 120 s. 34 42 D. 2 121 s. 35 38 s. 3 121 s. 37 46 32 Geo. 3, c. 34 266 =. 38 28, 88 33 Geo. 3, c. 66, ss. 37, 38, 39 670 n. 39 28, 42, 88 38 Geo. 3, c. 76 424, .'562 s. 45 42 43 Geo. 3, u. 57 424, 562 c. 116 212 TABLE OF STATUTES CITED. Xli PAGE I'ASE 9 & 10 Vict. c. 93 118, 260 17 & 18 Vict. c. 104, s. 56 62 75, 83, 87 c. 95, s. 129 252 s. 57 26, 36, 46, 47, 10 Vict. c. 27, =. 74 311 81 82, 83, 87 12 & 13 Vict. c. 29, a. 17 29 s. 58 38, 83 13 & 14 Vict. c. 60, ss. 3, 5, 6, 22 to s. 59 38, 83 26 26, 27 a. 60 38, 81 0. 61, s. 11 252 s. 62 28, 38, 70, 75, c. 93 199 88 14 & 15 Vict. c. 11 214 s. 63 28 38, 70, 88 v;. 99, 0. 12 94 ». 64 38, 70, 88 s. 14 84, 247 a. 65 40 16 & 17 Vict. c. 129 274 3. 66 42 46, 47, 81 17 & 18 Vict. c. 19 639 s. 67 46, 81 u. 31 124, 340 8. 68 49, 81 c. 104 26, 28, 50, 51, 85 3. 69 43, 46, 47, 48, 8. 2 32, 75, 77, 200, 82 273, 614, 641 a. 70 26, 42, 43, 44, s. 6 33, 263 81, 112 s. 8 33, 198, 215 8. 71 49, 81 s. 9 36, 46, 198, 213, 8. 72 43, 47, 81 214 S. 73 49, 83 s. 10 198, 215 8. 74 49, 83 s. 17 74, 419 8. 75 49, 83 s. 18 25, 28, 29, 31, S. 76 27 50, 75, 85 70, 74, 75 s. 77 27 50, 75, 85 s. 19 32, 71, 74, 75, S. 78 57 50, 75,-85 76, 77, 89 a. 79 27, 75, 85 ». 20 74, 77 s. 80 46, 47, 50, 51, s. 21 74,77 75, 85, 86 s. 22 74, 77 8. 81 25, 27, 33, 36, s. 23 74, 77 75, 85, 86, 87, s. 24 74, 77 91 3. 26 77 8. 82 85 s. 27 77 3. 83 85 s. 28 77 8. 84 84, 90 s. 30 51, 92, 94 8. 85 84 s. 31 92, 94 S. 87 84 s. 33 79, 80 8. 88 84 s. 35 74,77 8. 89 80, 84 s. 36 74, 77 8. 90 80, 84 s. 37 26,38,40,75,80 8. 91 84 s. 38 25, 29, 40, 70, 8. 92 74 71, 74, 75, 78, 8. 93 93 79, 81 8. 97 91 s. 39 25, 40, 74, 75, a. 98 90, 419 78, 79 a. 99 26 28, 29, 91 s. 40 26, 33, 74, 78, 8. 100 40, 89 79, 89 £j. 102 71, 89, 419 s. 42 74, 79, 80 8. 103 25 28, 29,70, s. 43 26, 34, 36, 38, 71, 72, 75, 76, 40, 43, 47, 74, 88, 89, 93, 202 80, 81, 82, 83, 8. 104 72, 93 s. 44 88 8. 105 71, 89, 93 8. 45 89, 90 8. 106 76, 84, 93, s. 46 90. 121, 419 s. 47 90 8. 107 94 s. 48 90 8. 108 92, 267 s. 49 90 3. 109 198 s. 50 89 8. 131 199 s. 51 90 8. 132 199 s. 52 52, 71, 89, 91, a. 133 199 93, 203 a. 134 199 a. 53 25, 33, 87, 91 ». 135 199, 200 3. 54 90, 94 8. 136 198, 199, 200, 3. 55 25, 26, 32, 33, 201, 419 34, 35, 46, 47, 3. 137 199 61, 77, 81, 83, 8. 138 199, 2.00 87 8. 139 199 xlii TABLE OF STATUTES CITED. PAGE PAGE 17&18yict. c. 104, s. 140 199 17&18Vict. c. 104, s. 216 237 s. 141 213 s. 217 237 s. 142 213 3. 218 237 s. 143 198, 213 3. 219 237 s. 144 214 s. 221 207, 242, 262, s. 145 198 416 s. 147 198, 212 s. 222 262 s. 149 198, 214, 215, 258 s. 223 207, 242, 258, 329 s. 150 198 213, 262 s. 225 207 , 242, 258 s. 151 198 218, 227 ». 226 242 , 259, 262 s. 152 198 218, 227 =. 228 143 , 259, 260 s. 153 198 218, 263 3. 230 207, 259 s. 154 198 s. 231 198 s. 155 198, 213 s. 232 261 s. 156 213 3. 233 226 s. 157 198, 215 s. 234 ■ 265 H. 158 198 221, 262 3. 235 265 s. 161 198, 218, 227, 419 3. 236 s. 237 265 265 s. 162 198, 419 s. 238 265 s. 163 213, 214 3. 239 271 s. 165 214 3. 240 208, 209 s. 166 198 3. 241 200, 209 s. 167 238 s. 242 200, 209 s. 168 220 s. 243 240, 244, 245, s. 169 220, 221, 222 246, 256 s. 170 198, 213, 225 3. 244 246 247, 257 s. 171 198, 225 s. 247 246, 257 ri. 173 226 3. 248 246 s. 175 203, 225 ' 3. 249 247 s. 177 265 3. 250 247 s. 178 265 3. 253 240 s. 179 265 s. 256 198 a. 180 265 s. 257 94, 760 s. 181 220 rf. 259 209 s. 182 222, 227, 239, 3. 260 208, 261 249, 614 , s. 263 208, 209, 261 s. 183 228, 235, 239, 609 s. 266 3. 267 261 262 s. 185 228, 231, 235 3. 268 207, 261 ». 186 238 3. 269 261 H. 187 211, 226, 227 s. 271 268 s. 188 254 3. 273 262 s. 189 253 ri. 274 262 s. 190 255 s. 275 263 s. 191 210, 211, 248, 254 s. 276 3. 277 262 263 s. 194 264 s. 279 198, 263 s. 195 265 s. 280 198, 203 s. 196 264, 265 3. 281 198, 203, 246 s. 197 265 3. 282 198, 203, 207, s. 198 265 221, 246, 257 s. 199 267 3. 283 198, 203 s. 200 266, 267 3. 284 198, 203 3. 201 267 3. 285 108,221,246,247 s. 202 267 3. 286 198 s. 204 266 3. 287 198 s. 205 264 s. 290 255, 268 s. 206 263 3. 291 336 s. 207 255, 263 3. 292 294 336, 407 s. 208 264 s. 293 294 336, 407 s. 209 231, 264 S. 294 336, 407 s. 210 264 ; s. 301 336 s. 211 264 s. 302 336 s. 212 264 s. 303 336, 337 s. 213 264 3. 305 336, 337 s. 214 236, 241 3. 306 336 TABLE OF STATUTES CITED. xliii 17 & 18 Vict. c. 104, s. I'AGE PAGE s. 307 336 17 & 18 Vict. c,104, s. 461 635 s. 308 336 s. 463 635 s. 309 336 s. 464 636 s. 312 337 .«. 466 637 s. 318 337 s. 467 637 s. 319 337 s. 468 633 s. 330 274 s. 469 637 s. 331 274 s. 471 642 s. 332 274, 280 s. 475 642 s. 333 274, 283 s. 476 634 s. 334 274 s. 477 643 B. 340 281 s. 478 643 s. 349 274 3.479 643 s. 350 284 s. 484 615, 626 s. 351 275 s. 485 612, 638 s. 352 274 s. 486 637 s. 353 274, 279, 280 s. 487 637 s. 354 279, 281 s. 488 637 s. 355 281 H. 489 637 s. 356 277, 283 s. 491 637 s. 357 284, 286 s. 49^ 637 s. 358 274, 285 s. 493 637 s. 359 274, 284 s. 494 638 6. 360 274, 284 s. 497 634 s. 361 274 s. 498 637 s. 362 274 275, 276 s. 503 121 s. 363 274, 285 s. 506 123 s. 364 274, 286 s. 509 128 s. 365 274, 276, 278, s. 510 128 286 !J. 511 128 s. 367 277 s. 512 128 s. 370 280 s. 513 128 s. 373 278 s. 514 128 s. 376 279 280, 281 s. 516 76, 84, 93, 124 s. 377 274 s. 518 285 s. 378 276 s. 519 254, 285 s. 379 281 s. 525 258 s. 380 283 s. 526 35, 83 s. 381 283, 285 s. 531 285 s. 382 285 c. 120 120 s. 383 274 c. 125, s. 26 83 s. 384 274, 284 s. 61 226 s. 385 274 18 & 19 Vict. 0. 91, s. 9 29, 70, 82 s. 386 274 3. 10 26, 40, 91 s. 387 274 s. 11 34, 46, 83 a. 388 279 s. 12 84 s. 432 209 s. 14 77 s. 433 209 s. 15 94 s. 438 209 s. 16 264 ^.439 612, 642 s. 21 262 s. 440 642 c. Ill 354 395, 400, s. 441 612, 642 435, 512, 517, s. 442 642 525 s. 443 612, 642 s. 1 500 525, 604 s. 444 642 s. 2 499, 500, 625, s. 446 642 604 s. 447 642 s. 3 395, 396 s. 448 642 c. 119 322, 408 s. 450 642 s. 2 332 333, 334 s. 451 612, 642 s. S 335 s. 452 642 s. 4 322 s. 463 642 s. 8 336 s. 454 642 s. 11 72 828, 336 s. 455 612 a. 13 328 329, 330 a. 457 612 s. 14 329, 336 s. 458 620 s. 15 322 s. 459 620 621, 622 s. 16 333 s. 460 634 635, 686 s. 17 377 xliv TABLE OP STATUTES CITED. 18 & 19 Vict. 0. 119, s. 19 PAGE PAGE , s. 19 328, 336 18 & 19 Vict c. 119, s. 101 322, 336 s. 20 2, 336 19 & 20 Vict c. 41 265 s. 21 2 829, 336 c. 60 98 s. 22 2 329, 336 s, 18 152 s. 23 2, 336 c. 97 98 s. 24 2 329, 336 s. 8 80, 152 a. 25 2 329, 336 2] & 22 Vict. c. 90, ss. 34, 36 259 s. 26 2 329, 336 22 & 23 Vict. c. 37, s. 2 436 s. 11 328, 336 24 Vict. c. IC 109, 165 s. 28 328, 336 s. 4 109 s. 29 328, 337 s. 5 109, 110 s. 30 334, 336 s. 6 110, 135 s. 31 329, 336 s. 7 304 s. 32 336 s. 8 100, 102 s. 33 329, 336 s. 9 621 s. 34 336 s. 10 144, 181, 210, 212, s. 35 207, 329, 336 238, 249 s. 38 337 =i. 11 51 ». 40 329, 337 s. 12 38, 70, 88 =. 41 337 s. 13 129 s. 42 337 24 & 25 Vict. c. 52 322 s. 43 207, 329, 336 c. 97, S3. 43, 44, 45 270 s. 44 336 3. 46 270 s. 45 228 s. 47 271 s. 46 325, 328, 332, 334 s. 49 c. 100, s. -13 270 270 s. 47 330 25 & 26 Vict. c. 63, s. 3 26, 31, 37, 39, s. 48 322, 324, 325, 41, 42 327, 330, 332 3. 5 336 a. 49 324, 330 s. 13 72, 198 d. 50 72, 336 s. 15 212 s. 55 336 3. 18 222, 615 s. 57 330 3. 19 231, 264 s. 58 322, 324, 328, 332 H. 20 3. 21 265 124, 265 s. 59 329, 330 s. 22 264 s. 60 329, 330 s. 23 209 3.63 72, 328, 336 3. 27 303 s. 64 336 s. 28 118, 303 s. 65 336 s. 31 303 B. 66 337 3. 32 303 0. 67 337 s. 35 338 s. 69 337 s. 39 274 s. 70 337 ». 40 274 s. 71 323, 332, 384, 335 3. 41 3. 43 274, 281 37 s. 73 332 s. 49 635 B. 75 337 3. 54 122 s. 76 337 s. 56 123, 339 s. 77 337 3. 57 37 s. 78 337 3. 59 621 s. 79 337 3. 67 436, 437 s. 80 337 s. 68 437 s. 81 337 ii. 69 437 o. 84 332 3. 70 437 A 85 332 26 Vict. c. 24, 3. 10 110 s. 86 332 26 & 27 Vict. c. 51, s. 3 322, 335 s. 89 333 s. 6 337, 339 s. 90 333 s. 8 337 s. 91 333 s. 9 260, 329 s. 93 334 Ii. 11 325, 328, 332, s. 94 334 334 s. 95 336 s. 13 72, 203, 328, a. 96 322, 336 336 s. 97 336 3. 14 327, 330 s. 98 336 s. 15 327, 830 s. P9 336 s. 16 327, 330 s. 100 322, 337 s. 17 336 TABL-E OF STATUTES CITED. xlv I >AGE PAGE 26 & 27 Vict. c. 92, a. 31 124 36 & 37 Vict. c. 85. s. 23 292 337, 417 27 & 28 Vict. c. 27 294 s. 24 292 337, 417 30 & 31 Vict. c. 48 c. 59 c. 114, s. 33 c. 124, d. 4 s. 5 s. 7 207, 207, 259, 259, 16 53 249 416 262 416 s. 25 r:i. 26 s. 27 292, 292, 292, 294, 337, 417, 446 294, 337, 417, 446 294, 337, 417, 446 s. 8 228, 229, 238 s. 28 292, 293, 294, :j. 9 416 337, 417 s. 10 259 .37 & 38 Vict. c. 31 294 s. 11 262 33 & 39 Vict. c. 17 293, 417 31 & 32 Vict. c. 71, s. 3 ». 9 c. 119, s. 16 250 636 339 s. 33 s. 34 s. 39 446 446 446 c. 129 89, 90, 92 s. 40 446 32 & 33 Vict. 0. 11 92 c. 90 212 c. 51, s. 3 636 39 & 40 Vict. c. 36, s. 128 419 c. 71, s. 10 84 o. 145 419 s. 107 84 c. 41 259 33 & 34 Vict. c. 14, s. 14 c. 30 u. 90 c. 97 . s. 24 s. 56 s. 66 ». 67 a. 68 30 226 218 361 362 393 362 362 362 c. 80, 8. 4 s. 5 s. 6 s. 7 s. 8 B. 9 s. 10 207, 261, 260, 291 216, 242, 291, 418, 427 292, 416 292 292 292 292 34 & 35 Vict. c. 78, s. 12 c. 101 c. 110, s. 5 B. 6 124 284 340 294 294 78 s. 13 s. 15 s. 16 a. 17 . 292 292 337 337 s. 7 242, 261, 262, 416 s. 18 s. 19 337 338 s. 8 209 242 s. 20 320 35 & 36 Vict c. 39 c. 73, s. 5 s. 7 s. 8 s. 9 a. 16 336 30 336 336 337 283 225 s. 21 s. 23 s. 24 s. 29 .s. 32 s. 35 293 337 293 417, 666 210 210 186 36 & 37 Vict. c. 66, s. 16 128 129 s. 36 186 s. 24 251 42 & 43 Vict. u. 72 220, 292 8. 25, subs. 6 60, 354, 43 & 44 Vict. c. 16, s. 2 222 503 s. 3 220, 222 subs. 7 372 =. 4 211, 225, 226, subs. 9 305, 227 307, 311 s. 5 266 subs. 11 15 s. 6 266 c. 85 276 ,293, 294, 417 ■ s. 7 215 s. 3 74. 77, 78 ». 8 212 ». 4 294 s. 10 257 s. 5 78 s. 11 212 8. 7 215 s. 12 240 s. 9 257 c. 43, s. 3 293, 416 ^. 15 407 s. 4 293 s. 16 304 s. 6 293 s. 17 303 310 =. 10 293, 416 OF THE LAW MEKCHANT SHIPPING. CHAPTER I. SHIPS AS PROPERTY. How Acquired — . . 1 How Dealt with — by Coiisti'uotion Purchase Capture . How Trausfen-ed — by whom • 1 . 8 IS 24 25 Trusts . Mortgages . Bottomry Maritime Liens to whom . in what way . • 29 31 How Forfeited 30 31) 41 51 Go 70 Ships, according to the law of this country, are personal Ships aie per- property, and the common law relating to personal property is ^™ piopei y. in general applicahle to them ; hut, as in almost every maritime coimtry, there is also in this, a comprehensive collection of statutory enactments and customary law exclusively relating thereto, which may be called the maritime law of Great Britain and Ireland. Ships, or shares therein, may be acquired by building, or by how acqcibeb. purchasing when built, or by capturing as lawful prize of war. We proceed to consider Acquisition by these three modes in their order ; and in the first place acquisition by construction. It is most desirable that the builder's contract be so expressed By Construction. — Uontract tor. that a stranger shall at once perceive in it the work to be done, and the riahts and liabilities on either side, as they were con- 2 SHIPS AS PROPEKTY. [cHAP. 1. ceived and intended by the parties themselves.^ For this purpose, there is a moderation which avoids the extremes of jejune irregularity and defective minuteness, by drafting in such main particulars of the design, as naturally draw after them whatever else is accessory to a suitable perfection ; and there is a prudence which provides against the possible exi- gencies of trade and fortune, by protecting the rights and ascertaining the liabilities of either party, as these accrue during the progress of the work. It is important to state plainly the time of the property vesting, the price, together with the conditions and times of payment, and the time and stage at which delivery is to be made ; and to specify the lineal measurements of the vessel, her burthen, material, mould, classification at Lloyd's, and her rig and finish.'' This contract seems to be within Lord Tenterden's Act (9 Geo. 4, c. 14, § 7), and if so, must be in writing. How far con- The build of merchant-ships, except in respect of the internal trolled by '• ^ , . „ . statute. accommodation for passengers m passenger-ships,'* is entirely left to the effect of competing interests, and to the operation of rules, such as Lloyd's or Vet'itas, imposed for classification of the vessel. Vestiug of pro- Under a contract for the construction of a ship, it is often difficult, but always of great importance, to determine at what time the chattel vests in the purchaser.* Kule of Law. Jq respect of an existing specific chattel the rule of EngUsh law is, that the property passes immediately to the vendee by virtue of the contract of sale.^ By Scotch law no property passes by the contract of sale, even where the price is paid, until there has been delivery of possession actual or con- structive." ' See the construction of a contract " Laugfort v. Tiler, 1 Salk. 113 ; for repairs of an iron vessel, Inglis r. Shop. Touch. 224, 225 ; er Wcstbury, B 2 SHIPS AS PROPEKTY. [CHAP. I. render that act nugatory for any purpose of passing the property. Dawson, being under contract to build a ship, finished and sent her out on freight to the purchaser in Africa, who afterwards despatched her to this country with a return cargo, and became bankrupt ; but Dawson, previous to send- ing her out, had registered the vessel in his own name, and had not executed any bill of sale to the purchaser, whose cre- ditors were therefore defeated in their claim to the ship.^ The rule of law thereby appears to be, that the vesting of the property in the purchaser, under an executory contract, depends on the mutual intention of the parties, evinced some- times by their subsequent conduct when not contradicted by their prior stipulations.^ Thus, where sugar was barrelled up out of bulk, and set apart in the warehouse, and this was followed by notice to the purchaser and his promise to take it away ; ^ or where a carriage was seen and paid for when finished, and an alteration ordered by the purchaser, who continued to importune the maker and to receive promises of delivery, till at last, as the alteration was not made, he gave orders for the carriage to be sold ; * in these cases it was held that the pro- perty had passed to the purchaser. But where A., having received an order from B. for spinning frames, employed C. to make them for B. who had notice thereof; and they were made and altered according to A.'s order, and packed up for B. who however refused to accept them ; it was held that the count for goods bargained and sold would not lie for the maker, since the property in the frames had not passed to the purchaser.^ A ship-builder, under contract to build a ship for the plaintiffs, received advances from them in the course of the work, and gave them a biU of sale on the unfinished vessel in the usual terms of a deed — " Have bargained and sold, and do, &c.," but habendum to the plaintiffs " when the said ship shall be completed and finished ; " and the vessel was at the same 1 Miles V. Dawson, Peake Add. ^ Bohde v. Thwaites, 6 B. & C. 388 ; Cases, 54. Vilkins t: Bromhead, 6 M. ife Qv. 963, 2 Per Lord Campbell, C. J., Wood S. F. V. Bell, 25 L. J. (Q. B.) 148, 154 ; jKv ' CaiTuthors c. Payne, 5 Bing. 2G5 ; Blackburn on Sale. P. 2 278, 282. c. 2. CHAP. I.] ACQUIRED BY BUILDING. time registered in the names of the plaintiffs. The builder afterwards borrowed mone}'' of the defendants to finish the ship, registered her anew in his own name, executed a bill of sale to the defendants, and gave them possession under it. It was held that the ship passed presently by the first bill of sale to the plaintiffs, and that the obvious intention of the parties was not controlled by the habendum} So in IVoods v. Eussell,^ , the fact, which ultimately determined the Court to decide that the general property in the ship had vested in the purchaser, was the signing of the certificate by the builder, to enable the other to register the vessel in his own name. In the last-mentioned case, the rule, now recognised as a Property vesting rule of the English law, that the property in an unfinished stagerin fte chattel, during its progi'ess to completion, may vest in the p^S''^^^ "* <■•'« purchaser, was for the first time propounded by Lord Ten- terden, and in the following terms : — " This ship is built upon a special contract, and it is part of the terms of the contract, that given portions of the price shall be paid ac- cording to the progress of the work ; part when the keel is laid, part when they are at the light plank. The payment of these instalments appears to us to appropriate specifically to the defendant the very ship so in progress, and to vest in the defendant a property in that ship, and that, as between him and the builder, he is entitled to insist upon the com- pletion of that very ship, and that tlie builder is not entitled to require him to accept any other." ^ The principle contained in these observations, is now an established rule of law, based upon the intention of the parties, either entirely expressed in their written contract,* or to be collected from a concurrence of mutual acts and stipulations in the same transaction.'' ' Readr. Fairbanis, 22L. J. (C. P.) tiffs, and to deduct, from tliat, the 206 ; 13 e. E. 692. In determining amount necessary after the day of the what the plaintiffs were, in this case, conversion to complete her according entitled to recover, it was suggested by to the contract, 22 L. J. (C. P.) 210. Jervis, C. J., that the damages should 2 5 B. & Aid. 942, 947. be the value of the vessel, &c., at the ^ Woods v. Russell, 5 B. & Aid. 942, time of the conversion ; and that a 946 ; and jper Bayley, J., Atkinson r. proper mode of ascertaining that would Bell, 8 B. & C. 277, 282. be, to ascertain the value of the ship at * Baker i:. Gray, 17 C. B. 462. Pictou, when completed according to * Wood v. Bell, 5 E. & B. 772 ; (in the builder's contract with the plain- error) 6 E. & B. 355 ; Spanish and SHIPS AS PROPERTY. [chap. I. Whether materials vest in the purchaser. In Wood V. Bell ^ there was a stipulation in the contract for payment of the price by instalments at specified stages of the work ; the vessel was built under the superintendence of a person appointed by the purchaser with the consent of the other ; the builder at his instance, during the progress of the work, punched the purchaser's name on the keel for the purpose of seeming the ship to him ; and afterwards, although the builder refused to execute a formal assignment, being him- , self already in embarrassed circumstances, he admitted that the vessel was the purchaser's property, — on a review of all these circumstances, concurring in the same case and evincing the intention that existed between the parties, the Court held that the property in the ship passed to the purchaser as she advanced in her progress towards completion. Materials and parts, designed for a ship being built under Portuguese Screw Steam Shipping Company v. Bell, ibid. In Clarke v. Spence, 4 A. & E. 448, the Court, though following the principle in- volved in "Woods v. Russell, somewhat unfavourably criticised the decision in view of the facts on which it was based. ■ Wood I'. Bell, 5 E. & B. 772 ; (in error) 6 B. & B. 355. Before this prin- ciple was propounded in Woods v. Eus- sell it had already been applied by the Court of Session in Scotland to a contract of the same nature. It was a contract to build a' ship for the pur- chaser in consideration of his paying the price in tlu-ee sums, the first at the laying of the keel, the second when she was built up and planked to the top of the gunwale, and the remaining sum when she was launched ; but the builder became bankrupt after receiv- ing the first instalment, and his credi- tors claimed the vessel. The report says : " The determination of the case was thought by the judges to depend not so much on the general principles of law, as on the special terms of the agreement. By these the employer was to pay the price in different por- tions. Before payment, however, he had a right to see the work so far pro- perly performed. Thus, as the builder proceeded, such an appropriation took place as prevented his creditors from touching the ship without i-efTinding the sums advanced." The report adds : " The Lords found the claim of Mr. Simpson preferable to that of the credi- tors of the bankrupt." — Simpson u. The Creditors of Duncannon, Aug. 2, 1786. Faculty's Coll. No. 290, p. 446 ; M. 14204, S. C. Contrary to this idea of refunding by the creditors, Lord Ten- terden says : " the general property " vested in the purchaser, and the builder would have a lien on the ship, when completed, for the residue of the price, 5 B. & Aid. 948 ; but the Court, in Clarke ii. Spenoe, 4 A. & B. 465, " de- sire it to be distinctly understood that in the judgment they were about to pronounce, they give no opinion what- ever as to the soundness o* that doc- trine " (of the lien in the builder). See per Westbury, L. C, JSai parte Watts, in re Attwater, 32 L. J. (Bkpcy.) 35 ; Thames Ironworks and Shipbuild- ing Co. (Limited) v. Patent Den-ick Co. (Limited), 1 J. & H. 93 ; 29 L. J, (Gh.) 714. ClIAl'. I.J ACtiUIUEI) BV BUILDING. such a contract, but not fastened to her at the time of the bankruptcy, do not pass to the purchaser as against the builder's assignees, unless they have previously gone through the ordeal of being approved as parts of the vessel.^ Perhaps the rudder and cordage in Woods v. Russell fall within the rule, although if they were merely bought specifically for the ship by the builder without more, there is room for doubt.^ Certainly an unfinished rudder, designed, but not approved, cannot be held to pass to the owner of the ship in accordance with this principle, and therefore Goss v. Quinton seems to be overruled.^ It was accordingly held, upon appeal, in Wood v. Bell, that engines in the process of manufacture and de- signed for the specific ship on a peculiar plan, angle irons made for her and marked in accordance with the drawings, and planking and timbers prepared for her and lying in the yard, did not pass to the purchaser.* Under a similar contract, with power to the purchaser in certain events to supersede the builder in the construction of the ship, and to " use " such of the builder's materials as were applicable, the purchaser did supersede him, being then under large advances, and before the builder's bankruptcy, assorted the applicable timber, deals and materials, into lengths, placing part within the frame of the vessel, but in no way attached it ; the Court held that, though actual fastening might not be requisite to appropriate the materials to the purchaser, mere storing within the fabric was not such a user under the contract as would have that effect.^ A ship-builder has a lien by the common law on the ship Shipbuilder's for the price and also for repairs,^ provided the vessel be in his possession. For it is a possessory lien, not in any way to 1 Wood V. Bell (in error), 6 E. & B. reversing on this point the judgment 355 ; Baker v. Gray, 17 C. B. 462. of the Court below, 5 E. &; B. 772. " Woods V. Russell, 5 B. & Aid. 942 ; See Anglo-Egyptian Navigation Co. ii. dissatisfaction with this part of the Eennie, L. E. 10 C. P. 271, 280, 2S3. decision is expressed in the course of ^ Baker v. Gray, 17 C. B. 402. See the argument in Wood r. Bell (in Brown v. Bateman, L. E. 2 C. P. 272. error) 6 E. & B. 355. " Franklin v. Hosier, 4 B. & Aid. '■' Goss V. Quinton, 3 M. Jc Gr. 825 ; 341 ; Thames Ironworks and Ship- see the observations of the Court of building Co. (Limited) v. Patent Der- ErroT in Wood v. Bell, supra. rick Co. (Limited), 1 J. & H. 93 ; 29 ■• Wood V. Bell (in error), svpra ; L; J. (Ch.) 714. SHIPS AS PROPEBTY. fCHAP, 1. be confounded with a maritime lien ; it cannot be enforced otherwise than by retaining possession,^ and cannot be re- tained after possession is lost, unless such loss were by force or fraud. No charge can be made in the nature of rent during the builder's detention of the ship under his lien ^ in the absence of an express contract to that intent. He may assert his right of lien for repairs against any claim of the mortgagee of the ship to take possession of her, if the repairs were neces- sary and were ordered by the mortgagor in his capacity of owner left in possession.^ If the Court of Admiralty take her out of the builder's possession, that Court will protect his lien so far as it can do so compatibly with the rights of the other suitors before it.* As this lien does not arise except upon ready-money trans- actions, transactions upon credit by express contract or by local usage give no such right.^ Damages for detention. Payment for repairs done. If it can be shown that a time was fixed for finishing repairs and delivering up the vessel, the measure of damages for de- tention beyond that time is primd facie the sum which would have been earned as profit in the ordinary course of her employment in the time.^ At the same time a buildei-, though he undertakes to put a vessel in thorough repair, is not obliged to wait till the repairs are aU finished in order to sue, for he has a right of action to be paid for the work done, and notwithstanding it be only part.''' It would be otherwise if his contract were to do a specific work for a specific sum.^ By Purchase. Purchase, the second mode, that has been mentioned, of acquu-ing ship-property, is either by way of private contract or ^ Thames Ironworks and Shipbuild- ing Co. (Limited) v. Patent Derrick Co. (Limited), siipra. - Somes v. British Empire Shipping Co. 8 Ho. of Lds. 338 ; 30 L. J. (Q. B.) .229 ; 28 L. J. (Q. B.) 220. 3 WiUiams v. Allsup, 30 L. J. (C. P.) 353 ; 10 C. B. N. S. 417. " The Gustaf, Lush. Ad. Bep. 506. * Eaitt V. Mitchell, 4 Camp. 14G. " Me The Trent and Humber Co., ex parte Cambrian Steam Packet Co.. L. R. 4 Ch. 117. 7 Eoberts v. Havelock, 3 B. & Ad. 404. * Sinclair v. Bowles, 9 B. & C. 92, ante, p. 3, note '. OHAP. I. ACQUIRED BY rUIlOHASI'.. - 9 of public auction. In both eases, the vendor maj- undo himself by his incautious commendations of an inferior article, in order to gain a superior price ; and the purchaser, trusting more to the opinion of the seller and the protection of the law, than to the vigilant exercise of his own prudence and judgment, may find himself on the wrong side of a bad bargain without any remedy. Our law makes no provision for the absence of prudent Caveat emptor. caution in a purchaser. Its maxim is caveat emptor. Such protection, as is sometimes sought in our courts of justice, is reserved for mental infirmity and gross intoxication, when these have been practised on for the purposes of the seller.^ It makes no account of general phrases, in use with a vendor in every country, for the purpose of commending his wares. Simplex commendatio non obligat.^ It distinguishes the ex- pression of mere opinion on matters of skill and judgment, from representations upon a subject known, or that may be known ; and rules in respect of the former, that the speaker is not bound by his words.^ In Wriglit v. Grookes* it had been stated, with the sanction of the vendor, that the frame of the ship was of African and English oak ; and Alderson, B., in the course of the argument, suggested that this might be an opinion merely upon that which was matter of skilled judgment ; the learned baron, however, was immediately met with the infor- mation, that the vendor who gave the opinion, had himself built the ship. But if the vendor, in his efforts to effect a sale, resorts to Material repre- representations on matters which are of the essence of the bargain, and the purchaser relies upon them to his damage,'' he has a remedy at law in one or other of the following cases. ^ Molton V. Camroux, 2 Bxch. 487 ; ^ Jeudwine %■. Slade, 2 Esp. 572 ; (in eiTor) 4 id. 17 ; Campbell ■!). Power v. Barham, i A. & E. 473 ; per Hooper, 24 L. J. (Ch.) 644 ; Baxter v. Grose, J., Pasley v. Freeman, . Per Bullcr, J., Pasley v. Freeman, 18 ; Chandelor v. Lopus, 2 Croke, 2. 3 T. E. 51 , 57 ; Lysney v. Selby, 2 Id. n Pickering v Dowson, 4 Taunt. Kaym. 1118; Crosse ^i. Gardner, Cai-th. 779. CHAP. I.] ACQUIRED BY rURCHASE. 11 reference/ they would at least have discovered at the time whether they were purchasing an unwarranted risk. But where a vessel appeared by the bill of sale to have been ljurchased " on the terms in the registry and inventory," and she stood on the registry, as having been built and launched in 1816, whereas she had been launched in 1815, the plaintiff recovered back the purchase money .-^ The " inventory," by common use in the sale of ships, is confined to the ship's stores, and a reference to it alone will not generally import a description of the fabric given in the advertisement or parti- culars,^ unless it be under peculiar circumstances.'' There may be an implied warranty, as in case of a barge implied sold by the builder, namely, that she was not unfit for the ^"'^^ ^' ordinary uses of a barge, by reason of defects that could not be detected by inspection. The intending purchaser had inspected the vessel, and if he had given the seller distinct notice of the special uses for which he wanted her, the Court seemed inclined to think that, a warranty to cover these would also have been implied.'' Where the representation is made by one who knows it to Amounting to be false, in order to induce another to act upon it, and that ™" '"' "° ' other does so with damage to himself, this is fraud in law, and a good cause of action ; " and so it may be, notwithstanding the person maldng the representation is ignorant of its false- hood, if it appear that it was fraudulently made.''' ' Saunderson r. Jackson, 2 B. & P. land, S Exoli. 725 ; Foster v. Charles, 238. 6 Bing. 396 ; (in error) 7 id. 105 ; Puls- 2 Fletcher v. Bowsher, 2 Stark. 562. ford v. Kichards, 17 Beav. IS ; CheiTy ^ Freeman v. Baker, 5 B. & Ad. 795. v. Bank of Australasia, L. E. 3 P. C. * Taylor v. Bullen, 5 Exch. 779. 2i : also stated by Cairns, L. C, in ' Shepherd v. Pybus, 3 Man. & G. Ecattio v. Ld. Ebury, L. li. 7 Ho. of 868. See the law as to implied war- Lds. 111. ranty very fully considered in Jones ' Evans v. Edmonds, 13 C. B. 777, V. Just, L. E. 8 Q. B. 197 ; Josling v. 785 ; 2Jer Maule, J. : '■ because I con- Kingsford, 13 0. B. (N. S.) 447 ; 32 ceivc that if a man, having no know- L. J. (C. P.) 94. ledge whatever on the subject, takes ^ Pe?' Croke, J., 3 Bulst. 95 ; Pasley upon himself to represent a certain V. Freeman, 3 T. E. 51 ; Polhill v. state of facts to exist, he does so at his Walter, 3 B. &: Ad. 114 ; Fletcher v. peril ; and if it be done either with a Bowsher, 2 Stark. 562 ; Thorn v. Big- view to secure some benefit to himself, 12 SHIPS AS PROPERTY. [CHAP. I. But if the purchase is made under a mistake of facts not induced hy anything said or done by the vendor, as there was no obligation on the A-^endor to correct the mistake at the time, there is in this no ground for afterwards annulling the purchase.^ In the absence of any verbal representation whatever, the seller may so fraudulently practise upon the other, e.g., by covering and disguising defects in the thing sold, as to entitle the purchaser to rescind the contract or recover damages. Gibbs, J., says : " I remember the case of the sale of a house in South Audley Square, where the seller being conscious of a defect in the main wall, plastered it up and papered it over, and it was held that, as the vendor had expressly concealed it, the purchaser might recover." " Where a vessel which had been abandoned to a club of underwi"iters with her bottom worm-eaten, and her keel broken, was sold under a representa- tion in the advertisement that " her hull was nearly as good as when launched; " the captain, as soon as she was advertised, having had her taken off the ways, where these defects could have been seen, and kept continually afloat, so that her con- dition escaped observation ; the purchaser, notwithstanding the sale was of the "hull, &c., with all faults as they now lie," recovered back the deposit money .^ Eepresentations jf fraud is practised by a dishonest principal through an agent. innocent agent, or by a fraudulent agent on behalf of his un- conscious principal, it equally vitiates the contract.* But or to deceive a third person, he is in answer the declared purpose of the pur- law guilty of a fraud, for he takes upon chaser, Keates v. Earl of Cadogan, 10 himself to warrant his own belief of the C. B. 591 ; per Abbott, C. J., Fletcher truth of that which he asserts." — Ihid,. v. Bowsher, 2 Stark. 562, 565, '-a EawUns v. Wickham, 28 L. J. (Ch.) person ought either to be silent or to 188 ; see Gorsuch v. Cree, 29 L. J., speak the truth ; if he speaks at all, ho (C. P.) 308 ; per Parke, B., Freeman is bound to disclose the real fact." V. Cooke, 2 Exch. 663 ; per Cvriam, =< Schneider v. Heath, 3 Camp. .506. Howard v. Hudson, 2 B. & B. 1. " Hern v. Nichols, 1 Salk. 289 ; Doe 1 Smith -v. Hughes, ,L. E. 6 Q. B. v. Martin, 4 T. R. 39, 66 ; Udell v. 597. Atherton, 30 L. J. (Ex.) 337. As to the 2 Per Gibbs, J., Pickering v. Dow- general question how far the know- son, 4 Taunt. 779, 785 ; see Hall v. ledge of the agent is held to be the Gray, 1 Stark. 434. But mere silence knowledge of the principal, see Dres- in the absence of any fraudulent act scr v. Norwood, 34 L. J. (C. P.) 48 ; is no ground of action even where the Hilbery v. Hatton, 33 L. J. (Ex.) 190. vendor knows that the article will not CHAP. I.J ACQUIRED BY PURCHASE. 13 where an agent innocently, and without the authority of his principal, made a representation which was false in fact, but which he believed at the time to be true, it was held that such evidence would not sustain a plea of fraud to an action by the principal for non-performance of the contract.^ If the principal,_ however, were, in answer to inquiries, purposely to refer to an ignorant agent, who, as was expected, makes a representation which is false in fact ; ^ or if the principal, knowing the defects of his ship, were to employ an ignorant agent, on purpose to take advantage of his innocent repre- sentations, it would be difficult to say that this is not such fraud m the principal as entitles the plaintiff to recover against him.^ It is immaterial that the contract has been reduced into Proof of Fraud, writing, and the fraudulent representation omitted from it, if in fact fraud has been practised on the purchaser ; that may always be established by evidence aliunde.''' A ship is not like an ordinary personal chattel ; it does not Knowledge of pass by delivery ; nor does the possession of it prove the title ^^^ ^^^™* ^^^'^^ to it; there is no market overt for ships.^ If, therefore, a principal ratify the purchase of a ship for him by his agent abroad, not laiowing that the sale was made without authority, he is yet liable to an action in this country for the conversion of the ship.^ But if the owner or mortgagee consent to the suppression of all notice of his interest in the ship at the time of the sale, he cannot afterwards assert his interest against an innocent purchaser, although he has suffered by the bank- ruptcy of the nominal vendor.'' 1 Cornfoot v. Fowke, 6 M. &;W. 358 ; * Wright «. Crookes, 1 Scott N. H. explained by Lord Chancellor Cran- G8o ; Dobell v. Stevens, 3 B. & 0. 623 ; worth in National Exchange Company 'Lysney v. Selby, 2 Ld. Eaym. 1118; of Glasgow V. Drew, 2 Macq. Ho. of per Abbott, C. J., Kain v. Old, 2 B. & C. Lds. Cases, 103, 108. See Fuller v. 627, 634 ; per Gibbs, J., Pickering v. Wilson, 3 Q. B. 68, 1009 ; Taylor v. Dowson, i Taunt. 779, 785, 786. Ashton, 11 M. & W. 401 ; Ormrod « p^,, Turner, L. J., in Hooper v. V. Huth, 14 M. & W. 651 ; "Wilde v. Gumm ; M'Lellan v. Gumm, L. R. 2 Gibson, 1 Ho. of Lds. 605 ; Grant v. Ch. 282, 290. Norway, 10 C. B. 665. « Hilbery v. Hatton, 33 L. J. (Ex.) 2 See Ferot v. Hill, 15 C. B. 297. 190 ; see Dresser v. Norwood, 34 L. J. '■I Per Lord St. Leonards, National (C. P.) 48. • Exchange Company of Glasgow o. ' Hooper v. Gumm ; M'Lellan v. Drew, 2 Macq. Ho. of Lds. Cases, 103, Gumm, siqyra. S. P, Sai'age v. Foster, 14.-5_ 1) Mod. :!5. 14 SHIPS AS PEOPERTT. [CHAP. I. Conditions of Sale. Sale by Auction. — Puffers. It is a condition of great importance) and now very com- monly introduced into advertisements and contracts for the sale of ships, that the ship and stores " are to be taken with all faults as they lie," As regards the meaning of these words, Lord Kenyon, in an early case, held that such a con- dition relates only to those faults which the purchaser could have discovered, or which the vendor was unacquainted with ; and that the vendor is bound nevertheless to disclose to the purchaser all latent defects that are known to him.^ But Lord Ellenborough refusing to subscribe to the doctrine of that case, laid it down that a vendor by a sale " with all faults," discharges himself from all responsibility for any defects what- ever, unless he has used some artifice to disguise them and prevent their being discovered by the purchaser ; ^ and this is now the received rule of law.^ Where however the ship is sold under a representation respecting her essential character, as that she is copper-fastened, or teak-built, or of such a class at Lloyd's, this condition relates only to such faults as a vessel of that character might have, and the vendor is still liable for the breach of warranty if she does not answer that description.* But where a ship was described in the particulars of sale as "teak-built" and "A 1," and to the condition "with all faults," there was added, "without any allowance for any defect or error whatever," and it turned out that she was neither teak-built nor classed A 1, it was held, in an action for breach of warranty, that such misdescription was matter of " error," and that the vendor under such a condition of sale was not liable unless there was fraud. ^ Most of the cases already cited under this division of the subject have a bearing upon sales of ship-property, whether effected by private contract or by public auction. It remains only to notice one point in connection with the proceedings by 1 Hellish V. Motteux, Peakc, R. 1.50. - Baglchole v. Walters, 3 Camp. I'A. ' Per C'lirmm. Pickering jj.Dom'sod. i Taunt. 779 : Shepherd c. Kain, 5 B. & Aid. 240 ; Schneider v. Heatli, i! Camp. 500. * Shepherd v. Kain, 5 B. &; Aid. 240. 5 Taylor v. Bullen, 5 Exch. 779 ; see the Dnke of Norfolk o. Worthy, 1 Camp. 340 ; Wright v. AVilson, 1 M. & Bob. 207. CHAP. I.] ACQUIRED BY I'UECIIASE. 15 ■\va_y of auction ; and that is, the emploj^ment of puffers at sales of personalty. Upon this question, which is of daily recurrence, the courts of equity and of law were not agreed as to the principle that should govern their decisions. In equitj% the employment of one person to bid at a sale in order to protect the property from being sold at an under value, is not held to be a fraud, although it is not notified to the other bidders present.^ At law the private employment of even one person for such a purpose, if he actually bid, was a fraud, which vitiated the contract even though the sale were not advertised as ivithout reserve.^ In the case of such a conflict as this is, it would seem that by the Judicature Act, 1873, sec. 25, subsection 11, the rule of equity has become the law of such sales authoris- ing at them the employment of a single puffer. At the same time the rule in equity is, that specific per- formance will not be decreed where even a single bidder is privately employed, as Sir William Grant phrases it, to take advantage of the eagerness of bidders to screw up the price .^ Moreover it is the received doctrine of equity, agreeing herein with the common law, that the employment of more persons than one to bid as puffers, is a fraud upon the purchaser.' This is but a corollary to the language just quoted from Sir William Grant. For since one person would suffice for the protection of the property, the object of employing more can only be to take advantage of the eagerness of bidders to screw up the price. It is a fraud of the same kmd, with the addition of another disguise, for a vendor to employ anyone to bid for liim at a sale, after publicly announcing ' Smith V. Clarke, 12 Vcs. 477 ; the law of Scotland, where the vendor Woodward r. Miller, 2 Coll. 279 ; may not bid at the sale himself or by- Flint V. Woodin, 9 Hare, 618 ; Bram- another, or reserve a single bidding, ley r. Alt, 3 Ves. fi20 ; ConoUy v. Par- without publicly announcing this re- sons, 3 id. 625 n. servation at the time of the sale. Bell - Greenr.Bavcrstock,32L. J.(C.P.) Pr. No. 130, 131. ISl; Bexwell i!. Cliristie, 1 Cowp. 39."): '■> ,Scnib!e, Smith v. Clarke, 12 Vcs. Howard v. Castle, 6 T. K. 042 ; Eex c. 477, 482. 483. Marsh, 3 Y. & J. 331 ; Crowder v. * Mortimer c. Bell, L. E. 1 Ch. 10; Austin. 3 Bing. 3()8 ; Wlieelor v. Col- j>cr Sh- W. Grant, Smitli ■;■. Clarke, 12 lier, 1 Moo. & Mai. 123 ; Thornett r. A'cs. 477, 482, 483. Haines, l.T M. & W. 307. This is ahu 16 SHIPS AS PROPEKTY. [CHAP. I. that it is to be tvitJiout reserxe; in equity, as at law, this vitiates the contract.^ On the other hand, neither law nor equity will countenance the purchaser in the use of unfair means at the sale, by which the result is turned to his advantage at the cost of the seller.^ In an action for non-delivery of a barge sold by auction to the plaintiff, it appeared that he had addressed the company at the sale, stating that he had a claim against the late owner, by whom he had been ill-used ; and when no one would bid against him, as the auctioneer refused to knock it down to his single bidding, he procured a friend to bid a guinea, and then himself gave another bidding ; but the whole amount was not more than one-fourth of the value of the barge. The Court were clearly of opinion that a sale under these circumstances could not be supported.^ And a court of equity has refused to grant specific performance in a case where the known agent of the vendor had bid for the purchaser, and others of the company were deterred from bidding by that circumstance, under the erroneous notion that the agent was acting as a puffer for the vendor.* what passes!'''" Under the general word sJiij}, questions have arisen as to details, whether this or that passed to the purchaser by the contract. The writers ^ on maritime law inform us, that if a 1 Meadows v. Tanner, 5 Madd. 31 ; able value, the mischief occasioned by see Kex v. Marsh, 3 Y. & J. 331 . such agreements may be prevented by In 1867 the law on this subject re- previously fixing a reserved price. By lating to the sale of lands by public the law of Scotland such agreements auction was altered by the 30 & 31 to defeat or restrain competition vitiate Vict. c. is. the sale ; Bell Pr. No. 131. 2 There is nothing contrary to equity ' Fuller v. Abrahams, 3 Bro. & Bing. in an agreement between intending 116. pm-chasers not to bid against each ' Twining v. Morrice, 2 Bro. 0. C. other, and the passage in Sugd. V. & P. 326 ; Sugd. V. & P. c. 1, § 1. 13 ed. p. 93, describing this as a fraud, * Boccns, not. 20 ; Straccha de Na- for which a court of equity would open vibus, p. 2, No. 12 ; Molloy de Jure the biddings, although the report had Marit. bk. 2, c. 1, § 8. The latter been absolutely confirmed, is not sup- adds, that if a ship commit piracy, the ported by authority ; In 2ie Carew's boat is not forfeited ; and refers to a Estate Act, 28 L. J. (Ch.) 218. KnocJt. case in 1 Roll. Ab. 530, for his autho- viit sales, which are based upon such rity ; and Beawes has followed the agreements, are well known in sonic words of Molloy. But in the case re- tradcs ; but in sales of realty or ship- fciTed to, the boat is not mentioned, property, oi' other subjects of consider- CHAP. I.] ACQUIRED BY PURCHASE. 17 ship be sold with the tackle, apparel, furnitui'e, and other instruments thereto belonging, the ship's boat is not conveyed by these words ; and they found their opinion upon the authority pf those passages of the Roman Law, in which it is said that the boat is not a part of the ship,^ or of its apparel.^ In an early case, it was held that common ballast, on board at the time of the sale, did not pass under the word furniture, for the place and purpose of it might be supplied by merchandise;^ and in later times, ballast, known as kentledge, did not pass by a sale of the ship with all stores, tackle, apparel, &c., because it was not expresslj'' described in the contract.* In mercantile instruments, however, the meaning of general terms is liable to vary according to the context and the purpose of the writing in which they are found, and in accordance with the established usage of the trade, in respect of which the parties are contract- ing.' Thus the fishing outfit of a Greenland whaler was held to be covered by the term "ship" in the 53 Geo. 3, c. 159, the statute which at the time limited the responsibility of owners in certain cases of damage done by their vessel.^ And yet this outfit is not covered by a policy on the ship with her tackle, apparel, furniture, &c. ; '' and although Lord Mansfield says that the boats, rigging, and stores, are covered by these words,^ it is the common practice in marine insurance expressly to name the boats." From such variety of usage, showing that there is no com- monly received acceptation, little assistance can be derived ' Dig. 21, 2. ii, Soapham non * Lano v. Neale, 2 Stark. 105. Sale videri navis esse, respoadit {Alfenus) of a ship with her appurtenances did nee quidquam conjunctum habere ; not under the latter word convoy any nam scapham ipsam per se parvam title to the oil to be afterwards acquired naviculam esse, omnia autem, quse con- in a whaling voyage ; Langton v. Hor- juncta navi essent, veluti gubeniacula, ton, 5 Beav. 9. malus, antennae, velum, quasi membra * Brough v. Whitmore, i T. E. 206. navis esse. ^ The Dundee, 1 Hagg. Ad, 109 ; 2 Dig. 6. 1. 3. § 1. Aimamenta na- Gale i>. Laurie, 5 B. & C. 156, S. C. ; vis singula erunt vendicanda ; scapha see Langton v. Horton, 5 Beav. 9. quoque separatim vendicabitur. Dig. ' Hoskins v. Pickersgill, 2 Marsh. 33. 7. 29 ; Si navem cum instrumento Ins. (ed. 1823) 735 ; 1 Arnould Ins. emisti, preestari tibi debet scapha navis. 21. Paulus : Imo, contra ; etenim soapha ' Ibid. navis non est instrumentum navis, ' 1 Arnould Ins, 22 ; Blackett «. &o* Eoyal Exoh, Ass, Co., 2 Or. k J, 244. ' Kinter's Case, Leon. 46. 18 SHIPS AS PROPERTY. [chap. I. ■for the interpretation of general terms. His own vigilance must be the purchaser's chief, if not only, reliance in the course of his negotiations with the seller. If the contract of sale purport to include both the ship and the freight, the contract may be good for the freight though bad for the ship, provided the title to the freight is not con- ditional on the passing of the ship.^ By Capture.- Restrictioas upon. Source of the Bight. Capture of ships, as lawful prize of war, is the third mode of acquiring this description of property ; and fortunately for the world at large, the exercise of this sovereign power, when it is permitted to private individuals, is restrained within limits definitely ascertained by international law, and still strictly observed hj all civilised nations.^ This right of acquisition cannot be exercised except during the existence of hostilities, or by other than persons duly authorised by one of the belligerent states ; but although, in respect of both these conditions, a capture be lawful, no property vests thereby in the captors, until the vessel has been carried into a port of the belligerent state, or of an ally in the war, and is condemned by a court of competent jmisdiction exercising its functions within the same country. These are the general limits imposed upon this extraordinary power. The right of a subject of Great Britain to capture for his own benefit is derived to him from the Crown by express commission called letters of marque and reprisals. Indeed, it is universally received as a necessary principle of public jurisprudence by aU writers on the subject, that prize or booty of war is the property of the sovereign : — Bello parta cedunt reipublicse.^ A captured ship, "therefore, is in this country a droit of the Admiralty, if the capture be not under letters of marque issued against the nation to which the prize belonged j nor is this • Douglas V. Eussell, i Sim, 624 ; .(on appeal) 1 My. & K. 488. 2 The Plenipotentiaries of Great Britain, Austria, France, Russia, Sar- xlinia, and Turkey, assembled in con- ferenoS at Paris, April 16, 1856, signed their celebrated declaration that as to these powers, intei- alia, •' Piiyateering is and remains abolished." 8 The Eleebc, Maas, 5 C. Bob. Ad. 174, 182 ; The Melomane, Colas, 6 id. 41, 48 ; The Thotis, 8 Hagg. Ad. 228, 231 ; French Guiana, 2 Dodson, Ad. 151, 157 ; Grotius, Ub. 3, c. 6, § 14 ; Jecker v. Montgomery, 13 Howard (Amor.) B. 515. CHAP. I.] ACQUIRED BY CArTUEE. 19 cured by the circumstance of a warrant for issuing such letters having been sent to the Judge of the Admiralty Court before the capture was made.-^ So that if prize be made of a French vessel ® by a ship bearing letters of marque against America? the captors acquire no right to the prize ; and if another ship, properly commissioned, assisted in the capture, a moiety of the prize still passes to the Crown, in right of its functions as High Admiral.^ Accordingly, a military force on land capturing a vessel at sea, acquire a droit for the Admiraltj^ but nothing for themselves in the prize, as such a force is without com- mission from the Admiralty ; nay, the same consequences would follow capture by a duly-commissioned naval crew if the capture were made from land by means of land armaments.* Captui'e within three miles of a neutral shore is a violation of the neutral territory. But the right of demanding reparation for such an injury belongs to the country whose sovereignty has been violated, and to no other ; certainly not to the enemy owners of the prize. ^ Capture, when lawful, presupposes a state of war ; it is itself Capture is a an act of open hostility ; and is a means of legally acquiring property only in so far as it is a right of war.^ Of the many ju7-a belli, therefore, this one right, subject to what has been said, is coeval with the existence of hostilities ; so that it begins and ends with them. During the existence of war, it is exercised with the sanctions and the impress of public law. The intervention of peace prevents any further exercise of the right, quiets claims, cures defective titles, and puts a stop to aU inquiry into anything that has gone before.^ If capture precede the commencement, or follow the cessa- 1 Le Grand Terrein, Hay & Mar. Thompson, 1 0, Hob. Ad. 227. Ad. 155, 157 ; La Bonne Amitii, il). * JPer Lord Stowell, Tha Eebeckah, 160 ; The Xavier, ii. 219 ; La Mig- Thompson, 1 G. Bob, Ad. 227, 236. none, ii. 221 ; Twee Gesuster, 2 C. ' The Eliza Anne, 1 Doda. Ad. 244. Eob. Ad. 284, note ; The Abigail, Ham- What must be shown to sapport such mond, 4 C. Eob. Ad. 72. a demand, ib. pp. 245, 246, 250. 2 A French vessel, i.e., neither sail^ " Le Louis, Forest, 2 Dods. Ad. 210, ing under American colours, nor 238, 239, 248. having an American commission on ' The Schoono Sophie, Arians, 6 0. board. Eob. Ad. 138 f The Molly, Badie, I ^ Le Grand Terrein, and cases in Dods. Ad, 394, 395, note 1 supra, besides The Eebeelsah, C 2 20 SHIPS AS PROPERTY. [CHAP. I. tion of hostilities ever so little, no property is acquired thereby, and the original owner is not divested of his right.^ Con- sequently, a British ship and cargo taken by an American privateer within the time allowed for hostile capture by the treaty of peace, and retaken after the expiration of that period, was decreed by the English Court of Prize to be restored to the American captor.^ Inchoate right of This case of The Somerset exhibits also the nature of the "DroDcrtiYt right which vests in the captors immediately on the capture being made, and before it is sealed with the sanction, and evidenced by the forms of public law ; it is an acquisition that has been made and still must be held by force. Our courts have recognised it as capable of assignment,^ and as being an insurable interest ; * our Legislature have provided that it should pass to the personal representatives ; ^ but it is still no less liable to be divested in the meantime by recapture.^ When property For the purpose of quieting titles to possession, the modern vested in captors, practice of belligerent powers, on which rests the rules of in- ternational law, has been to receive the decree of certain courts, properly constituted, as binding and conclusive on both belligerents in respect of the right of property in the captured vessel. The prize must be carried by the captors into a port belonging to their own country, or to an ally in the war, and there condemned by a court of competent jurisdiction exercising its functions within the same country.^ The con- demnation therefore of a British ship, captured by a French privateer, in a French prize court sitting in Spain, attliat time 1 Before the uotifloation of hostili- ling v. Vaughan, 11 East, 619 ; Le ties, The Sarah and Bemhardus, Hay & Cras v, Hughes, 3 Dong. 81 ; and see Mar. Ad. 175 ; The Maria Magdalena, Eouth v. Thompson, 11 East, 428 ; ib. 250; Eouth v. Thompson, 11 East, Luoena v. Craufurd, 2 B. & P. N. E. 428 J after peace concluded. The So- 269 ; 3 B. & P. 75 ; 8 T. E. 13. inerset, MethereU, 2 Dods. Ad. 66 ; ^ 54 q^^^ m (,_ 93^ g g5_ The Harmony, Norman, 2 id. 78. ' " As to the period at which this . 2 The Somerset, Metherell, 2 Dods. policy of giving prize to the captors Ad. 56 ; S. P., The Harmony, Norman, was first adopted by the various states 2 id. 78. of Europe, see 4 C. Bob. Ad. 315, note. 3 Morroughi). Comyns, 1 Wils. 211 ; ? The Flad Oyen, Martensen, 1 C. Baker v. Jardine, 13 East, 235, note. Eob. Ad. 136, 139, 140 ; The Viotoila, * Boehm v. Bell, 8 T. E. 154 ; Stir- Bdw. Ad. 97, CHAP. I.] ACQUIRED BY CAPTURE. 21 allied with France in the war, is valid, and conclusive as to the title of a neutral purchaser.^ But a court of the belligerent state, exercising its functions in a neutral country, is not there competent to decree concern- ing prize. Consequently, the right of the original owners not being divested by the sentence of such a court so situated, they are entitled to restitution of the ship on her being afterwards recaptured.^ Lord Stowell, however, held that the infirmity was cured by a subsequent sentence of condemnation by the Prize Court of the belligerent state sitting within its own territory.^ The decree of a prize court being a proceeding in rem, it is Competent Com-t essential to the validity of such sentence that the prize itself be in the control, and so to say, possession of the court at the time of adjudication.* The condemnation, therefore, of a ship as lawful prize of war, while lying in a neutral port, is in- sufficient to give the captors or purchaser a good title as against the original owners.^ Lord Stowell, having con- demned The Herstelder, which was represented to the court as lying at Plymouth, afterwards rescinded the decree, upon hearing that instead of being at Plymouth, the vessel was at the time of adjudication actually lying in the port of a neutral country ; ® but the same learned judge, knowing that illegal 1 The Victoria, Edw. Ad. 97 ; The ■' The Falcon, Atkins, 6 C. Eob. 194. Christopher, Slyboom, 2 C. Eob. Ad. The word affirming seems to have ap- 209 ; Oddy v. Bovill, 2 . East, 473. peared ia the statement of process in When Holland was made a French this case, but Lord Stowell held the province, the decree of a French Court sentence to be valid, understanding sitting there was sufficient. Wake v. that word to be a clerical error, and Hillary, 12 Fac. Coll. (Scotland) 556. thereby showing what his judgment 2 The Flad Oyen, Martensen, 1 C. would have been if this second sen- Eob. Ad. 135 ; The Staadt Embden, 1 tence had been an affirmation merely C. Eob. Ad. 26 ; The Kierlighett, of the first upon appeal. Spoerewig, 3 C. Eob. Ad. 99 ; Have- ^ See the observations of Lord lock V. Eockwood, 8 T. E. 268. Stowell in the Henric and Maria, In Donaldson v. Thompson,,! Camp. Baar, 4 C. Eob. Ad. 43, 55-58. 429, and in Hagedom v. Bell, 1 M. & ^ The Herstelder, De Koe, 1 C. Eob. Sel. 450, Lord Bllenborough said that Ad. 114, 119, note ; the Henric and that is to be coiisidered a neutral Maria, Baar, 4 id. 43 ; La Purissima country, for this purpose, in which the Concepcion, Aneres, 6 id. 45 ; The forms of an independent neutral go- Nostra Signora de los Angelos, Sara- vemment were preserved, although the gossa, 3 id. 287. belligerent may have such a body of '> She was in a port of Norway. troops stationed there as in reality to The Herstelder, De JCoe, 1 0. Eob. Ad. possess the soyereign authority, JIS, 22 SHIPS AS PROPERTY. [chap. I. sentences of this kind had in former wars occasionally received the sanction of the courts of this country, thought himself hound to give effect to a similar sentence passed by the enemy, until the practice should be restored by the Court of Appeal to the proper purity of the principle ; and the Lords Commis- sioners of Appeals, whilst recognising the principles laid down by Lord Stowell as the only proper foundation on which the proceedings and decree of a court of prize could be sustained, approved of the exception made in this particular instance and affirmed the decree.^ During the time that this appeal was pending, and before sentence was given by the Lords Com- missioners, another case ^ of the same kind had been brought before Lord Stowell, and with respect to it, there was no alternative but to foUow the course which he had previously taken in the case of The Henric and Maria, So far as appears, this is the latest case before Lord Stowell,^ being only the ' The Henric and Maria, Baar, 4 C. Rob. Ad. 43 ; (on appeal) 6 id. 139, note. 2 The Comet, Adams, 5 C. Rob. Ad. 285. ' The Victoria, Edw. Ad. 97, is not a case of this kind ; it will be f oimd above (p. 21), assigned to its right place ; al- though in Abbott on Shipping it con- tinues to be quoted with the Comet as an instance of a relaxed practice. Lord StoweU also was represented in earlier editions of that work, which appeared under the hand of the late Mr. Justice Shee, as having suooumbed and surrendered the principles of the court to the force of foreign practice, and the improprieties of his predeces- sors. It is to be regretted that the very learned Chancellor Kent should have been misled, by what authority he says not, so far to misrepresent both Lord Stowell and the principles of the English Prize Court, as appeals by the following statement in his Commentaries, vol. i. p. 104. " He (Lord Stowell) considered that the English Admiralty had gone too far, in supporting condemnations in Eng- land, of prizes abroad in a neutral port, to permit him to recall the vicious practice of the Court to the acknow- ledged principle ; and the English rule is now definitely settled, agreeably to the old usage and the practice of other nations." The learned commentator adds, " The Supreme Court of the United States has followed the Eng- lish rule, and it has held valid the con- demnation, by a belligerent court, of prizes carried into a neutral port and remaining there. This was deemed the most convenient practice for neutrals, as well as for the parties at war ; and though the prize was in fact within a neutral jurisdiction, it was still to be deemed under the control, or sub po- testate of the captor.'' The principle, on which this alleged practice of the United States Courts is founded, may be seen asserted and argued by Mar- shall, 0. J., in the case of Hudson v. Guestier, 4 Cranoh's Rep. 293. The argument of the learned Chief Justice appears to be this :— the prize, though lying in a neutral port, is in the power and possession of the officer on board, his possession is that of the sovereign of his country ; and it is the possession of the sovereign that gives his court CHAP. I.] ACQUIRED BY CAPTUBE. 23 second, in which he countenanced any deviation from the rectitude of principle ; and in these two instances he bowed to a necessity, imposed on him by the defection of his pre- decessors from the strict rule of law, practising a higher jurisdiotion ; therefore the prize is within the possession of the court. It is not intended to misrepresent the learned judge's argument ; but it seems when thus stated to be a principle on which the less that is said the better. It is far more easy to justify the prac- tice by expediency, and with that the learned commentator should have con- tented himself. But with regard to the practice of the United States, it is laid down so late as the year 1851 by Taney, Chief Justice of the Supreme Court (Jecker v. Montgomery, 13 Howard Bep. 498, 516), that, " As a general rule it is the duty of the captor to bring it within the jurisdiction ol a prize court of the nation to which he belongs, and to institute proceedings to have it condenmed. This is required by the Act' of Congress in cases of capture by the ships of the United States; and this act merely enforces the performance of a duty imposed upon the captor by the law of nations, which in all civilised countries secures to the captured a trial in a court of competent jurisdiction before he can finally be deprived of his property." As for the practice of the Continental nations, I have not been able to ascer- tain what it has been subsequently to the peace of 1815. Before that period, during the great French war, when anything was observed but principle, I have no doubt it was exceedingly irre- gular. See Souvenirs de M. Berryer, vol. ii. c. 3, Paris, 1839 ; cited in Senior's Biographical Sketches, 1863, pp. 56-58. Martens' " Bssai oonoern- ant les armateurs," &c., lays down the following rule, which it will be ob- served is more stringent than the prin- ciple of the English Courts : " C'est alors qu'observant les formes susdites, I'armateur doit amener sa prise, et I'amener dans la r^gle dans un des ports de son souverain, et mSme, s'il pent, dans ce port dans lequel il a ob- tenu sa commission." But I find the same author, in his Droit des Gens, liv. 8, 0. '1, § 289, admits that while it is the duty of a privateer to carry his prize into a port of his own country, he may under stress of war carry it into a neutral port, and wait for condem- nation of it there. Among modern writers neither M. Ortolan nor M. Hautefeuille makes any mention of the question. Both of them, however, are agreed upon another and a broader question, which has exercised the ingenuity of jm-ists to little advantage or satisfac- tion of their readers, so great is the conflict of opinion, and so arbitiary the conclusions severally adopted. M. Ortolan (Eagles Internationales et Diplomatie de la Mer, vol. ii. liv. 3, c. 3), and M. Hautefeuille (Des Droits et Devoirs des Nations Neutres, vol. i. p. 354, 355), lay it down that the pro- perty of the original owner is not divested except by a sentence of a, court of competent jurisdiction. M. Martens (Droit des Gens, Uv. 8, c. 4, § 282) seems to follow Grotius (De Jur. Belli, lib. 3, c. 6) in asserting that possession for twenty-four hours suffices. Vattel (liv. 3, u:. 13), on the other hand, asserts that this rule of twenty-four hours applies only to mili- tary operations on land, and thinks that a ship must be brought infra pra)ndia into a place of safety where it is entirely in the captor's power. And the editor of Martens' Droit des Gens, M. Pinheiro-Ferreira, disputes the possibility of determining the point {libi swpra, note 79). The question was much discussed before Lord Mans- field and the Court of King's Bench in Goss V. Withers, 2 Burr. 683, and it is there shown tha,t it is the ancient prac 24 SHIPS AS PEOPEETY, [chap, I. equity towards the enemy,^ in order to win for himself and his successors the acknowledged right of ever after observing the principles of the court in aU their purity. Accordingly, during the Crimean war, when seven ships, captured from the enemy, but totally unfit to be brought to this country, were carried into Memel, the port of a neutral country, and the consent of the authorities of the country had been obtained for the sale of them there. Dr. Lushington, reluctantly, and only in consideration of the exceptional circumstances of the case, condemned them as prize. But the learned judge added : — " I wish it moreover to be ex- pressly understood, that this case is decided upon its own peculiar circumstances, and is not to be considered as a pre- cedent for the condemnation of prize while lying in a neutral port. The rule is, that the prize shall be brought into a port belonging to the captor's country, and the Court must guard itself against allowing a precedent to the contrary to be established." ^ HOW TRANS- FERBED. In case of a British ship. We come now to consider the legal incidents which are requisite to a valid transfer of ownership from the seller to the purchaser. Such dealings with the property as result in Trusts, Mortgages, and Hypothecations, will be considered hereafter in their order. A legal transfer of a British ship, or any number of the sixty-fom' shares therein, entitling the transferee to rank on the register as owner or joint-owner of such property, and to tice of the English Courts to require a sentence of a court of competent juris- diction to divest the original owner of any property in his ship. The same is laid down as the rule by Lord Stowell not only in the numerous cases which came before him in his judicial capa- city, but also in the celebrated letter written by him conjointly with Sir John NichoU, in the month of Septem- ber, 1794, on the practice of the Eng- lish Prize Court, at the request of the American Minister at St. James's, the Hon. John Jay, and addressed to that gentleni^n (see Story's Not^? on Prize Courts) ; and this is no doubt now the received rule and practice of the mari- time nations of Europe and America. See, however. The Santa Cruz, Picoa, 1 C. Eob. Ad. 50 ; The Ceylon. Mulac, 1 Dods. Ad. 119. ' " In jure belli, quod qnissibisumit, hostibus tribuendum est: — ^in the con- duct of war, you must hold that to be lawful to your enemy which you prac- tise yourselves ; " per Lord StoweU, Henric and Maria, 4 C. Kob. Ad. 43 62. 2 The Polka, Spinks' Prize Eep. 67, CHAP, I.] HOW TKANSFEEEED. 25 burthen or absolutely dispose of it accordingly, cannot be made except between persons who are qualified to be owners of a British ship. A vahd transfer must be by one possessed of suflScient power, to another qualified to hold such property, by means of a proper bill of sale duly executed and attested ; and should be evidenced by the requisite alterations and entries in the register. The recent Eegistry enactments have continued, among the purchasers of ship property, the distinction between those who are quahfied to be owners of a British ship, and those who are not. No person, who is disqualified, may hold any legal or beneficial interest in a British ship, either as sole or part owner.^ Upon the accession of an alien to her proprietory, the vessel must be taken oif the register and her certificate delivered up ; she must cease to use the British flag, or in any way assume the British character ; ^ otherwise, the property of the person disqualified, and also the whole ship, is liable to be forfeited to the Crown.^ This does not apply in the case of a British Joint Stock Company, which continues quahfied to own British ships notwithstanding the accession of aliens as shareholders.* "We shall here consider by whom, and to whom, and in what way a valid transfer may be made. Eegistration of ships and owners will form the subject of a distinct chapter. A ship of British build is, before registration, naturally By whom trans- f ApTgQ supposed to be in the disposition of the builder,' who, there- fore, unless he has built her under special contract," or pre- viously transferred his right ia the vessel,'' is the person capable of giving a vahd title to the property therein. If a ship of foreign build is to be sold in this country, it is Foreign ship, from her previous bill of sale, the universal instrument of transfer in use with all maritime countries,^ together with such 1 17 & 18 Yict. c. 104, § 18, 38, 39. « Woods v. RusseU, 5 B.&Ald. 942 ; 2 lUa. § 38, 53, 55, 81. Clarke v. Spence, 4 A. & E. 448 ; 3 Ibid. § 103. Wood v. Bell, 5 B. & B. 772. Ante, * Reg. V. Amaud, 9 Q. B. 817, 818 ; p. 5. 17 & 18 Vict. c. 104, § 38. ' Bead v. Fairbanks, 22 L. J. (C. P.) 5 Mucklow V. Mangles, 1 Taunt. 318 ; 206 ; 13 C. B. 692. Miles V. Dawson, Peake, Add. C. 54 ; ' The Sisters, 5 C. Rob. Ad. 155 ; Stringer v. Murray, 2 3.* Aid, 248 ; per Lord Stowell in The Copenhagen, and cases, ante, p. 3. . Mening, 1 Q, Rob. Ad. 289. 26 SHIPS AS PEOPEETY. [CHAF. I* Begistereu Owner, Trustee. other muniments of title as the municipal law of her home port may require, that we are most likely to discover the true owner of the vessel. But if she has been brought into this country as a prize of war, the proper document of title, showing authority for the sale, is the official copy of the sentence of a court of competent jurisdiction.^ A vessel, registered under the 17 & 18 Vict, c. 104, is in the disposal of the persons appearing on the register as owners, and jointly or severally to the extent of the shares registered in his, her, or their names, subject only to any rights and powers appearing by the register to be vested in any other person. The register is the evidence of title to transfer, both as to the owner and the property owned ; ^ he who appears therein to be owner is the person to give effectual receipts for the price ; ^ and his legal relation to the property cannot be impugned, except on evidence of fraud,* or of the invalidity of the biU of sale to him,' or of the existence of an equitable title by his own authority in another.^ If the registry of a ship, or any share or shares therein, is in the joint names of several, all must join in the transfer to give a valid title.'' In case of the lunacy ^ of a sole registered owner, or of one of several joint-registered owners of a ship or shares held upon trust,^ or of the personal representative of a sole deceased registered owner,^" the Lord Chancellor may appoint persons to make the transfer, alone, or jointly with others, as the case may be. And if such sole registered owner, or one of such joint-registered owners of shares held upon trust,^^ or the per- sonal representative of a sole deceased registered owner,^^ be out of the jurisdiction of the High Court of Justice, or cannot 1 17 & 18 Viot. c. 104, § 40. 2 The Eastern Belle, 33 L. T. N. S. 214. 3 17 & 18 Vict. c. 104, § 43, 55, 57, 70. * Fraud witli which he is connected by act, or by notice, The Horlook, 2 I-rob. Div. 243. 5 Orr V. Dickinson, 1 Johnson, 1 ; 28 L. J. (Ch.) 516, S. C. ; Eead v. Fairbanks, 18 C. B. 692 ; 22 L. J. (C. P,) 206, S, C. 1= 25 & 26 Vict. 0. 63, § 3. 7 17 & 18 Vict. 0. 104, § 37, 43. 8 Ihid. § 99. By the 18 & 19 Vict. c. 91, § 10, shares in ships are to be deemed to be included in the word jStocJd within the provisions of tUe Trustee Act of 1850, 13 & 14 Vict. c. 60. s 13 & 14 Viot. c. 60, § 3, 6. 1" Hid. § 6. " Ibid. § 22. 12 im. § 25. CHAP. I.] HOW TEANSFEEEED. 27 be found, or of whom it is uncertain whether he be living or dead, — or if such owner, sole or joint, being a trustee, neglect or refuse for twenty-eight daj's after request in writing, by the person entitled absolutely to the property, to transfer^ — the Chancery Division of the High Court of Justice may appoint persons to make the transfer, alone, or jointly with others, as the case may be. And the persons so appointed by the Lord Chancellor, or the Court, are empowered to do all acts neces- sary to be done for the complete execution of the intended transfer.^ If the purchase has been negotiated under a certificate of Attorney under sale, the attorney or attornies have power under the same Sale. document, to do all things necessary to perfect a valid transfer of the property.^ But there are conditions of the validity of the certificate, and conditions of the validity of the exercise of the power which the purchaser should see to for his own security. A certificate of sale must be for the disposal of an entire Conditions of validity under a ship ; the attorney or attornies exercising the powers must be Certificafce of named in it ; the time within which the power may be exercised must be specified ; the place of sale and the port of registry must not both be within the United Kingdom or the same British possession.* The power given by such an instrument, if exercised in conformity with the directions contained therein, enables the attorney or attornies to perfect the transfer and confer a good title to the ship.^ The death of the principal, before sale, is no ground for impeaching a bond fide sale for valuable consideration effected in accordance with the authority of such a document ; nor is the prior bankruptcy of the principal any ground of objection, when the sale is to a purchaser without notice, under a cer- tificate in which the place of sale is specified, and the time limited for selling does not exceed twelve months.^ If an attorney, under a certificate of sale, do not pursue his authority strictly, all acts done by him under it are invalid, and the registration that foUows is a nuUity in consequence. 1 13 & 14 Vict. c. 60, § 23, 24. ■" IMd. § 77, 78, 79, 81, and Form F. 2 IMd. § 26. = Ibid. § 76, 81. 3 17 & 18 Viot. c. 104, § 76, and " Ibid. § SI. Form N, 28 SHIPS AS PROPEBTY, [chap. I. Statutory Sub- stitute for dis- qualified Owner. Under the former Statute. (iruardian of Infant or Com- mittee of lunatic. The agents in Liverpool of a British shipowner in Prince Edward's Island, haying been empowered by certificate of sale to sell The Polly Hopkins for not less than 1300Z., proposed on their own account to cover therewith certain bill trans- actions, and accordingly filled up a bill of sale for 900Z., which, upon the refusal of the registrar to register it as not pursuing the certificate, was altered to 1300Z. ; the certificate in the meanwhile was revoked, and then the bill of sale was placed on the register: but a bill being filed in Chancery by the original owner, it was there held that the sale was not honci fde, that the bill of sale, notwithstanding appearances, did not in reality accord with the power of attorney, and therefore was invalid, and that no title to the property passed by the regis- tration thereof.^ In such a case the Court will order the register to be vacated of any name not entitled to appear in the ownership, and all other things to be, done necessary to vest the title in the right party.® Where property in a British ship, in consequence of its being transmitted to a person disqualified to be the owner, is ordered by a court of competent jurisdiction to be sold, the nominees appointed by that Court for the purpose are the persons to make and perfect the transfer.^ , In case of a vessel registered under the 8 & 9 Vict. c. 89, a valid unimpeachable transfer could only be made by the registered owner whose title appeared duly indorsed on the certificate of registry, and for the share or shares of which he is by such indorsement the declared owner.* An infant or a lunatic, though otherwise duly entitled as owner, cannot deal with the property himself ; but it seems that the guardian or committee or other person appointed by the Court for the purpose, is not empowered by the Act (17 & 18 Vict. c. 104, § 99) to sell or mortgage the ship ; the provisions of that section being interpreted to apply only to ' Orr I). Dickinson, 1 Johns. 1 ; 28 L. J. '(Oh.) 516, S. C. 2 Orr «. Dickinson, mpra; Holder- ness 1). Lamport, 30 L. J. (Ch.) 489. 3 17 & 18 Viot. c. 104, § 62, 63. 4 8 & 9 Vict. c. 89, § 38, 39. See gato V. Irying, 5 De (J. ^ S, 210 ; McCalmont v. Eankin, 2 De G. M. & Gr. 403 ;• FoUett v. Delany, 1 De G. & S. 235. The former Registry Act (8 & 9 Vict. 0. 89) was repealed, and the 17 & 18 Viot. c. 104, came into operation on the Ist of May, 1855, CHAP. I.] HOW TRANSPEREED. 29 such acts as are necessary for the management, preservation, and registration of the vessel.^ A transfer of the property in a ship, or share therein, as of To whom trans- any other chattel, may he made to any one ; but for the purposes of the register there is a difference. A British ship is a vessel that belongs wholly to owners of the description given in the statute.^ A vaHd transfer may be made of a share in such a vessel to a person who does not answer the description of a British owner ; ^ but if the vessel, after thereby losing her national character, uses the British flag and assumes the British character, such interest of the unqualified person, whether it he legal or beneficial, is forfeited to the Crown ; and so also is the whole ship, if such use and assumption are for the purpose of making her appear a British ship.* The only exception to this latter declaration of forfeiture is in favour of vessels resorting, under stress of war, to a false flag for the purpose of escaping capture.'' Moreover, no transfer can be registered except upon a denial that any unqualified person or body of persons is en- titled, as ownei", to any legal or beneficial interest in the ship, or any share therein; and a false declaration, wilfully made on this point, is a misdemeanour,^ and incurs a for- feiture to the Crown of such interest as is possessed by the declarant, and by those on whose behalf he was authorised to make such declaration.^ These enactments make it a matter of the first importance Qualified Owners to purchasers, and to co-owners with the vendor, that no "f » British sMp. interest, legal or beneficial, in any Britjsh ship intended still to retain her national flag and character, should be transferred to any but those who are qualified to be owners of a British ship. Those who are qualified to be owners of a British, ship are,^ » Michael v. Fripp, L. E. 7 Eq. 95 | s 27 & 18 Vict. c. 104, § 18. In 17 & 18 Vict. c. 104, § 99. accordance with the change of policy ' Ibid. § 18. which intervened since the previous * Ibid. § 103. enactment on this subject by the 12 •1 Ibid. & 13 Vict. 0. 20, § 17, the law now re- 5 Ibid. quires in a natui'al-bom subject who ' Ibid, and 18 & 19 Vict. c. 91, § 9. has taken a foreign oath of allegiance, t 17 & 18 Vict. c. 104, § 38, 103. and in one Who is naturalised or made so SHIPS AS PROPERTY. [chap. I. First, natural-born British subjects;^ excepting any one who has taken the oath of allegiance to a foreign sovereign or state ; — ^but this exception is suspended if he afterwards takes the oath of allegiance to Her Majesty, and while he is owner, continues resident withiu Her Majesty's dominions, or is inember of a British factory, or partner in a house actually carrying on business in some place in Her Majesty's dominions: — Secondly, persons made denizens by letters of denization, or naturalised by, or pursuant to, any Act of the Imperial Legisla- ture, or any act or ordinance of the proper legislative authority in any British possession,^ if such persons, while they are owners, continue resident within Her Majesty's dominions, or are members of a British factory, or partners in a house actually carrying on business in some place within Her Majesty's dominions, and have, since their denization or a denizen, first the oath of allegiance to Her Majesty ; secondly, that while he continues owner he should he re- sident within the British donainlons, or member of a British factory, or partner in a house actually carrying on business in the British dominions. A very liberal extension of British rights and privileges to aliens is made by the 33 & 3i Vict. c. 14 ; but nothing in that Act contained is to qualify an alien to be the owner of a British ship, § li. The register serves a municipal purpose, and contemplates an interna- tional object. It ascertains the owner- Ship of property for the convenience of Her Majesty's subjects, and it reserves for them alone the protection and honour of the British flag. See next chapter. ^ This includes children bom out of the ligeanoe of Her Majesty, whose parents are both natural-bom British subjects (7 Anne, c. 5, § 3), and the children, so bom, of a father who is a natural-bom British subject, i Geo. 2, c. 21, § 1 ; Comyns Dig. Atwn, Wall's case, 3 Knapp, P, C. 13. In this case the father had been a naturftl-born British subject, and while in the service of France had taken the oath of a knight of a French order ; the mother was a Frenchwoman ; and the son had been bom in France and had served in the French ai-my ; the son was never- theless held to be a natural-bom British subj ect. The children of such children as are natural-bom British subjects by the 4 Geo. 2, c. 21, are themselves natural-bom British subjects, 13 Geo. 3, c. 21, § 1 ; Drummond's case, 2Knapp, P. C. 295. The exceptions are of those whose fathers, " at the time of the birth of such children respectively, were or shall be attainted of high treason by judgment, outlawry, or otherwise, or were or shall be liable to the penalties of high treason or felony in case of their return without the royal licence to the United Kingdom ; or whose fathers, at the time of the birth of such children respectively, were or shall be in the actual service of any prince or state atenmity with the British Crown," 4 Geo. 2, 0. 21. See Fitch v. "Weber, 6 Hare, 61. With regard to the power of a natural-bom British subject, exu^re patrimn, and again to reassume his rights, see the 33 & 84 Vict, o, 14, 86 & 36 Vict. c. 89. ^ See now the 83 k 34 Vict. c. 14, CHAP. I.] HOW TRANSFERRED. 81 naturalisation, taken the oath of allegiance to Her Majesty : — Thirdly, bodies corporate,^ established under, subject to the laws of, and having their principal place of business in, the United Kingdom or some British possession.^ In case a bill of sale be executed to an infant purchaser, the Infant Trans- transfer cannot be placed on the register, but the vendor is a trustee for the purchaser dm'ing infancy.^ By the law of England and of Scotland, the transfer of instrmncnt of property in chattels may be made by sale and delivery without ^'^^°^f<=^- writing.* Ships, perhaps, are no exception at common law to this general rule. Yet the custom of owners, in dealing with ship property, to commit their transactions to the evidence of written documents, comes down to our own day from an age so distant, that judges have declined to give an opinion Avhether a transfer of such property without writing would be valid at common law.^ It seems to be a fact common to all the maritime nations of Europe, that with the growth of intelli- gence and education, sprang up a desire to create written muniments of title in respect of all those kinds of property, such as land and ships, of which the owner could not always conveniently have, and give manual possession, and to displace the rude symbolical modes of transfer, that had sufficed for the simplicity of early times, by others better adapted to the use of letters inherited by our own day. The spirit and the result of this great change as it affects Europe, and the obligation with regard to it which is now im- 1 Notwithstanding there are alien only the jus ad rem speoifioam or titu- shareholders on the company's register, lum transferendi dominii ; Bell, Pr. Beg. V. Arnaiid, 9 Q. B. 806. § 88, 1299, 1300 | 1 Stair, H, § 2 ; 3 2 17 & 18 Vict. c. 104, § 18. Ersk. 3, § 2. 3 Stapleton v. Haymen, 2 H. & C. ^ EoUeston v. Hibbert, 3 T. E. 406, 918 ; 33 L. J. (Ex.) 170 ; and 25 & 26 412 ; The Sisters, 5 C. Rob. Ad. 155. Vict. c. 63, § 3. But the Court of Queen's Bench were of * To this extent the common law of opinion that a vessel not required to be England agrees with that of Scotland. registered, might, although registered, But whilst the jurists of England hold nevertheless he transferred without a that by the sale of an existing specific bill of sale, Benyon v. Cresswell, 8 chattel the property passes to the pur- Q. B. 899. See European and Austra- ohaser before delivery, those of Soot- Han Eoy. Mail Co. v. P. & 0. Steam land, founding on the civil law, assume .Navig. Co,, 12 Jur. N. S. 909 ; Stewart that no property passes till delivery, u, Kddowes, Hudson v. Stewart, L. E, and that the purchaser mean while has 9 C. P. 311, 32 SHIPS AS PROPERTY, [CHAP. I. posed on the subjects of the British Crown, have been stated by the gi'eatest authority that has yet appeared on these questions. Lord Stowell says, — "According to the ideas which r have always entertained on this question, a bill of sale is the proper title to which the maritime courts of aU countries would look. It is the universal instrument of transfer of ships in the usage of all maritime countries; and in no degree 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 would in its ordinary practice always 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." ^ Bill of Sale. BiUs of sale are known to this country under a distinction of name. The grand hill of sale is the original conveyance from the builder to the purchaser. The hill of sale is the ordinary instrument of transfer from one purchaser to another. Contents. The usual contents of this document consist of a statement of parties, the consideration money for the transfer, and receipt thereof; a description of the ship, specification of the property therein to pass between the parties, and transfer thereof to the purchaser ; with covenants for title and against incumbrances. The transfer of a registered ship,'' or share therein, when disposed of to persons qualified to be owners of a British ship, must be by bill of sale, in the form prescribed by the Act, or as near thereto as circumstances permit.^ When the transfer is to persons not qualified to be owners of a British ship, under the authority of a certificate of sale, a bill of sale seems to be the only effectual instrument of transfer, being a necessary part 1 The Sisters, 5 C. Rob. Ad. 155, § 19, no. 2, 8. kndipost, Chap. ll. 159 ; The Copenhagen, Mening, 10. ^ IT H 1% Vict. c. 104, § 55. The Bob. Ad. 289 ; per Dr. Lushington, same option is not now permitted as The Eliza, Cornish, 17 Jur. 738, 739 ; by the previous statutes, 3 & 4 Will. 4, 1 Boo. & Ad. Eep. 36, S. C. per Tur- c. 55 ; 8 & 9 Vict. c. 89, where it is, ner, L. J., in Hooper v. Gumm, L. E. " by bUl of sale or other instrument 2 Ch. 282, 290. in writing." The assignment of an 2 " Ship " shall include every de- unregistered ship, being intended by scription of vessel used in navigation the builder for an alien, is valid though not propelled by oars, 17 & 18 Vict, not effected by the statutory instru- c. 104, § 2 ; but see the two classes of ment. Union Bank v. Lenanton, 3 0. vessels not required to be registei-ed, P. Div. 243. CHAP. I.] HOW TRANSFERRED. 33 of the evidence to be produced to the registrar.^ And irre- spective of the registry laws altogether, a bill of sale appeal's to be that evidence of ownership which is expected in the maritime courts of all nations." In a case of prize, or of sale bj' order of the Court of Ad- miralty, the document of title, we have seen,^ is the sentence of the Court properly exemplified.'' The Molly was seized in the Thames in 1814, under warrant of the Court of Admiralty, obtained at the instance of the original British owner. It was said for the person possessed of her that he bought her under sentence of a Prize Court ten j'ears before, and some parol evidence of the ship having been in the Co7iseil cles Prises at Paris, but no documentary evidence, was produced. Lord Stowell, considering the length of time after which she had been seized, upon her accidentally putting into the Thames, and the change of relations between this country and Spain, the country of the purchaser — first of neutrality, then of enmity, and last of amity — thought himself bound not to inquire minutely into the title of the present owner, and rather to supply defects in the evidence by a presumption in favour of Spanish rectitude and of regularity in the French Courts of Prize.^ In form, a bill of sale, when used for the purpose of trans- Form, ferring a registered ship, or share therein, to a person qualified to be the owner of a British ship, is required to contain the description of the vessel given in the surveyor's .certificate, or such other description as may be sufficient to identify her to the satisfaction of the registrar ; to be, in other respects, in accordance with the form issued- in, or in pursuance of, the Merchant Shipping Act, or as nearly so as circumstances permit; and to be attested by one or more witnesses in whose presence it has been executed by the transferor." If the instrument be in any other form, or contain other particulars, 1 17 & 18 Vict. c. 104, § 81, no. 10. 289 ; per Dr. Lushington, The Eliza, It is observable that no similar pro- Cornish, 17 Jur. 738, 739 ; 1 Ecc. & Ad, vision to this is to be met with in Eep. 36, S. C. regard to a ship sold to a foreigner at ' Ante, p. 26. the port of registry. See § 53. * 17 & 18 Tiot. c. 104, § 40. 2 Per Lord StoweU, The Sisters, 5 C. » The MoUy, Eadie, 1 Dods. Ad. 394. Bob. Ad. 155, 159 ; cited ante, p. 32. « 17 & 18 Vict. c. 104, § 6, 8, 55. The Copenhagen, Mening, IC. Bob. Ad. 3-1 SHIPS AS PROPERTY. [cHAP. I. no registrar shall be required to record the same without the express directions of Her Majesty's Customs.^ Consiaeredwith Identification of the ship that is the subject of transfer, is a funcUons/*^ Condition of validity in the bill of sale ; and identification of the subject of transfer with the ship described on the register, is a condition of registration. If the vessel is not yet on the register, care should be taken so to describe her that the identity of the vessel in the grand hill of sale with that in the declaration of ownership and the surveyor's certificate, may satisfactorily appear. If she is already on the register, her identity being with much care and difficulty ascertained by measurement, description, name and number, it is hazardous to deviate from the description contained in the surveyor's certificate, notwithstanding that such other description as identifies the vessel to the satisfaction of the registrar is allowed by the Act.^ Apart from its effect under the statute as a conveyance, this instrument is, for the registrar, the legal evidence that ascertains the property and proves the transfer ; and that officer is protected in his refusal to register any instru- ment not statutory in form and particulars, unless expressly directed by the Commissioners of Customs to record it. For that reason the statement of parties must, in respect of the transferor, coincide with the contents of the register. But apart from the evidence of identity in respect of owners, the effect of the instrument depends on the recorded owner being a party to it,. as he alone has the power of absolutely disposing of the shares.^ Moreover, the object of the legislature, being to preserve the simplicity of transfer, and the individuality of this power, whether the ownership be in a single person, or several persons jointty, requires the omission of any description of the transferees in the bill of sale, e.g., as " trustees, partners, or copartners," which would complicate the register with new relations. The registration, therefore, of any instrument con- taining such particulars is prohibited by statute, unless in the particular case this be directed by the Commissioners of Customs.* 1 18 & 19 Vict. c. 91, § 11. 3 17 & 18 Vict. c. lOi, § 43. 2 IWd. 17 & 18 Vict. 0. 104, MS & 19 Vict. c. 91, § 11. Tlie § 55. registrar is not to record it, even CHAP. I.] HOW TRANSFERRED. 85 In the bill of sale issued in blank form by the Commissioners Objections to ±1 • i> ±1 1 1 , ,1 -I • • r. . ^^^ Compulsory since the passmg oi the statute, the description of property is Form, not merely " shares in the ship above described," but it pro- ceeds, " and in her boats, guns, ammunition, small arms, and appurtenances," being for the purchaser of an entire ship a more advantageous account of his bargain. Still, for anything that would not pass under these words, ballast for instance, or kentledge in the ship at the time, he cannot make good his claim under this bill of sale, for want of its being expressly named.^ Such things, indeed, as are not part of the ship, as such, may pass, by contract collateral to the bill of sale. Whether representations on which the bargain was closed, although amounting to a warranty, but excluded by this form from the final written contract, be available as a ground of action against the vendor,^ is a question that twice arose before the Courts soon after the principal Act was passed,^ but was on each occasion left undetermined. Recently it came before Brett, L. J., sitting at Nisi Priiis, when that learned judge admitted letters in evidence of a warranty, on which the action was founded, notwithstanding there was nothing of the sort in the bill of sale. The case was not appealed. The authorised form closes with covenants by the transferor for power to transfer, and against incumbrances (other than those that appear on the register). The execution of the bill of sale, under hand and seal, must Execution of be in the presence of the person or persons who attest it, and mere acknowledgment of the signature and seal before the witness will not suffice.* One witness to the execution is enough ; and for the purpose of proving the instrument, even he need not be called, if there is any other person able to bear witness to the requisite facts.^ In that case, proof of the although, the parties substitute in the * 17 & 18 Viot. c. 104, § 55, diflering same insti-ument the worda "joint- from the Wills Act, 7 Will. 4 & 1 omners." Circular No. 98. Vict. c. 26, § 9, where the words are, ' Kinter's case, Leon. 46 ; Lano «. " acknowledged or made." Neale, 2 Stark. 105. M7 & 18 Vict. c. 104, § 526, apply- ^ Pickering v. Dowson, 4 Taunt. 779. ing to any document required by that See ante, p. 10. Act to be executed in the presence of, 3 See Chapman v. CaUis, 30 L. J. or to be attested by any witness or (C. P.) 241 ; and Stucley v. Baily, 31 witnesses, L. J. (Ex.") 483. D 2 36 SHIPS AS PEOPERTY. [chap. I. No Stamp. Subsequent Alterations, Registi'ation Bill of Sale. attesting witness's hand-writing, or of one of them, accom- panied by some evidence of the identity of the transferor with the person in question, will be enough.^ The statutory biU of sale does not require a stamp.^ Any alteration of this instrument, after it has been executed, in a material part, without the consent of all the parties to it, renders it void,^ notwithstanding the absence of fraudulent intention.* But if the alteration be of an immaterial part,' unless made by the party that owns the bill of sale ; ^ or if it be to correct a mistake, so as to make the instrument express the original intention of the parties ; '' or, being of a material part, is made with the consent of all ; the instrument is not vitiated therebj'.^ of This instrument, when duly executed and delivered, is to be produced to the registrar of the port at which the ship is registered, for the purpose of being recorded.® The discharge of this public duty is secured by the private interest of the transferee in the registration ; the statute, tiU that is accom- plished, recognising an absolute disposing power as being still in the transferor.^" Elsewhere, the statute, distrusting the absence of interest, provides for the performance of a similar duty by enacting that an unqualified transferee, under a certifi- cate of sale, shall be considered by British law as having acquired no title to, or interest in, the ship until the bill of sale and certificates are produced to the officer acting as registrar.-'^ Being produced to the registrar, he is required to record it in the register-book, if it be proper in form, duly executed, and correspondent vnth the state of the register-book at the time ; 1 Adam v. KeiT, 1 B. & P. 360 ; Nelson v. Whittal, 1 B. & Aid. 19 j Doe V. Paul, 3 C. & P. 613. 2 17 & IS Viot. c. 104, § 9. i" Davidson v. Cooper (in error), 13 M. & W. 343 ; Master v. Miller, 4 T. E. 320 ; (in error) 2 H. Bl. 141, S. C. ; Pigot's case, 11 Co. 27 ; 1 Shep. Touolist. 68. * 1 Shepherd's Touchst. 68. 5 Pigot's case, 11 Co. 27 a ; 1 Shep. Touchst. 68, 69 ; see Sanderson v. Sy- monds, 1 B. & B. 426. " Pigot's case, 11 Co. 27 ; Com. Dig. Fait, F. 1. " Kershaw v. Cox, 3 Esp. 426. See Bluok V. Gompertz, 7 Exch, 862. " 2 Lev. 35 ; Davidson v. Cooper, mipra. » 17 & 18 Vict. 0. 104, § 57. '» IMd. § 43. The Spirit of the Ocean, 34 L. J. (Ad.) 74. ■" 17 & 18 Vict. c. 104, § 81. GHAP. I.] HOW TRANSFERRED. 37 and. then to indorse upon it the fact of such entry having been made, with the date and hour thereof. A refusal on the part of the registrar may be the subject of appeal to the Commis- sioners of Customs. The order of entries in the register is to be the order in which the instruments are produced.-' The consequence is, that a biU of sale executed by A. to C. on the 28th of March, 1860, being already registered, another bill of sale for the same shares executed by A. to B., although on the 27th of March, cannot then be placed on the register ; for the prior registration being valid, the title and disposing power are no longer. in A. but in C.^ In such a case as this, since the 25 & 26 Vict. c. 63, § 3, the transferee not on the register would have a right of action either as against the vendor in respect of the rights arising under the contract of sale evidenced by the bill of sale, or against both vendor and registered transferee in respect of the equities affecting the latter, as in case of notice. In the Court of Admiralty the unregistered vendee has been allowed to assert his right as owner to a limitation of responsibility in a case of damage.^ No doubt, if the registration itself can be impugned on the ground of fraud or invaliditj'', the claimant gets rid of the adverse title without appeal to equitable rights alleged in his own favour.* A bond fide purchaser without notice of adverse equities, or of any infirmity affecting his vendor's title, stands good upon the register.' If the vendor becomes bankrupt between the execution and in case of the registration of the bill of sale, and there be laches on the part of the vendee, the shares pass to the creditors, as being in the order and disposition of the bankrupt ; " secus, if there be no laches on the part of the vendee, for the bankrupt is then a trustee for him.''' 1 17 & 18 Vict. c. 104, § 57. Holdemess v. Lamport, 30 L. J. (Ch.) 2 Ilid. § 57, 43. 489. 3 The Spirit of the Ocean, 34 L. J. * The Horloclc, 2 Prob. Div. 243. (Ad.) 74. So as to liabilities in a court " Boyson v. Gibson, 4 C. B. 121; of equity, Douglas v. Russell, 4 Sim. Campbell v. Thompson, 2 Hare, 140. 524 ; 1 Myl. & K. 488. 7 Stapleton v, Haj'men, 2 H. & 0, 1 Orr V, Diokinson, 1 Johnson, 1 ; 918. 38 SHIPS AS PEOPEBTY. [chap. Ti'ansmission by opoi-ationof Law. Executor to perfect the title o£ Transferee. The transmission of ship-property hy operation of law, on the death ,^ or hankruptcy of the registered owner, or on the marriage of a female registered owner, is not affected by the statute,^ except in so far as registration of the acquired title is a condition precedent to any disposing power over it ; ^ and if the person to whom such right is transmitted is disqualified to be the owner of a British ship, he may apply within a limited time to have such property sold, and transferred by a nominee of the Court appointed for that purpose.* If, after the execution of a bill of sale, and before its regis- tration, a transmission of the same property take place by the death of the vendor, and he that is transferee by operation of law get upon the register with a title in no way adverse to, or inconsistent with, the claim of the transferee by biU of sale, the court would seem to have no more difficulty in decreeing the registered transferee to do aU things necessary to perfect the title intended to be conveyed by his testator, than it has in compelling an executor to indorse a bill of exchange previously delivered by the testator without indorsement.^ ' It would seem to be the intention of the Legislature, under the Merchant Shipping Act, when shares are regis- tered in the names of several joint- owners, that the property shall pass to the joint survivors, and not to the per- sonal representatives of the person de- ceased, except upon the death of the last surviving joint-owner, and then his personal representatives will be the parties to appear on the register, and give title to the purchaser, Co. Litt. 181 a, 181 b, 182 a, 185 a. By express enactment (§ 37, no. 4) such joint-owners are disabled to dispose in severalty of any interest held jointly in the ship. This, however, is for the purposes of the register, and without prejudice to the rights of the beneficial owner, or his representatives (§ 37, no. 2). Under the 8 & 9 Vict. e. 89, § 35, partners as such were allowed to be registered jointly, and the property so registered was declared to be part- nership property, and subject to the rules of law and equity respecting goods and chattels held in partnerr ship ; and as the jvs aecreseendi does not hold among partners, Buckley v. Barber, 6 Exoh. 164, such property would pass to the personal representa- tives ; see Eex v. The Collector of Customs at Liverpool, 2 M. & Sel. 223. That rule still applies to all shares re- gistered as partnership property before the 1st of May, 1855, and not regis- tered anew since that day. - So it always has been, & parte Yallop, 15 Ves. 60, 68 ; ISx parte Houghton, 17 Ves. 253. 3 17 & 18 Vict. 0. 104, § 58, 59, 60, 43. " md. § 62, 63, 64 ; 24 Vict. c. 10, §12. ° Watkins v. Maule, 2 Jac. & W. 237, 243 ; Ex parte Greening, 13 Ves. 206 ; Dixon v. Ewart, 3 Mer. 322. And if the act has been done without the order of the Court, it will be aflBrmed both at law and in equity ; Smith v. Pickering, Peake, E. 50 ; Lempriere v. Pasley, 2 T. E. 485 ; WaUaoe v. Hard- acre, 1 Camp. 46 ; Anon. 1 id. 492 ; Watkiiis V. Maijle, svpra. CHAP. I.] TRUSTS. 89 As between the transferee of a bankrupt and his creditors, Transferee of the law relating to fraudulent preferences, and fraudulent Bankrupt. dealings of the bankrupt with his other property, will operate also with regard to ship-property, even to the vacating of the register, should the title still be in the immediate transferee of the bankrupt.-^ And if a bond fide transferee for value, through his own negligence, allow the vendor to appear still on the register as the owner, the consequences of leaving the property in the order and disposition of the bankrupt must follow.^ If a bill of sale purjjorts to be other than was contemplated, The actual e.g., to be an absolute transfer of the property, but this was t," shown™^^ not intended by the parties to it, they are not prevented thereby from showing what are the real interests of the parties con- cerned, provided this can be done without injury to the interests of innocent persons.^ We come now to consider those rights and obligations in how dealt respect of ships, and shares therein, that may be created other- wise than by legal bill of sale and registry. Trusts of real and personal property have been found in this Trusts. country so convenient for the requirements of modern society, and the purposes of family settlements, that the legislature, after a vain attempt to extinguish them in their rise,* succeed- ing only so far as to modify the evidence ^ by which they are to be established,^ have not once proposed to control the matured system of equitable jurisprudence with regard to them. But the opposition between these two descriptions of right, — of the cestui que trust, regarded in the light of the ordinary doctrines of equity, — and of the registered owner, as intended by the 1 See The Empress, 1 Swab. Ad. 160 ; ner v. Cazenove, 1 H. & N. 423 ; 25 3 Jur. N. S. 119, S. C. ; Orr v. Diokin- & 26 Viot. o. 63, § 3. son, 28 L. J. (Ch.) 516. « The Statutes of Uses, 1 Eich. 3, 2 Boyson v. Chapman, i C. B. 121 ; o. 1 ; 27 Hen. 8, c. 10 ; 2 Shep. Campbell -u. Thompson, 2 Hare, 140 ; Touchst. 504, 505. Dixon V. Ewart, 3 Mer. 322. * See Foster v. Hale, 3 Ves. 696 ; Seous, if there be no laches. Staple- Smith v, Matthews, 30 L. J. (Ch.) ton V. Haymen, 2 H. & C. 918. 445. 3 Ward V. Beck, 13 0. B. N. S. 668 ; ^ 29 Chas. 2, o. 3, § 7, and with The Innisfallen, L. E, 1 Ad. 72 ; The regard to wills, § 5 ; Lewin on Trusts, Cathoart, L. E. 1 Ad, 314 ; The Jane, 49 ; Shep, To^ohst, mfra, 23 L, T, N, S, 791 (Ir, Adm.) ; Garcli 40 SHIPS AS PEOPEETT. [CHAP. I. policy of the former Shipping Acts, has hitherto appeared to be so contrary, that the only way taken under the previous statutes to quiet conflicting claims was the entire suppression of one class of them.^ By the existing statute, no notice of any trust, express, implied, or constructive, is to be entered in the register-book, or be receivable by the registrar.^ So far the function of the register is thereby negatively defined. Positively defined, that function, as between private parties, is thus stated : — " Subject to any rights and powers appearing by the register-book to be vested in any other party " (i.e., under mortgage or certificate of sale or mortgage), '' 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." " It is true the statute has occasioned a beneficial ownership, vested in other persons than those on the register ; ^ it recognisestheir title and preserves it ; * provides machinery for the protection of their rights ; ^ and does not ignore them in the imposition of burdens on the owners.^ It is in consonance with the same views, that further legislation has placed the powers of certain persons appearing as owners on the register, and the substitution of their successors, within the jurisdiction of the Lord Chancellor under the Trustee Act of 1850.''' Upon this state of the statute law it became a question whether the Courts could look beyond the register and give effect to any but the rights which appeared on the face of that document, and as they appeared there, except in the cases already referred to, as being expressly provided for by the Act. In the case of the Liverpool Borough Bank v. Turner,^ a ' See Ux parte Tallop, 15 Ves. 60 Me. parte Houghton, 17 Ves. 253 Camden v. Anderson, 5 T. K. 709 Curtis V. Perry, 6 Ves. 739 ; M'CaL mont V. Eankin, 2 De G. M. & Q. 403 Cato 1). Irving, 5 De G. &.S. 210 ' 17 & 18 Viot. e. 104, § 37. * Hid. § 37, no. 2 ; § 38, no. 5 ; §39, no. 5 ; § 100. 5 Ibid. § 65. « Hid. § 100. 7 18 & 19 Vict. 0. 91, § 10. Ante, PoUett V. Delamey, 2 id. 235 ; Coombs p. 26. V. Mansfield, 3 Drew. 193 ; Duncan v. ' Liverpool Borough Bank v. Tur- Tindall, 13 0. B. 258 ; Hughes v. nor, 29 L. J. (Ch.) 827 ; 30 L. J. (Ch.) Morris, 2 De.G. M. & G. 349. 379 ; and per "Wood, V.-C, Orr v, « 17 & 18 ViQt, c, 104, § 43, piokinspn, 1 Johns, 1, CHAP. I.] MORTGAGES. 41 written undertaking, by a commercial firm to assign their interest in the steainsliip Italian to the plaintiffs, when there- unto required, in consideration of their continuing a credit and malcing fiurther advances in favour of a person named, was given, but not in the statutory form of a mortgage, or in any form that could be registered. The firm becoming bankrupt after the plaintiffs had made further advances, and before the form of security had been altered, — upon bill in equity to enforce their claim against the proceeds of the ship, it was held that the plaiatiffs had acquired no right in respect of the ship under the 17 & 18 Vict. c. 104. This was in 1860-61. The legislature thereupon, in 1862, enacted (25 & 26 Vict, c. 63, § 3) as foUows : — " It is hereby declared that the expression beneficial mieresi, whenever used in the Second Part of the principal Act, includes interests arising under contract and other equitable interests ; and the intention of the said Act is, that without prejudice to the provisions contained in the said Act for preventing notice of trusts from being entered in the register-book or received by the registrar, and without prejudice to the powers of disposition and of giving receipts conferred by the said Act 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 may 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." The general effect of this enactment may be stated to be that as between immediate parties to an equitable interest, the existence of the register is no obstacle to the enforcement of such interest, and the protection of the parties in the rights that have been bond ^(Ze acquired by them.^ When a registered ship, or share therein, was mortgaged. Mortgages. under the previous Acts, the instrument of mortgage was in the form of an absolute bill of sale,^ indorsed with a conditional ' Under this proviBion, Ward ?). Beck, 32 L. J. (Ch.) 25; Liverpool Marine 32 L. J. (C. P.) 113 ; The Cathcart, Credit Co. v. Wilson, L. E. 7 Ch. 507 ; L. R. 1 Ad., 314 ; Stapleton v. Hay- The Horlook, 2 Prob. Div. 245. men, 3 H. & 0. 918 ; Lacon v, LifEen, ? Of Qourse, the real nature of the 42 SHIPS AS PROPERTY. [chap. I Interest and Rights of the Mortgagee. defeasance, and took effect inter partes from the time it was registered,^ but depended, for priority over other incumbrances, upon the order in which it appeared, if at all, on the certificate of registry.^ Under the existiag statute, a special form of instrument is appropriated to this purpose, the operative word in it being "mortgage."^ By this, as by the former Acts since that of Geo. 4, it is provided, that the mortgagee shall not, by reason of that character only, be deemed owner, or the mortgagor be deemed to have ceased to be owner, except in so far as may be necessary for malcing the property mortgaged available as a security for the mortgage debt.* It is still a habit of the commercial community to mortgage by means of an absolute bill of sale, and the Courts, since the 25 & 26 Vict. c. 63, § 3, admit evidence of the qualified interest of the mortgagee, who takes accordingly.' The deposit of the buUder's certificate of an unfinished ship by Vi^ay of security creates an equitable mortgage ; ^ and so, if the deposit be of a registered mortgage.''' And in this latter case the security is not affected by the bankruptcy of the depositor, the registered mortgagee, because any transfer of the mortgage could only be by indorsement on the instrument which was in the hands of the equitable mortgagee ; consequently the mort- gaged property could not be said to be in the order and dispo- sition of the bankrupt.^ The statutory instrument, when duly executed by the registered owner, passes the property to the mortgagee, in the transaction was regarded, and the mortgagee got no more than his rights, Gardner v. Cazenove, 1 H. & N. 423 ; notwithstanding the conditional de- feasance was omitted by the registrar, Whitfield V. Parfitt, 4 De G. & S. 240. > Lyster v. Payne, 11 Sim. 348 ; Boyson v. Gibson, 4 C. B. 121 ; so that an unregistered mortgage could not obtain priority over a subsequent mort- gage that was registered, 8 & 9 Vict. u. 89, § 34 ; Parr v. Applebee, 7 De G. M. & G. 585 ; Coombs v. Mansfield, 3 Drew. 193. ? 8 ^ 9 Vict, 0. 89, I 39 ; Campbell 11. Thompson, 2 Hare, 140. 3 17 & 18 Vict. c. 104, § 66 ; and the Forms. 1 6 Geo. 4, c. 110, § 45 ; 8 & 9 Vict. c. 89, § 45 ; 17 & 18 Vict. c. 104, §70. " 5 Ward V. Beck, 32 L. J. (C. P.) 113 ; The Innisfallen, L. B. 1 Ad. 72 ; The Cathcart, L. E. 1 Ad. 314 ; The Jane, 23 L. T. N. S. 791 (Ii-. Adm.). 8 JEx parte Hodgkin, L. E. 20 Eq. 746 ; Winter, & parte Softley, 33 L. T. N. S. 62 ; 44 L. J. (Bkpoy.) 107. 1 Lacon v. LifEen, 32 L, J, (Ch.) 25, CHAP. I.] MORTaAGES. 43 meantime as against the mortgagor, and when registered, as against third parties.^ But in view of equity, and by express enactment/ the mortgagor remains owner. The registered mortgagee is therefore protected against the trustee in bank- ruptcy,^ or the execution creditor of the mortgagor ; * he may entitle himself to the accruing freight by taking possession of the ship before the termination of the voyage ; ^ but until he does that or something equivalent to it,^ he has no right thereto ; '' and when he has done so, though not liable for debts incurred before that time for the purposes of the ship, he is so far bound by her engagements, that he may not do aught inconsistent with their being fulfilled.^ Should he nevertheless arrest the ship in order to detain her from per- forming an engagement not j)rejudicial to his security, she will be set free by the Admiralty Court and he condemned in costs.^ A case of much interest on some of these points was decided by Lord Chancellor Westbury in 1865. Roberts the owner of the ship Maria had mortgaged her to Lamport & Holt, and afterwards with the knowledge of the mortgagees took steps for the sale of the vessel. Thereupon Luccock the master of the ship put himself in communication with Roberts with a view to the purchase of her, and before the purchase was com- pleted, Luccock chartered her to Collins & Co. of London, stipulating for the payment of instalments of the freight in 1 17 & 18 Vict, c. lOi, § 43, 69, 72. (C. P.) 194. 2 2Ud. § 70. As to Freight, see further the ohap- ^ Ibid. § 72 ; Bell v. The Bank of ter on that subject, ^osi, c. x. London, 28 L. J. (Ex.) 116. ^ Jackson v. Vernon, 1 H. Bl. 114 ; * Kitchen v. Irvine, 28 L. J. (Q. B.) ^^er curiam in Dickinson v. Kitchen, 46. 8 B. & B. 789 ; Collins v. Lamport, 34 * Dean v. McGhie, 4 Bing. 45 ; L. J. (Ch.) 196 ; Johnson u. Eoyal Chinnery v. Blackburn, 1 H. Bl. 117, Mail Steam Packet Co. L. R. 8 C. P. 38. note ; Morrison v. Parsons, 2 Taunt. See the very peculiar circumstances 407 ; Gibson v. Ingo, 6 Hare, 112 ; and of Cato v. Ii-ving, 5 De G. & S. 210, see De Mattos v. Gibson, 28 L. J. (Oh.) where a court of equity giving the 498 (on appeal) ; Splidt v. Bowles, 10 mortgagee priority over a purchaser. East, 279 ; Gardner v. Cazenove, 1 H. oi'dered him to pay for the outfit of the & N. 423. voyage which had been advanced by ^ Eusden v. Pope, L. E. 3 Ex. 269. the other. ' Gardner v. Cazenove, 1 H. & N. » The Maxima, 39 L, T. N, S, 112, m I see Willis v. Palmer, 29 L. J, 44 SHIPS AS PROPERTY. [CHAP. I. advance ; but before agreeing to such prepayments of freight Collins & Co. for their own satisfaction received a letter from Koberts through Luccock that he the owner being himself in fact to benefit by the prepayments in question, undertook that he would in no way interfere to prevent the vessel fulfilling her engagements under the charter-party. The ship was then removed to Newcastle and was in the act of loading cargo under the charter-party when the mortgagees took possession of her, and refused to allow her to proceed with the loading or to depart from the port of Newcastle, or otherwise to lose their hold on her except in obedience to the Court of Chancery. A bill was therefore filed in the name of the charterers against the mortgagees, and while the case was under appeal, the mortgagees sold the ship to Webb, who was made a defendant to the suit. A sale pendente lite has no effect upon the rights of the parties to the suit as afterwards determined by the final decree. The interests of the purchaser were therefore identified with those of the mortgagees. The charter-party made with Collins & Co. through Luccock was binding on the mortgagor, because made with his laiowledge and consent, and was therefore a valid charter-party unless the efi'ect of the statute was to give a mortgagee power ad libitum to take possession of the ship and set aside all her engagements imposed by contract with the mortgagor. On the contrary, in the statute, said Lord Chancellor West- bury, " there is first a negative declaration that the mortgagee shall not, by reason of his mortgage, be deemed to be the owner; and then there is an affirmative declaration that the mortgagor shall not be deemed to have ceased to be the owner.^ The mortgagor, therefore, continues the owner ; but it was necessary, of course, or at least, in the exercise of that prudence and caution with which Acts of Parliament are framed, it was deemed necessary by the framer of the clause to add these words in declaring in what position the mortgagor shall stand, namely, that he shall be the owner save so far as may be necessary for making the ship or share available as a 1 :7&18yiot, e. 104, §70. CHAP. I.] • MORTGAGES. 45 security for the mortgage debt. As long therefore as th6 dealings of the mortgagor with the ship are consistent with the sufficiency of the mortgagee's security, so long as those dealings do not materially prejudice and detract from, or impair the sufficiency of the security of the vessel, as com- prised in the mortgage, so long is there parliamentary authority given to the mortgagor to act in all respects as owner of the vessel, and if he has authority to act as owner, he has of necessity authority to enter into all those contracts touching the disposition of the ship which may be necessary for enabling him to get the full value and the full benefit of his propertj\ Whenever a mortgagee is in a position to show that the act of the mortgagor prejudices or injures his security, then, I appre- hend, the parliamentary declaration that the mortgagor shall be deemed the owner ceases to have any binding effect as against the mortgagee, and the mortgagee is in a position to claim and exercise the full benefit and the rights given to him by his mortgage ; but, subject to that qualification, every contract entered into by the mortgagor remaining in possession is a contract which derives validity from the declaration of his continuing to be the owner; but, at the same time, it is a contract into the benefit of which the mortgagee may at any time enter, by giving notice to the party who is to pay the mortgagor under the contract, that he requires the payment to be made to him, the mortgagee." ^ If at the time of the mortgagee's taking possession, the ship is under lien for repairs ordered by the mortgagor, he cannot have her without discharging the lien, as the mortgagor while left in possession had his implied authority to keep her sea- worthy.^ If, when in possession, he will use her he may, but he is responsible to the mortgagor for deterioration or loss sustained in such employment.^ The form of the instrument given in the Act, embodies, for For™ <>*• the purpose of identification, a copy of the surveyor's certificate, 1 Collins V. Lamport, 34 L. J. (Ch.) Co. v. Eoyal Mail Steam Packet Co. 4 196. Kay & J. 676 ; Marriott v. Anchor Ee- 2 Williams «. AUsup, 30 L. J. (C. P.) Versionary Co. 2 GifE. d57 (on appeal) 353. 3 De G. F. & J. 177, 30 L. J. (Ch.) 8 European & Australian Eoyal Mail 571. 46 SHIPS AS PROPERTY. [chap. I. Priority, Notice, Tacking, among is executed imder seal, and, although the Act Is silent about it, in the presence of one or more attesting witnesses, but no stamp is requisite.^ Eegistration of. Kegistration thereof appears not to be compulsory, or to be a condition of its validity or operative effect inter partes and. their representatives,^ as was the case under the previous statute,^ and is still the case under the English and Irish registry statutes in respect of land.* In respect of prioritj^ among mortgages, as aifected by the doctrine of notice and the consequent right of tacking, many of the refinements of equity have been disposed of by the provisions of the Merchant Shipping Act relative to ship- property. Mortgages of such property are to be entered on the register, or indorsed on the certificate of mortgage, in the order of their production for that purpose, the registrar indorsing the mortgage itself with the date and hour of regis- tration ; and such hour and date determine their priority, one to another, whatever may be the date of the instrument or of its execution, and notwithstanding any express or implied or constructive notice.' There is a remarkable similarity and also contrast, presented in these provisions to those of the Irish Registry Act relating to lands, that may illustrate the intention of the legislature in the Merchant Shipping Act. The 6 Anne, c. 2, § 4, provides that every deed or conveyance duly registered according to that statute shall be deemed good and effectual, both in law and equity, according to the priority of time of registering such deed in relation to every other deed concerning the same lands, &c.^ Lord Redesdale having occasion to consider whether the fact of a deed appearing on the register amounted to notice, said : " It is true, the registry is considered as notice to a Compared witli Irish Land Registry Act. 1 17 & 18 Vict. c. 104, § 66, the language is obligatory as to the/o)'»i; compare § 55 and 18 & 19 Vict. c. 91, § 11. As to the witness, ante, p. 35. As to stamp, 17 & 18 Vict. u. 104, §9. 3 Ibid. § 66, 67, compared with § 55, 57 ; The Two Ellens, L. E. 3 Ad. 345. For obvious reasons a mortgage made in virtue of a oertifioate of mortgage. is required to be registered, § 80, no. 2, and 5. 5 8 & 9 Vict. c. 89, § 37. * Underwood v. Ld. Courtown, 2 Sch. & Lef. 64 ; Biddulph v. St. John, 2 id. 521 ; Coote on Mortgages, 880. 5 17 & 18 Vict. c. 104, § 67, 69, 80, no. 5. ' There is no such provision in the English Registry Acts relating to lands. CHAP. I.] MORTGAGES. 47 certain extent ; no person thinks of purchasing an estate with- out searching the registry ; and if he searches he has notice ; but I think it cannot be notice to all intents, on account of the mischiefs that would arise from such a decision. For if it is to be taken as constructive notice, it must be taken as notice of everything contained in the memorial ; if a memorial con- tains a recital of another instrument, it is notice of that in- strument ; if of a fact, it is notice of that fact." ^ Again, when the question before him was, whether a person, who had obtained the assignment of a prior registered mortgage, might not tack to it subsequent mortgages, so as to give them priority over mesne registered mortgages, he says : " The intention (of the 6 Anne, c. 2, § 4) was to make priority of registry the criterion or title to all intents and purposes whatsoever. But this does not exclude anything which aifects the conscience of the party himself who claims under the registered deed; it never was the intention of the legislature to give a priority of right to commit a fraud ; but its meaning was, that parties dealing fairly, priority should be given to him who had the registered instrument, and that in equity as well as at law ; and that must be considered as taking away the right of tacking, because it gives prioritj^ against the subsequently registered deed, and declares that as against lands the latter shall not be postponed." ^ The statutes, then, with regard to lands, provide for a regis- tration of deeds : the statute, with regard to Merchant Shipping, requires a registration of titles. For the purpose of the latter, public policy requires that the register shall be notice to all of everything that appears on the face of it, relating to the ship as property.^ But by the construction put upon the former in the English * and the Irish ^ Courts, the fact of a deed being ' Bushell V. Bushell, 1 Sch. & Lef . its priority according, and by relation 90, 103. " to its date." lb. 2 Latouohe ■u.Lord Dunsany, 1 Sch. ^ 17 & ig yiot. c. 104, § 43, 55, 57, & Lef. 137, 157, 159. He afterwards 66, 69, 72, 80. adds: " I think, therefore, the efEeot of ■• Bedford 1;. Backhouse, 2 Eq. Ca. this Act is to prevent that sort of tack- Abr. 615, pi 12 ; Wrightson v. Hudson, ing which may take place in England 2 id. 609 ; Williams v. Son-ell, 4 Ves. with respect to deeds of the same de- 389 ; Wiseman o. Westland, 1 Y. & J. Boription, Even in the register counties 117; Coote on Mortg. 378, 380. in England, if registered within the ' Bushell v. BushcU, 1 Sch. & Lef. time limited by the Act, the deed has 90. ^8 SHIPS AS PROPERTY. [cHAP. I. on the register is not of itself notice. Under the Merchant Shipping Act, therefore, the possibility of postponing a regis- tered mortgage by any right of tacking is excluded by the function of the register, as being the sole evidence of title, and operating as express notice to all. On the other hand, it is a doctrine of equity, that a mort- gagee, whose deed has been registered under the statute relating to lands, may, nevertheless, be postponed for an unregistered mortgage in consequence of notice, no matter how acquired, or whether it were express, implied, or constructive.^ Lord Eedesdale, after stating that the intention of the Irish statute was to make priority of registry the criterion of title to all intents and purposes whatsoever, adds : " but this does not exclude anything which affects the conscience of the party himself who claims under the registered deed." ^ But the Merchant Shipping Act provides, that the mortgagees shall, notwithstanding any express, implied, or constructive notice, be entitled in priority one over the other according to the date of each instrument being recorded in the register-book, and irrespective of the dates of the instruments, or of their execution.^ At the same time an unregistered mortgage is not nothing as regards third parties; it ranks in the order of date in respect of other unregistered liens, in the absence of notice ; and it is postponed to all registered liens, and to all prior un- registered liens, of which such mortgagee is affected with notice.* Such a mortgagee is entitled as against creditors or claimants proposing to deal with the ship, to appear in the action in defence of his interests.^ Suppose that two successive mortgages by the owner of a ship are made to different persons, both to secure an account current, and both registered, it would seem that in such a case the competing mortgagees would rank according to the dates 1 Ld. Forbes v. Deniston, 1 Ves. 67 ; PaiT v. Applebee, 7 De G. M. & G. 685, Le Neve v. Le Neve, 3 Atk. 652 ; Uu- under the former statute. derwood v. Ld. Oourtown, 2 Soli. & Let * Keith v. Burrows, 1 C. P. Div. 64 ; Biddulph v. St. John, 2 id. 521. 722 ; Liverpool Marine Credit Co. v. 2 Latouche v. Ld. Dunsany, 1 Sch. Wilson, L. E. 7 Ch. 507. & Lef. 137, 157, evj)ra. ^ Post, p. 51. 3 17 & 18 Vict. c. 104, § 69. See Eegistered Mort- gagee. CHAP. I.j MOKTGAGES. ' 49 at which 'the successive advances are made, the operation of the register in that case being merely to aifect the mortgagees each with notice of the other's lien.-^ Provision is further made for the registration of the transfer Transfer and of mortgages, and of their transmission in consequence of MortS»es°" ° death, or bankruptcy, or the marriage of a female mortgagee.^ Everj' registered mortgagee has by statute a power of sale. Advantages of incident to his security,^ notwithstanding the absence of express provision to that effect in the instrument;* and if it be exercised and produce a surplus, after discharging the mortgage debt, he is a trustee thereof for subsequent incumbrancers and for the mortgagor, who may proceed agamst him for an account.^ But no subsequent mortgagee may exercise this power with- out the concurrence of every prior mortgagee, except it be under an order of the Court." On the other hand a creditor of the mortgagor will not be allowed to defeat the mortgage by levying execution against the ship for the mortgagor's debt,'' notwithstanding the instru- ment of mortgage postpone the mortgagee's power of sale to a date which is subsequent to the seizure in execution.^ Upon the discharge of a mortgage being entered on the register, the effect on all parties concerned is as though such mortgage never had existed ; ^ the mortgagor's title is less burdened, and a subsequent mortgagee has the advantage of an enhanced security and a claim less remote. In a word, mortgagees are presumed in law to have notice of all that appears on the register, with regard to the same property, and are bound by it ; and, if they register, they are bound by nothing else. Of this, the certificate of mortgage is a remarkable illustration. ' SenMo, Eolt 'O. Hopkinson, 28 the amount of the balance. This sale L. J. (Ch.) 41, affirmed on appeal by was held to be wrongful, Brouard v. the House of Lords, 9 Ho. of Lds. Diimaresque, 3 Moore, P. C. C. 457. Cases, 514. •' Per Lord Campbell, C, Do Mattos 2 17 & 18 Viot.c. 104, § 73, 74, 75. ,.■. Gibson, 28 L. J. (Ch.) 4'J8. 3 lUd. § 71. 5 Tanner o. Hoard, 3 Jur. N. S, 427. Ship mortgaged for a nominal sum " 17 & 18 Viet. c. 104, § 71. toseoureanunascertainedbalanoe,with ' Kitchen v. Irvine, 28 L. J. (Q. B.) power of sale, was sold upon non-pay- 40 ; Dickinson v. Kitchen, 8 Q. B. ment of the nominal debt within the 789. time fixed, bat whilst an investigation ^ Dickinson v. Kitchen, sujrra. before arbitrators was being made into ^ 17 & 18 Vict, c, 104, § 68. B OU SHIPS AS PROPEETY. [cHAP. I. Certificate cf The Certificate of mortgage, which is issued by the registrar Mortgage. ° ° J & to an owner who desires to mortgage his property in the ship at a distance,^ is a novel expedient for placing the register with aU its binding contents authentically before the eyes of an intending mortgagee who is too distant to communicate readily with the port of registry ; he is thereby enabled to act upon knowledge which is patent to all ; and with one exception ^ he is protected against everything besides. He perceives exactly the rank which his mortgage, if effected, will take ; he is secure that no title created after the date of the certificate on the register can obtain priority over his ; ^ and yet the law was otherwise under the previous statute.* Concerning the certificate of mortgage and the exercise of the power thereunder, it is required, that the attorney or attornies to exercise that power be named in it; the time limited for the exercise of the power be specified ; and that the place where it is to be and is exercised and the port of registry be not both in the United Kingdom, or within the same British possession.^ A mortgage created in accordance with the directions of the power, if that power is given by a certificate in which the statutory rules have been observed, must be recorded by the proper officer on the certificate of mortgage." Such mortgage takes precedence of all mortgages created subsequently to the registration of the certificate, (for the certificate is registered at the time of its being issued,) and not created under its authority ; and ranks, in respect of mortgages created under the certificate, according to the date of their being indorsed thereon, irrespective of the date of the instruments, and notwithstanding any expressed, implied, or constructive notice.''' Although this certificate is in the nature of a power not 1 17 & 18 Vict. c. 104, § 76, 78. charge to be created, enables the regis- 2 If the owner meanwhile has become trar at the home port to show the bankrupt, the mortgage may be im- extent of the power issued, subject to poached on the ground of notice, ib. which any further charge that is in § 80, no. i. the meantime created must rank. See 3 Ibid. § 80, no 5. 17 & 18 Vict. c. 104, § 77, no. 1. " Cato V. Ii-ving, 5 De G. & S. 210. * /jj^ g 77^ yg^ The existing statute, by requiring the ^ Ibid. § 77, 78, 80. owner to state the maximum, if it is in- 7 17 & 18 Vict. 0. 104, § 80, no. 5. tended to fix any maximum amount of CHAP. I.] BOTTOMEY. 51 coupled with an interest, the death of the donor is, by the statute, no ground for impeaching a bond fide mortgage created subsequently to that event ; nor is the prior banlcruptcy of the donor any ground of objection to its validity, provided the mortgage is bond fide made, to a mortgagee without notice, under a certificate in which the place of mortgage is specified, and the time limited therein for the exercise of the power does not exceed twelve months.^ The discharge of a mortgage so made may be indorsed on the certificate by the officer of whom the duties of registrar have been required by the statute.^ While the mortgage remains undischarged, if a suit is Mortgagee before entered against the ship, or the proceeds thereof, in the court. Admiralty Court by any third party, the mortgagee, though his mortgage be unregistered,^ has a persona standi before that Court, for the protection of his interests ; * and that Com't has now jurisdiction over any claim in respect of any mortgage duly registered under the 17 & 18 Vict. c. 104, whether the ship or the proceeds thereof be under arrest of the Court or not.^ So that a mortgagee may have the ship arrested at his own suit, which formerly could not have been.^ Somewhat in the nature of a mortgage on the ship is the Bottomry. contract of Bottomry, whereby the master, in the absence of other credit, and vmder stress of necessity, borrows money, to enable him to prosecute the voyage, on the security of the ship, otherwise bottom (pars pro toto), and engages for his owners or for himself, or both for his owners and himself, to repay the principal, with maritime interest, if the ship shall arrive safe at the port of destination.'' • Ibid. § 80, no. 3 and 4. principal and interest, and the question ^ Hid. § 80 ; no. 7, § 30. was what expenses he was entitled to ^ The Two Ellens, L. E. 3 Ad. 345. recover against the owner. * 3 & 4 Vict. 65, § 3 ; The Dow- ? See 2 Bl. Com. 457 ; The Atlas, thorpe. Lofty, 2 W. Bob. Ad. 73, 80 ; Clark, 2 Hag. Ad. 53 ; 2 Park Insur. 24 Vict. c. 10, § 11 ; The Cathcart, 869. Emerig. des Oontrats ^ la Grosse, L. E. 1 Ad. 314 ; The Innisfallen, L. E. c. 1, § 2. Bynkershoek seems to in- 1 Ad. 72 ; The Spirit of the Ocean, 34 elude Hespondentia in his definition of L. J. (Ad.) 74. bottomry; — ^hesays : Bodemery, Ae^rdo ' 24 Vict. c. 10, § 11. contractum, quo pecunia oreditur ma- " Wilkes V. Sannion, 7 Ch. Div. 188, gistris navium in exteris regionibus. Is the arrest of a foreign ship by the sive dominis navium et mercium in his British mortgagee for non-payment of regionibus, ea lege, ut si navis pereat, B 3 52 Distinguished from other Con- tracts : from Eespou- dentia. SHIPS AS PKOPEBTY. [chap. I. The maritime contract of hypothecation is distinguishable from a common law mortgage, and from a pledge or pawn, in this, that while the mortgage transfers the property in the subject thereof, and the pledge gives a lien which is void with- out actual possession of the chattel, hypothecation confers only a right to be enforced against the subject of it through the medium of legal process.'^ It is not to be confounded with respondentia. That word properly applies only to a loan of money secured upon the merchandise^ laden, or to be laden, on board a ship, repay- ment thereof, with maritime interest, being made contingent on the arrival of the cargo at the port of destination. The money raised upon it is for the purpose of the cargo only.^ The bond that secures it varies in form ; and sometimes fails in strict construction of our law to effect hypothecation.* It may be valid, though executed by the master alone, if sufficient necessity for it exists.^ In other countries, it is more usually effected by the owner of the goods himself; ^ but in England such a bond as this, executed in any British port by the cargo owner, would yield no remedy against the goods.''' The closest similarity exists between this and bottomry ; the law respecting them is the same ; and the same jurisdiction takes cognisance of both.^ creditor jus credit! amittat, si salva adTenerit in locum destinatum, sors restituatur cum usuris nauticis, vol majoribus vel minoribus, ut pro rationo periouli inter creditorem et debitorem convenit. Qusestiones jur. priv.lib. 3, c. 16. Le Guidon, c. 1, art. 4 ; c. 18. 1 Sfainbank v. Fenning, 11 C. B. 51 ; Stainbank v. Sliephard, LS C. B. 418 ; 22 L. J. (Ex.) 341, S. C. So by the civil law, — pignoris appellatione cam propria rem contineri dioimus, quEe simul etiam traditur creditori, maximfe si mobilis sit ; at earn, quae sine ti-adi- tione nuda oonventione tenetur, propria hypothecse appellatione continori dioi- mus ; Just. Inst. lib. 4, 6, 7. " Per Sir E. Phillimore, The Great Pacific, L. E. 2 Ad. 381, 383. " Compare the Cargo ex Sultan, 5 Jur. N. S. 1060 ; the Forms in Wesketh, 58, 60 ; Busk v. Fearon, 4 East, 319 ; with The Constantia, 10 Jui-. 845 ; and the principles laid down in Benson v. Duncan, 3 Bxch. 644 ; (below) 1 Exch. 537. ^ Busk V. Fearon, 4 Bast, 319 ; 2 Blkst. Com. 458. * The Cargo ex Sultan, 5 Jur. K. S. 1060. " See the Forms given by Wesketh, 58, 60 ; and 2 Magens, 431 ; both Spanish forms of Eespondentia. ^ See the judgment of Br. Lushing- ton in the Cargo ex Sultan, 5 Jur. N. B. 1060, and the principles of the law ex- pounded by the same learned judge in The Eoyal Arch, 1 Swab. 269. ^ The Cargo ex Sultan, 5 Jur, N. S. lOGO. CHAP. I.] BOTTOMRY. , 53 The name of bottomry is incorrectly applied to a contract Distinguished which does not pledge the ship as a security for the loan, but pe°i"ona" '"^^ makes repayment of the money, ^vith a high premium for the ^'^'^^'^y- risk, dependent upon the success of tlie voyage.^ 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 personal security of the borrower for the due perform- ance of the contract. It seems that loans have sometimes been made in this manner, and probably also with a pledge of the ship itself, to an amount exceeding the value of the borrower's interest in the ship.^ Such a contract is valid in this country, in respect of any ships, the exception of those belonging to British subjects bound to or from the East Indies, at one time made by statute being now repealed." The validity of a contract of bottomry is to be judged of, Conditions of chiefly by the circumstances under which it was made, the purpose which it was intended to serve, and the condition on which performance of it is made dependent. Any instrument of bottomry not occasioned and justified by Twofold ueces- inevitable necessity is void.* This condition of its validity is a twofold necessity, depending first on the direct occasion for the money, and secondly on the impossibility of obtaining it on personal credit. The want, which exacts the loan, must be Physical neces- such as, if not supplied, would prevent the prosperous com- pletion of the voyage ; including therefore indispensable repairs to the ship, and necessary provisions for the people on board ; ^ 1 Three forms of bonds of this sort the absence of that necessity is their are printed in the appendix to the undoing ; " ]}'"<' Lord Stowell, The Treatise of the Dominion of the Sea, Nelson, Brown, 1 Hagg. Ad. 109, 175 ; and Body of Sea Laws, 659. The Boddingtons, Noyes, 2 Hagg. Ad. ^ By the French law the contract 426 ; The Hersej^, Grimwood, 3 Hagg. is altogether valid to the extent of the Ad. 40i, 408. boiTower's interest in the ship, and for •'• The Nelson, Brown, 1 Hagg. Ad. the surplus beyond that he is a delator 169, 175 ; Tlie Prince of Saxe Coboui-g, at the common rate of interest ; Co.de 3 Hagg. Ad. 387,392. The Kelianoe, Com. art. 316, 317; Ord. 1681,liv. 3.t. Hays, 3 id. 68; The Augusta, De 5 3,-4 Pardcss. 367 ; see Le Guidon, Bluhn, 1 Dod. Ad. 283, 286 ; The "„ 19, art. 10,-2 Pardess. 426. Rhadamanthe, Mayer, 1 Dod. Ad. 201, = 7 Geo. 1, c. 21, repealed by 30 & 31 203 ; The Sydney Cove, Fudge, 2 Dod. Vict. c. 59. Ad. 7. Soares v. Eahn, 3 Moore, P. C. * " It is that state of unprovided ne- 1 ; Wallace v. Fielden, 7 id. 398, 409 ; cessity that alone supportsthese bonds ; Molloy, de Jure Marit. b. 2, c. 11, § 11, 54 SHIPS AS PEOPERTY. [chap. I. No personal Credit. Subsequent Bonds for prior Advances. but not extending to the master's own debts, or the discharge of his person from prison,^ or the personal debts of the o'wners,^ or even the liberation of the sliip herself from arrest without other circumstances combined'.^ The Court, however, wiU not enter into nice calculations between less and more, if repairs are shown to have been necessary.* But if personal credit might yield the money which the occasion inexorably requires, bottomry is then unjustifiable, and the bond is invalid ; ^ and the clearest proof of this, that can be adduced against the bondholder, is the previous supply of the requisite cash or necessaries, for which a bond is only subsequently stipulated.^ A subsequent bond for money already in hand, being bad, then a fortiori for a debt contracted on the previous voyage, or for other ships, although belonging to the same owner,'' it cannot be good ; and for the same reason, a new bond substituted afterwards for another that had been given on a former voyage, will not be sustained by the Court.^ At the same time, small sums, to meet casual exigencies, cannot.be excluded from subsequent bottomry, without unduly cramping the freedom of commerce, and this the Court will not do.** If it manifestly appear that the wants of the ship were supplied in implicit reliance upon a lien for the debt, which the law of the country would give in the absence of ' Smith V. Gould, 4 Moore, P. C. 21, 28 ; Dobson v. Lyall, 8 Jur. 969 ; 3 My. & Cr. 4.53 n. S. C. ; 6 Viner's Abr. 617. See The Gosfabrick, 4 Jur. N. S. 742. 2 The iforth Star, Lush. Ad, 45 ; The Edmond, ib. 57 ; The Boddingtons, Noyes, 2 Hagg. Ad. 422. 3 Otherwise, in foreign countries where the law enables them to arrest the ship for personal debts, everything would become the occasion of bot- tomry, per Lord Stowell, The Augusta, De Bluhn, 1 Dods. Ad. 288 ; per Dr. Lushington, The Koyal Arch, Kenney, 1 Swab. Ad. 269, 279 ; The Vibilia, ] W. Bob. Ad. 1, 6 ; The Lochiel, Miles, 2 W. Hob. Ad. 34. See The OsmanU, 8 W. Bob. Ad. 198, 205- 212 J 7 Notes of Cases, 322, S. C. j The Ida, L. E. 3 Ad. 542. * Per Dr. Lushington, The Eoyal Arch, Kenney, 1 Swab. Ad. 269. ' Heathorn v. Darling, 1 Moore, P. C. 5 ; Scares v. Eahn, 3 id. 1. ° The Augusta, De Bluhn, 1 Dods. Ad. 283, 287 ; Gore v. Gardner, 3 Moore, P. C. 79 ; see Beldou v. Camp- bell, 6 Exch. 886. The Hero, Howard, 2 Dods. Ad. 139 ; The Empu-e of Peace, 39 L. J. (Ad.) 12 ; The Ida, L. E. 3 Ad. 542. ? The Osmanli, 3 W. Bob. Ad. 198, 210 ; 7 Notes of Cases, 322, S. C. ; The Toivo, infra ; The Edmond, svpi-a. 8 The Toivo, 1 Eocl. &Ad.Eep, 185. » The Trident, Simson, 1 W. Bob. Ad, 29, 34 ; The Vibilia, Eiohardson, 1 "W. Bob. Ad, 1. CHAP. I.] BOTTOMRY. 55 express contract for the purpose, a subsequent bond, being but a performance of the original intention, wUl be sustained by the English Court of Admiralty .^ These being the legal conditions of valid bottomry, previous Duty to make inquiry, whether they exist in the circumstances, is imperative both on borrower and lender before the loan. The necessity actually existing that money should be had, the master is bound to see whether he cannot obtain it on personal credit ; and he does not discharge himself or the lender from this duty by merely selling a bond by auction, after advertisement, to the lowest bidder; ^ yet the existence of a debt due to the owners at the same port, if he cannot obtain payment, is no objection to the validity of the bond,^ unless it be given to the debtor himself.* The lender, however, neglects at his peril to inquire, before he advances liis money, whether it is wanted for the ship,^ or cannot be got upon personal credit ; '^ not that he is to calculate the expediency of the repairs,''' or even see to the proper appH- cation of the money afterwards ; ^ nor that he is to try the market, as though he were in person the borrower ; but he is to inform himself by reasonable inquiries, whether the money be indispensable, and whether some agent, consignee, or other person in some way connected with the ship, the cargo, or the owners, be not willing to advance it on their personal credit.® 1 The Alexander, Tate, 1 Dods. Ad. *Mj;?'a ; The Nelson Brown, 1 Hagg. 278, 280 ; The Vibllia, Elchardson, 1 Ad. 169, 176. W. Rob. Ad. 1, 13; The Kamak, 7 The Vibilia, Richardson, 1 W. Eob. L. R. 2. Ad. 289. Ad. 1, 10. 2 The Prince of Saxe Cobourg, Ladd, ^ The Jane, Birkley, 1 Dods. Ad. 3 Hagg. 387 ; affirmed Scares v. Rahn, 461, 464. 3 Moore, P. C. 1, S. C. ' "H the master takes up money ' See The Virgin, 8 Peter's (Amer). from a person who knows that he has Rep. 538. a general credit in the place, or at least ■• The Hebe, Hampton, 2 W. Rob. an empowered consignee, or agent will- Ad. 146, 150 ; and see The Roderick ing to supply his wants, the giving a Dhu, 1 Swab. Ad. 177. bottomry bond is a void transaction, * Gary r. White, 1 Bro. P. C. 284; not aflEecting the property of the owner. The Prince of Saxe Cobourg, svjtra ; and only fixing loss and shame on the The Orelia, Hudson ; 3 Hagg. Ad. fraudulent lender ; but where honour- 84, 86. ably transacted under an honest igno- ^ Heathom v. Darling, 1 Moore, ranee of this fact, an ignorance that P. C. 5 ; Soares v. Rahn, 3 Moore, could not be removed by any reason- P. C. 1 ; Prince of Saxe Cobourg, S. C. able inquiry, it is the disposition of 56 SHIPS AS PROPERTY. [chap. I. Owners' prior Consent. Maritime Kisk a condition of the Contract. The owners' prior consent to the master's hypothecation of the sliip is, in view of the law, the strongest evidence of the necessity for it; the jealousy of the law for their protection is thus allayed ; ^ and its ordinary rule also is thereby satisfied, requiring the master on such occasions, first to communicate with his owners, or with the owners of the cargo, according as he means to hypothecate ship, freight, or cargo, or some or all of them, whenever the possibility of communicating corresponds with the existing necessity.^ That bond, therefore, is at least of very doubtful validity, which is given by a master in respect of a voyage that he has undertaken, regardless of the intentions of the owners, or contrary to their express desire.^ Insolvency of the owner is not a vahd excuse for not communicating with him before hypothecating.* It is essential to the contract itself that it be founded on maritime risk, making the repayment of the loan contingent on the safe arrival of the ship.^ If, instead, it bind the owners personally to payment in all events, it is not a contract of bottomry ; ^ the Court of Admiralty has no power to enforce it ; '' the lender has no insurable interest imder it ; ^ and as it exceeds the implied authority of the master, it cannot, in this Court to uphold such bonds as necessary for the support of commorce in its extremities of distress, and, as such, recognised in the maritime codes of all commercial ages and nations ; " j>cr Lord Stowell, The Nelson, Brown, 1 Hagg. Ad. 169, 176 ; The Faithful, 31 L. J. (Ad.) 81. ' Per Dr. Lushington, The Eoyal Arch, Kenney, 1 Swab. Ad. 269 ; The Bonaparte, infra. "■ Wallace v. Fielden, 7 Moore, P. C. 398, 409 ; The Bonaparte, Andersen, 3 W. Rob. Ad. 298 ; Wilkinson v. WUson, 8 Moore, P. C. 459, S. C. ; The Cargo ex Sultan, 5 Jur. N. S. 1060 ; The Hamburg, 32 L. J. (Ad.) 161, 33 L. J. (Ad.) 116 ; The Lizzie, L, E. 2 Ad. 254 ; The Kamak, L. R. 2 P. C. 505 ; The Panama, L. E. 2 Ad. 390, 3 P. C. 199 ; The Onward, 42 L. J. (Ad.) 38 ; Kleinwort v. Cassa Marittima of Genoa, 2 App. C, 15G. ^ The Reliance, Hays, 3 Hagg. Ad. 66 ; The Mary Ann, 10 Jur. 255. ■■ The Panama (Barron o. Stuart), mxira. ,' Stainbank v. Shcphard, 13 C. B. 418 ; Stainbank v. Fonning, 11 C. B. 51 ; The Emancipation, Tucker, 1 W. Rob. Ad. 124, 129 ; The Atlas, Clark, 2 Hagg. Ad. 49 ; (on appeal) 2 id. 65 ; The Nelson, Brown, 1 Hagg. Ad. 169, 177. " Bynkershoek, Quaest. Jur. Priv. lib. 3, c. 16 ; 2 Emerigon, Prgt a la Grosse, 418 ; 2 Park Insur. 869 ; The Atlas, Clark, 2 Hagg. Ad. 49, 65; Stainbank v. Shephard, 13 C. B. 418. ' The Atlas, ClaxV, su}}va ; Ladbroke v.. Crickett, 2 T. R. 049, 651. ^ Stainbank v. Fenning, 11 C. B. 61 ; Stainbank v. Shephard, 13 C. B. 418 | 22 L. J. (Ex.) 341, S, C. CHAP. I.] BOTTOMRY. 57 the absence of the express sanction of the owners, be sustained at law or in equity.^ The maritime premium, pretimn pericidi, is not necessary to Maritime Pre- the validity of the bond ; but yet the absence or presence of it is a circumstance that will be looked at, if there is any doubt of the bond being founded on sea risk." It was always lawful, though necessarily high ; ^ but if it is unreasonably high, the Court may reduce it ; "* and if the ship never leaves the port where the bond was given, a court of equity will decree pay- ment of it with ordinary interest only.^ Such a bond may be valid, though given by the master or Bottomry Bond, substituted master,^ or by an owner when the ship is at a foreign port ; '' but if it is given by the owners, or with their consent, and the ship under ordinary circumstances be, at the time, in a British port, pre]paring for a new voyage, it is not enforceable in the Admiralty Court of this country.^ It is not invahd, although the lender thereon be the agent of To whom, the owners,^ or the consignee of the cargo,^° provided he is not ' For Cm: Stainbank v. ShepharcT, - The Emancipation, Tucker, 1 W. Rob. Ad. 124, 129 ; Stainbank v. Sliep- hard, 13 C. B. 418 ; The Eoyal Arch, Kcnney, 1 Swab. Ad. 269, 273, 280. 3 Sliarpley v. HuiTell, Crtt Jac. 208 ; Joy V. Kent, Hard. 418 ; Soomo v. Gleen, 1 Sid. 27 ; MoUoy, bk. 2, c. 11, § 8, 13. ■* Lord Stowcll seems to have doubted whether he had such a. power. The Zodiac, Seott, 1 Hagg. Ad. .320, 327 ; but his successors have asserted the right, and frequently exercised it ; The Heart of Oak, Crawford, 1 W. Rob. Ad. 215 ; The Cognac, Eweu, 2 Hagg. Ad. 386 ; Tlie Huntley, Lush. Ad. 24. So when the ohax'ges for commission in a Respondentia bond were unreasonable. The Glenmanna, 1 Lush. Ad. 115. ' Deguilder v. Depeister, 1 Vcm. 263 ; and sec The Cognac, Ewen, 2 Hagg. Ad. 377. This is also the rule of the Roman law. Nihil interest, tra- jectitia peounia sine perioulo creditoris accepta sit, an post diem prEestitutum ct conditionem impletam poi-iculum esse creditoris desiei'it ; utrobique igitur majus legitime usura non debe- bitur ; sed in priore quidem specie semper, in altera vcro discusso peri- culo. Dig. 2"). 2. 4, and see Hid. tr. 5 ; Cod. 4. 33. 2. The Court refuses to sanction more than 4 per cent, per annum interest from and after the time the bond be- comes payable, though a higher rate is stipulated ; The Sophia Cook, 4 Prob. Div. 30 ; a fortion, where no premium oven was stipulated ; The Cecilie, VM. 210. ^ See^?o.s^, e. iv. 7 The Duke of Bedford, Morris, 2 Hagg. Ad. 294, 302. 8 The Duke of Bedford, Morris, 2 Hagg. Ad. 295 ; The Bonaparte, Ander- sen, 3 W. Bob. Ad. 298 ; The Royal Arch, Kenney, 1 Swab. Ad. 209, 276 ; " Perhaps I might put the proposition morewidely,"7^CT'Dr.Lushington,jii 17 & 18 Vict. c. 104, § 69. 2 Hid. § 43. 3 Ibid. % 57, 43. If the biU of sale was invalid, the registration of it. is a mere nullity ; Orr v. Dickinson, 28 L. J. (Ch.) 516 ; 1 Johns. 1, S. C. ■• The wiUul production of any false statement, concerning any title to, or interest in, a ship or shares, to a regis- trar, is a misdemeanour, 18 & 19 Vict, c. 91, § 9. ' Orr V. Dickinson, 1 Johnson, 1 ; Holdemess v. Lamport, 30 L. J. (Ch.) 489 ; Bell v. Blyth, L. E, 4 Ch. 136. Lord Chancellor Hatherley thus ex- presses himself as to the conduct of the registrar in the case then before him : — " As regards what afterwards took place, I am surprised that the registrar should allow a public document to be dealt with as was done here. Some- thing was written in pencil at the side of the register, and this pencil writing afterwards, at what time does not ap- pear, had these words written over it in ink, ' Deed reproduced ; receipt signed in error, when re-transfer in- tended by Philip Blyth, E.S.' An entry of this kind cannot in my opi- nion satisfy the Act, nor revive a mort- gage which has been discharged." Bell 11. Blyth, L. E. 4 Ch. 136, 139, 140. See The EOse, L. R. 4 Ad. 6 CHAP, n.] LAW OF THE REGISTER. 83 with an additional statement therein, when the shares are transmitted, of the manner in wliich, and the person to whom, such title has accrued.^ This statement concerning the accrual of the title constitutes the whole of the declaration required of a person claiming title to a mortgage hy transmission.'^ With respect to all instruments purporting to deal with the property, and all statutory declarations relating thereto, one observation holds true, that in each there must be at least such a description of the ship as is sufficient to identify her, and that as respects title in so far as that must be set out, there should be a perfect accord therein with the existing state of the title on the register.^ In the case of a transfer, whether of shares or of a mortgage, the instrument in due form,* and properly attested, must be produced, and the execution of it by him who is owner on the register must be proved by some one capable of proving the requisite facts, but that need not be the attesting witness.^ When there has been a transmission of shares, or of a mort- gage of shares, by operation of law, as in case of the marriage, death, or bankruptcy, of the registered owner, evidence ^ must be produced of the identity of such owner with the person under whom title is claimed ; of the marriage of that person with the claimant, which may be proved by parol, or by a certified copy of the register together with evidence of identity of the person ; '^ or of the death of such person, and appomt- ment of the claimant to be his executor or administrator, which may be by probate of the will, or letters of administration with or without a will annexed, or in either case ^ the Act book from 1 17 & 18 Vict. 0. 104, § 56, 58. Act, 1854, no registrar shall be re- ^ Xb-id. § 74. quired to record the same without the ^ Ibid. § 55, 43. express direction of the Commissioners ■* Ibid. § 55, 73. By the 18 & 19 of Her Majesty's Customs." Vict. c. 91, § 11, it is provided that, * 17 & 18 Vict. c. 104, § 57, 73, 526 ; "ill any case in which any bill of sale, and see 17 k 18 Vict. c. 125, § 26. mortgage, or other instrument for the ' '' 17 & 18 Vict. c. 104, § 59, 75. disposal or transfer of any ship, or 7 Ibid. § 59 ; Hemmings -y. Smith, any share or shares therein, or of any 4 Doug. 33 ; Biit v. Barlow, 1 id. 172 ; interest therein, is made in any form, Alison's Case, E. Sc R. C. C. 109. or contains any particulars, other than ° Ibid. § 59 ; Pinney v. Pinney, 8 the form and particulars prescribed and B. & C. 335 ; Kempton v. Cross, Rep. approved for the purpose, by or in temp. Hardw, 108. pursuance of the Merchant Shipping 84 THE EEGISTEE. [chap. ir. Altered identity of Ship. Port o£ registry changed. Somerset House,^ or a certified copy of , the same;^ or of the hankruptcy, of such person, which may he hy production of a copy of the London Gazette containing the order of the court adjudging the debtor to he a hanlcrupt.* If, by reason of alterations, the ship's identity is so far destroyed that she no longer corresponds with the particulars of tonnage and description on the register, such alterations must be registered on the evidence of the surveyor's certifi- cate ; * or, if required, a ship may be registered anew, either in case of such alteration as destroys her identity,^ or in case of any change of ownership;^ and the ship will no longer be recognised as a British ship, if after being so altered, registry anew of the ship, or of such alteration, is not procured at the earliest opportunity.'' The register thus completed may be transferred afterwards to another port, so as to make the latter the port of registry ; but for this purpose an application to the registrar must be made in writing by all parties appearing on the register to be interested in her as owners or mortgagees, and subscribed in the presence of the registrar of the existing port of registry by those of the applicants who reside within five miles of the custom-house of such port, and by the others before any neighbouring registrar or justice of the peace. Upon the delivery of this application, and of the certificate of registry to the registrar, he is required to take steps for the transfer of the register to the port desired.^ But such transfer, when made, stiU leaves the rights of all parties in every way unaffected.' CBBTIFICATES OP MOBIOAaD AND SALE, From what has been said, it appears that the register is eminently local, and hence sprang the device of certificates of ' Cox V. Allingham, Jacob E. 514 ; Kempton v. Cross, svpi-a; Eldon v. KeddeU, 8 East, 187. 2 14 & 15 Viot. c. 99, § 14 ; Dorrett V. Meux, 15 C. B. 142 ; Davis v. Wil- liams, 13 Bast, 232. » 32 & 33 Viot. 0. 71, § 10 ; see also §107. < 17 & 18 Vict, c, 104, § 84, » 17 & 18 Vict. c. 104, § 85. ' Hid. § 88. ' Ibid. § 87, 84, 85, 106, 516, and ante, pp. 76, 77. 8 lUd. § 88, 89, 90, 91. It suffices if the delivery of the certificate is to the registrar of the old or new port. 18 & 19 Vict. c. 91, § 12. 9 17 & 18 Vict. 0. 104, § 91. CHAP. II.] CEETIPICATES OP SALE OR MORTGAGE. 85 mortgage or sale, which now claim our attention. A registered owner, who is desirous of mortgaging his shares or selling the ship out of the country or possession in which the port of registry is situate, may, upon application to the registrar of such port, obtain a certificate, in the nature of a power of attorney, containing all the information combined with all the authox'ity, and omitting none of all the advantages of the register itseK.^ Provision is made in case of the loss, or obliteration, of this document for the issue of a new instrument, or the doing of all other acts proper to be done imder the circumstances, whether the power has or has not been exercised previously ; ^ and for the revocation of the power at the desire of the owner, whenever the place or places in which it was to be exercised have been specified.^ The conditions of the issuing of any such certificate are these : Conditions on — the entrj'' on the register of the names of the attornies to exer- cise the power, — of the maximum of the charge to be created, or minimum of the price to be accepted, if any sum at all is to be fixed in either case, — of the specific place, or places, where the power is to be exercised, or that it is to be exercised anywhere, — and of the limit of time within which it may be exercised.* These entries upon the register, while they so far define the extent of the power to be sent abroad, are obviously intended for the protection of any person within reach of the register and disposed to have dealings with the owner at home.° Two conditions of a restrictive character remain,, and they are these : — that no certificate shall authorise the exercise of the power thereby given, — within the United Engdom,® or any British possession in which the port of registry happens also to be — or by any person who is not named ia the certificate.'' Every mortgage effected under this power, if the power has Mortgage effeotcd been exercised in accordance with the directions of the instru- ment, must be indorsed on the certificate by a registrar or British consular officer ; it thereupon has priority, .first, over 17 & 18 Vict. c. 104, § 76, 79, 80, 81. 210. • Ibid. § 82. ^ " The United Kingdom shall mean » Ibid. § 83. Great Britain and Ireland." 17 & 18 "^ Ibid. I 77. Vict. c. 104, § 2. ' See Cato v. Irving, 5 De G. & S, ? Ibid. § 78. 86 THE REGISTEE. [CHAP. II. all mortgages of the same property made otherwise than under this power, and subsequently to the date of the entry of the certificate on the register ; and, secondly, in the order of the date of indorsement on the certificate relatively to all mort- gages so indorsed, and irrespective of the date of the instru- ment or any notice, express, implied, or constructive ; and in all other respects clothes the mortgagee with the same rights, powers, and liabilities as a mortgagee on the register.^ Such a mortgage, if bond fide made, is not liable to be im- peached by reason of the donor of the power having died before its exercise; nor by reason of the prior bankruptcy of the donor, if the mortgagee was without notice, and the certificate specified the place or places where, and the time, not exceeding twelve months, within which the power was to be exercised.^ The discharge of a mortgage may be indorsed on the cer- tificate by a registrar or a British consular officer. And on delivery of the certificate to the registrar at the port of registry, the same is to be cancelled, and entry of such cancellation made on the register; and any unsatisfied mortgage remaining in- dorsed on the certificate at the time of cancellation, is to be entered on the register, so however, as to preserve the rights of priority which attach to it.^ Sale effected A certificate of sale can only be granted for the sale of an entire ship, and, if granted, the power thereby given must be exercised in conformity with the directions in the certificate.* Any sale, in such exercise of this power, hond fide made to a purchaser for valuable consideration, is not liable to be im- peached by reason of the donor of the power having died before its exercise ; nor by reason of the prior bankruptcy of the donor, if such purchaser wais without notice, and the certificate specified the place or places where, and the time, not exceeding twelve months, within which the power was to be exercised.^ If the sale is to a person qualified to own a British ship, the same law, of transfer by bill of sale, compulsory registration with the declaration of ownership preliminary thereto, applies 1 17 & 18 Vict. c. lOi, § 80. a nullity, Orr v. Dickinson, 28 L. J. 2 lUd. (Ch.) 51fl. = lUd. ' 17 & 18 Vict. c. 104, § 81. ■• Default therein makes the transfer CHAP, n.] CERTIFICATE OF SALE. 87 to this as to ordinary cases of purchase by a British owner, except that the registration required in this case is of the ship anew, subject to all the mortgages appearing on the certificate, without however the necessity of having her re-surveyed.^ The effect of this is to close the old and to open a new register for the vessel without affecting any registered incumbrances re- maining unsatisfied at the time of the sale. But if the sale is to a person who is not qualified to be owner To unqualified of a British ship, it is required that the bill of sale, the certifi- cate of sale, and the certificate of registry, be produced to a registrar or British consular officer, in order that he may make the necessary entries for closing the register, except in so far as relates to any unsatisfied mortgages on the register, and that he may retain the certificates of sale and registry. In case of default in the production of these documents, the purchaser is considered by British law as having acquired no title to, or interest in, the ship ; and the donor and attornies of the power are liable to a penalty not exceeding 1001. each.^ Provision is made^ for closing the register also, in other llegister closed, cases than that just referred to, upon information of the owner, and delivery up of the certificate of registry in case of a transfer to a person not qualified to own a British ship ; and also in case she is actually or constructively lost, taken by the enemy, burnt, or broken up ; and such information and delivery of the certificate, unless it is lost, is required of the owner and master respectively, under a penalty not exceeding lOOZ. If a British ship, or share therein, happens by the death transmissiok „ ,, ■ a o 1 i r. i TO TJNQtJALIFIBD 01 the owner, or marriage oi a lemale owner, to be trans- pbbson. ' 17 & 18 Vict. 0. 104, § 81, 55, 56, 57. instrument of transfer of ships in the ^ IMd. § 81. It is observable that usage of all maritime countries, and the use of a bDl of sale, without, that which the maritime law in trans- however, specifying any particular actions of that nature expects ; " The form, is here impliedly compulsory. Sisters, 5 C. Rob. Ad, 155, 169 ; The although the purchaser is not a Eliza Cornish, 2 Jui. N. S. 738, 739. person qualified to own a British Consequently it has been held that the ship. When this section is compared assignment of a ship, not registered, with sections 53 and 55, the contrast built in this country for an alien, is in this respect is remarkable. But valid, though made by an infoi-mal the observations quoted in c. i. from writing. Union Bank v. Lenanton, 3 Lord Stowell will recur to the reader, C. P. Div. 243 (C. A,). that " a bill of sale is the universal = 17 & 18 Vict. o. 104, § 53. 88 THE EEGISTEE. [CHAP. IK mitted to -a person not qualified to hold sucli property, he may apply for an order of sale, to the Chancery Court, in England or Ireland, or the Court of Admu-alty of England, or the Court of Session in Scotland, or the court of principal civil jurisdiction in any British possession, according as the ship is registered in one country or another. It is in the dis- cretion of such court, in accordance with the law of the country, to make or refuse the order, to annex terms or conditions, to require all such evidence as it may think fit, and generally to act in the matter as the justice of the case requires.^ The ap- plication must be made within four weeks, or such further time as the court will allow, not exceeding one year, from the date of the death or marriage ; otherwise such property is forfeited to Her Majesty.^ But if the order to sell is made, the nominee or nominees of the court are invested with the powers of the registered owner to do all things necessary for the perfecting of -the sale and transfer of such property.^ THE CERTIFICATE Wfi havc rcserved till now any particular mention of the °^ ^ ' Certificate of Eegistry. This document, at one time the chief record and principal evidence of title when the register for that purpose performed only a provisional and transitory function,* is now nothing more than, by the name it purports to be, a certificate that a ship, identified by all the details supplied by her name and port, and the contents of the surveyor's certificate and of the declaration of ownership, commanded by a particular master, and owned by the persons in the proportions indorsed on the back of this document, has been duly registered accord- ing to law.' Its function is confined to the practical purposes of the navigation of the ship, being, as it seems, the authentic evidence, to such of Her Majesty's officers as are entitled to 1 17 & 18 Viot. 0. 104, § 62 ; 21 Viot. certificate of registry. Thirty days, c. 10, § .12. however, from the time of such entry ^ 17 i 18 Viot. c. 104, § G4, 103. on the register, or from the time of the '■> Ibid. § 63. ship's arrival in port, in case she were " Under the 8.& 9 Vict, c, 89, § 38, at sea vchon the entry was eflEected, 39, a bill of sale was valid from the were allowed the first purchaser to time at which it was entered on the procure the indorsement, during which register against aU except subsequent time priority over him could not be purchasers, who should first procure obtained by any subsequent purchaser. their bill of sale to be indorsed on the * 17 & 18 Vict. c. 104, § -14. CHAP. II.] CERTIFICATE OF REGISTER. 89 interfere in these matters, of her national character, and her compliance with the law, and besides, a ready means of informa- tion in any quarter of the globe, as to who are some of the responsible persons when penalties have been incurred in con- nection with the ship.^ For securing that object, detention of this document, from improper deten- 1 p 1 ■ 1 • ■11 1 1 !• • !• ^'""^ "^ *'"' certi- the person lor the time being entitled to the custody of it for ficate of registry. the purposes of the lawful navigation of the ship,^ by any one, although an owner or otherwise interested in the ship, is for- bidden, under a penalty not exceeding lOOL, unless reasonable cause, for the detention is proved, to the satisfaction of any justice, or court, before whom the offender is brought.^ The sufficiency of the cause for detention may depend on the urgency of the reason for the demand, if known at the time of the refusal ; but if a ship's-husband, having a secret intention to dismiss the master, simply demand the certificate, the master is not liable to be convicted under this section, for refusing to give it up, he continuing master, and his vessel undischarged, at the time.* As any dealing with it for other purpose than the lawful navigation of the ship is forbidden, the detainer of it by a pledgee, although for good consideration, is unlawful, and if productive of damage, is a good cause of action.^ That it may effectually serve the various purposes referred to. Indorsement every change of owners, or of master, is reqtiired to be indorsed quireX^^^ ^^' on this certificate ; the former, under a penalty not exceeding lOOZ., if the master fails to deliver it for the purpose of such indorsement to the registrar at the port of registry, or to the registrar advised of such change at any British port at which he shall first arrive ; and the latter, under jDain of such master, ' As to the function of this doou- 17 & 18 Vict. c. 104, § 50. See, as to ment, 17 & 18 Vict. c. 104, § 50, 19, its detention under the prior statutes, 45, 40 ; officers entitled to interfere, Bowen v. Fox, 10 B. & C. 41 ; Gibson iMd. § 19, 52, 102, 103, 105 ; responsi- v. Ingo, 6 Hare, 1G2. bility of owners, ihid. § 100, 105. ^ jjy -HraiTant, 17 & 18 Vict. c. 104, See the Colonial Shipping Act, 1868, § 50. 81 & 32 Vict. c. 129, under which ter- * Arkle v. Henzell, 27 L. J. (M. C.) minable certificates of Eegistry may be 110. granted in certain cases. * 17 & 18 Vict. c. 104, § 50 ; Wiley 2 " Or from any registrar, officer of v. Crawford, 29 L. J. (Q. B.) 244 ; 30 the customs, or other person legally L. J. (Q. B.) 309. entitled to require delivery of it," 90 THE EEGISTEE. [CHAP. II. wliose name is not so indorsed, not being admitted by the officers of Customs, at any British port, to do any act as the master of a British ship in the meantime.^ If the identity of the ship has been affected by alterations, a corresponding alteration should appear in this document, unless a new cer- tificate of registry be substituted.^ Renewal of certi- In case this certificate is worn out, obliterated, or damaged, regis ry. pj^Q^-gj^^ £g made for its being delivered up, and replaced by a new one.^ If it be mislaid, lost, or destroyed, or if, being im- properly detained, the person who has it refuse to deliver it up, or have absconded, the registrar at her port of registry may grant a new one, or any British registrar at a port not in the country, in which the port of the ship's registry is situate, may grant a provisional certificate to be of force until the ship arrives at her port of discharge in the country of her registry.* Provisional Where a ship, not on the register, becomes at a foreign port the property of persons qualified to be owners of a British ship, the British consular officer there, may grant a provisional certificate, to be in force' for six months, or until she arrives at some port where there is a British registrar,^ and this certificate is to contain the name of the ship, the time and place of her purchase, and the names of her purchasers, the name of her master, and the best particulars as to her tonnage, bmld, and description that he is able to obtain.* A pass, with the force of a certificate within the time and limits mentioned therein, may be granted in the case of a British ship, before registry, to proceed from any one port or place to any other, both being in Her Majesty's dominions.'' 1 17 & 18 Vict. c. 104, § is, 46. of mere necessity, and under the com- 2 IJ/id. § 84. pulsory process of our Court of Admi- ' Ibid. § 47. " This power will be ralty, fetched, as in the case of The exercised in cases where the old certi- Gratitudine, 3 C. Eob. 240, 265, 275, ficate is worn out, obliterated, or and appendix No. VII., less than haU otherwise damaged." — Commissioners' their value, entaEing loss, not only on Instructions to Registrars, p. 14. the unhappy owners, but on those who * 17 & 18 Vict. 0. 104, § 48, 49, 51. held bonds of bottomry on the ship. " Under the former Acts, a foreign- « 17 & 18 Vict. o. 104, § 54. See tliG built ship, though it had become the Colonial Shipping Act, 1868, 81 & 32 property of a British owner, could not Vict. c. 129, for the temporary regis- obtain a certificate of registration ; the tration of small vessels In British pos- consequence of such a law was, that sessions by certificates of registry, vessels which were sold in this country, ' 17 & 18 Vict. c. 104, § 98. CHAP. II.l CERTIFICATE OP REOISTRY. 91 But if the master or owner of any ship uses, or attempts to illegal uso of a use, for the navigation of the ship, a certificate of registry registry!^ °* not legally granted in respect of such ship, he is guilty of a misdemeanour, and the ship, on proof to the satisfaction of the Court of Admiralty in England or Ireland, or any court having Admiralty jurisdiction in Her Majesty's dominions, that such use or attempt to use had taken place, shall be declared forfeited, with her tackle, apparel, and furniture to Her Majesty.^ The certificate of registry of any ship actually or construe- Delivery up of tively lost, taken by the enemy, burnt, broken up, sold to ''^'^ ' °* ^' persons not qualified to be owners of a British ship, or other- wise ceasing to be a British ship, must be delivered up by the master, if in port, immediately, or within ten days after he arrives in port, to the registrar, or British consular officer at such port, subject to a penaltj'' for default not exceeding lOOL ; ^ and where the sale has been effected under a certificate of sale, the alien purchaser shall be considered by British law as having acquired no title to or interest in the ship, if default is made in the delivery up of the certificates of sale and of registry, and the production of the bill of sale, to some British registrar or consular officer.^ Infants, lunatics, and other incapacitated persons, may do Incapacity oi- any act required of them under this statute by their guardian, J,°,g l^^J *° "^"^ committee, or other person, for that purpose appointed by a court of competent jurisdiction, either generally,* or within the Trustee Act of 1850.^ And the registrar, with the sanction of the Commissioners of Customs, is enabled to dispense with any declaration or evidence required by the statute, which, he is satisfied, cannot for some reasonable cause be made or produced." » 17 & 18 Vict. c. 101, § 52. Fripp, L. E. 7 Eq. 9y. = Ikid. § 53. ' By the 18 & 19 Vict. c. 91, § 10, it " Und. § 81. is declared that, "shares in ships re- * Ibid. § 99. It has been held, gistered under the Merchant Shipping however, that the guardian of an Act, 1854, shall be deemed to be in- infant is not empowered by these eluded in the word Stock, in the 1.? provisions to sell the ship or shares ; & 11 Vict. c. 60, and within the provi- he can only do such acts as arc neces- sions thereof accordingly." sary for the preservation and man- ^ 17 & 18 Vict. c. 104, § 97. agement of the property ; Michael v. 92 THE REGISTER. [chap. n. PERSONS TO EPPECTDATE THE LAW. The Registrars. Officers to en- force a for- feiture. The following persons are required to register British ships, and shall he deemed registrars for the purpose of the Merchant Shipping Act, 1854 : ^ — At any port, or .other place, in the United Kingdom, or Isle of Man, approved by the Com- missioners of Customs for the registry of ships, — the collector, comptroller, or other principal officer of Customs for the time being : — In the islands of Guernsey and Jersey, — ^the principal officers of Her Majesty's Customs, the Governor, Lieutenant- Governor, or other person administering the government of such islands respectively: — In Malta, Gibraltar, and Heligor land, — the Governor, Lieutenant-Governor, or other person administering the government of such places respectively : — At the ports of Calcutta, Madras, and Bombay, — the Master- Attendants, and at any other port or place so approved within the limits of the British empire in India,^ the collector of duties, or any other persons of six years' standing in the civil service, who is appointed by any of the governments in India to act for that purpose : — At every other port or place so approved within Her Majesty's dominions abroad, — the collector, comp- troller, or other principal officer of Customs, 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 possession in which such port or place is situate. The Governor, Lieutenant-Governor, or other person admi- nistering the government in any British possession, is to b6 considered in all respects as occupying the place of the Com- missioners of Customs, for the purposes of the registry of any ship or interest therein ; and any British consular officer is empowered to take declarations when there is no justice of the peace in the place.^ The officers who may lawfully board any merchant ship carrying colours usually worn by Her Majesty's ships, or 1 17 & 18 Vict. c. 104, § 30. See 31 & 32 Vict. c. 129 ; 32 & 33 Vict. c. 11. 2 The Merchant Shipping Act, 1854 (§ 108), does not extend to ships " built and trading within the limits of the East India Company's Charter," which are still regulated by the 3 & 4 Vict. c. 56, and by Act X. of 1841, passed in pursuance thereof by the Governor-General in council. •' 17 & 18 Vict, c. 104, § 31. CHAP. II. 1 OITICERS FOE REGISTEATION. 93 resembling these, or seize and detain any ship which has either wholly, or as to any share therein, become subject to forfeiture, and bring her for adjudication before the proper court, comprise any commissioned officer on full pay in the military or naval service of Her Majesty, or any British officer of customs, or any British consular officer.^ No registrar is liable for any loss accruing by reason of any Exemption from act done, or default made, by him as registrar, unless the same happens through his neglect or wilful act.^ No officer who may lawfully seize and detain a ship subject to forfeiture, is responsible civilly or criminally for any seizure or detention, although such ship is not brought in for adjudi- cation, or being brought in, is declared not to be liable to forfeiture, if it appears to the satisfaction of the judge or court, before whom any trial relating to such ship, seizure or detention may be, that there were reasonable grounds for the same ; but if otherwise, such judge or court may award payment of costs and damages, and make such other order in the case as they think just.^ In the course of these observations, with regard to the Consequence of principles and machinery of the register, there has been re"istermg!^ °° occasion oftener than once, to state that under certain circum- stances a ship not complying with the law will cease to be recognised as a British ship. The consequence would be, that the ship and her owners are thereby deprived of any benefits, privileges, advantages, or protection, usually enjoyed by British ships and their owners ; and of anj'^ right to use the British flag, or to assume the British national character.'* On the other hand, such ship, while so deprived of these advantages, may yet be dealt with as if she were a recognised British ship, in respect of payment of dues, liability to pains and penalties, and the pimishment of offences committed on board, or by persons belonging to her.' 1 17 & 18 Vict.c. 104, § 52, 103, 105. as a British ship and used the British ^ Ibid. § 93. flag, sufficed, in the absence of the re- ^ Ibid. § 104. gister or of proof that she was regis- * Ibid. § 106, 516. tered, as evidence of her being a ' Und. § 1Q6. Accordingly, it was British ship, for the purpose of giving held that the statements of the master a British court jurisdiction over a per- and crew on oath that the ship sailed son charged with the commission of a 94 THE BEGISTEE. [CHAP. II. DooDMENTs A3 Foi' the purposes of evidence in any proceedings before a court of justice, or any person having authority by law or consent of the parties to receive evidence, any register or declaration made in pursuance of the Second Part of the Merchant Shipping Act, sec. 17 — 108,^ may be proved by production of the original or an examined copy, or a copy purporting to be certified under the hand of the registrar, or other person having the charge of the original.^ Every such register or copy thereof, and also every certificate of registry of any British ship, if such register or copy, or such certificate, purport to be signed by the registrar, or other proper officer,^ is prima facie proof of all the matters contained or recited in such register, and of aU the matters contained in, or indorsed on, such certificate of registry, respectively.* This is in terms a re-enactment of the provision contained in the General Evidence Act respecting the register and certi- ficate of registry under any of the Acts relating to the registry of British shipping.' crime on board of her ; Keg.'y. Seberg, Registrar-General of Seamen in Lon- L. E. 1 C. C. E. 264 — " even if it had don, is to be of the same effect, to all appeared that she had not been regis- intents and purposes, as the original tered," ^er Bovill, C. J., ibid. Seous, register. under § 257, for harbouring a deserter, ^ 17 & 18 Vict. c. 104, § 107 ; such there must be strict proof that the certified copy must be supplied to any ship was a British ship ;Leary ■D.Lloyd, one for a fee of one shilling for each 29 L. J. (M. C.) 194. copy. 1 By the 18 & 19 Vict. c. 91, § 15, » As to such officer, see 17 & 18 the transcript or copy of the register ^'ict. c. 104, § 30, 31, 54, See the 18 of any British ship which is kept by & 19 Vict. c. 91, § 15. the Chief Registrar of Shipping, at " 17 & 18 Vict. c. 104, § 107. the Custom House, London, or by the * 14 & 15 Vict. c. 99, § 12. CHAPTER III. THE OWNERS. Legal Relation between them . 95 Mutual Rights .... 97 as to employment of Ship 97 profits thereof . . lO.S Obligations to Third Persons . 107 as Partners . . . . 107 Principals . . .111 Extent of their Liability . .115 at Common Law . , . 115 by Foreign Law . 118 Fi-enchLaw . . . 120 under Merchant Shipping Act . . , . 121 Legal Proceedings . , . 124 Haying considered ships in the preceding chapters as pro- legal relation perty and the conflicting rights arising in connection therewith owner™ when they are dealt with in that view, I come now to consider their employment for the purposes of commerce specifically with reference to the rights and liabilities of the owners of such ships arising out of that relation in connection with such employment. When the shares of a ship are vested in a plurality of owners, it becomes indispensable, for the adjustment of their rights and liabilities, to ascertain the legal relation which they have formed with each other in respect of the common subject of their ownership. There is nothing in the property which they hold to distinguish it in point of law from any other personal chattel. If part-owners hold in severalty distinct shares in a ship, with an undivided interest in the whole, they are tenants in common with each other of their respective shares ; but if a ship, or shares therein, be vested in several persons jointly with unity of title and no distinction of interest, they are joint-tenants of the property so held. Lord Hardwicke, however, confounding two things which differ, the estate of the owners in the ship with the profitable use of the ship by the owners, was of opinion, that part-owners must be partners, and therefore held them liable each in solido 96 THE OWNERS. [chap. III. for all goods supplied and work done to the ship ; ^ but the case was overruled oftener than once by Lord Eldon,^ and the opinion, though recently revived with the seeming sanction of Mr. Abbott's authority,^ has never been received as law in the courts of this country.* In the United States, however, the authority of this case has been admitted in very recent times before the highest legal tribunals, and the principle on which it proceeds is at this day the received law of several of the States;^ a thing less to be wondered at, considering the general disposition throughout that country to adopt the doctrine of the civil law with regard to lien, noticed in a previous page.^ » Doddington v. Hallett, 1 Ves. sen. 497. The reasoning attributed to his lordship is remarkable : " It must be admitted," he says, " the ship may be the subject of partnership as well as anything else, the use and earnings thereof being the proper subject of trade, and the letting a ship to freight as much a trade as any other. Then it appears plainly to be a partnership among them, and the ship itself to be part of the subject thereof, which was to be let to freight to the Company, it being their method of trading. The foundation of this partnership stock is the ship itself, which must be em- ployed, and the earnings and profits to arise. Undoubtedly all those persons subject to this agreement " [the agree- ment of partnership which his lordship thought the law would imply from the circumstance of their being part-owners and letting the ship to freight] " are liable in solido to the tradesmen who fitted it out, and this agreement for proportional shares is as between them- selves ; it is the case of all partnerships ; but as to all persons furnishing goods or merchandise, or employed in work, they are each liable m solido." Ibid, See Green v. Briggs, 6 Hare, 395. 2 Ex parte Harrison, 2 Rose, 76 ; i^a; parte Young, 2 V. & B. 242 ; 2 Eose, 78 n. S. C. See Green i;. Briggs, 6 Hare, 395. 3 Brodie i>. Howard, 17 C. B. 109. The passage from Mr. Abbott relied on in that case, and to be found in the various editions, is this : " With regard to the repairs of ■ a ship, and other ne- cessaries in the employment of it, one part-owner may, in general, by order- ing these things on credit, render his companions liable to be sued for the price of them.'' This can only be maintained upon the assumption, that the part-owners are agents, one of an- other, as in the case of a partnership, an assumption not supported by the authority cited in Abbott (Wright v. Hunter, 1 East, 20), or by a case of any authority in Westminster Hall since Doddington w. Hallett, siipra. ■• See Ex paHe Harrison, 2 Eose, 76 ; Ex parte Young, 2 V. & B. 242 ; 2 Eose, 78 n. S. C. ; Helme v. Smith, 7 Bing, 709 ; Brodie v. Howard, 17 C. B. 109 ; and see Mitcheson v. Oliver, 5 E. & B. 419. * NicoU V. Mumford (in error, over- ruling Chancellor Kent, who had de- cided in accordance with the authority of Ex parte Young, 2 Eose, 78 n.), 20 Johns. K. Y. Eep. 611 ; Hewitt v. Sturdevant, 4 B. Monroe, Ky. Eep. 458, 459 ; Lamb v. Durant, 12 Mass. Eep. 54 ; 3 Kent's Comm. 40, 155. " See a statement of the doctrine of the civil law, and of the principles adopted in the United States, «»ff. p. 67, note. CHAP, ni.] THEIR MUTUAL EIGHTS. 97 We propose to consider the rights and obligations of the theie mutuai, several owners of the same ship, first in relation to each other, obligations. and secondly in relation to strangers. The first difficulty to be dealt with, arises on the first differ- As to the Em- ence among the several owners about the employment of the g^ip. ship. A personal chattel, vested in several proprietors, may not be enjoyed advantageously by all without a common consent. To regulate their enjoyment, in case of difference, is a task which the law of England, not without wisdom, in general declines, leaving them to the hard consequences of dissension, as being in the end liliely to lead to a mutual consent and to their common benefit. Of ships, however, which are built for the purposes of trade and intercourse, com- mercial nations deem the actual employment a matter, not merely of private advantage, but of public benefit, and have laid down certain positive rules to favour this employment, and to prevent the ill effect of obstinacy in some of the part- owners. It may happen that several persons become part- owners of a ship under a fixed compact as to her emploj^ment, or they consent to delegate the management of her to one of them, who by a verj^ intelligible figure of speech, is thence called the ship's husband. When this is the case, nothing is left but to enforce their agreement.^ It is only in the absence of such consent or agreement that an appeal to law becomes necessary, if any law there be for such a case. Some foreign writers ^ on maritime law have laid it down as Foreign Law. 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 then lose his share in the ship. This doctrine these writers found upon a passage in the Digest,^ in which the same opinion is delivered with regard to the repairs of a house. It does not appear that ' Owston V. Ogle, 18 East, 538 ; written before him, and is, as usual. Darby v. Baines, 9 Hare, 369 ; Ser- cited in Ms turn by Eoocus, and others, rante v. James, 10 B. & C. 411. who have written after him. 2 Straccha de Nav. P. II. no. 8. 3 Dig. 17. 2. 52. 10. The author cites two others, who had H 98 THE OWNERS. [chap. m. LuTTs of Oleron, Wisby, Ham- burg. Bcnmarh. Scotland. this rule has ever been adopted in practice anywhere among modern nations, nor will any one wonder at this.^ The ordinances of Oleron and Wisby are silent on this subject. The ancient Ordinance of Hamburg" requires the minority, in value, of the owners to follow the opinion of the majority, except where the latter vexatiously wish to leave the vessel unemployed ; in that case it seems the minority might take measures to send her to sea. The maritime code of Frederick II. of Denmark, 1561, is more curious in the provision which it makes on this ijoint ; for the minority might fix the sum of money at which they were willing to sell or to keep the ship, and those who became the owners by this offer, were to pay the price within six weeks, and take to the ship ; but if they could not agree upon a price, the majority were to fit out the ship, and send her to sea, at their own risk, and for their own advantage.* According to the law of Scotland, the half or major part of the owners may force the others to a compulsory public sale of the ship, or any one of them may have an action of sett in the Admiralty, to fix the price at which his own shares might be purchased by the others, or theirs by him.* ■ Some curious provisions are to be found in the early chapters of the Consolato, with regard to the construc- tion, and also subsequent enlargement, of a ship by part-owners, in case some of them should become defaulters. The master (being himself part-owner) is empowered to morlgage the share of the defaulter for his share of the money re- quisite to construct the vessel ; but for the subsequent enlargement of the ship, although a majority in number of the owners is to decide whether the work shall be done, the minority are not to be compelled, perhaps to their ruin, to advance more money on the ship, and the master is allowed to take in others as part-owners, who are willing to make the necessary advances, Conso- lato del Mare, cc. 3, 5, & 6 — 2 Pardess. 50, 54. In the United States the law makes a close approach to the doctrine stated in the text. It gives a lien for work done to a house or ship, in some of the States (ante, p. 67, n. '), and it pre- sumes that one tenant in common has authority to bind the other for such repairs as are, necessary for the preser- vation and proper employment of the ship, 3 Kent, Comm. 155. 2 Art. 24. This ordinance is vari- ously attributed to the years 1270, 1276, and 1292, 3 Pardess. 337. The Ordinance of Lubeck, 1299, Art. 25, is identical in effect, and almost in terms, 3 Pardess. 401. 3 Art. 61—3 Pardess. 241, 262. ■• Stair Inst. 1. 16. 4 ; Ersk. 3. 3. 56 ; 1 Bell's Comm. 405 ; Bell's Law Diet. Sett, aotion of. The difference, iu this respect, between the law of Eng- land and of Scotland was under the consideration of the Commissioners for assimilating the mercantile law of the two countries, whose labours issued in the passing of the 19 & 20 Vict. cc. 60 & 97 ; but though they felt it very de- CHAP, in.] THEIR MUTDAl RIGHTS. 'i^ B}' the Ordinance of the Hanse-Towns/ if the owners dis- Hanse-Towns. agree as to the freighting of the ship, the most voices shall carry it, and yet the master may take money on hottomry for those who will not contribute their part to the outfit. The French Ordinance,^ and now the code,' directs, that in France. all cases, which concern the common interest of the owners, the opinion of the majority in value shall be followed. The Ordinance of Eotterdam * gives power to a majority possessed Eotierdam. 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, either by borrowing 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 ^ even authorises the owners of above half the ship to sell it for the general account. The law of this country appears to possess an important Law of England, advantage over all the ordinances that have been cited. It siiable that the law should be the same in both, they were unable to recommend an alteration in the law of either on this point. See their Second Report. The principle involved in the Scotch action of Sett, seems to have been fa- miliarly known in the law of Iceland, as appears by extracts given by M. Pardessus from codes that have been handed down from those times of high civilisation which made that island ro- toarkable in Europe, during the middle ages. There is also a provision to be found there to this effect : If none of the part-owners should be rich enough to buy the ship as to which they had difiEered, and no other person should be willing to buy it, then those part- owners who wished to employ the ship might do so, distributing afterwards to the dissentients their share of the freight, subject to the deduction of ex- penses, as if the employment had been by common consent, 3 Pardess. 62, 84. ' This provision, though enforcing what it calls the ancient usage, appears among the laws of tjie Hanse-Towns ■for the first time in the Ordinance of 1591, art. 57 ; and it is reproduced in that of 1614, t. 5, art. 7—2 Pardess. 507, 526 ; ib. 528, 546. The former of these ordinances, attributed, after M. Cleu-ac, to the year 1597, is given, in substance, in the English tract on Sea Laws appended to some editions of Malyne's Lex Mercatoria, where this provision appears as art. 59 ; and it is to be found in the Us et Coutumes de la Mer, published by M. Cleirac ; but as he interprets this provision, it is " Ic plus de trois emportera sur les autres ;" however, if the translation by M. Par- dessus is accurate, and there is no reason to doubt it, the effect of the law is correctly given in the text. 2 Liv. 2, tit. 8, Des Propritoires, art. 5 — 4 Pardess. 356. 3 Code de Com. art. 220. And in the absence of any agreement in writing to the contrary, one half the proprietory in interest may force a sale of the ship, ibid. * Art. 172—2 Magens, 108. See also, on this point, Wesketh on Insur- ance, tit. Bottomry, § 3 & 4. s Art. 171—2 Magens, 108. H 2 100 THE OWNERS. [CHAP. III. authorises the majority in value to employ the ship " upon any probable design ; " ' while it takes care to secure the interest of the dissentient minority from being lost in the employment, of which they disapprove. For this purpose it has been the practice of the Court of Admiralty, from very remote times, to take bond, from those, who desire to employ the ship, for a sum equal to the value of the shares of the dissentients either to restore the ship in safety, or to pay them the value of their shares.^ When this is done, the dissentient part-owners bear no portion of the expense of the outfit ; are not entitled to a share in the profits of the undertaking ; and the ship sails wholly at the charge and risk, and for the profit of the others.^ It has been decided,* 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 with- out his assent.^ These decisions are consonant to the general rule of law that, if one tenant in common deprives the other of possession of the common chattel, and carries it away, no action lies against him ; but if he destroys it, he is liable to be sued by his co-tenant." In a case before Chief Justice King, where one part-owner had forcibly taken a ship out of the 1 Molloy de Jar. Mar. bk. 2, c. 1, case of Davis v. Johnston, i Sim. 5.39, § 2. is not in conflict with the doctrine in 2 The Apollo, Tennant, 1 Hagg. Ad. the text, but the marginal note of that 306, 311 ; The Margaret, Tomison, 2 case is imperfect ; for the dissentient Hagg. Ad. 275, 278 ; Haly v. Goodson, 2 owner, though denied a share of the Me]-. 77 ; 2 Dod. Ad. 420 ; In the matter earnings, was held liable to pay his pro- of Blanshard and others, 2 B. & C. 244, portion of the outfit, because he had as- 249. There is no similar provision in sented to the outfit, and was cognizant the law of Scotland ; there was no such of the negotiations for the voyage as to process known to the Admiralty there ; which he afterwards arrested the ship, so that a protest availed the dissentient See 24 Vict. c. 10, § 8 ; and the Meggie, owners nothing, Stair, 1. 16. 4. See L. E. 1 Ad. 77. form of such a security, Apj'endix. * Graves v. Sawcer, SirT. Raym, 13 ; 'So held, after reference to Sir Leoline 1 Keb. 38, and 1 Lev. 29. Jenkins, who certified this to be the ' strelly v. Winson, 1 Veni. 297 ; Law Marine and the course of the Ad- Skin. 230. miralty. Anon. 2 Chan. Ca. 36. Trin. « Co. Litt. 200 a ; 2 Wms. Saund. T. 32 Car. 2 ; and by Holt, C. J., in 470, 476 ; Hx jmrte Machell, 1 Eose, Boson V. Sandford, Carth. 63. The 447 ; 2 V. i; B. 21G, S. C. CHAP, m.] THEIE MUTUAL RIGHTS. 101 possession of another, secreted it, and changed its name, and afterwards a third person, obtaining possession, sent it to Antigua, where it was lost ; the chief justice left it to the jury- to say, under all the circumstances of the case, whether this was not a destruction of the ship by the defendant ; and thej'- iinding 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.-^ If a part-owner expressly notify his dissent beforehand, the Court of Chancery wiU not compel him afterwards to contribute to a loss.^ In case of a loss, it is within the jurisdiction of the Court of Admiralty to declare the bond forfeited ; and if the owners cannot prove the actual loss, the Court will, under proper cir- cumstances, declare the bond forfeited should the vessel not return within a time certain, and if she returns within the time, will dismiss the parties from the effect of the judgment.^ It was indeed formerly doubted in Westminster Hall, whether Admiralty juris- this practice of the Court of Admii-alty was not an unfounded questioned. assumption of jurisdiction in a matter not within its cognisance, because arising at home and upon land; and much conflict arose in the time of Charles the Second about it, and was carried on into the reign of George the Second, in which time many decisions were given, not always agreeing; but the history has little interest for any one in these times, when a more liberal spirit possesses the judges and the Legislature. This jurisdiction of the Court of Admiralty till recently ex- Admiralty Court tended only to cases where the amount of the respective shares '''"'^ 1 Bamardiston v. Chapman and an- case is now printed in i East, 121. other, 1 Geo. 1 ; Sir Peter King's Cases, Abbott. MS. The cause was twice tried : at the " Horn v. Gilpin, Amb. 255. In first trial a verdict was found for the this case it was said, that the ground plaintiff, subject to a case, which stated of decision mentioned in Vernon's Ee- only the title of the parties, and that port of Strelly v. Winson, viz., that the defendants by force took the ship recourse should have been had to pro- out of the plaintifE's possession and ceedings in the Admiralty, is misstated carried it away. The case was argued there, and that the real ground of deci- at the Chambers of the Chief Justice, sion was, that the part-owner who before him, and Tracy and Dormer, J J., complained had not expressly dis- and a new trial ordered by consent. sented. The trial mentioned in the text was the ' The Ann and the Waterhen, cited second trial. A third trial was moved 2 Hagg. Ad. 279. for and refused. A full note of this ^02 THE OWNERS. [CHAP. III. is already ascertained and apparent ; where that remained to be ascertained, the remedy of the parties was in the Court of Chancery, which would issue an injunction against the saihng of the ship till the amount of the shares had been determin'ed, and security given ; ^ unless it should happen that the applica- tion was not made tiU near the time of sailing, and no reason assigned for the delay .^ To meet this state of things, and for the purpose of a com- pulsory sale of the ship or a share in such a case, which was not within the jurisdiction of the Admiralty Court,* and for other purposes, this jurisdiction has been improved. The 24 Vict. c. 10, § 8, provides that "the High Court of Admiralty shall have jurisdiction to decide all questions arising between the co-owners or any of them, touching the ownership, possession, employment, and earnings of any ship registered at any port in England or Wales, or any part there- of, and may settle all accounts outstanding and unsettled between the parties in relation thereto, and may direct the ship or any share thereof to be sold, and may make such order on the premises as to it shall seem fit." Under this statute the Court has gone so far as to order the sale of a vessel at the suit of owners holding the minority of the shares, but only after appraising the shares of such minority and giving the other owners the option within a limited period of purchasing them at the price fixed.* In an action of possession if an account be also claimed as against the managing owner and he has not appeared to the action, the Court will order him to be joined as defendant.' In the case of a foreign vessel arrested in such an action, the Court wiU only assume jurisdiction under special circum- stances, and when it can be done with the consent of the representative of the foreign country in England.^ » Haly V. Goodson, 2 Mer. 75, 77 ; The ^ Ouston v. Hebden, X Wils. 101 . Frances, Syme, 2 Dod. Ad. 420 ; but " The Nelly Schneider, 3 Prob. Div. it is doubtful whether the Court of 152. Chancery will assume to do that * The Native Pearl, 37 L. T. N. S. merely which is effectually done by a 542. Court of a, difEerent jurisdiction ; " The Agincourt, 2 Prob. Div. 239 ; Castelli v. Cook, 7 Hare, 89, 96. The Evangeli§tria, ibid. 241, « Christie V. Craig, 2 Mer. 137. CHAP, in.] THEIE MUTUAL BIGHTS. 103 By the French law, although one tenant in common may Power to compel force the other io a sale of the common chattel, this is not applicable to ship-property, except when the division of the owners is equal in point of value, and there is no agreement in writing to the contrary.^ Although a part-owner might always by our law have disposed of his interest to another person, a rule formerly prevailed among some of the nations 'of the Continent that did not permit the sale of a ship imtil after a possession of three or more years, or at least not till after the performance of one voyage at the charge and risk of the part- owners.^ This rule appears to have been framed with a view to the interest of the master. In former times, he was a principal owner, and the person who, with the pecuniary assistance of the other owners, 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, and so enable them, by a majority of interest, to appoint a friend of their own.^ The owners, whatever be their mutual relation in respect of Owners Partners the ship as property, become by the joint employment of her, J^re. partners in respect of the adventure ; and the adjustment of their mutual claims and disputes in connection therewith, is a question of partnership, that seldom could be dealt with at common law.* If an account had been stated between them, ascertaining the nett sum payable to, or by, such owner, pay- ment might be enforced by an action ; ^ or, under very peculiar 1 Ord.liv. 2,tit. 8, DesPropri^taiies, ^ Yalin, on the French Ordinance, nrt. 6 ; Code de Com. ai-t. 220. As to vol. i. 583 ; Loocenius de Jure Marit. the power of a tenant in common to lib. 3, c. 5, § 8 ; Consolato, c. 10—2 compel a division or sale, see Code Pardess. 62 ; MoUoy, bk. 2, oh. 1, § 3. Civil, liv. 3, t. 1, c. 6, du Partage et ^ Consolato, o. 10—2 Pardess. 62. des Kapports. Some of the early mari- This relation of shipmaster and owners time codes of Europe, as we have seen, appears to have been a matter of much {ante, p. 98) afEord every facility for anxiety in these early times, and ac- one part-owner to force a sale upon the cordingly is more frequently the sub- other. See the Maritime Code of Den- jeot of minute legislation than perhaps mark, 1561, art. 61—3 Pardess. 241, any other at that period. 262 ; Ordinance of Hamburg, 1270, < BoviU v. Hammond, 6 B. & C. 149, art. 25 ; Ordinance of Lubeck, 1299, 151. art. 26—3 Pardess. 337, 404 ; The Laws ^ Way v. Milestone, 5 M. & W. 21 ; of Iceland— 3 Pardess. 62, 84 ; and The Brierly v. Cripps, 7 C. & P. 709 ; Law of Scotland, Stair, 1. 16. 4 ; Ersk. Kackstraw v. Imber, Holt, 368. An 3, 3, 56. injunction to restrain proceedings at 104 THE OWNERS. [CHAP. IH. circumstances, there might be an action for not accounting against the ship's husband. In a case where several part- owners entered into a written agreement, whereby they, and each of them, did agree to and with the others, and each 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 of the ship and her concerns, should be made out, and the nett profits to be divided rateably ; it was held, that each individual party to the agreement might main- tain an action against the ship's husband for not accounting, and for not dividing the profits within a reasonable time after the ship's return.^ At the present day there is nothing in point of jurisdiction to hinder any of the divisions of the High Court from dealing fully with any case that is brought before them. Generally, however, questions between persons so situated involve the taking of the accounts as between partners, and, if they are not settled by consent before an arbitrator, the Court more com- petent to deal with them is the Chancery Division of the High Court ; but even there a prior settlement of the accounts by the majority of the owners is held binding on the others, and in the absence of fraud or gross error, a suit by one owner to unravel the accounts after such a settlement, will not be entertained.® Expense of The Outfit of the ship, and all other expenses requisite to carry her through the voyage, being in the nature of capital in the adventure, of which the owners are each bound to advance his proportion, the amount may be recovered in an action against him by the ship's husband without waiting the end of the adventure.^ And when it has terminated, he is entitled to deduct from the gross earnings of the ship all expenses neees- law between the parties to a suit in and pass his accounts, and imposes a equity has been refused on this ground, fine upon those who do not attend Hirst V. Peirse, i Price, 339. the first time in person or by agent ; ' Owston V. Ogle, 13 East, 538 ; and the second time authorises the Servante v. James, 10 B. & C. 411. others to make a final settlement with- 2 Robiuson ■«. Thompson, IVern. 465 ; out them, 1. 12, art. 1—2 Pardess. 528, Luokie v. Forsyth, 3 Jones & Lat. 388 ; 554. Fergusson ii. FyfEe, 8 CI. & F. 121. 3 Helme v. Smith, 7 Bing. 709, 713 ; The Hanseatic Ordinance of 1614 re- Brown v. Tapscott, 6 M. & W. 119 ; quires the master on his return home to Vanner v. Frost, 39 L. J. (Ch.) 626. summon all the part-owners, to receive CHAP. IH.] THEIB MUTUAL RIGHTS. 105 sarily incurred for it on the same adventure before distributing the profits to the owners.^ Nor, wlien repairs have been necessary, will the Court disallow the expense of substantial repairs, notwithstanding they are not exhausted in the voyage ; the value of the ship being thereby increased.^ But an insurance effected on the ship, as it is no part, neces- Insurance. sarily, of the joint adventure, cannot be charged upon the joint proceeds without the common consent of the owners,^ unless the ship be partnership property.* With such consent, how- ever, it is an item of expense proper to the voyage, and a prior assignee of freight, who does not interpose, but suffers his assignor to deal with his co-owners as if no assignment had been made, cannot afterwards resist the deduction.^ The title to freight is prima facie an incident of ownership. Freight an inoi- If a sale and transfer of shares therefore be effected while the ship. ship is under a contract of affreightment, the proceeds of her performance thereunder, nothing appearing in the contract to the contrary, go to the purchaser, notwithstanding a sub- sequent contract of the vendor to transfer this particular freight to another.® Therefore, in the case of an insurance on ship with one, and on freight with another, followed by abandonment to the several underwriters, any after-acquired freight by means of the vessel belongs to the underwriters on ship,'' subject to any expense of earning the freight incurred since the abandonment.^ For the same reason a mortgagee who enforces his right, by ' Holdemess v. Shackels, 8 B. & 0. Davidson v. Case, 5 M. & Sel. 79 ; (in 612 ; Green v. Briggs, 6 Hare, 395 ; error) 8 Price, 642 ; Sharp v. Glad- Alexander tj. Simms, 23 L. J. (Ch.) stone, 7 East, 24 ; Kersvvell v. Bishop, 721 ; 18 Bear. 80, S. C. ; Lindsay v. 2 C. & J. 529 ; Dean v. M'Ghie, 4 Bing. Gibbs, 4 Jur. N. S. 779 ; (on appeal) 45 ; Green v. Briggs, 6 Hare, 395, 404 ; 28 L. J. (Ch.) 692 ; Thompson v. Row- Alexander v. Simms, 23 L. J. (Gh.) croft, 4 East, 34, 51. 721 ; 18 Beav. 80, S. C. ; Lindsay v. 2 Green v. Briggs, 6 Hare, 395, 405, Gibbs, 2 .Jm\ N. S. 1039 ; Alexander v. 406. Dowie, 1 H. & N. 152. ^ Ogle and another v. Wrangham ' Davidson v. Case, 5 M. & Sel, 79 ; andothers, 6wa)ft Kenyon, C.J., Guild- (in error) 2 B. & B. 379; Miller v. hall Sitt. post, H. T. 1790 ; French v. Woodfall, 8 E. & B. 493 ; Stewart v. Backhouse, 5 Burr. 2727. Greenock Marine Insur. Co. 2 H. of * Hooper v. Lusby, 4 Camp. 66. Lds. C. 159. See Hiokie v. Rodo- 5 Lindsay v. Gibbs, 4 Jur. N. S. 779 ; canachi, 28 L. J. (Ex.) 273. (on appeal), 28 L. J. (Ch.) 692. ^ Thompson v. Rowcroft, 4 East, 34, ^ Morrison v. Parsons, 2 Taunt. 407 ; 52. 106 THE OWNERS. [chap. ni. Part-owners not affected by bank- ruptcy of one of them. taking possession of the ship before the termination of the voyage, entitles himself to the accruing freight as against the mortgagor and his assignees,-' and against the charterers who have made advances.^ It has even been held that it suffices, if he do any act equiva- lent to taking possession, such as giving notice to the mort- gagor and the charterer before the freight is payable, although after it has been actually earned.^ And yet the assignee of freight is not allowed, by giving notice to the charterer before freight is earned, to oust the right of the mortgagee, who subsequently but before freight is earned takes possession.* The foreign agent of a ship's husband having a claim against his principal, made the freight on the charter-party payable to himself, intending to set it oif against his claim ; but the owners, in virtue of their title to the ship, recovered the freight from him notwithstanding.^ On the other hand, it is the recognised rule of law, to charge the assignee or purchaser with the outfit and other expenses incurred in respect of the voyage, of which he is entitled by his purchase to share the profits ; and as that can only be the voyage in prosecution at the time of the purchase, he is under no liability for the expense of an antecedent adventm'e, in respect of which he has no claim." The interest of part-owners as amongst themselves in ship and adventure is not aifected by the bankruptcy of one of them after the commencement of the voyage, although he has not paid his full share of the outfit. In such a case, if the other part-owners have in that character paid the expense of the out- fit, or made themselves responsible for it, they will have a ' Liverpool Marine Credit Co. v. "Wilson, L. R. 7 Ch. 507 ; Brown v. Tanner, L. H. 7 Ch. 597 ; Kerswell v. Bishop, 2 Cr. & J. 529 ; Dean „. M'Ghie, 4 Bing. 45 ; and see Willis V. Palmer, 29 L. J. (C. P.) 194. 2 Tanner v. Phillips, 42 L. J. (Ch.) 125. 3 Kusden v. Pope, L. E. 3 Exch. 269 per Kelly, C. B., Martin & Chan- nell, BB. ; dissentiente Bramwell, B. * Brown v. Tanner, supra; Liver- pool Mar. Cred, Co, v. Wilson, supra. " Walshe v. Provan, 8 Exch. 843. ^ Green v. Briggs, 6 Hare, 395. Luidsay -u. Gibbs, 4 Jur. N. S. 779 ; (on appeal) 28 L. J. (Ch.) 693 ; The master in one case was held entitled as against the creditors of the bank- rupt owner, to reimburse himself, out of freight, some unusual expenditure required in preparing to perform the charter-party, Bristow v. "WTiitmore, Ho. of Lords, 31 L. J. (Ch.) 467, re- versing 28 L. J. (Ch.) 801 ; and affirm- ing 1 Johnson, 96, S, C. CHAP, nr.] THEIR EELATION TO THIRD PERSONS. 107 right to deduct his share from the portion of the profits to he paid to his creditors.^ In respect of the obligations incurred by the owners upon obuoations ov contracts with strangers, it is clear, if thej' hold the ship as ihirh veksons. partners, that all are jointly liable on the contract of each made in the name, and for the purposes, of the partnership. If they are part-owners, and not partners, as is much more commonly tlie case, the law is, that they are severally liable, each upon his own contract, made by himself, or by a duly authorised agent on his behalf.^ Between partners the relation of prin- cipal and agent is implied by law ; ^ between part-owners it remains to be proved in fact* "Where such authority is proved, e.g., to seU the ship, it is then vain to argue that the owners holding the ship as tenants in common, are therefore not liable jointly for the commission on the sale.^ A modification of this general doctrine, not at all received American Law. in this country, is stated by Chancellor Kent ® to have been adopted as law in the United States. He says, using the words of an English text-writer,^ " As the law presumes that the common possessors of a valuable chattel will desire whatever is necessary to the preservation and profitable employment of * Holderness v. Shackels, 8 B. & C. lison, 2 Eose, 76 ; per Erie, J., Frost 612. Something difierent seems to be v. Oliver, 1 E. & B. 301 ; Hx parte laid down in Smith v. De Silva, Oowp. Young, 2 V. & B. 242. 469 ; butter Lord Tenterden, C. J., " It Hence an admission of one part- is clearly established as a general prin- owner does not bind another in respect cipleof law, thatif one partner becomes of their common property ; Jaggers v. a bankrupt, his assignees can obtain no Banning, 1 Stark. R. 64; nor a con- share of the partnership eifects, until tract of insurance upon the ship by they first satisfy all that is due from one without the consent of the others, him to the partnership. The case of pei' Lord Ellenborough, C. J., Boll u. Smith V. De Silva is a very entangled Humphries, 2 Stark. E. 345. case, and the facts stated in the report ^ Cox v. Hickman, 8 Ho. of Lords, are not very clear or perspicuous * * * C. 268. it may therefore have been properly * See cases in note ^, supra. decided, without breaking in on the * Keay v. Fenwick, 1 C. P. Div. 745 general principle to which I have ad- (C. A.), verted." 8 B. & G. 612, 618. ^ ■e Kent's Comm. 155, citing Holt, ■J Brodie v. Howard, 17 C. B. 109 ; 'ut infra ; King v. Lowry, 20 Barb. Mitcheson v. Oliver, 5 E. & B. 419 ; Eep. 532 ; Hardy v. Sproule, 29 Me. Helme v. Smith, 7 Bing. 709 ; Young Eep. 258 ; 31 Me. Rep. 71, S. 0. V. Brander, 8 East, 10 j Briggs v. Wil- ' Holt, Law of Shipping, Introd. kinson, 7 B, & C. 30 ; Ex parte Har- 33. 108 THE OWNEES. [CHAP. III.' the common property, part-owners on the spot have an implied authority from the absent part-owners, to order for the com- mon concern whatever is necessary for the preservation and proper employment of the ship. They are analogous to partners, and liable, under that implied authority, for neces- sary repairs and stores ordered by one of themselves ; and this is the principle and limit of the liability of part-owners." In this country, since Lord Hardwicke's decision in Dod- dington v. Hallett ^ was' over-ruled, we have no such doctrine. The civil law, so generally received in this particular on the Continent,^ and to some extent in the United States,^ gives a lien on the ship for necessaries supplied and repairs executed, so as to enable the creditor to attach and sell her for the amount of the debt. Early attempts were made in the Court of Admiralty in this country to introduce into our law that principle of implied maritime lien. With two or three excep- tions, in which the safety and preservation of the ship seemed rather to be considered, as in the case of wages, towage, pilotage, salvage, and collisions, these attempts failed,* so completely, that even bottomry must still be effected by an express agreement in writing. Gradually the law of England, in this respect, has been yielding to the exigencies of our commerce with the nations of the world. First, as to foreign ships, it was found that this state of the law, in respect of imphed maritime lien, and the exclusive jurisdiction of the common law courts over contracts withia the body of a county, operated to their serious pre- judice in circumstances of distress or necessity whenever per- sonal credit failed the master. It was, therefore, enacted,^ that " the High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to, or damage received by, any ship or sea-going vessel, or in the nature of towage, or for ^ Doddington v. Hallett, 1 Ves. sen. per Dr. Lushington, The Vibilia, Eich- 497. ardsoii, 1 W. Rob. 1. 13. 2 Dig. 42. 5. fr. 26, & 34 ; lib. 20. 4. s Kent's Comm. 035, note, cited ante, fr. 5, & 6 ; Novell. 97, o. 3 ; Domat. p. 67, n.' Loix Civiles, liv. 3. 1. 5 ; Vinnius in * Per Lord Stowell, The Zodiac Peckium, 99, 233 ; per Lord Stowell, Scott, 1 Hagg. Ad. 320, 325. The Alexander, Tate, 1 Dods. 278, 280 ; ^ d Sc i Vict. c. 65, § 6. CHAP. III.] THEIR EELATION TO THIRD PERSONS. lOD 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 services were rendered, or damage received, or necessaries furnished, in respect of which such claim is made." This section enlarges Admiralty jurisdiction till it en- croaches upon the limits hitherto assigned to the common law, and bases that jurisdiction on claims theretofore known to it only when they were the subject of written stipulation. It creates a maritime lien for necessaries supplied ; ^ it applies to foreign ships exclusively,^ whether in a home or colonial port ; ^ of course, in a foreign port, this statute is not of auy force.* Prima facie therefore the suppty of necessaries to such a ship is made on the credit of the vessel ; '' and such a lien once attaching cannot be defeated or discharged by transfer of the ship to a British owner." This is not the place for tracing the limits of Admiralty jurisdiction now extended to so many claims of merely common law cognisance. Yet as the rights of third parties against part-owners are clothed with new remedies, the enactments which have that effect are here set forth. By the 24 Vict. c. 10, the Court of Admiralty has jurisdiction as follows : — Sect. 4. " Over any claim for the building, equip- ping, or repairing of any ship, if at the time of the institution of tlie cause, the ship or the proceeds thereof are under arrest of the Coui't." Sect. 5. " 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 owner or part-owner of the ship is domiciled in England or Wales : Provided always, that if in any such cause, the plaintiff do not recover £,%), he shall not be entitled to anj^ 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 1 The Ella A. Clark, Br. & Lush. .32. 46 L. J. (Ad.) 15, (G. A.) 2 The Ocean, 2 "W. Eob. Ad. 368. ■* The India, 32 (L. J. (Ad.) 185. « The Wataga, Swab. Ad. 165 ; The ' The Perla, i Jur. N. S. 741. Afina van Linge, ihid. 514 ; The Anna, " The Ella A. Clark, Br. &; L. 32. 110 THE OWNERS. [CHAP. HI. Court." Sect. 6. " Over any claim by the owner or consignee, or assignee of any bill of lading of any goods carried into any port of England or Wales in any ship, for damage done to the goods or any pai't 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 always, that if in any such cause the plaintiff do not recover £20, 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." No maritime lien is created by any of these three sections ; ^ the only effect is the introduction of Admiralty remedy and process, with this material advantage to the creditor, however, that it gives him the security of the ship or her proceeds during the investigation of his claim. In respect of claims for necessaries under the 3 & 4 Vict, c. 65, § 6, and under the 24 Vict. c. 10, § 5, which would no doubt cover repairs and equipping,^ the claimant must satisfy the Court that a reasonable necessity for the suppHes existed.^ This same condition of jurisdiction in the Admiralty Court over the particular claim, is that, without which the common law win not under any circumstances imply authority in the master to pledge the owner's credit.* We shall consider in the 1 The Two Ellens, Johnson v. Black, which the agent, in his absence, is called L. R. 4 P. C. 161. upon to act ; whatever is fit and proper See, with regard to the British for the service on which a vessel is colonies and the jurisdiction of Vice- engaged ; whatever the owner of that Admiralty Courts, the 26 Vict. u. 2i, vessel, as a prudent man, would have § 10. ordered if present at the time." 2 The Two Ellens, L. R. 3 Ad. 345. ^ The Perla, Swab. Ad. 354 ; The The learned judge of the Admiralty Ocean, 2 W. Rob. Ad. 368 ; The N. R. Court, Sir R. Phillimore, in The Riga, Gosfabrick, 4 Jur. N. S. 742 ; The L. R. 3 Ad. 516, reviewed all the pre- Helena Sophia, 3 "W. Rob. Ad. 265 ; ceding cases as to the meaning of the The Alexander, 6 Jur. 241, term Necessaries, and adopted that * Myers v. Willis, 17 0. B. 77 ; (in which had been given by Lord Tender- error) 18 C. B. 886; Mackenzie v. den in Webster D. Seekamp, 4 B. & Aid. Pooley, 11 Exch. 638 ; per Erie, J. ; 352, — "what a prudent man, if present. Frost -y. Oliver, 1 E.&B.301 ; Mitche- would do under the cireumstanoes in son v. Oliver, 5 E. & B. 419 ; Curling v. CHAP, ni.] THEIR RELATION TO THIRD PERSONS. Ill next chapter the circumstances in which the law implies such authority in the master. At a home port, or a port where the owners are resident, or Depends on are easily accessible, there is no doubt a practical difficulty, ^i^\ ^nd Agent. though the principle of law is plain, in the case of contracts made by a stranger with one, such as the master, who appears to be in the position of a general agent for the purposes of the The Maator a:? ship. Whether he was the agent of the defendants, or was held out by them as their agent, in making the particular contract, may be a proposition difficult of proof under the actual circumstances of the case ; but it is the main proposition to be affirmed or negatived, and usually it determines the result of the action.^ The defendants are not liable, on contracts for the ship made by the master, merely because they are owners, or appear on the register as such : ^ or hold themselves out as owners, and are in possession of the ship at the time of the contract ; or because the contract is made by the registered master, acting as master with the privity and consent of the defendants, and making the contract with their privity, and the goods and work are supplied and done on the credit of the defendants, being iit, proper, and necessary for the ship under the circumstances existing at the time of the contract ; — unless the master is also held out by the defendants as their master of the particular ship, acting on their behalf in the conduct, Bobertson, 7 M. & Gr. 336 ; Beldoti 11. v. Oliver, 22 L. J. (Q. B.) 353, 360 ; Campbell, 6 Exch. 886 ; Briggs v. Wil- 1 E. & B. 301, S. C. ; Brodie v. Howard, kinson, 7 B. & C. 30 ; Yomig v. Bran- 17 C. B. 109 ; Myers ■B.Willis, 17 C. B. der, 8 East, 10 ; and see on the general 77 ; (in error) 18 C. B. 886 : 25 L. J. principle,^;e?' cwriam, Reynell !'. Lewis, (C. P.) 39, S. C. : Hackwood t'. Lyall, 15 M. & W. 517, 526 ; Wylde v. Hop- 17 C. B. 124 ; 25 L. J. (C. P.) 44 n. kins, iUd.; Smith v. M'Guire, 27 L. J. S. C. ; Flower u. Young, 3 Campb. 240; (Ex.) 465, 468. Smith v. Fuge, 3 id. 456 ; Fraser v. 1 See previous note. Hopkins, 2 Taunt. 5 ; 2 Camp. 170, 2 " Title has nothing to do with S. C. these cases ; we must look to the con- Yet in loss occasioned through the tract between the parties," per Lord negligence of a shipkeeper, it has been EUenborough, C. J. ; Annett v. Car- held that the ship's register is some stairs, 3 Campb. 354 ; " The doctrine, evidence from which the jury may in- that the legal ownership of the ship is f er that the person registered as owner proof that the master has authority to appointed the shipkeeper ; Hibbs v. contract for such owner, has been re- Ross, L. E. 1 Q. B. 534. peatedly negatived,"^>c?' Erie, J., Frost 112 THE OWNERS. [chap. III. management, and direction of the vessel, and in ordering the goods and repairs.^ If the owner, after ordering necessaries, sell and transfer the ship, the vendee is not liable, not even for such of the neces- saries as were supplied after the transfer.^ Nor would he be if the necessaries were ordered by the master, who at the time was himself charterer of the vessel.^ Mortgagee. A. mortgagee of the ship, though not to be deemed owner,* has so much of the right and incidents of ownership on taking possession or doing what is equivalent thereto,' that freight then accruing becomes payable to him ; ^ but he is not liable for any debts incurred for the ship before that time,'' although under the very peculiar circumstances of a particular case, a court of equity giving him priority over a purchaser ordered him to pay the expense of the outfit for the voyage which had been advanced by the other.^ Yet he cannot assert his right to the ship in defiance of the shipwright's lien for repairs ordered by the mortgagor while in possession, as the law will imply authority in these circumstances from the mortgagee to keep the ship seaworthy.^ Nor will he be allowed to defeat engage- ments previously made for her with third persons.^" He may sell the vessel, if he be sole or first mortgagee, and pay off his mortgage out of the proceeds, notwithstanding there is no express power of sale in the instrument of mortgage ; ^^ or if he ' Mitcheson v. Oliver, 5 B. & B. Freight, jjost, c. x. ; the chapter on 419, 444, 445 ; 25 L. J. (Q. B.) 39, 42, Ships as Property, ante, c. 1. S. C. ; see Tibbald v. Hood, 1 F. & F. ' The Troubadour, L. E. 1 Ad, 302 ; 287 ; The Great Eastern, L. R. 2 Ad. Briggs v. Wilkinson, 7 B. & C. 30 ; 88. Johnson v. Royal Mail St. Packet Co. 2 Trewhella v. Kowe, 11 Bast, 435. L. R. 3 C. P. 38 ; Jackson -o. Vernon, ' Fraser v. Marsh, 2 Camp. 517 ; 13 1 H. Bl. 114. East, 238. » Cato b. Irving, 5 De G. & S. 210. < 17 & 18 Vict. c. 104, § 70 ; per 9 WiUiams v. AUsup, 30 L. J. (C. P.) Martin, B., " That is only for certain 353. purposes. The clause was introduced i" Collins v. Lamport, 34 L. J. (Ch.) at a time when a notion prevailed 196 ; Johnson v. Royal Mail St. Packet (which is now exploded) that liability Co. L. R. 3 C. P. 38. for necessaries followed the ownership " Per Lord Campbell, C, De Mattos of the vessel ; " Rusden v. Pope, L. R. e. Gibson, 28 L. J. (Ch.) 498. See the 3 Bxch. 269, 272. case of a wrongful sale, Brouard v. 6 Rusden v. Pope, L. E. 3 Bxch. Dumaiesque, 3 Moore, P. C. 0. 457, 269. ante, c. i. p. 49. c Ante, p. 106. See the chapter on CHAP. III.] THEIR EELATION TO THIRD PERSONS. 113 will, he may use her, but subject to responsibility for deteriora- tion or loss during such use.^ On the other hand, a creditor of the mortgagor will not be allowed to defeat the mortgage by levying execution against the ship for the mortgagor's debt,^ notwithstanding the instrument of mortgage postpone the mortgagee's power of sale to a date which is subsequent to the seizure in execution.^ Nor may the mortgagor himself do anything in respect of the ship which would prejudice or impair the value of the mortgagee's security.* A shipwright, besides his right of action, has also, if the The Creditor, vessel be in his possession, a lien for repairs upon it at common law,^ unless he is deprived of it by his own agreement to do the work on credit, or by a usage of the trade at the particular port, as in the case of London.^ This possessory lien cannot be enforced otherwise than by continuous detention,'^ and during such detention he has no right, except by express agreement, to make any charge in the nature of rent.^ There is no implied maritime lien in this country on vessels for repairs done or necessaries supplied ; ' the statutory alterations on this state of the law we have considered in a preceding page.^° Generally, the creditor has a double remedy, by proceeding either against the master, who made the contract, or against the owner, for whom it was made ;^^ but as against the owner, it lies on the plaintiff to prove his authority for the act of the master. ^^ A ship's husband, however, or the managing owner, ' European & Australian Eoy. Mail ■v. Soames, 27 L. J. (Q. B.) 397 ; affirmed Co. V. Eoy. Mail St. Packet Co. i Kay in error, 28 L. J. (Q. B.) 220 ; and in & J. 676 ; Marriott v. Anchor Eever- the H. of Lds. 30 L. J. (Q. B.) 229 ; sionary Co. 2 Giff. 457 ; (on appeal) 3 and cases, ante, c. i. p. 8. De G. F. & J. 177. ' Justin v. Ballam, 1 Salk. 34 ; 2 ■ Kitchen v. Irvine, 28 L. J. (Q. B.) LA. Eaym. 805, S. C. ; Cro. Car. 296 ; 46; Dickinsons. Kitchen, 8 E.&B.78«. 1 Sid. 453; 1 Lev. 267 ; ^;«)- Lord 3 Dickinson v. Kitchen, xiipra. Stowell, The Zodiac, Scott, 1 Hagg. •• Collins v. Lamport, ^;c)' Lord Chan- Ad. 320, 825. cellor Westbury, 34 L. J. (Ch.) 196. "> Ante, pp. 108, et serj. ' See ante, c. i. p. 7. Franklin v. " Per Lord Mansfield, Eich v. Coe, Hosier, 4 B. & Aid. 341 ; JEx parte Cowp. 639 ; per -hi. Farmer v. Davies, Bland, 2 Rose, 91 ; Hx parte Shank, 1 1 T. E. 108, 109 ; per Tindal, C. J., Atk. 234. Thompson v. Finden, 4 Car. & P. 159. ^ Eaitt V. Mitchell, 4 Camp. 146. ^'- See cases, tnite, p. Ill, and post, ^ See ante, c. i. p. 8. c. iv. ; Brodie v. Howard, 17 0. B. 109 ; s The British Empire Shipping Co. Mitcheson v. Oliver, 5 B. & B. 419. I 114 THE OWNEUS. [GHAP. III. is primti facie the agent of all the owners for the management of the ship with the requisite authority for that purpose, and any defence in derogation of such implied authority, either that the agent was not to deal on ci'edit, or only to pledge his own name, must, it seems, be proved by the owner as being known to the creditor.^ The creditor, however, by electing to take a bill of excliange for his own convenience, when he might have had cash, waives his remedy against the other debtors who are not parties to the bill ; ^ or if he take the acceptance of an agent, and meanwhile the relation of the principal in account with the agent is altered for the worse in consequence of such dealings with the agent by the creditor, he cannot afterwards recover against the principal, in case the acceptance be not paid.^ But if such alteration for the worse has not followed, he does not necessarily release the principal or the co-debtors, by taking the acceptance of an agent or a co-owner, or even by renewing such acceptance.^ Master as Agent If the owners have not, by leasing the ship, divested them- selves of all control and responsibility,' the authority of the master appointed by them is necessarily greater in a foreign country, where he is their confidential agent, and entrusted with their property, to employ it, subject to their instructions and to what is the usual course of the ship's employment, in the way that appears the most calculated for their profit and advantage. They are bound, therefore, by all his contracts about the usual employment of the ship, and for such repairs, supplies, and equipment, as are necessary to enable her to discharge her cargo in a proper state at the port of destination, and to carry her eventually to the home port in safety.® ' WhitwBll V. Perrin, i C. B. N. S. White, 5 Esp. 122. 412 ; Thompson v. Fiuden, 4 Gat. & P. See cases nest note, 2}ost. lo9 ; Green i. Briggs, 6 Hare, 3i)5 ; ' Keay o. Fenwick, 1 C. P. Div. Lindsayi!. Gibbs, 4 Jur. N-. S. 779; (in 745 (G. A.); Wyatt v. Marquis of error) 28 L. J. (Oh.) C92 ; HoMernesg Hertford, 3 East, 147 ; Tapley v. Mar- V. Shackels, 8 B. & C. 612 ; Preston r. tens, 8 T. R. 451 ; March v. Pedder 4 Tamplin, 2 H. & N. 363 ; (in error), 2 Camp. 257 ; Robinson v. Read, 9 B.'& ■id. 684 ; Lewis v. The East India' Co. C. 449. Peake, 241. 5 ^fff^^ contract amounts to that in 2 Strong V. Hart, 6 B. & C. ICO ; law, sccjw/it, c. viii. Smith V. FeiTand, 7 ia. 19 ; Reed o. » MoUoy, Do Jure Marit. bk. 2, c. 2 CHAP. III.] EXTENT OF THEIR LIABILITY. ' 115 As common earners of goods for liire, they are at common extent or , . ,, , ,. . • , n 1 . . OWNEKS' LUBI- law m the nature oi insurers against all loss or injury, occa- m-cr. sioned to the goods delivered to them on freight, by any other AtCommoBlaw. cause than the act of God and the Queen's enemies.^ But what and who is a common carrier with relation to merchant ships is a question that has quite recently divided the English Judges. Brett, J., in Nugent v. Sinith,^ lays it down that a common carrier is he who holds out that he will carry for hire the goods of any one whatsoever, and this quite irrespective of his exercising a public employment or plying between fixed termini. Cockburn, C.J., in the same case on appeal,^ defines a common carrier as one who offers to carry goods for any person between certain termini and on a certain route, and further restricts this definition to a ship employed as a general ship. Blackburn, J., delivering the judgment of the majority of the Exchequer Chamber in the Liver Alkali Co. v. Johnson,''' held that the following description of the defendant's business placed him in the class of common carriers. He was a barge owner and let out his vessels for the conveyance of goods to any customers who applied to him. Each voyage or employment was performed under a separate agreement, and a barge was not let to "more than one person for the same voyage. The defendant did not ply between any fixed termini, but the customer fixed in each particular case the points of arrival and departm'e, " We think that' this describes the ordinary employment of a lighterman, and that, both on authority and principle, a person who exercises this business and employment does, in the absence of something to limit his liability, incur the liability of a common carrier in respect of the goods he carries." § 14 ; WeBtern v. Wright, 7 M. & W. Maoklin v. Watorhouse, and Eiley v. 396 ; Webster v. Seekamp, 4 B. & AM. Home, 5 Bing. 212, 217 ; Forward v. .3.52. "What rules and circmnstanoos Kttard, 1 T. E. 27 ; Hyde v. Trent qualify the master's authority, is re- Navigation Go. 5 T. E. 389 ; Chitty on served for consideration in the next Contr. 423. Chapter, 2}ost. ^ i C. P. Div. 19, 27. 1 See Nugent v. Smith, 1 C. P. Div. Ibid. 427. 19, 423 ; Liver AlkaU Co. v. Johnson, " L. E. 9 Exoh. 338. L. E. 9 Bxch. 338.; 7 Exch. 267; I 2 ^^^ THE o^yNEns. [chap. hi. The learnedJudge had abeady, in the course of the judgment, adverted to the applicability of the same principle to the case of the master of a ship as it was adjudged, for the first time according to Lord Holt, in the case of Morse v. Slue.^ " The ultimate decision on the special verdict in that case, says Blackburn, J.,^ has always been understood to apply equally to all ships employed in commerce and sailing from England." Cockburn, C.J., offers reasons^ for thinking that the ship in Morse v. Slue was a general ship. Blackburn, J., points out that the count given in Ventris* did not admit of a judgment which was founded on the fact of the ship in the case being a general ship. Yet Lord Tenterden, in the 4th edition of his Treatise,^ seems to restrain the application of the decision in Morse v. Slue, and Lord Holt's observations upon it, to the case of a general ship. Nevertheless, "it is difficult, says Blackburn, J.,® to see any reason why the liability of a ship- owner who engages to carry the whole lading of his ship for one person should be less than the liability of one who carries the lading m different parcels for different people." Brett, J., who was a member of the Court of Exchequer Chamber in the case of Liver Alkali Co. v. Johnson, dissented from the judgment of the majority in so far as they held the defendant to be a common carrier, expressly stating at the same time that he did not restrict that name to the case of a general ship. But the defendant's liability in that case he held to be co-extensive with the Hability of a common carrier, and this in virtue of the custom of England which, according to the learned Judge, imposes a liability of that nature and extent on every shipowner who carries goods for hire in his ship, whether by inland navigation, coastwise, or abroad. The learned Judge further developed the same view of the law m the case of Nugent v. Smiths It is remarkable that this doctrine maintained by Brett, J., seems to be exactly expressed in the very terms used by 1 Liver Alkali Co. v. Johnson, L. E. ■* L. R. 9 Exch. 341. 9 Ch. 338, 340 ; Morse v. Slue, 1 Vent. ^ p 231, Part 3, 0. 3. 190, 238. « L. E. 9 Exoh. 341. ' L. E. 9 Exoh. 341. 7 Nugent v. Smith, 1 C. P. Div. 19. » 1 C, P. Div. 430. CHAP. III.] EXTENT OF THEIE LIABILlTy. 117 Blackburn, J., to convey a very different view, and also that the source from which each assumes his own view to be derived was afterwards upon consideration disputed as yielding any justi- fication for it by Cockburn, C.J., in Nugent v. Smith on appeal.^ Brett, J., as I understand him, maintains an extension of the English law appUcable to common carriers to all shipowners carrying for hire, although they be not common carriers. Blackburn, J., maintains such an extension of the class of common carriers as to include "all ships employed in commerce and sailing from England." The evidence adduced by Blackburn, J., in support of his view, might equally and perhaps more cogently be adduced by Brett, J., in support of his, and certainly is of a very striking description. The ordinary forms of charter-party and bill of lading in use in England always contain an engagement to dehver the goods in the same condition in which they were received, an engagement immensely more extensive than that which is implied in a mere bailment, namely, to take proper care of the goods, and consequently involving liabilit}' only in case of neghgence. This engagement is co-extensive with that of the common carrier. And as evidence of that for which it is here adduced, it seems to be insusceptible of other explana- ' tion than that the parties to these instruments for more than two centuries have been content to recognise their respective rights and obligations as they stood at the common law, and have then introduced modifications thereof into the same instrument by way of exception. So stands at present this important question. As regards 'the extensive liability imposed by the English law on common carriers, it stands alone even in respect of this class taken in its narrowest sense. Cockburn, C.J., having occa- sion to consider the question, finds no such principle in the Eoman law, or the laws of France, Spain, Italy, Germany, Holland, or Scotland." As owners, they are answerable at common law for damage to other ships, goods on board thereof, piers and the like, occasioned by the neghgence of the master or crew in the course of their lawful employment, to the full extent of the injury 1 1 C. P. DIt. 423. 2 Nugent u. Smith, 1 C. P. Div. 423,429. 118 THE OWNERS. [CHAP. III. sustained in ship, goods, or person ; and if the injured person die by the accident, his family and relations are entitled by statute,^ to maintain an action for the loss suffered by them in consequence.** But for the wilful wrong of a servant, notwith- standing it be in the course of his employment, and occasion damage to another, no employer is responsible.^ When the damage is a consequence of the non-observance of certain statutory rules of the sea, the statutory presumption, in the absence of other evidence, is that it was occasioned by the wilful default of the person who was in charge of the deck at the time.* By Foreign U\y. This rule of the common law of England, measuring the liability of the owners by the full extent of the injury sustained through negligence, is also the rule of the civil law, and of the general law maritime.*^ It accords with natural justice, though it differs from modern policy ; and as might be expected, sea-faring nations generally knew no other during the early centuries of the maritime history of modern Europe. Yet this is somewhat remarkable, inasmuch as the Consolato, not of recent fame, in at least two different chapters, expressly limits the responsibility of a part-owner to the value of his share in the ship.'' The ancient laws of Oleron, Wisby, and the Harise-Towns, contain no provision on this subject ; nor is any alteration of the rule of the civil law noticed by Eoccus ; '' but Vinnius, an earlier author, states, that by the law of Holland, the owners 1 9 & 10 Vict. 0. 93 ;,The Franconia, see aregory v. Piper, 9 B. & C. 591 ; 2 Prob. Div. 163, Bolingbroke v. Swindon Local Bd. L. 2 "What is such default of the servant E. 9 C. P. 575 ; The Ida, 1 Lush. 6. as the master is liable for is illustrated ■* 25 & 26 Vict. l. 63, § 28. But if by Seymour -u. Greenwood, 30 L. J. not the act of a compulsory pilot, the (Ex.) 189, 327 ; Limpus v. Lon. Gen. shipowner is liable in the first in- Omuibus Co. (Limited) 32 L. J. (Ex.) stance, with a remedy over under this 34, commented on in Poulton v. Lon- section. don & South-Western Ey. Co. L. E. 2 * The Carl Johami, cited in The Q. B. 584; Tlie Thetis, L. E. 2 Ad. Dundee, Holmes, 1 Hagg. Ad. 109, 365 ; The Cynthia, 2 Prob. Div. 52 ; 113 : The Girolamo, Guiranovioh, 3 The Belgic, 35 L. T. N. S. 929 : Steel Hagg. Ad. 187. V. Lester, 3 C. P. Div. 121. « Consolato, c. 141, 182—2 Pardess. 3 McManuB v. Crickett, 1 East, 106 ; 155, 206. Ellis V. Turner, 8 T. E. 531, 533 ; The ? The Notabilia of this author, who Druid, Newton, 1 W. Bob. Ad. 391 ; was a Neapolitan, were first published Bowcher v. Noidstrom, 1 Taunt. 568 ; in 1655. CHAP, in.] EXTENT OV THEIR LIABILITY. 119 are not chargeable beyond the value of the ship and the things that are in it.^ The Hanseatic Ordinance of 1614 had already' pronounced tlie goods of the owner discharged from the claim for damage by the sale of the ship to pay it; ^ and in conformity therewith, the French Ordinance of 1681 declares, " that the owners of ships shall be answerable for the acts of the master, but shall be discharged therefrom upon relinquishing their ship and the freight." '^ A similar provision in the Ordinance of Rotterdam, made in 1721, 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, b}' other articles of the same ordinance, it appears, that each part-owner is liable only for the value of his own share. ^ Valin, in his commentaiy on the French Ordinance," informs us that the same regulations are also established at Hamburg.'^ The earliest provision of the British legislature on this By the former subject, is a statute passed a few years after the date of the gno^land. Ordinance of Rotterdam, 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,^ setting forth the alarm of the petitioners at the event of a late action, in which it was determined that the owners were answer- able for the value of merchandise embezzled by the master. This statute,'' accordingly limited the liability of the owners, in case of embezzlement of the goods and merchandise on board by the master or mariners, and without the privity or knowledge of such owners, to the value of the ship and freight. 1 In Peckium, 155, published in ? An extract from tlie Ordin. of 1647, the author cites Grotiiis, lib. 3. Hamburg, dated 1731, is given in 2 Introduc. ad. Jurisp. Bat. u. 1 ; and de Magens, but the article containing this Jure Belli et Pacis, lib. 2, c. 11, § 13. provision is not noticed. 2 Hans. Ord. 1611, t. 10, art. 2— 2 « See Commons Journals for the year Pardess. 551. 1733, page 277 ; the case referred to by 2 Liv. 2, tit. 8, Des Propridtaires, the petition, appears clearly to be that art. 2. The encouragement of maritime of Boucher v. Lawsoii , E. tcm.p. Hardw. commerce, especially among the no- 85. The bill went through both houses blesse, was one of the principal objects without a division. The clauses direot- of this ordinance. See Ibid. art. 1, and ing proportional compensation and re- Valin's preface to that title. lief in equity were introduced in the * Art. 167, 2 Magens, 101. House of Lords. ' Art. 126, 127, 2 Magens, 102. " 7 Geo. 2, o. 15, A,D. 1734. 6 1 Valin, 56!), 120 THE OWNERS. [CHAP. III. Fifty years after this, namely, in the October of 1784, a vessel in the Thames having been forcibly robbed of a large amount of specie, an action was brought against the owners, and, at the trial, although it was proved that one of the mariners was accessory to the robbery. Lord Mansfield, expressing a doubt whether the facts of the case could be covered by the word " embezzlement," directed a verdict for the full amount. This ruling was disapproved of by the fuU court,^ but it sufficed to alarm the shipowners of London, and upon another petition to the House of Commons,^ the second statute^ was passed, extending protection to the owners in cases of robbery without the privity of the master or mariners. The protection thus accorded to them was greatly enlarged afterwards by the 53 Geo. 3, c. 159, but these various statutes were repealed in 1854,* and the existing law on the subject is now consolidated in the Merchant Shipping Acts of 1854 and 1862. By the Law of Absolute as the terms of the French Ordinance, repeated in France. i n • • the Code,^ appear to be, it seems that the fails du Capitame, which the owner is declared responsible for and may be discharged from by the abandonment of the ship and freight, were restrained by the Courts of France aux seuls delits, quasi-delits, faits de negligence, impdritie, imprudence, et auti'es produisant des dommages qui donnent ouverture a Taction civile; and that this law did not apply aux engage- mens, obligations, et emprunts contractes par le capitaine dans le cercle de ses fonctions.*' To amend this, was pub- lished the law of the 14th of June, 1841, enabling the owner to acquire, by abandonment of the ship and freight, a com- plete discharge non seulement de la responsabilite civile des faits et delits du capitaine, mais encore de tons les engage- mens contractuels relatifs au navire et a 1' expedition.'' The same law expressly refuses to one, who is both captain and owner, or part-owner, the privilege of abandonment, and dis- 1 Satton D. Mitchell, 1 T. R. 18. « 1 Boulay-Paty, Droit Marit. 290 ; 2 Com. Jur. 1786, p. 296. Arret de Mars, 1818, par la Cour 3 26 Geo. 3, c. 86. This Act passed Eoyale de Eonen, cited by Pailliet, without a division in either House of Man. de Droit, in his commentary on Parliament. art. 216, Co. de Com. * By the 17 & 18 Vict. c. 120. ' 3 Pardess. Droit Com. no. 663. 5 Co. de Com. art. 216. CHAP. III.J EXTENT OP THEIR LIABILITY. 121 charge thereby from further liability ; but then his liability is in the proportion merely of his share in the ship. The law of this country conferring the privilege of limited Under Merchant .,.,., ••,1,1 SMppiBgAct. responsibilitj' is in these terms^ : — No owner of any sea-going ship, or share therein, shall be Owners of wtat liable to make good any loss or damage that may happen and when. without his fault or privity of or to any of the following things (that is to say), — 1. Of or to any goods, merchandise, or other things whatso- ever, taken in, or put on board, any such sliip, by reason of any fire happening on board such ship ; " 2. Of or to any gold, silver, diamonds, watches, jewels, or precious stones, taken in, or put on board, any such ship by reason of any robbery, embezzlement, maldng away with, or secreting thereof, unless the owner or shipper thereof has, at the time of shipping the same, inserted in his bills of lading, or otherwise declared in writing to the master or owner of such ship, the true nature and value of such articles ; ^ — To any extent whatever. — This section was uniformly construed as applying only to British ships,* and probably will continue to be so construed. The next section of the same statute has been repealed and * 17 & 18 Vict. c. 104, § 106, 503. a description of a box as " one box ^ Under the operative words in the containing about two hundred and 26 Geo. 3, c. 86, § 2, -wHch were forty-eight ounces of gold dust," is not " shipped, taken in, or put on board, a declaration of the true nature and such vessel," it was held that goods value to satisfy the statute ; Williams destroyed by fire while on board a, v. The African Steam SMp Co., 1 lighter not belonging to the owners of H. & N. 800. A description of coin, the ship, for the purpose of being con- as '• 1338 hard dollars," was held suf- veyed from the shore to the ship, were ficient under the 26 Geo. 3, c. 86, § 3, not within the intention of the Act, which required a declaration of " the and the owners were responsible for nature,quality, and value of such, &c.;" them as at common law ; Morewood v_ Gibbs v. Potter, 10 M. & "W. 70, Lord Pollok, 1 E. & B. 743, an interpretation Abinger in this case expressing a doubt which appears to apply to the present whether the statute applied to a foreign Act. Of course, if the goods are not port, at least unless the shipment made in the ship, but put out of it, on shore, there wore for a port in this country, and without notice to the consigneesi ■• Gen. Screw Collier Co. (Limited) v. when they are destroyed by fii'e, the Schurmanns, 29 L. J. (Ch.) 877 ; Cope only defence of tlie owners is at com- v. Doherty, 4 K. & J. 367 ; The Giro- mon law ; Bourne v. Gatliffe, in error, lamo, 3 Hagg. Ad. 187 ; The Carl Jo- 11 CI. & F. 4.5 ; 7 M. & G. 850. hann, cited 1 Hagg. Ad. 113. » 17 & 18 Vict. c. 104 § 503. But 122 THE OWNERS. [CHAP. III. superseded by one in terms which have been construed as applying to ships British and foreign, whether in British waters or on the high seas.^ This new enactment, 25 & 26 Vict. c. 63, § 54, is in these terms : — The owners of any ship, whether British or foreign, shall not, in cases where all or any of the following events occur without their actual fault or privity, (that is to say), — (1). Where any loss of life or personal injury is caused to any person being carried in such ship ; (2). Where any 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 personal injury is, by reason of the improper navigation of such ship as aforesaid, caused to any person carried iia 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 things what' soever on board any other ship or boat ; — Be answerable in damages in respect of loss of life or personal injury, either alone or together, with loss or damage to ships, boats, goods, merchandise, or other things, to an aggregate amount exceeding fifteen pounds 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 eight pounds for each ton of the ship's tonnage,^ such tonnage to be the 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 ascer- tained by such measurement shall for the purposes of this section be deemed to be the tonnage of such ship : In the case of any foreign ship which has not been and can- not be measured under British law, the Surveyor-General of 1 The Amalia, 1 Moore, P. C. C. is recoverable from the time of the N. S. 471 ; 32 L. J. (Ad.) 191. collision, The Noi-thumbria, 3 A. & E. 2 Interest on the statutory amount 6 : Smith v. Kirby, 1 Q. B. Div. 131. CHAP, in.] EXTENT OP THEIR LIABILITY. 123 Tonnage in the United Kingdom and the chief measuring officer in any British possession abroad shall, on receiving from or by direction of the Court hearing the case such evidence concerning the dimensions 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 sliip.^ The privilege accorded by these sections of the statute is the This right h in- right of the individual owner ; he is therefore not deprived of it in consequence of any loss or damage happening through the fault or with the privity of his co-owner;^ and the liability of the latter, though the fact is not necessarity to be inferred from his having been on board at the time,^ when it exists, remains as at common law. The owner of every sea-going ship or share therein, is liable Losses on differ- , n 1-1 n f r -!•- 1 p eut occasions. m respect oi every such loss ol lite, personal mjmy, loss oi or damage to goods arising on distinct occasions to the same extent as if no other loss, injury, or damage had arisen.'' In any proceeding under this section, or under any Act statutory List of amending it, to recover on account of the death of passengers, ^rew on board at the master's list or the duplicate list of passengers delivered to ^'""^ °^ '°^°- the proper officer of customs under sect. 16 ot the Passengers' Act, 1855, is, in the absence of proof to the contrary, made sufficient proof that the said persons were passengers on board at the time of their deaths.^ In case of seamen, any duplicate agreement or list of the crew made out at the time of the last departure of the ship from the United Kingdom, produced from the custody of the Eegistrar General of Seamen, or of the Board of Trade, or a certificate purporting to be a certificate from a consular or other public officer at any port or road, stating that certain seamen or apprentices were shipped in the said ship from the said port, is, in the absence of proof to the contrary, 1 The Franconia, 3 Prob. Div. 16i. « 17 & 18 Vict. c. 104, § 506. See 2 Wilson V. Dickson, 2 B, & Aid. 2 ; this section interpreted. The Kajah, Spii-it of the Ocean, Br. & Lush. 336. L. E. 3 Ad. 539. = The Obey, L. E. 1 Ad. 102. * 25 & 26 Vict. c. C3, § 56. 124 THE OWNEIIS. [chap. ni. Railway and Ship-Owners. made sufficient proof that the seamen or apprentices therein named were on board at the time of the loss.^ Costs of Suit. The costs of suit form no part of the loss or damage to he compensated, and the owner is therefore liable for them, over and above the statutory amount. A vexatious resistance to just claims would be encouraged hj any other rule ; ^ but although the costs are thereby made a claim against the person, it is within the jurisdiction of the Court of Admiralty to award them.^ Railway companies who own, or who employ without owning, sea-going vessels and contract to carry passengers or goods by land and sea, are entitled to the advantages severally conferred by the Carriers' Act, 11 Geo. 4 & 1 Will. 4, c. 68, and by the statutes relating to shipping,* and are subjected to the Eailway and Canal Traffic Eegulation Act, 17 & 18 Vict. c. 31.= Exceptions. This limitation of responsibility is not to apply to any master or seaman, although-a part-owner of the ship to which he belongs, for the purpose of taking away any liability to which he is subject in the capacity of master or seaman, nor to any British ship not being a recognised British ship within the meaning of the statutes.^ Therefore an unfinished ship, not yet in a state to admit of being on the register of British shipping, and not registered, having caused damage on being launched, was excluded from the benefit of limitation of her liability.'^ LUOAL PSOOBED- INQS. By owners on wrongs. The several part-owners of a ship 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 1 25 & 26 Vict. c. 63, § 21. 2 The Dundee, Holmes, 1 Hagg. Ad. 109 ; The John Dunn, Place, 1 W. Bob. 159 ; The Volant, Merchant, 1 W. Rob. 390. ' ^^ar!tcKayne,lQ.B.982. Upon the stay of the action obtained by the defendant, the parties may at his cost settle the respective amounts due by arbitration ; The Expert, 36 L. T. N. S. 258. * Lon. & South West. By. Co. v. James, L. B. 8 Ch. 241 ; Le Conteur v. Lon. & South West. By. Co. L. B. 1 Q. B. 54 ; Piauciani v. Lon. & Soixth West. By. Co. 18 C. B. 226 ; 84 & 35 Yict. c. 78, § 12. s 26 & 27 Vict. c. 92, § 31 ; Doolan V. Midland By. 2 App. Cas. 792. « 17 & 18 Vict. c. 104, § 516. 7 The Andalusian, 3 Prob. Div. 182. CHAP. III.J AS PARTIES TO AN ACTION. 125 afterwards to be divided among themselves according to their respective interests ; otherwise the party, who had committed the wrong, might be unnecessarily harassed with the expense of several suits to obtain the same end as could be equally well gained in one. But this rule of law is made for the case of the wrong-doer. If, therefore, he does not give notice to the plaintiff that he objects to the non-joinder of certain other part-owners with him in the action, and the amendment is not made before, or at the trial of the action, the single part-owner if not suing for himself and his co-owners,^ will recover damages for the injury proportionate to his share in the ship, whether the nature of his interest is made to appear upon evidence at the trial, or is originally stated by himseK in the allegation of his cause of complaint.^ And if afterwards another part- owner sues for his own interest, the defendant can no longer avail himself of the objection, because the party to the first suit has no longer any matter of complaint.^ In case of the death of any part-owner after an injury received, the right of action survives in general to the surviving part-owners, who must afterwards pay to the personal representatives of the deceased the value of his share. In case, however, of an action for the freight of goods By owners on conveyed in a general ship, all the part-owners ought to join, or if they do not, the defendant may avail himself of the objection by evidence at the trial, according to the general rule of law, and the distinction between contracts and wrongs ; ^ un- less the plaintiff be suing for himself and the other owners in a case which admits of that.^ An additional reason for the joinder of all the part-owners as plaintiffs in the suit in this case, is tliat all of them are partners with respect to the joint adventure ^ Ord. XVI. rule 9 ; De Harte v. an authority for the text. Stevenson, 1 Q. B. Div. 313. * 1 Wms. Saund. 291 k, note 2. 2 Sands v. Child, Salt. 32 ; Addison There is a loose note in 3 Keeble, Hi V. Overend, 6 T. E. 766 ; and see Dock- Stanley d. Ayles, of a dictum of Chief wray v. Dickenson, Comb. 366 ; Boyce Justice Hale at Nisi Prius, to the con- 1}. Douglass, 1 Camp. 59, 61 ; 1 Wms. trary to what is here advanced in the Saund. 291 h, 291 m. text ; but the reporter adds, that the 3 Sedgworth «. Overend, 7 T. R. 279. cause went off to a reference. In tliis case the plaintifi was the only * De Harts v. Stevenson, 1 Q. B. remaining part-owner : but the opinion Div. 313. delivered by Mr. Justice Lawrence is 126 THE OWNEES. FcHAP, in. Against owners. As joint-con- tiactors. of the ship : and upon this consideration, Lord Eldon, in a case of bankruptcy, wherein it appeared that the owners of a ship, upon a settlement of accounts with the master, who had become a bankrupt, were indebted to him, and that, on the other hand, he also was indebted to some of them severally upon separate and distinct concerns, refused to allow the latter to set-oif their respective demands against the claim of his assignees for their shares of the general debt.^ Settlement of a claim of demurrage in a foreign port with one part-owner will sustain a defence of accord and satisfaction to an action by the owners on the same demand.^ If part-owners enable their co-owner to deal with their pro- perty as his own, they have no right of action against third persons in res^ject of transactions with him concerning it,^ unless it can be shown that the dealings were with him as the agent of his co-owners.* On the other hand, an action against the part-owners upon any contract relating to the ship should be brought against all jointly ; ' but yet if the defendants omit to take the objection at an early part of the proceedings, the plaintiif will recover his whole demand, and the defendants must afterwai'ds call upon the others for contribution." If a tradesman, who has repaired a ship on the joint autho- rity of the owners, take from some of the part-owners sums equivalent to their shares, they still remain responsible for the residue of the debt, if it is not paid by the others, unless at the time of the payment the tradesman especially agree to dis-- charge them from all further demand, upon some good con- sideration inducing him so to do, such as payment before the expiration of the usual credit ; or release them by deed,'' which the law presumes never to be done except upon good con- Jun. ^ Teed & another v. Baring & others, before Lord Ellenhorough, C. J. at Guildhall, 1S06. The receipt given by one of the plaintiffs was as follows : « Received 30th May, 180-1, from Messrs. B. M. & Co., one-fourth owner of the ship William, Captain James Thomson, the sum of 4oOZ., being the amount of their proportion of the said ship's re- pairs lately done sit Plymouth, we ' E£ parte- Christie, 10 Ves, 10,5. 2 Alexanders. Dowie, 1 H. & N. LIS. 3 Sims V. Brittain, 4 B. & Ad. 375 ; Hatsall ■:]. Griffith, 2 Cr. & M. C79 ; Sims v. Bond, 5 B. & Ad. 389. ^ Sims n. Bond, siiprn. 5 See 1 Wms!. Saund. 291 i, note 4, Pasmore d. Bousfield, 1 Stark. 29G. 6 Hunter v. Wright, 1 Enst, 20. CHAP. III.j AS PARTIKS TO AN ACTION. 127 sideration. In this respect, the law of England differs from the Civil Law, which 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 pro- portion to his own share of the ship.^ By the law of Holland, the several part-owners are in all cases chargeable only accord- ing to their respective interests in the ship.'^ In case of loss of life, or personal injury, it is in the dis- Restraint on cretion of the Board of Trade within the United Kingdom, oases oeToS of upon giving three days' notice to the owners, to have a com- ?'*? ^'^^ personal mon jury, or, as either party may choose, and upon due notice to the Board before issuing their warrant to the sheriff, a special jury, assembled under the presidency of the sheriff who may be assisted in England or Ireland, if either party requires it, by a barrister-at-law as assessor, to determine the following question, namely : The number, names, and descriptions of all persons killed or injured hj reason of any wrongful act, neglect, or default, for which the owners are responsible; the Board to be plaintiff, and to receive or pay costs according to the event of the inquiry.^ The Board may enter into a compromise as to the damages, statutory but if not, then such damages in the case of each death or ""^s^^- injury so occasioned are to be assessed at thirty pounds ; and the gross amount so assessed is the first charge upon the value of the ship and freight. There is no question of amount of damages before the jury ; this is fixed by statute as the maximum charge upon the owners, and the maximum amount payable in each case ; but the appropriation of the money so obtained is in the discretion of the Board, who may award less, never more, than thirty pounds in any one case, subject to the having settled with the other owners, Si tamen plures per se navem exer- respectively. John Teed & Co." Messrs. ceant, pi-o portionibus exercitionis con- Baring & Co. knew that the proportions Tcniuntnr ; nequG cnim invioem sui had been adjasted, but not paid. See magistri videntur. Mould V. Andrews, 25 L. T. N. S. ^ Viunius in Peckium, 155. 813 ; Keay v. Fenwiok, 1 C. P. Div. ^ jT & 18 Viot; u. 104, § 507, 508, 745 (C. A.) ; Fitch v. Satton, 5 East, 509 ; the costs may be taxed, and pay- 230 ; Hunter v. Wright, 1 East, 20. ment thereof and of the damages en- ' Dig. 14. 1. 1. 23. and 14. 1. 2. 3. forced by rule or order of a superior & 4. Si plures navem cxerceant, cum court or a judge thereof, § 509. quolibet eorum in sob'dum agi potest. 128 THE OVVNEBS. [chap. III. deduction of any costs incurred, according to the evidence before them, allotting, in cases of death, part thereof to the husband, wife, parent, and child of the deceased. If the gross amount obtained by the Board is insufficient to meet the demands upon it, the several claims thereon must abate pro- portionally ; and if there is a surplus remaining after payment of such sums as the Board think fit in each case to award, it is to be repaid to the owners, to form part of the general fund to meet any other claims of loss and injury.' When, and -with It is only to the residue of the general fund provided by the ciaimlntm*ar* statute, and remaining over and above such payment to the bring action. Board that any one may look who is dissatisfied with the statutory amount of damages, or the damages obtained by com- promise ; and who, after his share is repaid to the owners, proceeds bj^ action at law on his individual claim. And, besides, if the damages recovered iu such action do not amount to more than double the statutory sum, the plaintiff is liable for the costs of the action.'^ No petson in any case of such loss of life or personal injury is entitled to institute legal proceedings in the United Kingdom against the owners, until the inquiry instituted by the Board of Trade is completed, or the Board have declined to institute any such inquiry ; but one month's delay to institute an in- quiry after notice to the Board from any person of his desire to institute legal proceedings is evidence of refusal on the part of the Board, and entitles him to proceed.^ In that case, if he recover, he is not aifected hj the circumstance of the Board of Trade afterwards instituting an inquiry, further than that he is to be paid rateably with the Board.* Jurisdiction. Subject to sucli right in the Board of Trade within the United Kingdom to recover damages in cases of death and per- sonal injury, the owner, in order to secure the rateable dis- tribution of the fund, may enter a suit in the High Court of Justice, the Court of Session, or any court of competent juris- diction elsewhere, and move to stay all other proceedings against the fund ; ^ notwithstanding any of the claimants have 1 17 & 18 Vict. u. 101, § 509, 510. ■* Ibid. § 513. 3 Ibid. § 511. 5 17 & 18 Viot. c. 104, § 5M. Judio. a Ibid. § 512. Act, 1873, § 16. CHAr. III.] AS PARTIES TO AN ACTION. 129 already obtained judgment ; and such claimants, before execu- tion executed, or the sale of the vessel, although she is in the custody of the Admiralty officer, are proper parties to the suit.^ Any defendant who has already obtained a decree in the Court of Admiralty for the sale of the ship, may be restrained if the Court see fit from proceeding to a sale; or, if not, from retaining out of the proceeds more than his proper costs in the Admiralty Court; and the balance of such proceeds will, in that case, be ordered to be paid into court, and further pro- ceedings by severalty of action against the owner restrained.^ Yet there is no jurisdiction over such a suit, if the owner therein does not admit his liability, the permission to appeal to it being for his advantage ; but if such admission be made, it is for the Court then to ascertain the various rights of the claimants before it and distribute the fund.^ The costs of such a suit by the owner, and the costs of any proceedings taken against him prior to such a suit, must be paid by him ; but there is no authority by the statute to give the claimants interest on the sums distributed to thern for any part of the intermediate delay.* Heretofore the right of the Court of Admii-alty to entertain Jm-isdiction of a suit instituted by the owners of the defaulting ship for the court. '"''^ ^ distribution of the fund was dependent on the fact of the vessel or her proceeds being under arrest in that court prior to the institution of this suit.^ The Judicature Acts have altered this.6 ' Leycester v. Logan, 26 L. J. (Ch.) S. W. Ry. Co. ■;;. James, L. E. 8 Ch. 306. 241 ; Glaholm o. Barker, L. E. 1 Ch. 2 Leycester v. Logan, 26 L. J. (Ch.) 223. 306 ; Dobree v. Schroder, 2 My. & Cr. * The African Steamship Company 489. v. Swanzy, 25 L. J. (Ch.) 870. '' Hill V. Audus, 24 L. J. (Ch.) 229 ; ^ James v. Lon. & S. W. Ey. Co., 1 K. & J. 263 ; James v. Lon. & S. W. L. R. 7 Exch. 187, 287 ; 24 Vict. c. 10, Ey.. Co., L. E. 7 Exch. 187, per § 13. Kelly, C. B. : Id. ibid. 287 ; Lon. & " Jndic. Act, 1873, S 16. CHAPTER IV. THE AGENTS. THE SHIPMASTEE 130 THE ship's HrSBAND 182 his authority as to Em- his Functions . . . 182 ployment of the Ship . 131 Appointment . 183 Eepairs and Neces- Authority and Duty . 183 saries . . . 138 borrowing on Persona] THE MANAGING OWNER . 187 Credit . 140 statutory OfSce and Func- borrowing on Bottomry 141 tions .... 187 selling the Cargo 156 hypothecating it on Eespondentia . . selling the Ship in case of Substituted 159 159 THE SHIPBROKBB his Functions . . . Title to Brokerage . 187 187 188 Master , 167 Eemuneration . 192 in case of Change of Owners . . . 169 THE INSUBANCE BROKER . . 193 the law of his Contracts his Functions . 193 of Necessity 169 Duty and SkiU . . 193 his Duty to the Owners . 180 Eelation in respect of Eights against them . 181 payments . . . 195 The Ship- uasteh. Appointment of Master. The owners rarely navigate a trading ship themselves ; the conduct and management of it are almost always entrusted to a master, who may, or may not, be possessed of shares in it. In the latter case he is the confidential servant or agent of the owners at large ; in the former, of his copartners in the adventure.^ This officer is charged with the safety of the ship and cargo, and of the life and health of her passengers and crew ; he is required to conduct the navigation with skill, and to behave in the command with justice, temper, and consideration ; and is expected to act with skill, prudence, and judgment in all the affairs of the owners and charterers. In appointing to an office of such importance, the owners, or those of them with whom the appointment lies, being usually a majority in interest, are ' It was the opinion of the majority of the Court of Exchequer that the master's implied authority, when he was a part-owner, enabled him to settle an unliquidated claim for damages in the nature of demurrage for detention beyond the stipulated time in the cliarter at a foreign port ; Alexander V. Dowie, 1 H. & N. 152. CHAP, rv.] THE master's AUTHOEITi". 131 bound, by a regai'd to their own advantage, and much more by their duty to others, to proceed circumspectly in the exercise of a free and impartial judgment ; and any contract which destroys that impartiality, e.g., by obhging them or some of them to concur in a particular appointment at the peril of an action, is illegal and void.^ It is not intended now to discuss the duties of the master, as the officer in command of a trading ship, since that would involve the insertion here of much that more appropriately follows in subsequent chapters ; but rather to consider what authority is usually reposed in him as the agent of the owners, to bind them by his contracts for the emploj'ment or repair of the ship, and the supply of necessaries ; and how far that authority extends with regard to the ship and cai'go in case of accidental damage to either, or in case of jeopard}' to life and property from the perils of the sea. By the law of England, and in conformity to the rules and nis oontkacts maxims of that law in analogous cases, the owners are bound to the performance of every lawful contract made by him re- lative to the usual employment of the ship.^ This obhgation is by reason of their employment of the ship, and the profit derived by them from it.^ A part-owner, however, who dissents from a particular voyage in the manner mentioned in a pre- ceding chapter,* is not bound ; he neither employs the ship on that voyage, nor profits by its employment.^ The course of such usual employment is evidence of the master's authority to contract on the owners' behalf with regard to such employ- ment of the ship, and thereby to bind them to performance. It is true that the master also is answerable on his own contract ; ^ for, in favour of commerce the law will not compel 1 Card V. Hope, 2 B. & C. 661, 674 ; ■< Ante, c. iii. p. 100. per Dr. LusMngton, The Blake, Had- "^ By Holt, Ch. Just., in Boson v. den, 1 "W. Rob. Ad. 73, 76. Sandford, Carth. 63 ;per cur. Green v. 2 But qtuere, whether he can bind Briggs, 6 Hare, 395. the owners by a stipulation in the ^ Morse v. Slue, 1 Vent. 190, 238 ; charter-party for advances to the Accord. ^«r cur. Blakie v. Stembridge, master, Gibbs v. Charleton, 26 L. J. 28 L. J. (C. P.) 329, 333 ; per Tindal, (Ex.) 321. G. J., Thompson v. Finden, i C. & P. 3 MoUoy, bk. 2, ch. 2, § li ; Myers 158, 159 ; per Lord Mansfield, Eich r. V. Willis, 17 C, B. 77 ; 18 C. B. 886, Hoc. 2 Cowp. 636. K 2 FOB THE EMPLOY- MEST OF THE SHIP. 132 THE master's authority [chap. IV. the merchant to' seek after the owners and sue them; it gives him the power to do so, but leaves him a two-fold remedy — against the owner or the master, yet not against both.^ In pursuing this remedy, care must be taken to describe the de- fendant according to his real character; for it would appear that formerly in an action ^ against a person as master, at the trial whereof it appeared in evidence that the defendant was not master but owner, the plaintifif failed in his suit. Foreign Law This rule of the law of England agrees with the law of other relating thereto. ,, -r. i ^ commercial nations. When the Komans began to engage m commerce, a new species of action under a particular name appears to have been introduced, to ascertain and enforce this responsibility of the owners for the acts of their servants ; ^ and by the Praetorian Edict the owners, or (to render the Latin word more nearly) the employers, of the ship are made respon- sible for the faults of the mariners and master, and upon the contracts of the master. With regard to these contracts, while the commentators on the Edict carefully distinguish between such as the owners have authorised him to make, and such as they have not authorised him to make, it appears that, in 1 Priestley n. Fernie, 34 L. J. (Ex.) aversionemconduxit, veladtempus,vel 172. See the limit placed by law on in perpetuum." Dig. 14. 1. 1. §§ 1, 5, 15. this option, per cur. Curtis v. William- And Eoccus, not. 3, speaks to the same son, L. E. 10 Q. B. 57, 60. effect of the Magister. This author ^ Richwood V. Footmer, coram Ken- usually calls the owner dmnvn/us nams, yon, Ch. J., Sit. p. Hil. T. 1790. but he often speaks of him as the person ' Dig. 4. 9. nautae, caupones, stabu- i^m exercet navem. Again, in the Dig. larii, ut recepta restituant. 4. 9. 1. 2. we find the following corn- Dig. 14 1. De Exercitoria actione. mentary on the Prsetorian Edict. The MoUoy, in his treatise De Jur. Marit. et terms of the edict are, " Nautse, cau- Nav. bk. 2, ch. 2, sect. 2, appears to have pones, stabularii, quod oujusque salvum mistaken the character of the exercitor fore receperint, nisi restituent, in eos navis of the civil law, and to have sup- judicium dabo." Upon which Ulpian posed him to be the master of the ship ; writes thus, " Ait Praetor Nautae ; Nau- whereas in truth he is the employer of tam aocipere debemus eum, qui navem the ship, and is regarded by that law as exercet, quamvis nautae appellantur the absolute or at least the temporary omnes, qui navis navigandaa causa in owner. " Magistrum navis accipere de- nave sunt, sed de exercitore solummodo bemus, cuit totius navis oura mandata Praetor sentit. Nee enim debet, inquit est.. Magistrum autem accipimus non Pomponius, per remigem, aut meso- solum, quem exercitor praeposuit, sed nautam obligari, sed per se, vel per et eum, quem magister. Exercitorem navis magistrum ; quanquam si ipse autem eum dicimus, ad quem obven- alicui e nautis committi jussit, sine tiones et reditus omnes perveniunt, sive dubio debeat obligari." isDominus sit, sive a domino navem per CHAP. IV.] TO EMPLOY THE SHIP. 133 general, they were answerable for all acts, of which his character and situation afforded the presumption of authority, even if he contravened the orders received from them ; unless the partj"-, with whom he contracted, were acquainted with the orders, by which the authority was restrained. Thus it is expressly laid down, that if the master appointed another person to supply his place, they were nevertheless liable on the contracts of the substitute, though appointed against their will and positive orders.^ On the other hand, if a ship was built for the purpose of conveying passengers only, or merchandise only, and had been employed in that particular trade, the owners were not answerable on a contract made by the master for the employment of the ship in a different trade, for a different purpose.^ This agrees with the terms of the rule as above laid down, because such a contract does 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,^ with certain limitations that will be noticed hereafter. Indeed it often happens that no contract can be made with the owners person- ally, when the ship is at a distance from their residence ; and even when the ship is at home, if she is to be employed as a general ship, it rarely happens in practice that the owners interfere with the receipt of the cargo ; without doubt, how- ever, thej' are by our law bound by every contract made by the master relative to the usual employment of such a ship. A charter-partv under seal, made by the master in his own General Law ^ ■' . ' , ^ , Maritime. name, furnishes no direct action agamst the owners, grounded upon the instrument itself, by the law of England ; but when this contract is made by the master in a foreign port in the usual course of the ship's employment, and under circum- stances which do not afford evidence of fraud ; or when it is made by him at the ship's home under circumstances which afford evidence of the assent of the owners ; the ship and freight, and therefore indirectly the owners also, to the amount 1 Dig. 14. 1. 1, 5. Cleirao's comment thereon ; French ^ Dig. 14. 1. 1, 12. Ordinance, liv. 2, tit. 8, art. 2, and the 3 Eoocus, not. 11 to 18 inclusive, CommentaryofValinthereon;Pothier, and not. 26, 27, 28. not. 49, ad, finerri; Charte-partie, § 2, art, 3 ; Welwood's and not. 65 ; Guidon, c. 18, ait. 4, and Sea Laws, tit. 15. 134 THE master's authority [chap, IV. of the value of the ship and freight, are by the maritime law bound to the performaince.^ " The ship is bound to the merchandise, and the merchandise to the ship," are the words of Cleirac.2 By the French law ^ 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, in his commentary, says, the rule is the same whether the affreightment 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. Law of France. By the French law * the master is bound to foUow the advice of the owners, when he freights the shij) at the place of their abode. The law of the Hanse-Towns, 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 aU ; 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.^ Law of England. This principle of the maritime law whereby the ship is con- sidered as a security to the merchant who lades goods on board of it, has been received into the mercantile law of England to a limited extent. For the jurisdiction of the Court of Admiralty which proceeds in rem is admitted, unless it be shown to the satisfaction of that Com-t that at the time of the institution of the cause any owner or part-owner of the ship is domiciled in England or Wales, over any claim by the owner or consignee of any bill of lading of any goods carried into any port in England or "Wales, in such ship for damage done to the goods or any part thereof by the negligence or misconduct of or for 1 An instance of a sentence in Spain and see liv. 1, tit. 14, art. 16 — 1- Par- againstmasterand ship for barratryand dess. 343, 345 : Code de Com. art. 280. deviation "by the master, who had let * Ordin. liv. 3, tit. 1, art. 2 — 4 Par- the ship by a charter-party, is men- dess. 358 : Code de Com. art. 232. tioned in an anonymous case in 2 Ch. ^ Ord. 1434 (5 June), art. 3 ; Ord. Ca. 238. 1447, art. 13 : Ord. 1580, art. 2—2 2 Les tJs et Coutumes de la Mer, 72. Pardcss. 472, 482, 489 ; Ord..of Lubec, 3 French Ordinance, 1681, liv. 3, 1542, art. 3—3 Pardess. 426. tit. 1, art. 11—4 Pardess. 358, 360 ; « Pothier, charte-partie, no. 48. CHAP. IV.] TO EMPLOY THE SHIP. 185 any breach of contract on the part of the owner, master, or crew of the ship.^ Like other provisions cited from the same statute in these pages, this provision had in view chiefly the case of foreign vessels, but covered also the case of British ships similarly circumstanced, which, whatever liability to the English resident had been incurred, too often defied by distance the process of English common law. Even within this narrow sphere, there is no maritime lien created by the section.^ AU beyond remains as before at common law.^ The liability of the owners upon a contract of charter-party or bailment made with the master, is a question as to the authority of the latter as agent of the former. Evidence of express authority is not often forthcoming. In what circum- stances the law will imply authority in the master to bind the owners by his contract, may be fairty illustrated by the following early cases. 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, that had been delivered to the master at Exeter without the knowledge of the owners, to be conveyed from thence to London ; the Court held that the owners were answerable for a loss under such circumstances ; but because the action was brought against some only, and not against all . the part-owners,^ the case went against the plaintiff, a thing that would not now happen. In Boucher v. Lawson,^ an action against the owner to recover the value of Portuguese coin delivered to the master at Lisbon, for conveyance to London, but embezzled by him, it appeared that by the usage of that particular trade the master was to receive the freight to his own use ; there the Court said that, if it had appeared that the ship was employed in carrying goods for hire, the owner would have been answerable for this loss ; ' 2i Vict. c. 10, § 6. defendants had not pleaded in abate- 2 The Two Ellens, L. E. 2 P. C. ICl. ment, they could not avail themselves 3 See the Danneborg, L. E. 4 Ad. 386. of the ground on which this case was ■* Boson 1). Sandford, Garth. 58, 3 decided against the plaintiff, ante, Lev. 258, 3 Mod. 321, 1 Show. 29, 101. c. iii. p. 117. s It would now be held, that as, the ^ Eep. temp. Hardwicke, 85, 194, 136 THE master's authoeity [chap. IV. for, it was of no consequence, 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, the master had no power, by taking in goods of his own mere motion, to render the owners liable. The facts of the case of Ellis v. Turner,^ 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 farther than Stockwith, but the freight was the same for conveyance to either place. On former voyages the goods destined to Stockwith had some- times been delivered there on the way to Gainsborough, and at other times carried forward to Gainsborough, and delivered at Stockwith on the return to Hull ; but 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 convey goods for the customary freight from Hull to Stockwith and Gainsborough. The defendants had previously given public notice, 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 per 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 ; and the plaintiff's agent who shipped the goods, was acquainted with this notice, but 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 Stockwith in the same voyage, and arrived safely at that place, where the master delivered some of the other goods, and was requested by the wharfinger to deliver all that were so destined, but without the knowledge of the defendants he refused to deliver the others, alleging that they were stowed below the 1 8 T. E. 531. CHAP. IV.J TO EMPLOY THE SHIP. 137 goods destined to Gainsborough. On the way from Stockwith to Gainsborough the vessel sank, without any want of ordinary care in the master or crew, and the goods in question were damaged. There the Court held that the plaintiff was entitled to recover the amount of his loss; for, although when the vessel reached Stockwith in safety, the goods were not delivered there in consequence of the misconduct of the master, it was mis- conduct in the lawful course of his duty, and for that the defendants were answerable. In each of the above cases the contract, upon which 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 there- fore the Court held the owners to be bound to 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 was considered to be a contract made in substance by the owners. From the decision of the last of the above cases, it seems also When Hs War- to follow, that if the master make a particular engagement or Owners, warranty, relating to the conveyance of merchandise according to the usual employment of the ship, the owners will be bound by such engagement or warranty, although made without their knowledge. And the law was so laid down by Lord Kenyon, in his direction to the jury on the trial of an action^ brought by a merchant against the owners of a ship for a breach of warranty, that the ship should sail with convoy from the place of rendezvous. A broker in London had been employed by the master to advertise the vessel as a general ship, bound to Hamburg ; 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. There was contradictory 1 Einquist v. DitclieU, Guildhall, Sit. p. Mioh. Ter. 40 Geo. 3. 138 THE MASTER S AUTHORITY [chap. IV. Master cannot substitute his own contract for theirs. evidence, however, upon a question made at the trial, whether the master had forbidden the broker to insert this clause; hut, his lordship told the jury, that he thought that point quite immaterial ; for as the broker was authorised to advertise the ship, the owners were answerable to strangers for his acts, although he had exceeded his authority ; and they must seek their remedy against him. So the plaintiiF succeeded in the action.^ From this rule of law, by which the owners are bound to the performance 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.^ But if the owners themselves have made a special contract for the employment of their ship, the master cannot, by his general and implied authority as master only, annul such contract, and substitute another for it, with the other contract- ing party .^ Nor can he bind the owners by an engagement to carry goods, by a trading ship, freight payable to another than his owners,* or free of freight,^ such a contract being in excess of any implied authority of the master, and at variance with the usual employment of the vessel. Nor will the law imply an undertaking on the part of the owners, that a bill of exchange drawn by the master on a third person for money advanced for the ship's use abroad, shall be duly honoured ; consequently, upon the dishonour of such a bill by the freighter, the owners are not hable on the biU, nor are they so for any part of the money, if it appear that it was advanced on the credit of a third person.^ HIS CONTRACTS rOB KEPAIKS AND NECESSARIES TO THE SHIP. The obligation of the owners upon the contracts of the master, for repairs and necessaries to the ship, is of the ' See the distinction on which the law of this case rests, pointed out by • Ashurst, J., in Fenn v. Harrison, 3 T. E. 757, 760. 2 See Limpus v. Gen; Omnibus Co. (Limited), 32 L. J. (Ex.) 34 ; Poulton V. Lon. & S. W. By. Co. L. K. 2 Q, B. 534. 3 Per Lord Ellenborough, C. J., Bur- gon ■;;. Sharpe, 2 Campb. 629. l*he agent of the charterer has no such authority as against him. Sickens v. Irving, 29 L. J. (C. P.) 25. * Reynolds v. Jes, 34 L. J. (Q. B.) 251. * Dewell V. Moxon, 1 Taunt. 391. " Harder v. Botherstone, 4 Camp. 254. CHAP. IV.] FOR REPAIRS AND NECESSARIES. 139 same nature, and depends on the same principles as their obligation on his contracts with regard to its employment ; and accordingly we find the obligation of the owners in both cases laid down in the same parts of the Civil Law, and treated under one head.^ The master is always personally bound by a contract of this Liability land, made by himself, unless he takes care by express terms to confine the credit to his owners only ; " but, when it is made by the owners themselves,^ or under circumstances that show the credit to have been given to them alone,* there is no right of action upon it against the master. Usually, however, the surrounding circumstances attending the maldng of the con- tract are such that there is an election for the creditor to proceed against the owners, or against the master ; but he may not sue both.^ As the master is appointed by the owners for the purpose of His implied conducting the navigation of the ship to a favourable termina- make'such Con- tion, there is vested in him as incident to that employment, an ti^ai^ts. implied authority to bind the owners for all that is necessary to that end. This rests upon the legal maxim — quando aliquid mandatur, mandatm* et omne per quod pervenitur ad illud. Consequently this authority, subject to certain limits hereafter to be considered, covers all such repaks, and the supply of such provisions and other things as are necessarj^ to the due prosecution of the voyage, and extends to the borrowing of money, when ready money is required for the purposes of the same employment to which this authority is incident.^ It is true indeed that Lord Chancellor Hardwicke once entertained a doubt as to the eifecii of contracts of this kind made by the master under the orders of a managing owner, and du'ected a trial at law, to determine whether or not the other owners were chargeable.'^ But in an earlier case,^ where the master of a ship, having bought provisions and stores upon credit, became bankrupt, and the tradesmen sued the part- 1 Dig. 14. 1. fr. 1. § 8, 9, fr. 7. " Priestley v. Fernie, 34 L. J. (Ex.) 2 Eioh V. Coe, 2 Cowp. 636 ; Eussey 172. Ante, p. 132, note.i ■V. Christie, 9 East, 426, 432. " Per ewriam, Beldon v. Campbell, 3 Farmer v. Davies, 1 T. E. 108. 6 Esoh. 886. * Hoskins v. Slayton, coram Lee, J., '' Buxton v. Snee, 1 Ves. Sen. 154. at Guildhall, case temp. Hardw. 370. ^ Speering v. Degrave, 2 Vern. 043, 140 THE master's authority [chap. IV. Authority to borrow on the owners' credit. owners in the Court of Chancery for the price; the Court,^ considering the master as a servant to the owners, decreed that they should pay in proportion to their shares, and said that " although the owners paid their servant, yet if he paid not the creditors, they must stand liable." And in an action at law,^ the rule was said to he, that primd facie the repairer of a ship has his election to sue the master, who employs him, or the owners ; but, if he undertakes it on a special promise from either, the other is discharged. The facts in these cases appear to have happened in England, but in a case,'* 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 vessel ; and this opinion was afterwards confirmed by the Court of King's Bench, it being proved at the trial, that the master could not obtain money on the security of the ship alone, which, in the event 1 Lord Chancellor Cowper, I pre- sume. 2 Gamam v. Bennet, 2 Stra. 316. 3 Evans v. Williams, Sit. p. Trin. T. 28 Geo. 3. A new trial was moved for in the following Michaelmas Term, and upon argument refused. In France, the master of a ship was held in earlier times, to possess this power of charging the person of his owners for money borrowed for the necessities of the ship in the course of a voyage. See Valin on the French Ordinance, liv. 2, tit. 1. Du Capitaine, art. 19, tom. 1, p. ilS. But Emefigon, torn. ii. p. i8o, cites four decisions of the courts of that country (two of which were reversals of judgments pronounced in the Admiralty of Eochelle) by which the owners were declared not to be per- sonally responsible on bUls drawn and negotiated by the master in the course of the voyage in foreign countries. This doctrine appears to have been founded on a narrow construction of that article of the Ordinance which expressly gives the master authority in various ways to supply the necessities of the ship during the voyage, but makes no mention of bills of Exchange, Liv. 2, t. 1, Du Capitaine, art. 19 — 4 Paxdess. 348. See post, p. 172. These decisions are no longer the rule of French law, which upon this subject has returned to what it was before this construction was put upon the Ordi- nance. " II faut dire, maintenant," says Boulay-Paty, commenting on Emerigon, ibid. 491, " qu'il n'y a plus de doute que le capitaine ne puisse em- prunter au taux courant du commerce, et en paiement tirer une lettre de change surle propri^taire ou armateur du navire. Le nouveau code est revenu a I'ancienne legislation nautique k cet 6gard. Mais alors il faut que le capi- taine donne avis de la lettre de change k son armateur, le plus promptement possible, afin que celui-ci puisse ajouter la somme ^ lavaleur qu'il a donnee au navire et la faire assurer, s'il le juge i, propos. II faut d'ailleurs que cette lettre de change 6nonce formellement que c'est pour les besoins du navire 16galement constates d'aprte le Code de Com. art. 234." CHAP. IV.] FOR REPAIRS AND NECESSARIES. 141 that happened, would have been more beneficial to the owners, as the vessel perished on the voyage home. In another case,^ where a claim was made upon the owner for money advanced to the master abroad in the course of a foreign voyage^ it appeared that the owner, who lived at Dublin, authorised the master at Bristol, where the ship was lying, to accept a freight to the West Indies, and to take up as much money upon bottomry, as would fit out the ship, and provide a stock for port-charges. The master thereupon borrowed 200Z. upon bottomry, of the charterer of the ship, for wages and the ship's outfit, and also obtained a letter of credit from him to his correspondents iii Jamaica, for whatever money he might fm'ther want, for repairs, provisions, or seamen's wages. At Jamaica, the master, by virtue of this letter, took up money to the amount of 7891. ; and on her return voyage the ship was lost. The owner afterwards refusing to pay the 789Z., the charterer sued him in the Court of Chancery in Ireland, and the Lord Chancellor of Ireland, assisted by one of the chief justices and another judge, decreed, upon a re-hearing, that the plaintiff was not entitled to any relief. Upon appeal the House of Lords thought the owner per- sonally responsible, if the allegations of the charterer, as to the necessity of the expenditure, were true ; and dkected an issue, to ascertain whether any, and what, sums of money, were neces- sarily laid out by, or by the order of, the charterer 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 the charterer. Upon the trial of this issue, the jury found that nothing had been necessarily expended for these pm-poses by, or by the order of, the charterer ; and upon a second trial with the same result, the suit was dismissed with costs from the time of the judgment in the House of Lords. As appears from these early cases, but especially the last. Limits to such there are well-defined limits to the exercise of this authority on the part of the master. First, in cases where the owner, or his agent, is at the port of the ship's anchorage, or so. near to it as to be reasonably 1 Gary v. "VVliite, 1 Bro. P. C. 2S4. 142 THE MASTER S AUTHORITY [chap. TV. General Eule. When Supplies are necessary. expected to interfere personally, the master cannot, without special authority for the purpose, pledge the owner's credit for the ship's necessities.^ It was therefore held, for instance, that the master had no authority to pledge the owner's credit in Swansea, while the owner himself resided at Llanelly ; ^ — or in Newport, Monmouthshire, while the owner was at Plymouth f — or in Newcastle, while the owner was at Newport.* It is obvious, however, that the limits of tliis rule cannot be described by any fixed geographical radius, since cases arise daily, where, as the necessity is pressing, the delay of com- municating with the owner, though comparatively near, would be prejudicial to his interests.^ It is therefore laid down, as a general rule, that there is authority to borrow money on the ship, or pledge the owner's credit, whenever the power of communication is not corre- spondent with the existing necessity.^ The question in these cases, then, is, whether the master's position was such as to constitute him the authorised agent of the owner for that purpose ; and that is entirely a question for the jury.'' Where, therefore, a ship on her way to Ireland was wind-bound in the river at Newport, Monmouthshire, and the master borrowed 51., which he expended on small articles of provisions, necessai-y for the vessel, the Court sustained the master's authority, although the owner was resident at Exeter.^ Secondly, this authority of the master, when it exists, extends only to such things as a prudent man would deem reasonably necessary and proper to be done, or supplied, for the purposes of the voyage on which the vessel is engaged." ' Aithui V. Barton, 6 M. & W. 138, 143 ; Gunn v. Kobei-ts, L. E. 9 C. P. 331 ; Curran v. Wood, 15 L. T. N. S. 592. 2 Johns V. Simons, 2 Q. B. 425. 3 Stonehouse v. Gent, 2 Q. B. 431, note. ■* Beldon v. Campbell, 6 Exch. 886. ' Fer Patteson, J., Johns v. Simons, 2 Q. B. 425 ; Arthur v. Barton, 6 M. & W. 138. * See the judgment of the Privy Oounoil, in "Wallace v. Fielden. 7 Moore, P. C. 398, 409. ' Per Patteson, J., Johns v. Simons, 2 Q. B. 425 ; Arthur v. Barton, 6 M. & W. 138 ; WiUjamson v. Page, 1 C. & K. 581. 8 Edwards v. Havill, 14 C. B. 107. " Webster v. Seekamp, 4 B. & Aid. 352 ; per Jervis, C. J. ; Edwards v. Havill, 14 0. B. 107 ; Mitcheson v. Oliver, 5 E. & B. 419 ; Gary v. White, svfpra; The Alexander, Larsen, 1 W. ■ Rob. 288, 361 ; The Sophie, Gustavus, 1 W. Bob. 369. The Court of Ad- CHAP. IV,] FOR REPAIRS AND NECESSARIES. 143 This is the rule also of the civil law.^ But where certain of the crew sustained injury in weighing anchor, and the captain had them taken ashore, and left at a puhlic-house, saying the owners would pay for what the sailors had, although there was then no probability that they could rejoin the ship for that voyage, it was held that the owners were not liable, as the master had exceeded his authority.^ The shipment and dis- embarkation of the injured men in that case had both happened at ports within the United Kingdom, but we shall see that where disembarkation, in consequence of uijury received in the service of the ship, becomes necessary at a port not situated in the same country with the port at which the seamen were shipped, the master is bound to provide for their cure and their subsistence in the meantime.^ The rule extends to the amount and purpose of his borrowing. Money. This authority is not to be understood of an indefinite supply of cash for the master to dissipate ; or of an advance of money upon a general account between the master and the creditor, part of which the master, as it happens, applies to the ship's use ; but of a specific sum to be specifically applied to the purposes of the ship, under the same reasonable necessity and restriction as governs in other cases.* In this respect there is an accord between the English and the civil law ; ' and the French law, though it was formerly more lax, is now to the same effect." miralty has, after much vacillation, ■* Per Lord BUenborougl), G. J., adopted the same meaning of the word Eocher -u. Busher, 1 Stark. 27 ; jjcr necessaries, The Riga, L. E. 3 Ad. 516 ; Abbott, C. J., Palmer v. Gooch, 2 Proceeds of the Albert Crosby, L. E. Stark. 428 ; per Parke, B., Beldon v. 3 Ad. 37. Campbell, 6 Bxoh. 886 ; Thacker v. 1 Dig. 14. 1. 1, 7. Non autem ex Moates, 1 M. & Eob. 76. omni caus^ Praator dat in exercitorem ^ Dig. 14. 1. 7. Quare etsi in. ea actionem, sed ejus rei nomine, oujus causa fuerit navis, lit refici deberet, ibi prsepositus fuerit, id est, si in cam multo tamen major peounia credita rem propositus sit, ut puta si ad vehen- fuerit, quam ad eam rem esset neces- dum locatum sit, ant aliquas res emerit saria, non debere in solidum adversus utiles naviganti, vel si quid reficiends dominum navis actionem dari. navis causS, contraotum vel impensum " By the Code de Com. art. 234, est, vel si quid uant» operarum nomine 236, it is — la somme que les besoins petent. constates exigent — and the captain is 2 Organ v. Brodie, 10 Exoh. 449. himself liable for anything beyond ; 3 17 & 18 Vict. c. 104, § 228. See and see 2 Bmerigon, 473, and note by c. v. post. Boulay-Paty, ihid. 144 THK MASTEE S AUTHORITY [chap. IV. The lender. If the master expend money of his own for these purposes, he has a right to call upon the owners to repay him.^ Not so, however, if the money advanced or the bond given by him be to free the ship from detention for a collision through the master's default ; for he as being a wrongdoer, has no right of action.^ The owner is not liable, except in equity,^ to a stranger for money of his which has been applied, it may be properly, to the purposes of the ship, unless it was advanced Onus prohandi. expressly for these purposes ;* and the law throws upon the person seeking to recover for money advanced, or supplies furnished, the burden of showing that they were necessary for the ship at the time.^ The law, it seems, does not require the lender to see to the application of his money ; Lord Ellen- borough, indeed, states that in one case he held this to be obligatory on the plaintiff, and that Heath, J., sitting for the Chief Justice of the Common Pleas, ruled to the same effect in another ; ^ but the better opinion is the other way,'' and has the support of the Eoman law.^ 1 P«7' Lord Tenterden, C. J., Thacker V. Moates, 1 M. & Eob. 79, 80 ; Eocous, not. 34, 35. He has no maritime lien on the ship for his disbursements, Hus- sey V. Christie, 13 Ves. 594 ; 9 East, 426, S. C. ; but the circumstances may confer on him an equitable lien upon the freight earned in consequence, Bristow V. Whitmore, 31 L. J. (Ch.) 467, coram Ho. of Lords. He may sue for them in the Admiralty Court, 24 Vict. c. 10, § 10 ; The Limerick, 1 Prob. Div. 411. 2 The Limerick, 1 Prob. Div. 411 (C. A.). 3 Ashmall v. Wood, 3 Jur. K. S. 232. •> Thacker v. Moates, 1 M. & Eob. 79. 6 Gary v. White, 1 Bro. P. C. 284 ; Macintosh v. Mitoheson, 4 Bxch. 175 ; The Alexander, Laisen, 1 W. Eob. Ad. 288, 346 ; The Sophie, Gustavus, 1 W. Eob. 369. This accords with the Con- solato, c. 62—2 Pardess. 110 ; mais il faut entendre que le marchand voie et s' assure que ce qu'il prtera est destine a la mise en 6tat du navire et est ntees- saire pour cet objet. Our law applies the same principle in the case of ad- vances to a foreign master in this country under the 3 & 4 Vict. u. 65, § 5 ; The Eiga, L. E. 3 Ad. 516 ; The Proceeds of the Albert Crosby, ibid. 37 ; The Helena Sophia, 3 W. Eob. Ad. 265 ; The N. E. Gosfabrick, 4 Jur. N. S. 742. ^ Per Lord EUenborough, C. J., in Eocher d. Busher, 1 Staxk. 27, 28. ' The Jane, Birkley, 1 Dod. Ad. 461, 464 iper Sir John Nicholl, The Orelia, Hudson, 3 Hagg. Ad. 75 ; nor even to calculate beforehand the expediency of the repairs or supplies ; The Vibilia, Eichardson, 1 W. Eob. 1, 10. 3 Dig. 14. 1. 7. As the Eoman jurist has touched on more than one of the points discussed in the text, I will quote his language, notwithstanding the ex;cerpt is long. Lucius Titius Stichum magistrum navi prffiposuit ; is pecuniam mutua- tus cavit, se in refectiouem navis earn accepisse. Qusesitum est : an non aliter Titius exercitoria teneretur quam si creditor probaret, pecuniam in CHAP. IV.] TO HYPOTHECATE. 145 When repairs are done, or necessaries supplied to the ship, Authority to ,,, . ,•■,,■ ,1 •!• T Borrow ceases, and there was no prior stipulation to be paid m ready nionej', -when. the master has then no authority to borrow for the purpose of discharging such debt ; ' and the same principle, as we shall see immediately, prevents him from making it the consideration for a bottomry bond. As soon as the necessity of the ship was satisfied by the creation of the first claim, his authority ceased : cessante ratione, cessat lex. Such is the law with regard to British ships ; yet it is held that the advance of money in a British colonial port to procure necessaries for a foreign ship gives an action in rem as against the vessel.^ Such supplies to a British ship in a home port imports no maritime lien on the vessel.^ It may happen, however, that at a port where the master is his AuinoKiir . ,, - -,..„., TO HYPOTHECATE a stranger, and the owners are unknown, personal credit iaus gmp^ rREiaHi, him at a time when inexorable necessities have arisen, and °^ oakqo- when the only hope of securing the fruits of the voyage is dependent on these necessities being promptly suppKed ; it has been therefore the practice and the law among maritime nations, probably since the time of the Romans, to permit the master under these circumstances to pledge the ship, hull and tackling, by way of security to the lender for his money. The I'efectionem navis esse consumtam ? nia credita sit, in quo id, propter quod Eespondit : oreditorem ntiliter aotu- credebatur, comparari potuerit ; quid rum si, quum pecunia crederetur, navis enim, inquit, si ad velum emendum in in eS, causS. fuisset, ut refici deberet ; ejusmodi insula peouniam quis credi- etenim non oportere oreditorem ad hoc derit, in qua omnino velum comparari adstringi, ut ipse reficiendse navis ou- non potuerit ? Et in summa aliquam ram suscipiat, et negotium domini diligentiam in cam rem creditorem gerat, quod certe f uturum sit, si ne- debere prsestare. cesse habeat probare, pecuniam in re- ' Beldon v. Campbell, 6 Bxoh. 886 ; fectionem erogatam esse ; itaque illud per Martin, B., ibid. ; cited by Lord esigendum, ut soiat, in hoc se credere, Campbell, Frost v. Oliver, 1 B. & B. cui rei magister quis sit prsspositus : 301 ; 22 L. J. (Q. B.) 353, 355 ; Harder quod certe alitor fieri non possit, quam v. Botherstone, i Camp. 254. si illud quoque scicrit, necessariam re- " The Wataga, 1 Swab. Ad. 165 ; fectioni pecuniam esse ; quare ctsi in The Anna, 46 L. J. (Prob.) 15 (C. A.) ; esL causa fuerit navis, ut refi.ci deberet, 1 Prob. Div. 253, 258. multo major pecunia credita fuerit, ' The Aneroid, 2 Prob. D. 189. quam ad eam rem esset necessaria, non ' The Law of Bottomry has been so debere in solidum adversus dominum fully considered in the First Chapter navis actionem dari. Interdum etiam of this Treatise, that I must here refer, illud sestimandum, an in eo loco pecu- for further details, to that place. 146 THE master's AUTHOEITY [chap. IV. nature of this transaction is most minutely defined in the Ordinance of the Hanse-Towns of the year 1418/ where, how- ever, it is prohibited, under pain of confiscation of the money, and a fine upon the master ; but nothing, even the re-enact- ment of the prohibition on the 5th of June, 1434,^ and again in 1447,^ shows the obstinate prevalence of this practice in those and earlier times, so much as the ultimate adoption of it by the same authorities, subject to restrictions, first in their ordinance of 1591,* and again in that of 1614,^ unless it be the passage of the Consolato del Mare, which appears to assume the transaction to be one that is familiarly known, and only deems it necessary to set out the restrictions and conditions to which it was subject.^ ' Ai-t. 4—2 Paa-d. 467. ■ Art. 4—2 Pard. 472. 3 Ai-t. 14, 19—2 Pard. 482, 484. ■• Art. 58—2 Pard. 527. 5 Tit. 6. art. 2—2 Pard. 547. « Consolato, i;. 194—2 Pard. 225. I am satisfied that this is the passage re- ferred to hy Mr. Abbott at p. 129 (p. 100 of the 10th ed. by Shee) as o. 240, in support of his opinion, that the Con- solato declares the owners not to be personally responsible for money lent on their personal credit, if the ship should be lost in the course of the voyage ; and, as I think, relying on the translation by M. Pardessus, that he has been misled in giving that opinion by the references at second hand, on which he was obKged to rely with regard to this cod6 (see his Pre- face), I may be excused for citing part of the chapter in the translation of M. Pardessus. Persons who are acquainted with the original Spanish of those early times, may consult it side by side with the translation in the Collection de Lois Maritimes of that editor. The Chapter — Del comprar de les vitualles e coses necessaries k la nau — Do Vachat des vivres et des clwses Tiieessaires au navirc, — sets out with prescribiug the duties of the captain in providing his ship with,the necessary outfit for the voyage on which he has engaged her, and describes the applications to be made to the part owners for the requisite funds in a manner that leaves no doubt that the ship is presumed meanwhile to be at her home port, and that the intercourse with the owners is per- sonal. Then comes the contrast of circumstances out of wliioh arises the authority to resort, as I think, to bot- tomry — Cependant, si le patron se trouve en un lieu oii u'y ait point d'ac- tionnaires, et que, n'ayant point de fonds communs du navire, il emprunte pour les causes expUqu^es ci-dessus (r/z., necessaires), toute la masse du navire doit payer Pemprunt, et aucun actionnaire ne pent, s'y refuser. Mais, si le navire se perd avant que I'emprunt ait it& rembours6, aucun actionnaire n'ost oblig6 de rien payer k celui qui am-a pr6t6, puisque le navire sera bris6 et perdu. Que ce prSteur prenne done bien garde comment il pr6tera ; car Pactionnaire y perd assez, puisqu'il y perd sa part. Ainsi, par cette raison, le prSteur ne peut rien demander aux co-propridtaires du navire, parcequ'il doit prendre garde comment il prgtera, et que, lorsque le navire est bris6, les actionnaires ne doivent rien payer. If any one is not convinced that this is the maritime risk upon which any lender upon bottomry in our own day neces- sarily embarks his money, let him con- trast this with what goes before in the same chapter. It provides, that if any CHAP. IV.j TO HYPOTHECATE. 147 The appointment of the master to tlie command of the ship Conditions of his clothes him with this extraordinary authority. The right to hypothecate, exercise it, however, never arises except in the presence of an absokite necessity, e.g., for repairs or provisions to enable the ship to prosecute her voyage, together with an ahsoliite failure, at the same time, of personal credit, as a source of supply.^ This is that twofold necessity which is a condition precedent to the validity of hypothecation bonds whether on ship or cargo." This is a check on the abuse of the master's extraordinary Purpose thereof, authority, maintained not only for the protection of his owners, but likewise of their creditors and the mortgagees of the ship, from the effect of a claim, which, though coming after, is pre- ferred before all other claims and liens, except the lien for seamen's wages.^ In furtherance of this pm'pose, the law of this country Previous oom- ■ T i 1 y i 1 • ii -i (• munication with requires the master, belore takang up money on the security of the owners. the ship, or of the cargo, to communicate with his owners and the owners of cargo or their agents respective^, as to the necessities that have arisen, whenever the facility of com- munication corresponds with his necessities.* If these neces- sities are so peremptory as to preclude communication, or to deprive him of the option of waiting the time necessary to part-owner shall refuse to contribute Howard, 2 Dod. Ad. 140, 143. his proportion of the capital requii'ed ^ Per Lord Stowell, The Nelson, for the outfit, the captain is to borrow Brown, 1 Hagg. Ad. 169, 175; The what is necessary, and the share of the Boddingtons, Noyes, 2 Hagg. Ad. 425 ; defaulter in the ship is to answer for The Reliance, Hays, 3 Hagg. Ad. 68 ; the debt. In that case, however. The Augusta, De Bluhn, 1 Dods. Ad. differing toto coslo from the other, the 283, 286. See the Karnak, L. E. 2 Ad. debt is not lost though the ship should 289 ; on appeal, L. E. 2 P. C. 605. be lost ; — S'il arrivoit que le navire se ^ The Hersey, Grimwood, 3 Hagg. perdltjetquel'empruntnefiitpaspaye. Ad. 404, 407. les biens de cet actionnaire seroient ■* Wallace v. Fielden, 7 Moore, P. C. obliges a cette dette, parce qu'elle 398, 409 ; The Bonaparte, 3 W. Eob. auroit et6 contract^e avoo sa oonnois- Ad. 298 ; "Wilkinson v. Wilson, 8 id. sance et par sa faute. 459, S. C. ; The Cargo ex Sultan, 5 Jur. 1 The Nelson, Brown, 1 Hagg. Ad. N. S. 1060 ; The Hamburg, 32 L. J. 169. The Hersey, Grimwood, 3 Hagg. (Ad.) 161, 33 id. 116; The Lizzie, Ad. 404, 407 ; The Dunvegan Castle, L. E. 2 Ad. 254 ; The Karnak, L. E. Howard, 3 id. 331, 333 ; The Prince of ? P. C. 505 ; The Panama, L. E. 2 Ad. Saxe Coboiiig, Ladd, 3 id. 387 ; The 390, 3 P. C. 199 ; The Onward, 42 Orelia, Hudson, 3 id. 75 ; The Hero, L. J. (Ad.) 38. L 2 148 THE master's authority [chap. IV. Duty of the lyiaster in conse- quence. What may be included in the Bond.' procure an answer, or if the consequences of waiting under the circumstances in which he is placed would be more detrimental to the interests of those for whom he is called upon to act, in such a case, the want of communicating is excused by the law. And this, as regards communicating with those whose pro- perty is concerned, is the law of England, whether what the master contemplates be to pledge their credit, or to hypothecate or sell their property.^ So much for the necessity of communicating with his owners or his freighters. Apart from this, it still remains imperative on the master, to say nothmg here of the lender,* to use due diligence to ascertain whether the necessaries required might not be obtained by him on personal credit ; for if it appear afterwards that he had facilities for gaining that information and used them not, the Court will pronomice against the validity of the bond.^ It in no way shifts this burden, or in any way clears the bond of objections to its validity on this ground, that the master sold it by public auction, after adver- tisement, to the lowest bidder.* It follows that for necessaries ah-eady supplied in the absence of prior stipulation for hypothecation of the ship, the master has no authority afterwards to give a bottomry bond ; it is then become evident that personal credit has not failed him. ^ This rule, however, is not to exclude small sums advanced on the instant to meet the immediate necessities of the master, though there is no stipulation for secmity ; '^ otherwise law so applied, instead of being a protection, and furtherance, would become an obstruction to commerce. 1 See cases preceding note, and The Margaret Mitchell, 4 Jnr. N. S. 1193. 2 See ante, c. i. p. 55. 2 Heathomi;. Darling, 1 Moore, P. C. 6, reversing the decision of the Court below ; Wallace v. Fielden, 7 Moore, P. C. 398, 409. ■• The Prince of Saxe Cobom-g, Ladd, 3 Hagg. Ad. 387 ; affirmed, Soai'es v. Eahn, 3 Moore, P, C. 1, S. C, ' See Smith v. Gould, 4 Moore, P. 0, 21 ; The Edmond, 30 L. J. (Ad.) 128. ' The Hersey, Grimwood, 3 Hagg. Ad. 404 ; Gore v. Gardner, 3 Moore, P. C. 79 ; The Augusta, De Bluhn, 1 Dods. Ad. 283, 287 ; as little, where the supplies had been furnished during the previous voyage, and this, notwith- standing the ship was again at Rotter- dam and might have been detained nnder the Dutch law for the previous debt ; The Lochiel, Miles, 2 W. Bob. S4. 7 The Trident, Simson, 1 W. Bob. 29, 34 ; The Vibilia, Richardson, 1 "W. Rob. 1. CHAP. IV.J TO HYPOTHECATE. 149 On the other hand, there may be evidence of the supplies having been furnished on a tacit presumption, such as may well exist in a country where the law implies a lien for such things, that it was on the security of the ship ; — or, if money must be raised to pay for supplies thus furnished under lien, — in such a case a bond will be sustained in our Court of Admiralty, though it was given afterwards and not stipulated before.^ But for general average charges,^ or for the master's own What may nc debt,^ or to free himself from arrest,* or even the ship from detention, unless combined with other reasons,^ it is not in his power to give a bottomry bond, or to include in it the premium for insuring the principal monies which are the subject of the bond.^ Nor, where it would be perfectly proper to give such a hond, can he give one that is framed to pledge the ship and bind the owners personally also in any event ; ^ although the Court of Admiralty, when the personal obligation is separable, 1 The Alexander, Tate, 1 Dods. Ad. 278, 280 ; The Vibilia, Richardson, 1 W. Rob. 1, 13 ; The Karnak, L. R. 2 Ad. 289 ; on appeal, L. R. 2 P. 0. 505. - The North Star, 1 Lush. 45. 3 Dobson V. LyaU, 8 Jur. 969 ; 3 My. & Cr. 453, a. ; 6 Viner's Abr. 517. * Smith V. Gould, 4 Moore, P. C. 21, 28. * Otherwise in foreign countries where the law enables them to arrest the ship for debts, everything would become the occasion of bottomry, per Lord Stowell, The Augusta, De Blulm, 1 Dods. Ad. 283 ; per Dr. Lushingtoii, The Royal Aich, Keuney, 1 Swab. Ad. 2C9, 279 ; The Vibilia, Richardson, 1 W. Rob. Ad. 1, 6 ; The LocMel, Miles, 2 W. Rob. Ad. 34 ; The Ida, L. R. 3 Ad. 542. See the observations of Story, J., in the Aurora, "Wheaton, 104, 105, cited by Sir R. Phillimore in the Karnak, L. R. 2 Ad. 289, 308, 309. As an illustration of this rule, that the master cannot pledge the ship to free her fi'om arrest, the following case is related by Loccenius, lib. 2, c. 6, § 12. The master of a ship being in a Spanish port, and having exposed the vessel to seizui'e by his neglect to comply with a particular regulation of the country, entered into an agreement with a per- son, who was supposed to possess suffi- cient influence, to pay him a very con- siderable sum with maritime interest, if he should procure the restitution of the ship, and she should afterwards re- turn home in safety ; and for securing the payment executed an instrument in the nature of a bottomry bond. By the interest of the person, with whom the agreement was made, the ship was restored, and afterwards returned home in safety ; but in a suit commenced against the ship upon the instrument executed to him by the master, it was determined that the ship or owners were not chargeable by this contract, ^ The Boddingtons, Noyes, 2 Hagg. Ad. 422. ' Stainbank v. Shephard, 13 C. B. ; 22 L. J. (Ex.) 341, S. C. ; Stainbank v. Fenning, 11 C. B. 51 ; The Nelson, Brown, 1 Hagg. Ad. 169 ; The Atlas, Clark, 2 Hagg. Ad. 52 ; The Emancipa- tion, Tucker, 1 W. Rob. 124, overrul- ing Samsun v, Bragington, 1 Ves. sen. 443. 160 THE MASTER S AUTHOEITY [chap. IV, Criterion of his authority is ne- cessity, not locality.'' General rule. will give effect to so mucli of such a bond as is good against the ship, and reject the rest.^ Yet it is no objection to a bond which is otherwise valid, that it is given at the same time with bills of exchange for the same debt by way of collateral security for the bills ; ^ no more is it, that after it was given, the money obtained upon it was misapplied by the master.^ The opinion which very generally prevailed at one time, that the master has no authority to hypothecate the ship in a port of the same country in which the owners are resident, how- ever it may have arisen, is not sustained by the principles of our law.^ The law of England is,' that the authority to borrow money on the credit of the owner, and on the security of the ship, is in this view the same ; and although the ship is in a port of the country where the owner resides, j^et if the power of com- ^ The Augusta, De Bluhn, 1 Dods. Ad. 283, 288 ; The Tartar, Tharp, 1 Hagg. Ad. 3, 15 ; The Hero, Howard, 2 Dods. Ad. Ii7 ; Smith v. Gould, 4 Moore, P. C. 21 ; The Nelson, Brown, 1 Hagg. Ad. 169, 176. See ante, p. 62, n. \ 2 The Nelson, Brown, 1 Hagg. Ad. 169, 179 ; The Tartar, Tharp. 1 id. 3, 15 ; The Jane, Bii-kley, 1 Dods. Ad. 461, 466 ; The St. Catherine, Sinclair, 3 Hagg. Ad. 253 ; The Atlas, Clark, 2 Hagg. Ad. 52 ; The Emancipation, ■Tucker, 1 W. Bob. 124 ; ^jct- ewia/m, Stainbank v. Shephard, 13 C. B. 418 ; 22 L. J. (Ex.) 841, 347, S. C. " The Jane, Birkley, 1 Dods. Ad. 461, 464 ; per Sir John NiohoU, The Orelia, Hudson, 3 Hagg. Add. 75 ; The Vibilia, Eichai-dson, 1 W. Bob. Ad. 1, 10 ; The Gratitudine, Mazzola, 3 C. Bob. 257, 272 ; Dig. 14. 1. 7 ; MoUoy, bk. 2, 0. 11, § 11 ; 2 Emerigon, 269. ' " The meaning of the term necessity in respect of hypothecation by the mas- ter is analogous to its meaning in other parts of the law. This meaning has been the subject of much discussion in Westminster Hall ; see Beg. v. Winsor, L. R. 1 Q. B. 394. It has been described as a high degree of need — a need which arises when choice is to be made of one of several alternatives under the peril of severe loss if a wrong choice should be made. In the case of a voyage, it is probably correct to say that any alter- native for the captain is better than total loss of the ship and cargo, and that he is under a necessity of choosing another alternative if any should be possible ; and in respect of bottomry, any combination of events which would prevent the completion of the voyage with profit, unless money should be ob- tained by bottomry, would raise the question, whether there was need for bottomry in such high degree as to create a necessity." Per Sir W. Erie, delivering the judgment of the Judi- cial Committee of the Privy Council in Droege & Co. v. Suart & Simpson, The Karnak, L. E. 2 P. C. 505, 512. ' Mr. Abbott accepts the geographi- cal limit as a condition of the validity of a bottomry bond, p. 148, 149, of the 4th ed. and 115, 116 of the latest ed. by Shee. In fact, this rule in general holds good, but merely because the master's circumstances in that case do not preclude the possibility of his ob- taining funds or credit without a bond ; The Loohiel, Miles, 2 W. Bob. Ad. 34, 44 ; Wallace v. Fielden, 7 Moore, P. C. 398. CHAP. IV.J TO HYPOTHECATE. 15X munication between liim and the master is not correspondent with the necessity of the ship, the authority to borrow exists.^ This was established for the first time by Lord Stowell in the following case. The Spanish ship La Ysabel,^ ,v&B,m the year 1812, proceeding on a voyage from Alicante to London, when she was obliged to put in to Corunna in great distress, and there the master took up money on the security of the ship to repair her, and gave the bond, which was the subject of the proceedings before Lord StoweU, and as to which it was objected, that it had been given by the master in the country of the owner's residence. "It is true," said the learned judge, " 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 kcality of the transaction. The vahdity or invahdity of the bond does not rest on that circumstance only, but upon the extreme difficulty of communication between the master and his owners. And as the interruption of correspondence between the different parts of Spain at that time was as far as possible complete," the Court pronounced for the validity of the bond. In the subsequent case of The Trident ^ it appeared, that the owner's residence had been in Scotland, and that the vessel, being on a voyage to the East Indies and back, was obliged, by stress of weather, to put into Plymouth much damaged. From Plymouth the master wrote to his owner, and in answer, the son-in-law, and personal representative of the owner, met him on the spot, informed him that the owner was dead, leaving his estate insolvent, and that he (the son-in-law) would advance no money for the shiio. Under these circumstances the master in Plymouth took up money on the security of the ship, freight, and cargo, and Dr. Lushington, when the facts came before him, upheld the validity of the bond on the authority of the previous case. No doubt, in the place of the owners' residence, when they In the place of 1 See the judgment of the Privy 274, 275 ; seeper Dr. Lnshington, The Council, delivered by Sir John Jervis Bonaparte, Andersen, 3 "VV. Kob. Ad. in WaUace v. Pielden, 7 Moore, P. C. 298, 308. 398, 409. ^ The Trident, Simson, 1 W, Eob, ' La Tsabel, Bozzo, 1 Dods, Ad. 273 ; Ad. 29. 153 THE master's authority [chap. IV. tie Ownera' Residence. Home port in- cludes Man, and the Channel Islands. may exercise their own judgment upon the proprietj' of borrowing money in this manner, the master of the ship is hy the maritime law of all states precluded from binding the property of his owners in this way without their consent.^ Wha,t may be the precise effect in the French law of the words " place of residence," la demeure cles ^proprietaires, has been the subject of frequent discussion with various results among French jurists, and before the tribunals of their country. In this country, where Ireland ^ and Jersey ^ for the purpose of hypothecation bonds used to be regarded by the courts of law as foreign countries, it has been enacted, that " in relation to the rights and remedies of persons having claims for repau's done to, or supplies furnished to, or for ships, every port within the United Kingdom of Great Britain and Ireland, the islands of Man, Guernsey, Jersej', Alderney and Sark, and the islands adjacent to any of them, being part of the dominions of Her Majesty, shall be deemed a home port." * But we have seen that if absolute necessity demands it, all consideration of locahty will be disregarded in order to support the master's authority in hypothecating the ship ; and this appears to be much more in favour of the interests of commerce, and in consonance with the general spirit and principles of law than any rule defining that authority by geographical limits irrespective of all other circumstances in which the master may happen to be placed. For the purposes of a new voyage, however, a bond given by the owners, or with their consent, on a British ship lying in a British port, cannot be enforced by the Admiralty Court of England." ' Hanseatic Ordinance, of 1591, art. 68 ; Hanseatic Ordinance, of 1614, tit. 6, art. 1—2 Pardess. 527, 546 ; French Ordinance, liv. 2, tit. 1 ; Bu Capitaine, art. 17 & liv. 3, tit. 5 ; Des Contrats a la Crrosse, art. 8 — 4 Pardess. 348, 368 ; Code de Com. art. 232, 236, 321 ; 2 Emerigon, 466 ; MoUoy, bk. 2, c. 11, § 1] ; "Wesketh, tit. Bottomry, § 20, 23 ; Tlie Oriental, Hoyt, 3 W. Jtob, 243 ; (on appesil) 3 id. 265 ; The Bonaparte, Andersen, 3 W. Bob. 298, 308. 2 Menetone d. Gibbons, 3 T. E. 267. 3 The Barbara, Chegwin, 4 C. Rob. Ad. 1. ■• Statutes for assimilating the com- mercial laws of England and Scotland ; 19 & 20 Vict. c. 97, § 8 : and in the Act for Scotland, 19 & 20 Vict. c. 60, §18. ' Per cvriam, The Eoyal Arch, The Gratitudine, Mazzola, 3 G. Benson, 1 Exch. 537, 555, 557 ; (in Bob. 258. eiTor) 3 Exch. G44, 655 ; Vlierboom v. 2 22 Geo. 3, o. 25, § 1, 2 ; Webb v. Chapman, 13 M. & "VV. 230 ; Eiohard- Brooke, 3 Taunt. 6 ; but a bill or note son v. Nourse, 3 B, & Aid. 237 : Alers founded on such a transaction is not «. Tobin, MK. ^lost, o. ix. void, 5 & 6 W. 4, c. 41. 5 .^he Lord Cochrane, Smith, 2 W. ■'' The Gratitudine, Mazzola, 3 G. Rob. Ad. 320 ; same ease out of which Bob. Ad. 240, 257 ; The Olivier, Lush. arose Duncan iJ. Benson, supra; Atkin- Ad. 484 ; The Hamburg, 32 L. J. (Ad.) son v. Stephens, 7 Exch. 567. 161 ; The Kamak, L. E. 2 Ad. 289 ; « The Bonaparte, Andersen, 3 W. L. E. 2 P. C. 505. Bob. Ad. 298, 302. * The Gratitudine, supra; Duncan v. w. THE MASTER S AUTHOEITY [chap. IV, Purpose of this Power. But whilst all authority in any agent is presumed to be given only for the principal's benefit, there is this which is peculiar to the position of the master in the supposed circumstances, that the benefit of the proprietor of the cargo is,-in virtue of the contract of afireightment, paramount to that of the owners of the ship ; and therefore he cannot repair the ship by selling the whole of the cargo, since that would defeat the purpose of the voyage, and be an act in direct contravention of his implied authority from the freighters.^ His authority, however, to sell part, under circumstances which would otherwise prevent his prosecuting the voyage, is undoubted, and is in accordance with the principles of the general maritime law of Europe," and with those of the law maritime of this country.^ WHEN HE MAT SELL THE WHOLE CAEOO. With regard to the cargo merely, the master is liable to be placed in a situation of great delicacy, by events in the course of the, voyage which appear to bar the conveyance of it further. The teanshipment of it on board another, if his own vessel is disabled or become a total wreck, is a question of great difficult}^ that must be considered in a subsequent chapter.* "We have now to do only with the sale of it by the master, and with the consideration of what it is in his circumstances at the time which will invest him with that extraordinary authority. In theory as in practice, it is never to be forgotten, that he is primarily entrusted with the cargo for the sole purpose of conveying it to the place of destination ; and this purpose he is bound to accomplish by every reasonable and practicable method.' Although therefore his vessel has become a total 1 Per cnriam, Dtmoan v. Benson, 1 Exoh. 637, 555 ; ^er Lord Stowell, The Gratitudine, Mazzola, 3 C. Eob. Ad. 240, 263. 2 Consolato, o. 62—2 Pardoss. 110 : Laws of Oleron, art. 23—1 Pardess. 339 ; Wisby, art. 38-1 Pardess. i87 ; Hanse- Towns Ord.'1501, art. 58—2 Pardess. 527 ; Ord. of Louis XIV. 1681, liv. 2, t. 1, art. 19 ; Code de Com. art. 231 ; Bynkershoek, Qusest. Jui'. Priv. lib. 3, c. 16 ; and see the authorities cited in The Gratitudine, 3. C. Eob. Ad. 242, et seg.; fef Lord Sto-well, "With regard to this, the books overflow with authorities." IMd. 3 The Gratitudine, Mazzola, 3 G. Eob. 240, 263 ; Campbells. Thompson,' 1 Stark. 490 ; Eichardson -ti. Nourse, 3 B. & Aid. 237 ; Alers -u. Tobin, MS. 'post, 0. ix. ; Duncan v. Benson, 1 Exoh. 537, 555 ; Sarguy v. Hobson, 2 B. & C, 7 ; Powell v. Gudgeon, 5 M. & Sel.431 : Atkinson ii. Stephens, 7 Exch. 567. ^ Post, c. ix. » Cammell w. Sewell, 3 H. & W. 617 ; Tronson v. Dent, 8 Moore, P. C. 419. ■CHAP. TV.] TO SELL THE CAEGO. l5'7 wreck, and a sale of the goods would, under the cu-cumstances, he the most heneficial course for the proprietors, he is not thereby justified in selling the cargo, if there is reasonable opportunity for storing it.^ Such appears to he the law both in this country and in the United States,^ when the moving consideration for such an act is entirely confined to the condition of the ship. But when the moving consideration is the state of the cargo itself, and a case of absolute necessity arises, the character of agent and supercargo may be forced upon him by the general policj' of the law. His authority to sell at an intermediate port is clear, when the cargo is perishing, and the only alternative is a sale or a total loss of so much of the cargo as is in that condition.^ When the cargo, though sound, is of a perishable nature, but the repairs necessary to the ship, for which he has put in, will require time, and there is no opportunity of corre- spondence with the proprietor * or of transhipment of the cargo, such a legal necessity may exist as will authorise him to dispose of it.^ And even if it is not of a perishable nature, but is likely to be destroyed by exposure through want of accommodation for storing it, and the opportunity of transhipping is rare and •uncertain, such authority as this may possibly in that case be lawfully exercised by the master." The disposal however of the cargo by the master is a matter Caution in that requires the utmost caution on his part. A sale of part power. ° 1 Wilson V. Millar, 2 Stark. 1 ; Van Halmerson v. Cole, 1 Speers, 321 ; Omeron v. Dowick, 2 Camp. 42 ; Searle v. Scovell, i Johns. (Ch.) 218 ; Joseph V. Knox, 3 Camp. 332 ; Free- 222 ; Saltus -o. Ocean Ins. Co. 12 man v. East Ind. Comp., 6 B. & Aid. Johns. 107 ; Abbott (Amer. ed.) 480 ; 617; Cannan v. Meabum, 8 J. B. Story on Agency; no. 118. Moore, 127 ; Cammell v. Sewell, 3 H. & ' Vlierboom v. Chapman, 13 M. & W. jSr. 617. If the expense of storing the 230 ; Eoux v. Salvador, 3 Bing. N. C. cargo were such as to far outgo the ad- 266 ; Blythe v. Smith, 5 M. & Gr. 405. vantage, it cannot be supposed that See Tronson v. Dent, 8 Moore, P. C. our law in such circumstances would 419. prohibit the sale of it, and require it * Ante, p. 147. to be stored. See the observations of ^ Per Lord Stowell, The Gratitudiae, the Court as to the ship in The Mar- Mazzola, 3 C. Eob. Ad. 240, 259. garet MitcheU, 4 Jur. K S. 1193. ^ The Margaret Mitchell, 4 Jur. N. S. '■' Bryant ■!;. Commonwealth Ins. Co., 1193, is a case on the sale of a ship, 13 Pick. Rep. 543 ; American Ins. Co., but the circumstances there appear to 'V. Ceuter, 4 Wendell, 52 ; HuU v. have been very similai- to those alluded Franklin Ins. Co., 9 Pick. 478. See to in the test. 158 TiiE master's authority [chap. IV. though damaged, any more than a sale of the whole, will not be sustained, if the damaged part can, by reasonable exertions, be restored to a condition in which it may be preserved in species to the port of discharge.-' His duty, as we have said, is to carry it to the port of destination, and to make every reasonable exertion to accomplish it. 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, recognising no authority in any tribunal or officer set in motion by the master's suggestion, or at his instance, will scrutinize their acts quite as much as his own.^ Conditions of The conditions imposed by the English Law upon the master which must be satisfied before his authority to sell the cargo arises, is thus expressed by the Judicial Committee of the Privy Council. They say:* "The authority of the master of a ship to sell the goods of an absent owner is derived from the necessity of the situation in which he is placed ; and, consequently to justify his thus dealing with the goods he must establish (1) a necessity for the sale ; and (2) inability to communicate with the owner, and obtain his directions. Under these conditions, and by force of them, the master becomes the agent of the owner, not only with the power, but under the obligation^ within certain limits, of acting for him ; but he is not in any case entitled to substitute his own judgment for the will of the owner, in the strong act of selling the goods where it is possible to communicate with the owner and ascertain his will. " The possibility of communicating with the owners must of course depend on the circumstances of each case, involving the consideration of the facts which create the urgency for an 1 Tronson v. Dent, 8 Moore, P. C. Eeid v. Darby, 10 East, 143 ; Hayman 419. V. Moulton, 5 Esp. 65. See some 2 Ewbank v. Nutting, 7 C. B. 797 ; obsei-vations of Dr. Lushington in The MoiTis V. Robinson, 3 B. & C. 196, Eliza Cornish, 17 Jur. 738 ; 1 Ecc. & 200 ; Hunter v. Prinsep, 10 East, 378 ; Ad. Kep. 36, S. C, respecting the sen- Tronson v. Dent, 8 Moore, P. C. 419 ; teuoe of a court of competent jui'isdic- Notara v. Henderson, L. E. 5 Q. B. tion in suclr a. case, that it would be 846 ; 7 Q. B. 225 ; WagstafE v. Ander- binding, if such a coui-t there were, son, 5 C. P. Div. 171 (C. A.). '' The Australasian Steam Naviga- 3 Pur Dr. Lushington, The Margaret tion Go. v. Morse, L, R. 4 P. C. 222, Mitchell, Jamieson, 4 Jur. N. S. 1193 ; 228, 231. CHAP. IV.j TO SELL THE SHIP. 159 early sale ; the distance of the port from the owners ; the means of communication which may exist ; and the general position of the master in the particular emergency. " Such a communication need only be made when an answer can be obtained before the sale. When however there is ground for such an expectation, every endeavour, so far as the position in which he is placed will allow, should be made by the master to obtain the owner's instructions." ^ The power of the master to take up money on respondentia his acihokitt properly so called, that is, on the security of the cargo, and ^y responden- for the pm'poses of the cargo exclusively, has been recog- ^"* nised in the Court of Admiraltj^^ Eegarding this as a function not to be exercised except by the proprietor of the goods, jurists in this country have hitherto laid down, that such a bond could not be enforced against the goods by any tri- bunal known to England.^ This now appears to have been a mistake on their part ; but for the validity of such a contract by the master, and the enforcement of it in the courts of this country, the same conditions required in respect of bottomry, and the instrument by which it is effected, already considered very fuUy in this and a previous chapter, are indispensably necessavj.^ Caution, no less considerate than in the case of the cargo, is his authorut advisable on the part of the master before selling the ship ggip. without the express authority of the owners.^ Circumstances amounting to necessity, quite as imperative in this case as in that of the cargo, are requisite to justify the sale and to sustain the title of the purchaser. The nature of his ordinary functions ' See the judgment of the P. C. in ping, i ed. 115 ; 10 ed. lH ; see ao- The Bonaparte, 1 Moo. P. C. 459, 473 ; cordingly the Spanish forms of the and the corrected passage given in The bond, Wesketh, 51, 60 ; 2 Magens, 431 ; Cargo ex Hamburg, 2 Moo. P. C. (N. S.) Busk v. Fearon. 4 East, 319. 320 ; Acatos v. Burns, 3 Exch. Div. '' Ante, pp. 53, 147. 282. ^ Green o. Eoyal Exchange Assur. 2 The Cargo ex Sultan, 5 Jur. N. S. Co., 6 Taunt. 68 ; per Richardson, J., 1060. As to what charges -will be al- Bead v. Bonham, 3 B. &; B. 147. ^he lowed to be included in such a bond, Uniao Vencedora, or The Gipsy, 33 see The Glenmanna, Lush. 115. L. J. (Ad.) 195. 3 2 Blkst. Com. 458 ; Abbott, Ship- 160 THE master's authority [chap. IV. Early Foreign Law. Early English Law. is irreconcilable with the notion that such an authority as this exists under ordinary circumstances ; and seems to indicate, as the proper occasion for the exercise of it, a necessity so extreme, that no way is left him of serving the interests of his owners but by an act which at once defeats his own functions and authority, and disposes of their property and means of profit. It is hardly to be expected that a power of this nature should be viewed with favour in those very early times of modern historj'-, when the master could so easily pass beyond the sphere of public opinion and the reach of public law. To prevent the opportunity of fraud, which the allowance of this power to him might afford, several of the foreign ^ ordinances expressly declare, that he shall not sell the ship without a special authority for that purpose from the owners ; at the same time, however, authorising him, in case of necessit}^ to borrow money upon the credit of the ship and its furniture, with the assent of his crew. In this countrj'. Sir Matthew Hale, in conformity to these regulations, is reported, when Chief Baron of the Exchequer, to have decided in a case^ which was argued before him, that the sale of a ship bj'' the master did not convey the property to the buyer, although the sale was made in a foreign 1 Consolato, u. 256—2 PardesB. 260 ; Laws of Olorga, art. 1 — 1 PardesB. 323 ; of Wisby, art. 15—1 Pardess. 470 ; of the Hanse-Towns, of 1591, art. 55 — 2 Pardess. 525 ; French Ordinance, liv. 2, tit. 1 — Du Capitainc, art. 19 — i Pardess. 348 ; Ordin. of Eotterdam, art. 165—2 Magens, 107. The pro- vision in the Consolato is, that if he has sold without the permission of the owner.?, he shall return to each his share of the price ; but if the owners will not accept it, then he is obliged to restore the ship, or if that is impossible, a ship as good to them and the profit which he might have made for them by the ship in the meantime. If the maiority agreed to accept the price, the rest were bound by it. But if the master who sold the ship had fled, the owners might seize the ship, and enter a suit in a court of justice ; and if they should prove by writing or wit- nesses that they were the proprietors of it, and the purchasers should be unable to prove by writing that the sale was by the authority of the owners, the ship was to be delivered up to them. Consequently, adds the code, let every one take care how he buys a ship, lest he come by a loss. But if the master sold the vessel because she was too old, or under compulsion of those who had advanced money on the ship, it seems the owners were bound by this act. Compare c. 200, towards the end ; tibi supra. ' Tremenhere v, Tresilliau, 1 Sid, 462. CHAP. IV.] TO SELL THE SHIP. 161 countrj', under circumstances of inevitable clanger, the ship and tackle being beaten and broken, with no hope of saving any part of them, owing to the tempest, and 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 led 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 subsequent case,^ wherein Lord Chancellor Cowper decreed that the East India Company should pay to the owner of a ship purchased of the master at Batavia for their use by one of their agents, the difference between the real value and the sum paid to the master, with interest there- upon 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 was not necessary ; — the transaction indeed was a gross fraud between the master and the agent of the company, but without their privity. 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," &c." This author does not cite the decision of any court as an authority for the observation ; at the same time, the exception of cases of extreme necessity rather fortifies than weakens the general rule. At present it is the well-established law of this country, and Present Law of of the United States of America, that the master may exercise °^ ^"' ' this authoritj'- only in exceptional cases of extreme necessity. " It is not disputed," said Lord Giflbrd,^ whose language has been often quoted since with approval both in the admiralty and common law courts, — " it is not disputed that the sale was bond fide, and it is clear that it was for the benefit of all concerned. I agree that it is not sufficient to show that the sale was hondfide, and for the benefit of allconcerned, unless it be also shown that there was urgent necessity for its being resorted to." There always will be a difficulty in describing before the Conditions of such authority, ' Ekins u. E. I. Company 1 P. vation at the end of case 17. "Williams, 395 ; 2 Bro. Pari. Cases, 72. ' Bobertson v. Clarke, 1 Bing. 450. 2 Jenkin's Centuries, p. 165— Obser. 162 THE master's authority [CHAP. IV. event what it is that will constitute such a necessity in law. The condition of such implied authority is by the French code^ the innavigabilite of the ship, a word wearing the appearance of precision, and seeming to include only external circumstances in the state it describes ; and whether the facts answer the description is to be determined, without appeal, and notwith- standing fraud practised upon him, irrevocably, by a French judge or consul on the spot.^ But as regarded by our law, that necessity which is the condition of such authority, involves in it the judgment of the master as a prudent man upon the circumstances of the case ; and his decision is reserved for review at a distance, where the facts are presented by description only, and when time shall probably have tested it by the results. The position thereby assigned, both to master and purchaser, is extremely disad- vantageous. With such knowledge as could be obtained at the time, the sale may have been the result of the soundest judg- ment; and yet, with a knowledge of subsequent events, and of the declared dissent of the owners from the transfer, a presumptiop arises in the most upright mind unfavourable to the master, though consonant with his good faith, but greatly to the pre- judice of any inquiry into the validity of the transaction. If the ship is fully insured, an additional element is thereby introduced to perplex the judgment alike of the master and of his critics.^ So far as can be collected from the cases, it appears that this necessity must consist, negatively, of inability to prosecute the voyage, and positively, of an obligation at once to dispose of the vessel.* ^ Hors le cas d'innarigabilit^ legale- Faith, 15 Q. B. CA9 ; Domett v. Young, ment constat^e, le capitaine ne peut, t, 1 Car. & M. 465. peine de nuUitg de la vente, vendro le " See the observations of Lord Stowell navire sans im pouvoir special des pro- in the Fanny and Elmira, Edw. Ad. pridtaires ; Code de Com. art. 237. 117, quoted post, p. 164. The Bonita, 2 3 Pardess. Droit. Com. no. 606, see 30 L. J. (Ad.) 145. post, p. 174. "No one," says Dr. Lushington in 3 Famworth v. Hyde, 34 L. J. (C. P.) 1864, " can say whal may be all the cir- 207; on appeal, L. R. 2 C. P. 204; cumstanceswhich will constitute a case Doyle V. Dallas, 1 Moody & E. 48 ; of necessity. Some however may be Gardner ii. Salvador, 1 id. 116 ; Idle v. stated. First, that the ship cannot be Boy. Exch. Assur. Co., 3 Moore, 115 ; repaired in the place where she is, save in error, 3 B. & B. 151 ; Knight v. at a ruinous cost. Secondly, that the CHAP. IV.] TO SELL THE SHIP. 163 The positive urgency to sell, before communicating with the Twofold necesBity owners, must arise from one or both of two circumstances ; the daily outlay to preserve the wreck, or the daUy deterioration of the property ; one or both showing a very ruinous loss to the owners when the amount is cast up and compared with the I'esults of an immediate sale. Accordingly the sale of the materials of a wrecked vessel by the master on the spot was held in the United States to be invalid, because it had happened in the country of his owners, where he might have com- municated with them and stored the wreck in the meantime without loss.^ The inability of the vessel to prosecute the voyage may be a conclusion, formed in the exercise of sound judgment, upon a variety of circumstances, all of which together might yet not amount to a physical impossibility. It might for instance be possible to repair the vessel, if it were prudent and judicious.*^ The impossibility of obtaining funds, or of executing the repairs on the spot, however, though a sufficient reason for not prosecuting the voyage, will not of itself warrant the master in selling the ship.^ His authority to do that is conditional on the existence of a twofold necessity, such as has been pointed out, and whether such a necessity has arisen is only to be ascertained from all the circumstances of the case. Some of these circumstances, as enumerated by Dr. Lushington,* are : — 1. The state and condition of the vessel ; 2. The conse- masler, if the repairs can "be done at a be taken to be the principle of the case cost not destructive to the interests of since the decision in the Brig Sarah his owners, has not the means of so Anne, 2 Sumner, 215 ; (in error) New doing without a delay equallyinjurioua Eng. Ins. Go. v. The Brig Sarah to his owners. Thii-dly, that ii he has Anne, 13 Peters, 387. The decision no such means, there cannot be a com- was at one time supposed to bo based munication with his owners, and in on the question of country merely, due time, without exposing their pro- ^ Pci'Tindal, C. J., Soames?). Sugrue, perty to imminent risk, for I think it i C. & P. 276 ; Cambridge v. Anderton, cannot be successfully maintained that 1 C. & P. 213 ; Robertson v. Carruthers, imminent risk of a total loss should be 2 Stark. E. 571. incurred on the bare possibility of an ■■ See Hunter v. Parker, 7 K. k W. ultimate repair of the ship. In other 322 ; Scull v. Briddle, siiprci. words the Court must look to all the ■• The Glasgow, o}' Ya Macraw, Swa- facts." The Uniao Vencedora, or The bey, Ad. 145, 146 ; pe7' curiam, The Gipsy, 33 L. J. (Ad.) 195. Margaret Mitchell, 4 Jur. N. S. 1193 ; 1 Scull V. Briddle, 2 Wash. C. C. 150, The Victor, 13 L. T. N. S. 21. coram Washington, J. This must now M 2 164 THE master's authority [chap. IV. quences of not proceeding to sell ; 3. The facility of communi- cation with the owner ; 4. The resources of the master, or the total absence of all resources ; and 5. In some degree, too, the power and means of the owner to avert the sale. The ship, Margaret Mitchell, after having loaded at Shanghai, and grounded near Woosung, was brought back by steamer to Shanghai, and there surveyed by persons whose authority on such matters remained unquestioned. There were only two persons at the port who could execute the necessary repairs, and. they offered to do them, severally for 40,000 and 42,000 dollars, not warranting that the vessel would then pass Lloyd's surveyor. The consignees of the charterers refused to make advances, and the master advertised in vain for money on bottomry. To have placed the vessel in dock would have cost 30Z. a day, and to have beached her for eight or nine months till a letter could be had from the owners, would have destroyed her altogether. The master, therefore, after advising with others, sold the ship to the highest bidder for 7000L, and the sale was confirmed in the Court of Admiralty in this country.^ " In the first place," said Lord Stowell,^ " it must be shown that there was a necessity, 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 purchase so made." The American ship, Fanny and Elniira,^ having been taken by the Danes, and recaptured by a British sloop, was claimed 1 The Margaret Mitchell, Jamieson, Robertson v. Clarke, 1 Bing. 445, 4ij0. 4 Jur.N. S. 1193; The Glasgow, oj'Ya ^ The Fanny and Elmira, Hicks, Macraw, 1 Swab. Ad. 145 ; Mount v, Edw. Ad. 117 : The Eliza Cornish, or Harrison, 4 Bing. 388. Segredo, 17 Jur. 738 ; 1 Ecc, & Ad. 2 The Fanny and Elmira, Hicks, Rep. 36 S. C. Edw. Ad, 117, 188 ; per Lord Gifiord, CHAP. IV.J TO SELL THE SHIP. 165 in the Prize Court of England on behalf of her original owners, who resided at New York, and also by a Mr. Ormsbj', who had purchased her of the master at Sligo in Ireland, under the following cuxumstances : — The ship having been damaged on the rocks in Sligo Bay, the master caused her to be surveyed by persons whom he described as competent, but who do not appear to have fiUed any public station ; and they reported that it would require 1500L to repair the vessel, a sum far exceeding her value, and that it would be for the interest of those concerned to have her sold. She was accordingly sold by public auction, and bought by Ormsby for 350L, who at the master's desire paid part of the money into the hands of the agents of the owners at Sligo, and carried the remainder to account between himself and the master. Soon after this purchase, Ormsby offered a fourth of the vessel to the master at the same price, provided he would consent to navigate her again as master ; this he agreed to ; the vessel was rei^aired at an expense of 800Z., sailed to Eiga, and was taken in the course of the return voyage to London. The agents of the original owners declared they had done everything in their power to prevent the sale, and had been ready to make any advances that might be found requisite. The Court seeing no necessity to justify the sale, and considerable ground for suspecting collusion in the transaction, ordered the vessel to be restored to the original owners, but, as it was a suit for possession only,^ without prejudice to any rights which the proper court of justice in America might think Mr. Ormsby had acquired by the purchase. AHen as it necessarily is to his ordinary functions for the Duty of the master to sell his ship, the law in such a case expects it of the purchaser, as a duty, that he will ascertain the authority, or the circumstances under which the sale is made, and imposes upon him the burthen afterwards of strictly proving that it was justified by legal necessity.^ It is vain to adduce the proceed- ^ Per Dr. Lushington in The Eliza 24 Viot. c. 10, all questions of title Cornish, 17 Jur. 738, "I wUl not say arising in such suits may be entertained what were the limits of the juiisdiction in that Court and decided, of the court in a suit of possession." ^ Per Dr. Lushington, The Glasgow, There is, however, less difficulty now nr Ya Macraw, Swab. Ad, 145, 146 : that by the ,T & 4 "Viot. c. GC, and The Margaret Mitchell, 4 Jur. N. S. 166 THE master's authority. [chap. IV. ings and decree of a Vice-Admii-alty Coui-t, or the order of any government authority, with the hope of superseding or evading the most searching scrutiny before the courts of this country into all the circumstances of the transaction.^ As for the master, he cannot shift or lessen his responsibility, how- ever he may fortify his own conclusions, by resorting to the advice of skilled and experienced men.^ And as regards the purchaser, the more cautious he is in buying, he will find it the easier afterwards to defend his purchase ; but although he may have paid the price, he has no equitable right as distinct from his legal title to the ship ; so that all that he can expect even on equitable grounds wiU be an opportunity of establish- ing his title as against her original owners.'' Jurisdiction of Lord 'EUenborough, in rejecting the decree of the Vice- Foreigtt Courta i i • i i /~i rn j i t • i • c i i herein. Aduuralty Court at iortola, as bemg no authority lor the sale of a ship by the master, based his decision on the want of jurisdiction empowering any com-t known to the law of this country so to interfere.* The learned judge of the Court of Admiraltj"-, in the case of The Eliza Cornish,^ recognises this as the only foundation capable of su^jporting the decision, and adds, that he should feel himself bound, in the absence of statutory prohibition, to give effect in a matter of this kind, to a decree of any court or authority competent by law to entertain such a case. It seems that by the law of France, if the sale of a French ship is made by the master under the decree of a French court, or authority of a French consul in a foreign country, before whom the " innavigahilite " of the ship has been proved, all further question as to authority for the sale is for ever quieted, even although the court or consul may have been imposed upon.^ If such a case were brought 1193 ; The Australia, Swab. Ad. 480 ; obstinate cllfierence on liis part from 13 Moore, P. C. 132. Compare the such persons, especially where subse- Consolato, u. 256, quoted ante, p. quent events show that they were right, 160. The Eliza Cornish, 1 Eco. & Add. Eep. 1 Eeid V. Dai-by, 10 East, 143 ; Hay- 30 ; 17 Jm-. 738, S. C. man v. Moulton, 5 Esp. 65 ; Tlie Mar- » Eidgway v. Eoberts, 4 Hare, lOG. garet Mitchell, i Jur. N. S. 1193 ; The ■* Eeid v. Darby, 10 East, 143, 156 ; Eliza Cornish, 1 Ecc. & Add. Eep. 30 ; Morris v. Bobinson, 3 B. & C. 196. The Bonita, 30 L.J. (Ad.) 145. » The Eliza Cornish, 17 Jur. 738, 2 At the same time the opinion of 740, 744, 1 Bee, & Adm. 36, S. C. the master is not recommended by any ° 3 Pardeas. Coars de Droit Com. CHAP. IV,] SUBSTITUTED MASTER'S AUTHORITY. 167 before our Court of Admii'altj'^, the purchaser perhaps being English, the learned judge of that Court, according to this view of the law, would he precluded by proof of the decree, from entering into the merits of the transaction, provided there were no evidence of collusion on the part of the pur- chaser. Such, then, being the law of the master's authority as the authority op agent of the owners when appointed by them, the courts have mastbu. been led in the course of events to consider whether another who has been substituted in his place by other than the owners is invested thereby with the same power and authority .^ Usually the question has been introduced in cases upon bottomry bonds, as a ground for disputing their validity ; and the exercise of such authority has, hj a series of decisions, been sustained in the case of masters appointed abroad by the consignees of the cargo, by the consignor of the cargo, the ship-carpenter to whom the prior master had committed the vessel as agent for the owners, and even by the British consul or vice-consul at the port, or a captain of the Eoyal Navy in actual command of the station. The conditions of validity in such an appointment are, the necessity for the measure, and the unimpeachable integrity of the transaction. The person whose place and functions naturally point him out as the successor of the master, if his qualifications are equal to the office, is the mate, whom the civihans in that case call the lucres necessarius ; but to pass him over, although it may be viewed as a suspicious circum- stance, is not otherwise a ground for impeaching the appoint- ment of another.- In the case of The Alexander,^ the vessel, through the incompetency of the master, had got into a place 300 miles No. 606. See the passage quoted at ^ jjjg Alexander, Tate, 1 Dod, Ad. length, post, p. 174 ; 2 Boulay-Paty, 278. Droit Mar. 86, 88. ' Hid. ; so in consequence of the ' Under the civil law the owner was death of the master, The Wakefield, bound by the acts of the master's sub- coram Sir C. Eobinson, and cited in stitute, notwithstanding his express The Kennersley Castle, 3 Hagg. 1, 8 ; orders to the master to appoint none ; The Rubicon, 3 Hagg. Ad. 9. Dig. 14. 1. 1, 5. 168 SUBSTITUTED MASTER'S AUTHOEITV. [CHAP. IV. from her destination in a state requiring assistance ; this was rendered by the consignees of the cargo, who, on the desertion of the master at the port of dehvery, appointed another in his place, and took a bottomry bond from him for their advances, the vaUdity of which was upheld by Lord Stowell notwith- standing. In two cases the British consul at the port, in consequence of the death of the master at sea when there was no one that would take chai'ge of the vessel and cargo, interfered and appointed a master, in one case taking a bond from him ; ^ and in the other, the British vice-consul actually signing the bond instead of the master whom he had appointed,^ and both bonds were pronounced for in this country. In the case of The Kennersley Castle, the appointment was confirmed as made by one who had acted as the agent of the owner, although it was subsequent to notice of total abandonment' and some interference on the part of the underwriters in conse- quence. Sh- Christopher Robinson added : — " It is perhaps unnecessary to say what I might have held, if the appointment of the master and the transaction itself had depended on the act of the underwriters alone ; but if such a case should appear, in which everything was done by such authority for the benefit of all resulting interests and under circumstances similar to those of the present case, I should be very much disposed to support it." ' The ship Eliza Cornish with a valuable cargo on board, consisting in part of bullion, had touched at a point in the Straits of Magellan, and was there forcibly seized by the inhabitants of a penal colony, who murdered the master ; she was recovered with her cargo from their hands by a ship of Her Majesty's navy, the captain of which appointed a master in the Eoyal Navy to carry the vessel to England in the capacity of master ; and in the course of the voyage he sold her, under alleged necessity, at Fayal. On occasion of the sale being disputed in this country, the Court, considering the circumstances of the case, and the great value of the cargo, » The Zodiac, Scott, 1 Hagg. Ad. 3 The Kennersley Castle, 3 Hagg, 820. Ad. 1, 8. 2 The Cynthia, 16 Jur. 748. CHAP. IV.] HIS CONTRACTS OP NECESSITY. 169 and expressly dismissing any reference to it as a case of salvage, sustained the appointment with all the authority of master, notwithstanding the mate had survived and was on boai'd.^ It has been held, that the owners of a post-office packet are liable for necessary repairs done to the vessel by order of the master, although he was appointed by the post- master.^ In the" converse ease, when a change of owners has taken his ArinoniTy , 1-1.1 1 • J. ■ J- ■ i. il 1 DNDEll CHANOK place while the vessel is at sea or in a foreign port, the law op owners. presumes that the original master becomes and continues the agent of the new owner, for the purposes of the ship and the adventure, until there is time to confirm him in his functions by express contract or appoint another in his stead. His acts in the meantime, when within the scope of a master's authority under the circumstances in which they are done, are binding upon the new owner.^ Such, at all events, is the presumption of law, but the facts of the case may show that the relation of principal and agent does not exist.* At the time that the following paragraphs were written, the thk iaw of hie ,.,„,, .... „. T . master's coh- subject 01 them was involved m confusion and conjecture. I tracts of was nevertheless engaged by the scope of this treatise to con- "^'^^ssity. sider it in due course ; and to me, after much consideration, disappointed of any assistance from the books which only the more perplexed existing difficulties and contradictions, the principle here suggested occurred as yielding a complete solution, and a reasonable rule. The name assigned to it was of my own suggestion. At the risk of misconstruction, which there was reason afterwards for thinking I did not escape, it was necessarilj' stated and maintained in the face of recent decisions. This treatise was originally published in 1860. The decision in Cammell v. Sewell, by the Court of Exchequer Chamber, was then quite recent. Judgment was given in 2'he » The Eliza Cornish, or Segredo, 17 * Myers v. Willis, 17 C. B. 77 ; 18 Jut. 738 ; 1 Ecc. & Ad. Kep. 36, S. C. id. 886 ; 25 L. J. (C. P.) 39, 255 ; = Stokes 0. Came, 2 Campb. 339. TrewhellaD.Bowe,ll East,435 ; Chap- 3 Robins v. Power, 27 L. J. (C. P.) man v. Callis, 30 L. J. (C. P.) 241 ; 257. Young v. Brander, 8 East, 10. 170 THE master's AUTHOEITY. [CHAP. IV. Hamburg in 1863, and affirmed on appeal in 1864, the Court of Admiralty, if not also the Judicial Committee, expressly pro- ceedrug on a law wliich it is now admitted did not govern the case. In 1864 the case of Lloyd v. Guihert arose in the Court of Queen's Bench, and being decided on the law of agency as determined by the law of the flag, has been received in this country ever since as giving the rule in all similar cases. The following discussion has still its value, as glancing at applica- tions of the rule beyond the limits of the case in which it was first authoritatively determined, and is consequently retained. Any shipmaster in a foreign country is for some purposes the agent of the owners, and for some purposes the agent of the freighters. The agency that we speak of here, is devolved upon him by the law of his flag. The same law that confers this authority, ascertains its limits ; and the flag at the mast- head is notice to all the world of the extent of such power to bind the owners or the freighters by his acts. The Law of his This authority is derived from public law ; the person on whom it is conferred, is proclaimed a public agent. He is invested with such public authority by a law that is peculiar and specific. The municipal law governs other agents in general; the law maritime is made for the shipmaster in particular, in contemplation of his intercourse with maritime nations all over the world. But, if this were the general law maritime, owners and freighters might be bound without their consent. It may well be, that the provisions of the national code, or the principles administered by the national tribunal, are identical with the rules and principles of the general mari- time law ; their binding effect, however, is wholly due to their adoption by the national will, and the owners and freighters, ex hypothesi, are in that case consenting parties. This authority, therefore, and public capacity of the master as their agent, is conferred upon him and declared by the maritime law of his flag. Binds the Is the foreigner, who deals in his own country with this oreigner. agent, bound by that law? First, he has notice of it, and, therefore, if he be, there is no injustice. Secondly, it is intended that he should be bound by it, and to hold afterwards CHAP. IV.J HIS CONTRACTS OF NECESSITY. 171 that he is not, results in a repeal of the law, and the spoliation of private property. First, the notice, of which we have spoken, is to be read in First, on the the national flag, that he hoists on every sea, and sails under ledge : into every port. Agents under the municipal law, even within the bounds of municipal jurisdiction, bear no such public credentials. Moreover, his command on board, the ship's papers, and all the circumstances that connect him with the vessel, isolate the master, in the eyes of the world, and demon- sti'ate his relation to the owners and freighters as their agent for a specific pui'pose, and with powers well defined under the national maritime law. And, secondly, that the foreigner is by national intention to Seoomlly, by in- be bound by it, is implied in the very making of the law. For, Legislature. if not, then this law, hy intention is circumscribed within the limits of the municipal law; and to that extent is only not enth-ely a redundancy ; it is then all but a nullity in point of national purpose and efl'ect, since three-fourths of the maritime traffic of the country are by supposition beyond its compass ; and all property, the ships, freights, and cargoes, in any way engaged in foreign maritime commerce, is then at the mercy of foreign legislation in any country, however unsettled or savage, or, if settled, however pecuhar in the principles of its jurisprudence, provided the sovereignty that presides has been recognised by Her Majestj''s government.^ We leave general consequences, however, and come to parti- That intention cular instances in maritime legislation. The Hanse Ordinance foreign legisla- tion. 1 Even the settled legislation of well- in foreign ports, and not be to the ad- established govermnents may proceed vantage of the shipowners of this on principles so different from the country. But what would be the con- English maritime law as to alarm our sequence to the mercantile interests — judges at such a prospect. Seethejudg- to the owners of cargoes shipped on ment of Mr. Justice Byles, in Cammell board British vessels ? If, under the ■V. Sewell, in respect of the law of N'or- circumstances described, a valid bond way. And in the case of The Osmanli, can be given on the ship and freight, where the validity of a bottomry bond might not the cargo be included given at Malta was in question, Dr. also ? " The Osmanli, 7 Notes of Cases, Lushington says, "Such a doctrine 322,335. The learned judge says, in a (that the validity of a bond is ruled subsequent case, " I adhere to all that by the law of the place where it is I said on this subject in the case of given) would, I think, lead, probably, the Osmanli ; " The North Star, 29 to the frequent arrest of British ships L. J. (Ad.) T.'i, 76. 172 THE MASTEe's AUTHOEITV. [chap. IV. of 1447, prohibits bottomry and respondentia, and ordains that any money so lent, shall be forfeited to the public treasurj', one third of it to go to the informer.^ To hold that this law is not applicable to a foreign lender, is to repeal it all but entii-ely, and to charge the makers with something like folly in having framed it for a traffic which necessarily involves foreign inter- course. But the article which follows, providing expressly that no Hanse townsman shall lade or fi-eight a ship, not under a Hanse master,^ shows, not only by the absence of the national designation in what goes before, but also, by the policy of this article, that comes after, that the foreigner was chiefly intended in the article against bottomry. The French Ordinance of 1681, provides that the master, in the course of the voyage, may take up money for repairs or necessaries, by bottomry, pledge of the ship's apparel, or sale of part of the cargo ; but that he may in no case sell the vessel without the special authority of his owners.^ The French Courts, in their interpretation of this article, thinking the shipmaster limited to those sources of supply which are expressly mentioned in it, held that he had no authority to raise money by bills drawn upon his owners. Emerigon,* accordingly reports the particulars of four several cases, in which the owners of French vessels, being sued on bills of exchange, drawn on them by the master in the course of a foreign voyage for necessaries supplied to the ship, were held, on appeal, not to be liable. The good faith of the holder, or of any one from whom he derived title, is not once ques- tioned in any of these cases ; nor is it anywhere suggested, that the money received on the biUs was not necessary for the ship, or the bills themselves not in due form,^ The individual ignorance of the parties in some of them regarding the law is expressly mentioned by Emerigon ; but in ever}' one of them the Court enforces the French law against the foreign holder, 1 Hans. Ord. 1447, art. 14,19—2 < 2 Emerigon, prfet & la Grosse, 471- Pardess. 482, 484. 485 ; and see the note by M. Boulay- 2 Hans. Ord. 1447, art. 15, 16—2 Paty, Hid. Pardess. 482. * See note by Boulay-Paty referred ' French Ord. 1681, liv. 2, 1. 1, art. to above, and cited ante, p. 140, note ' 19—4 Pardess. 348. CHAP. IV.J HIS CONTEACTS OF NKCESSITY. 173 and the proprietj'^ of the decision in this point of view, is not once doubted by either Emerigon or Valin.^ The latter writer, in respect of the prohibition to sell the ship in any case, states, in language as general as the article, that the owner, if it should be sold notwithstanding, may take his vessel out of the hands of the purchaser without reimburs- ing him, except in the case of a purchase de honne foi.^ It cannot be that this exception is meant to be co-extensive with ignorance of the French law ; for that view is contradicted by the four decisions cited above from Emerigon, and were there no such decisions to appeal to, it is clear that ignorance of the French law, if admitted as a defence, would in effect have repealed the provision. The only supposition that remains, is that the hona fides of the purchaser is here assumed to have been abused by the master pretending to sell, " en vertu de procuration speciale des proprietaires." A sale effected on alleged private authority, is a transaction of private agency, and quite beside the law of the flag; and being judged of by the ordinary law of agency, Valin concludes the case in favour of a bond fide purchaser.^ If this be the meaning of the excep- tion, the general rule under the Ordinance must have been, that every ship sold to a foreigner otherwise than by alleged private authority, might be recovered back by the owner without reimbursement of the purchase-money. That we have correctly apprehended the meaning of the exception in the Commentary, and also of the article to which it is appended, appears by the corresponding article in the Code de Commerce, and the Commentary upon it, which we now proceed to cite. The article in the Code is : — " Hors le cas d'innavigabilite legalement constatee, le capitaine ne pent, h. peine de nullitd de la vente, vendre le navire sans un pouvoir special des proprietaires."* By this article, the condition of a valid sale of a French ship by the master is I'innavigahilite legalement constatee. Assum- ing that this innavigahilite includes exactly all that is required by the general maritime law as the condition of validity in such a sale, then the Ugalement constatee is an addition thereto by 1 1 Valin, iu loc. 443, 444. ^ So, 2 Emerig. 471. 2 lUd. ■• Co, de Com. art. 239. 174 THE master's authority. [chap. IV. the French law, and the question recurs, whether this be obligator}'' for and against a foreigner in his own country. That it is so, M. Pardessus asserts, without for a moment assuming that it can be doubted. His commentary is: — "Mais cette innavigabilitd doit etre constatee et jugee par le magistrat des lieux, ou en pays etranger par le consul frangais, et son autorisation est requise pour la vaJidite de la vente. Ce magistrat doit prendre les precautions convenables pour n'etre pas surpris. Le capitaine qui le tromperait serait sans doute responsable et passible de dom- mages-interets envers ses commettans ; mais I'acheteur serait a I'abri de toutes recherches, parce que tout ce qui se fait par sidte de I'autorisation qu'a donnee le magistrat competent, quoique trompe, est valable dans I'interet du tiers de bonne foi." 1 He says again : — " L'armateur n'est point tenu aussi des engagemens que les lois interdisent entierement au capitaine, ou qu'elles ne permettent de contracter avec lui qu'apres I'observation de certaines formalites. Ainsi nous avons yu que le capitaine ne pouvait vendre le navire qu'apres en avoir fait juger I'innavigabilite ; celui qui I'acheterait, sans ce prdalable, ne serait pas recevable el exciper de sa bonne foi, lorsqu'on ne se conforme pas aux lois, que personne n'est cense ignorer. Mais si le capitaine a trompe le magistrat pour obtenir les autorisations necessaires, le tiers, contre qui on ne prouvera pas de connivence, sera en regie." ^ Having referred to commentators and to courts, we now adduce the law itself in express terms, exacting of the foreigner in his own country, the very formalities of a contract, as the condition of its validity. The contract in question is bottomry, and the article ^ in the Code de Commerce is this : — " Tout preteur k la grosse, en France, est tenu de faire enregistrer, &c. Et si le contrat est fait k 1' etranger, il est soumis aux forma- lites pr^scrites a 1' article 234." "De sorte," says M. Boulay-Paty, " que les preteurs qui ne representaient pas pieces justificatives n'auraient droit, ni contre les armateurs, ni sur le navire, ou son fret." * " Cette 1 3 Pardees. Droit Com, no. 606. ^ co. de Com. art. 312. 2 Ibid. no. 661. * 1 Boulay-Paty, Droit Marit 291 ; CHAP. IV.J HIS CONTEACTS OF NECESSITY-. 175 obligation," M. Pardessus saj's, " de justifier la necessite de I'emprunt par proces-verbaux et autorisations, nous parait meme de nature k etre imposee a I'etranger qui, dans son pays, ferait un pret a la grosse a un capitaine francais. II doit s'imputer de n'avoir pas pris les informations convenables sur les droits de celui avec qui il traitait, et sur les conditions necessaires pour que son engagement fut obligatoire a I'egard des armateurs." ^ By the law of England, as settled for two hundred years, it From English is a condition of valid bottomry in a foreign country, that it be effected by means of a duly executed instrument in writing. The ignorance of a foreign lender has, accordingly, never been allowed by the Court of Admiralty to cure the invalidity, in this respect, of his claim in the nature of bottomry on an English vessel, notwithstanding it may have been good and valid by the lex loci contractus, and by the general maritime law. It is not the municipal law of this country, which thus exacts The comity of the English formalities of a contract regarding personalty from in regard to a foreigner in his own land. Such a thing is not known ^p3V^y'' among jurists. Contracts regarding personalty, and governed *^^ national law ./ o maritime. by the municipal law, are valid everywhere m point of form, if valid in that respect by the law of the place where they were made.^ That is a principle universally received among the jurists of all nations. Mr. Brodie, however, not observing that he was treating of Mr. BrocUe. a contract governed by the English law maritime, discovers that the English decisions on bottomry are singular anomalies, considered with reference to that comity practised by all civilised nations, who recognise each the municipal law of the other in respect of a personal contract, ut magi's valeat quam pereat ; the learned gentleman's error being, that he supposes this contract to be a question of municipal law.^ Mr. Justice Story, a revered and distinguished jurist, in his Mr. Justice work on the conflict of municipal laws,* had the misfortune to ™^' 2 id. 67; 2 Emerig. 473, note by stitutes of the Lawof Sootland, vol. 2, Boulay-Paty. 955, 956, note ; see it cited at cou- ' 3 Pardess. Droit Com. no. 911. siderable length. Story. Conf. of Lawsi = See Story, Conf. of Laws, no. 260- No. 286 i, note. 261. * Story, Conf. of Laws, No. 286 i. ' See Mr. Brodie's note to Stair's In- 1^76 THE master's authority. [chap. IV. advert to this contract and the English decisions upon it, as pertinent to the subject he was discussing, and consequently finds the same difficulty as Mr. Brodie, in reconciling the English cases with any of the principles applicable to questions of municipal law. As the nearest approach to a solution in point of principle of the alleged anomaly, he says : — " In England it seems that the master's authority to bind the ship or the owner in a foreign port, would be governed by the law of the domicile of the owner." ^ The fact, however, is, that the owner may have his domicile in France, or any other country, not at war with England, and his ship at the same time be legally flying the British flag at her mast-head, not- withstanding. Mr. Brodie, after a very refined argument, and many nice distinctions, despairs of solving the anomaly, unless some principle, which he fears does not exist, can be discovered in the general maritime law, and applied to the reconcilement of the conflicting rights of foreign lenders and English owners. The same anomalies, in this view of the law, exist in every maritime code of any country, ancient or modern. We have referred to some of them, as being the experimenta crucis in establishing the soundness of the principle which is advanced in these pages ; * but in further proof of our theory, and in English Law. confirmation of the practice of the English Admiralty Court ^ for more than two hundred years, till it was changed the other day, if changed it be, we might point to the mere fact of any maritime code ever at all existing, as a law separate and peculiar, expressly framed with a view to commercial traffic ^ Stoiy, Conf . of Laws, No. 286, b. American deoieion was rejected. See Three years later the learned judge, post, y. 119. ' Tiz., in 1844, gave judgment on this ^ See further. Dig. 14. 1, 7; Hans. principle in Pope -u. Nickerson, 3 Ord. 1.591, art. 58 — 2 Pardess. 527 ; Story's E. 465, a decision of which Hans. Ord. 1614, t. 6, art. 3—4 Par- I was not aware at the time of writing dess, 547 ; Wisby Ord. art. 13, 15 1 these paragraphs, nor until I saw it Pardess. 469, 470 ; Laws of Oleron, referred to by the Court of Queen's art. 1 — 1 Pardess. 323. Bench in Lloyd v. Guibert. 3 And of all other Courts of Admi- Perhaps it is singular to find it ralty, see the cases referred to above ; there referred to as if followed by the 2 Emerigon, PrSt i la Grosse, 471- Court, when in fact, if I understand 485. the decision, the principle of the CHAP. IV.j HIS CONTRACTS OP NECESSITY. 177 with foreign nations.^ It is only the force of habit that blinds any one, accustomed to consider the internal traffic of any single community, to the fact that aU external commerce, con- sidered with regard to our separate polities, and the sovereignty of each, is a felicitous anomaly, but still an anomaly, though felicitous. Standing out from all the rest, maritime commerce ever has been regarded as too important, too peculiar, to be left by any nation that cultivates it, destitute anywhere of the pro- tection of the national law, or regulated and furthered by any other than a law framed and adapted for it specificalty. This, we believe, was the principle and the law of English The Eliza maritime commerce. This, we have endeavoured to show, is the principle and law of maritime commerce in every other sea- faring nation still. But in the case of The Eliza Cornish,^ an English ship that was sold by the master to a Portuguese subject in Fayal, under no pressing necessity, the learned judge of the Court of Admiralty (Dr. Lushington), adverting to the difficulties raised by Mr. Justice Story and Mr. Brodie, treated the question as entirely new, and after many observations, applied the general maritime law, as furnishing the rule on contracts intended to bind English property, and made by an English master with a foreign subject in his own country, and thereupon decided against the validity of the sale.^ In point of result, the case would have terminated as it did, if it had been decided by the English maritime law ; for much of our maritime code, being still unwritten, has been supplied from the general law maritime, the principles of the latter, deriving authority in respect of English property, and English rights and liabilties, by their adoption into the former ; but it is the departure of the learned judge from the English maritime ' See the Lois Maritimes ant&ieures not to prevail, says that he would govern an ISifeme si^cle, par M. Pardessus, in his judgment in the case before him by IS vols. the ordinary maritime law ; The Ham- 2 The Eliza Cornish, or Segredo, 1 burgh, 32 L. J. (Ad.) 161. This the Eoc. & Ad. Eep. 36 ; 17 Jur. 738, S. C. Privy Council interpret as meaning the '' The learned judge, afterwards in general maritime ]aw as administered 1863, after stating that he was well in this country, S. C. 33 L. J. (Ad.) aware that much had been said upon 116. I do not presume to know what this subject, and that many questions that means ; but I may refer to the had been discussed whether the law of observations of Sir E. Phillimore in the country of the vessel ought or ought The Patria, L. E. 3 Ad. 461. 178 THE master's authority. [CHAP. IV. law as his rule, which forms the impprtant issue now raised. This is set in the broadest light by the facts of the subseq^uent case of CammellY. Sewell.^ SewelT'^ ^' ^^ *^^* °^^®' ^ Pj^ssian ship, being chartered by an English merchant to bring a cargo of deals from a Russian port, was wrecked on the coast of Norway, where the master sold the cargo, for behalf of all parties concerned, to a Norwegian subject. Governed by the law of the flag, if we are well founded in point of principle, the master's authority, in this case, was derived from the Prussian law, to which the English merchant must be deemed a consenting party from the time he chartered the vessel; and, therefore, the latter is bound by all acts of the former, done in respect of the cargo in strict conformity with the law of his flag. But this same flag being notice equally to the Norwegians of his authority, as an agent of the freighter, they are bound by that knowledge, in view of the law, and the sale is valid or invalid as it comports, or not, with that authority. In Cammell v. Sewell, no evidence was presented to the Court of what the Prussian law is upon the subject. The case was prepared and argued as a question of municipal law perplexed by the conflict of other laws of that nature. In that view also it was decided by the Court of Exchequer Chamber.^ They held that the validity of the sale of the cargo was governed by the law of Norway, where th'e property was, and •the contract was made, expressing their view of the general principle applicable, in the language of Pollock, C. B,, used with reference to the same case in the Court below, th^t-^- ' if personal property is disposed of in a manner binding according to the law of the country where it is, that disposition is binding everywhere." They were of opinion, that the master could not by the law of Norway, under the circumstances of this case, as between him and his owners, or the owners of the cargo, justify the sale ; he was therefore liable to them for the consequences of his acts ; but the innocent buyer had a good title as against ' Cammel v. Sewell, in the Court 29 L. J. (Ex.) 350. below, 3 H. & iT. 617 ; 27 L. J. (Ex.) 2 Cammell v. Sewell, 5 H. & N. 728 ; 447, S, C. ; in error 5 H, & N, 728 ; 29 L. J. (Ex.) 350. CHAP. IV.] HIS CONTRACTS OF NECESSITY. 179 them to the property bond fide purchased hy him from their agent, the master. Such was the state of the authorities in 1864, when the case of Lloyd V. Guihert ^ was brought before the Court of Queen's Bench on demurrer. The facts were these: — The Olivier, a French ship, owned by Frenchmen domiciled in France, and sailed by a Frenchman as master, was chartered at St. Thomas's in the "West Indies by an English merchant and laden with an Enghsh cargo, which she was to bring to Liverpool. In the course of her voyage the ship was driven by stress of weather, much damaged, into Fayal, a Portuguese possession, and there the master, on bottomry of the ship, freight, and cargo, refitted and took in stores. The proceeds of the ship and freight, when the vessel arrived in England, were insufficient to satisfy the bonds, so that the residue, a large sum, fell upon the cargo. The owners of the cargo sued the owners of the ship for this residue to be reimbm'sed the sum paid by them on the bonds, as by the Enghsh law, under the circum- stances, they would have been entitled tb be. The defendants pleaded the facts thus far stated, alleged that they had aban- doned the ship and freight to the bondholder, and that they were thereby discharged by the French law from all further liabihty. This plea being demurred to, all the statements of fact and law were thereby admitted, and the question for the Court was, what law was t6 govern the rights of the parties. The Court held that the case was governed by the law of France, the law of the ship's flag, and gave judgment for the defendants. Blackburn, J., dehvering the judgment of the , Court, says : — " We think that the power of the master to bind his owners personally is but a branch of the general law of agency. And it seems clear that, if a principal gives a mandate to an agent containing a condition that aU contracts, which the agent makes on behalf of his principal, shall be subject to a defeasance, those, who contract through that agent, with notice of that mandate containing such a limit on his authority, cannot hold the principal bound absolutely. And, we think, as far as regards the implied authority of the master of a ship to bind his owners personally, the flag of the ship is > Lloyd V. Guibert, 33 L. J. (Q. B.) 241, on appeal L, R. 1 Q. B. 115. N 2 180 THE master's authority. [CHAP. IV. notice to all the world that the master's authority is that conferred by the law of that flag, — that his mandate is con- tained in the law of that country with which those who deal with him must make themselves acquainted at their peril." This language of the Court is very full and precise. Their reference to Pope v. Nickerson,^ and the principle laid down by Story, J., in that case, is unfortunate. For Story, J. expressly decides that the law which governs the implied authority of the master is the law of the country of the owner's domicile. This same principle had been deliberately laid down by him three years before that decision, namely, in the second edition of his " Conflict of Laws," published in 1841, as the general rule for such a case. As it happened, both in Pope v. Nickerson, and in Lloyd v. Guibert, the domicile of the owners was in the country of the flag. But if the country of the domicile were different from the country of the flag, as by British law I believe it may be, the American ratio decidendi, applied to such a case, would, in most instances, operate the grossest injustice ; for the flag would be no notice to the foreign resident of the law which defined the authority of the master with whom he was dealing ; and in all probability he would only learn what it was when too late to protect his interests.^ I think, however, it may be concluded that the English Court did not intend to be bound by the principle of the decision which they yet refer to, seemingly, with approval. For, after this reference to the American authority, they say,^ — " Eeason and convenience are certainly in favour of holding that the authority of the master to bind his owners should be fixed and miiform according to the law of his flag, which is known to both, rather than that it should vary according to the law of the port in which the ship may happen for the time to be." 10 THE OWHEES. master's duty It is the duty of the master of a ship, as the agent of the owners, to devote his full time and attention to advancing their ' 3 Story's (U.S.) K. 465. domicile by the ownev (and if there 2 Anything more inconvenient, or be a plurality of owners, then, by which rather impossible, than a law to govern and how many of them ?), cannot be the master's contracts in foreign ports put. that shall change with every change of ^ 33 jj j^ (•q_ g ) 248. CHAP. IV.J THE master's DUTY AND RIGHTS. 181 interests; and the law allows of no custom, practice, or contract, which would give him an interest against his duty. Where, therefore, profits resulted in consequence of a stipulation in a charter-party in favour of the master that he should have so much a ton for personal exertions ; ^ — or considerable sums appeared in the accounts as acquired by the master in private trading ;'^ — or a premium was claimed as due to the master owing to the state of the exchanges on a bill drawn by him on the owners ; ^ — it was held that such claims were contrary to sound poHcy both in law and equitj', and that no custom or usage alleged in their favour could be maintained consistently with principle, or in any case successfully, without danger to the interests of society.* But the "primage accustomed," at one time invariably inserted in charter-parties and bills of lading, is an exception, and in the absence of any express stipulation to the contrary between the master and his owners,^ he is entitled to this gratuity as against them, and may recover the amount from them if they have received it.^ His wages and his disbursements as master will fall to be ms rights discussed in the course of the following chapter.''' Beyond the ordinary expenses of a master which gave him no lien formerly, either equitable or maritime, though now by statute, it is other- wise,® an expenditure made or liability incurred for the purpose of earning freight might even then be of so unusual a nature as to confer on him, in the capacity of an agent, an equitable lien on the freight earned which might give Mm a preference over a mortgagee in possession and over his owner's creditors in bankruptcy.^ ' Thompson v. Havelook, 1 Camp. complain. 526. 5 Caughcy v. Gordon & Co., 3 C. P. 2 Gardner v. McCutcheon, 4 Beav. Div. 419. 534 ; ShaUcross v. Oldham, 2 J. & H. « Best v. Saunders, M. & M. 208 ; 609. Charleton v. Cotesworth, R. & M. 175 ; 3 Diplock V. Blackburn, 3 Camp. 43. Scott v. Miller, 3 Bing. N. C. 811. ■■ See the observations of Lord Ellen- '! Post, c. r. borough, in Thompson v. Havelock, ^ 24 Vict. c. 10, § 10. and in Diplock v. Blackburn, supra. " Bristow v. Whitmore, 31 L. J. The Law of the Hanse Towns (1614), (Ch.) 467; 9 Ho. of Lords C. 391 ; t. 8, art. 4, forbids the master to en- The Feronia, L. E. 2 Ad. 65. Seeposf, gage in mercantile transactions, under c. v. pain of being punished if the owners 182 THE ship's husband. [chap. IV. The Ship's The ship's husband'^ is a confidential agent appointed by the owners to conduct and manage on shore whatever concerns the HIS FUNCTIONS. employment of the ship, and for that purpose has authority to give orders for the necessary repair, refitting, and outfit, of the ship, to see that she is properly manned, to procure a charter or freight for the vessel, and fix and accept the con- ditions of either^ (but not to cancel such engagement^), to correspond with the master when abroad on the business of the ship, and to do what is needful for facilitating the prose- cution of the voyage, to provide for the entry and clearance of the ship at her home port, to adjust and receive the freight, pay the necessary disbursements, and to account for and dis- tribute the proceeds among the owners. It frequently happens that his appointment is by an instru- ment in writing, under the hand of the owners; and these general powers may be' enlarged or limited by the terms of that instrument;* but it is well known to those who are con- versant with the subject, that very many of the duties which necessarily fall to be performed by his own hand at a small port, are performed for him at such ports as London and Liverpool by a variety of agents, shipbrokers, brokers, average adjusters, and others, who undertake for commission - one description of duty and do nothing else. If the ship's husband, probably with a view to increasing his income, undertake the performance of additional duties, such as collecting the freight, although this may not be incompatible with his own proper duty, yet any commission that would have been charged by another agent will not be allowed him by a court of equity without inquiry into what is the custom of shipowners on this point at the port in question.^ Certainly, 1 3 Kent's Comm. 157 ; Stoiy, 9 Hai-e, 369. Agency, no. 35 ; BeaweSj Lex Merc. ^ Smith v. Lay, 3 Kay & J. 105. It 52 ; 1 Bell's Comm. 406 ; Bell's Pr. of is now a fixed rule of tlie Court, not to the Law of Scotland, art, H'J. allow to the mortgagee, who performs 2 Walton V. Fothergill, 7 C. & P. the duties of receiver, the commission 392. that would have been allowed for the 3 Thomas u. Lewis, 4 Bxoh. IS. performance of these duties by another, ■* Preston v. Tamplin, 2 H. & N. Ibid.; or the costs of a solicitor, other 363 ; (in errol) 2 id. 684 ; Card v. than costs out of pocket, to a trustee Hope, 2 B. & 0. 661 ; Darby v. Baines, who also acts in the matter of the trust CHAP. IV.l THE ship's HUSBAND. 183 if necessary supplies are furnished by him to the ship of which he is a part-owner, although in the way of his ordinary busi- ness of a ship-chandler, he will not be allowed more than cost price for the articles supplied.^ This agent is most frequently himself a part-owner, and not his appoint- MENT seldom holds the chief interest in the ship ; but if the vessel belongs to a company, although he may well be a shareholder, he cannot be a director and ship's husband too, the service and duty of the one being incompatible with the trust to superintend incompatible . . . Offices. the company s interests reposed in the other ; and any service, therefore, which he renders to the company, will be viewed in a court of equity as being rendered by him in his character of director, and all commission and agency for such service, other than his salary as a director, disallowed him.^ If his appointment and continuance as ship's husband has Invalid Appoint- ment, proceeded upon a corrupt consideration which is inconsistent with the interests of the owners, the deed or contract is illegal and void. Where two were owners of nine-sixteenths of a ship, being at the same time joint managing owners, and agreed to sell five-sixteenths, covenanting with the vendee to have him appointed to the command of the ship in consideration of the vendors themselves being continued the managing owners at a stipulated commission, with power to appoint all the other officers of the ship, and to select the tradesmen and artificers to execute repairs and furnish the outfit of the vessel, and this without the concurrence of the other owners, the deed was held to be illegal, as being contrary to the policy of this country, and opposed to the interests both of the owners and the charterers of the vessel.^ He is the person to receive advances of money from the his authoehy different part-owners in their respective proportions to meet the expense of the intended voyage ; or if he lay out his own money, or make himself liable for the necessary charges of the ship before starting, he may before the voyage is ended sue the in his professional capacity, Broughton ' Benson v. Heathorn, 1 Y. &. C. V. Broughton, 24 L. J. (Ch.) 190. 326, 341. 1 Eitchie v. Cowper, 28BeaTaB, 34i. ^ Carcl v. Hope, 2 B. & C. 661. 184 THE SHIP S HUSBAND. [chap. IV. To make Pay- ments and lake Freights. To render Account. owners severally for their proportionate shares.^ His is the hand into which the gross freight at the end of the voyage is collected, and by which the expenditure of the vessel is cleared off; he is entitled to deduct the expense from the earnings of the ship for the same voyage or adventure before he distribute the nett profits to the owners;^ and even then, if a new adventure is determined on, he may apply such nett profits to the necessary repair and outfit of the ship for the proposed adventure.^ But he has no power in law, although himself a part-owner, as against his co-owners, to assign the entire freight by way of security for money advanced to him.* For money owing to him as ship's husband he may retain the amount out of the first freight received by him ; but if he is displaced from his ofi6.ce before such receipt of freight, there is then no right in his assignee of the freight, to receive it or so much of it as otherwise the ship's husband might have retained ; nor is there any such right in his assignee to receive the assignor's propor- tion of the nett freight, assuming him to be a part-owner, in case his shares have been mortgaged and the mortgagee has joined with the other owners in displacing him as ship's hus- band, for this amounts to taking possession by the mortgagee so as to entitle him to the freight.^ It is his first duty, after a reasonable time is allowed him, to state his accounts of each voyage or adventure, and be con- stantly ready with them for the inspection of the owners ; and ' Helme v. Smith, 7 Bing. 709 ; Green v. Briggs, 6 Hare, 395 ; Conso- lato, c. 184—2 Pardess. 223. 2 Holderness v. Shackels, 8 B. & C. G12 ; Lindsay v. Gibbs, 2 Jur. N. S. 1039 ; i' id. 779 ; Green v. Briggs, 6 Hare, 395, 405. Sir Jas. Wigram, V. C. , referring to the argument at the bar, that it was only in cases where the ship's husband had the freight in hand, that he was allowed to deduct the expenses, said, " It will be re- membered how frequently Lord Eldon referred to his local knowledge of coal mine cases. It happened to me early in life to spend a great deal of my time with persons who had to deal with these shipping subjects, and I am convinced that no managing owner of a ship at that day would have thought it open to argument that freight was not to pass through his hands, and bear all the expenses of earning the freight." The learned Vioe-Chancellor ruled ac- cordingly in the case then before him ; Green i: Briggs, supra. ^ Davis -u. Johnston, 4 Sim. 539 ; Green i>. Briggs, svpra. * Pel' Lord Justice Turner, Guion'W. Trask, 29 L. J. (Ch.) 337, 340 ; Beynon ■V. Godden, 3 Exch. Div. 263. * Beynon v. Godden, supra. CHAP. IV.] THE ship's HUSBAND. 185 if they are driven by his refusal or delay to seek an account in a court of equity, he wiU be visited with the costs, and with interest on any balance of money retained in his hands, for this neglect of his duty.^ Proceedings against him for an account may be taken in the Chancery or the Admiralty Division of the High Court,^ unless under the peculiar terms of an agree- ment such as existed in Oivston v. Ogle,^ for then an action hes at common law ; as it would do in any case for not accounting.''' The ship's husband is the accredited agent of the owners, Owners' liability -.1 ■> T T Ti . / 1 .1 • 1 1 !/■ on his Contracts. and they are bound by all contracts made on their behali, or acts done within the scope of his authority for the purposes of the ship, in connection with her employment ; ' provided, in respect of his contracts, that they be proper and necessary for the ship at the time ; •■ but repairs, it seems, are not improper, if necessary to make the ship sea- worthy and fit for the voyage, merely because they are too substantial to be exhausted by the intended voyage.''' And it has been held that he may pledge the owners' credit for bail to release the ship when under arrest in the Admiralty, in order to enable her to prosecute her voj'age and earn freight.^ He has no implied authority, however, to bind them by a contract for the lengthening of the ship, for instance,^ or a contract of insurance on the ship ; ^° for he is the agent of the part-owners, not as proprietors, in which respect they are divided and several, but as joint adventurers in her employ- ment, and partners in the traffic for profit or loss. The owners are not discharged from the claims of a creditor Not discharged therefrom, when. by his taking the acceptance of the ship s husband, and renew- ing it after dishonour, if it is ultimately left unpaid, unless 1 Pearse v. Green, 1 J. & W. 135, Briggs, 6 Hare, 395 ; Lewis v. The 139 ; The Native Pearl, 37 L. T. N. S. East India Co., Peake, 241 ; Thompson 642. ^- Finden, 4 C. & P. 158 ; Lindsay v. 2 jMd. Gibhs, 4 Jur. N. S. 779. 3 Owston V. Ogle, 13 East, 538. ^ Green v. Briggs, 6 Hare, 395. * Topham v. Braddiok, 1 Taunt. * Barker v. Highley, 15 C. B. N. S. 572. 27 ; 32 L. J. (C. P.) 270. 5 Coulthurst V. Sweet, L. E. 1 C. P. ' ChappeU v. Bray, 30 L. J. (Ex.) 649. 24. ^ Whitwell V. Perrin, 4 C. B. N. S. " French «. Backhouse, 5 Burr. 2727; 412 ; Preston v. Tamplin, 2 H. & N. Lindsay v. Gibbs, 4 Jur. N. S. 779. 363 ; (in error) 2 id. 684 ; Green v. 186 THE MANAGING OWNER. [chap, rv. No privity between the OwDeie and his Banker. the creditor preferred the bill when he might have had money, or the owners have been induced by the creditor's act to change their position for the worse, with regard to their agent.^ The owners cannot reach the earnings of the ship, if in the hands of the banker or other agent of the ship's husband, although a separate account of them is headed with the name of the ship ; there being no privity of contract with the owners, and the banker being accountable only to his customer, or the customer's assignees if bankrupt, or his executors if dead.^ The MANAMNa OWNEK. Ship's husband, and managing owner, were interchangeable terms, when the functionary designated was an owner, with complete identity in the legal attributes attaching to the office. Unusual prominence has been given to the latter of these designations in the Merchant Shipping Act, 1876. That Act requires, under penalties in respect of any British ship regis- tered within the United Kingdom, the registration of the name and address of the managing owner of such ship, if there be one, at the customhouse of the ship's port of registry,^ Special duties and liabilities are imposed on this functionary expressly by name ; " and no doubt for the general purposes of the Act, such registration will serve and facilitate the administrative execution of this statute, and consequently will entail upon the managing owner duties hitherto not required of him, at the hand of the public authorities. The statute does not appear to create a new office under this old and familiar designation ; for it expressly provides if there be no managing owner, but a ship's husband, that then the ship's husband shall be registered, or " other person to whom the management is entrusted by or on behalf of the owner, to be under the same obligations and subject to the same liabilities as if he were managing owner." "^ The person in the manage- ment of the vessel seems indispensable for the purpSSes of - lEobinsin?). Bead, 9 B. & C. ii9, overruling Eeed-u. White, 5 Bsp. 122, in so far as they are irrecoiicilable (see per Parke, J., 9 B. & C. 455) ;■ WyalJtV.-MEtrctufs of Hertford,' 3 USst, 147 ; •Smitfb i-.Fen'aiid,'7-B;-&.C.'l9; Strong V. Hart, 6 B. & 0, 160 ; Whit- vi'ell V. Perrin, 4 C. B. N. S. 412. ■ Sims V. Brittain, 4 B. & Ad. 375 ; exjmrte Gribble, 3 D. STCh.-SSQ. 3 39 & 40 Vict. c. 80, § 36. ■" IM(l. §§22,85. ' 'If ■ -s Hid. § 36. - . . . ,; CHAP. IV.J THE SHIPBROICEE. 187 that statute ; but if such manager be also an owner, such a combination of function and interest in the one person is especially desirable for the executive administration of a statute affecting the property and employment of the ship, and the profits of the owners, with a direct view to the safety of human life. There seems, therefore, merely to be a statu- tory addition of duties and liabilities to the legal attributes already attaching to the same functionary. No doubt, it is in the power of the owners to create a difference, by, for instance, appointing both a managing owner and a ship's husband ; and in the absence of specific terms in writing defining the authority of each, it will then become a question whether by this double appointment they intended to do more by appointing a managing owner than to create an officer whose functions and authority would be strictly limited within the provisions and to the purposes of the statute. Thus much may serve, in reference to this statutory novelty, the purposes of this chapter, restricted as it is to the rights and liabilities of owners, considered as traders, and the func- tions, authority and rights of their agents in that relation. The shipbroker is an agent, or middleman, between the The Ship- mercantile and shipping communities, for the purpose of procuring freights, and of negotiating the sale and purchase of ships. But he is not within the statutes which relate to the admission of the London sworn brokers.^ Writing is unnecessary to his appointment," and perhaps never Appointment. is used. A- captain in want of a freight, and the merchant in want of a ship, mention their respective wants to several of these brokers, and, it may be, leave with each a written memo- randum of the terms offered or requu'ed ; there is as yet no binding engagement between them ; but there is here an authority to act, if he will, in a matter which, if it eventuate by his means in a contract, will entitle him to be remunerated 1 Gibbons v. Rule, 4 Bing. 301. cipal, although he was employed at - Cole V. Ti-ecothick, 9 Ves. 250. first by another broker at a different For what amounts to a subsequent port, see Smith v. Boutoher, 1 C. & K. adoption of his services so as to give 573, 576. him a right of action against the prin- 188 THE SHIPBEOKEK. [CHAP. IV. for his services.^ To inquire therefore, to propose, to bring the parties together for the purposes of negotiation, and to assist them in concluding and drawing up the contract, are the duties of such an agent, if he would earn his commission. His authority, unless it be express to that effect, never empowers him to conclude a contract without further reference to the principal, who, on the contrary, usually reserves an option, and may even refuse to confirm his own terms, after they have been accepted by the other side.^ EnoKEBAGE. TITLE TO Two circumstances are indispensable to his title to brokerage; the negotiations must have terminated in a con- tract, and must have been originated effectually by himself. The rule in both respects is consonant with the well-established custom of London, and has been frequently recognised in the superior courts on claims for brokerage. A broker, authorised to sell a ship, is not entitled to brokerage, if she is put up and bought in again ; ^ or to procm-e a freight, if the bargain goes off, and no contract is perfected,* although that may be owing to the refusal of the principal to confirm his own terms ;^ the broker is not even, entitled to recover expenses under these circumstances ; ^ much less can he claim anything, if the bargain has gone off through his own fault, or he has done the work so unskilfully or negligently that no benefit has accrued therefrom to the principal.''' But the negotiations may have ended in a contract, and still the broker be barred of his right to brokerage, if he was not the person to open the way to that termination. If he was the means to the end, then the principals cannot by withdraw- ing the subsequent negotiations from his interference, or even by employing another broker to draw up the contract, 1 Wilkinson v. Martin, 8 C. & P. 1 ; 7 Bing. 99, S. C. ; Dalton v. Ii-vin, i Burnett v. Bonch, 9 G. & P. 620. C. & P. 289. 2 Broad v. Thomas, 4 C. & P. 338 ; ' Broad v. Thomas, 4 C. & P. 338. 7 Bing. 99. ' Dalton v. Iryin, 4 C. & P. 289. 3 Mestaer v. Atkins, 1 Marsh, 76 ; it ' Dalton v. Irvin, 4 C. & P. 289 ; is very unsatisfactorily reported in 5 Money penny v. Hartland, 1 0. & P. Taunt. 381. 352 ; Hamond v. Holiday, 1 C. & P. 1 Read v. Eann, 10 B. & C. 438 ; 384. Broad v. Thomas, 4 C. & P. 338 ; CHAP. IV.] HIS TITLE TO BROKERAGE. 189 deprive him of his just reward ;i hut if the parties themselves, before he interfered at all, were already together on the subject, the peculiar service which is expected of this class of agent is become superfluous, and his title to reward never arises. A- more delicate question is raised by the claims of rival Rival claimants. brokers to be entitled to the same commission. It then becomes necessary to determine the point up to which the broker's functions of middleman must have fostered the casual meet- ings and allusions between himself and either side, into the incipient negotiation w^hich eventuated at length in a perfect contract, before he can safely leave his labour, and not lose his reward. On both points the rule has been laid down by the chief authorities in the law, after much evidence of the custom of London. In an action for brokerage on the sale of a ship, which was resisted on the ground that the sale had been effected between the principals without any material assistance from the plain- tiffs, Tindal, C. J., said : — " Undoubtedly a dry introduction of one man to another will not be enough ; it would be absurd to say that it can be the subject of such a claim as this. But if the introduction is the foundation on which the negotiation proceeds, and without which it would not have proceeded, then, the parties cannot by their agreement deprive the brokers of their just remuneration. If the plaintiffs were the middlemen or agents up to a certain time, the parties cannot afterwards deprive them of their rights." ^ Where a claim for brokerage, on procuring a charter for the Usage. defendant's ship, was resisted, on the ground that the freight was obtained through means of another broker, and it appeared that the plaintiff had introduced the principals to each other, and that the negotiation between them was still pending, when the other broker elsewhere interposed, and without naming either party to the other, or the ship to the merchant, brought them to terms, and concluded the contract ; Lord Abinger, C.B., said: — " The usage, as stated by the plaintiff's witnesses, is this : when a broker has introduced the captain and merchant ' Green v. Bartlett, 32 L. J. (C. P.) 5 ; Ciinard v. Van Oppen, 1 F. & F. 261. 71fi. 2 Wilkinson v. Martin, 8 C. & P. 1, 190 THE SHIPBEOKEE, [CHAP. IV. together, and they by his means enter into some negotiation as to the voyage, he is entitled to commission if a charter-party be effected between them for that voyage, even though they may employ another broker to prepare the charter-party or may write the charter-party themselves." But the usage goes further. "If a broker, authorised by both parties, and acting as the agent of each, communicate to the merchant what the ship-owner charges, and to the ship- owner what the merchant will give, and he name the ship and the parties, so as to identify the transaction, and the charter- party be ultimately effected for that voyage, this broker is entitled to the commission ; but if he does not mention names, so as to identify the transaction, he does not get his coromission to the exclusion of another broker, who afterwards introduces the parties personally to each other." The plaintiff in that case recovered a verdict.'^ But where the plaintiff, a broker, introduced the ship-owner to another broker, with a view to the ship being chartered by a particular firm, and that negotiation went off, but the second broker mentioning to another firm that such vessels were in the market, this eventuated in their being chartered by that firm, without, however, any interposition on the part of the plaintiff; there it was held that the plaintiff's services were too remote.^ It seems that there is a custom to divide commissions with the introducing broker ; but the full effect of the custom has not been ascertained.^ Stipulations in Stipulations respecting agency and commission are frequently inserted in charter-parties, the legal effect of which sometimes, through the ambiguity of the language used, or sometimes, through the variety of usage at different ports alleged or found, is not very easily determined, or when determined reducible to any one general rule. For instance, the stipulation, " The vessel to be consigned to E. & Co., merchants at Calcutta,, on the usual and customary terms," was interpreted by a usage ' Burnett •;;. Bouch, 9 C. & P. 620, titled to recover was excluded on the 624. See Phillips v. Briard, 1 H. & N. ground that such a custom was unrea,- 21 . sonable. Ibid. See Allan v. Sundius, ' Gibson v. Crick, 31 L. J. (Ex.) 34 ; 31 L. J. (Ex. ) 307. 1 H. & C. 142. Evidence of a custom ' See the cases in preceding note, that the plaintifE in this case was en- CHAP. IV,] HIS TITLE TO BEOKERAGE. 191 that the consiguees might procure the homeward freight at 5 per cent, commission, and held binding on the shipowner, notwithstanding he had procured a homeward freight without the intervention of E. & Co., and this commission was recovered by E. & Co. from him.^ In another charter-party outwards, the stipulation, " The ship to be consigned to charterers' agents in China free of commission on this charter," was held to exclude a usage entitling such consignees to procure a cargo for the ship homeward and to charge the usual commission on the freight, or to charge such commission on any freight pro- cured without default in them by the shipowner.^ In the case of a charter-party ^ from this country to San Francisco, " where the ship shall be consigned to the charterers' agents, inwards and outwards, paying the usual commissions, and on her return to her port of discharge in the United Kingdom, shall be reported by E. & Co. ; " it was held that this clause did not bind the shipowner to accept a home- ward cargo for the United Kingdom from San Francisco, but only in case he had determined on taking a return cargo on board there, to employ them to procure and ship it. BramweU, B., added, "I take the meaning to be this: Whatever would have to be done by a ship's broker if a cargo had been taken on board outwards at San Francisco the plaintiffs' agents were to do ; or if the ship should sail in baUast — as in fact she did — ■ any services required in connection with her so saiHng were to be performed by those agents." Action bj' charterer on a charter-party from Bordeaux to London, "the ship to be addressed to the charterer's broker on ship's arrival in London : " breach, that the shipowner, the defendant, did not so address the ship. The charterer's broker had claimed to collect the freight. A similar claim was made and enforced by the shipowner's broker, who put a stop on the cargo, whence arose a claim for demurrage. Under the direction of Erie, C. J., a special jury found that the charterer's broker was entitled to collect the freight, that consequently the ^ EobertBon v. Wait, 22 L. J. (Ex.) admissibility of evidence of custom 209. when there is a written contract, Al- 2 PhiUips V. Briard, 25 L. J. (Ex.) Ian v. Sundius, .31 L. J. (Ex.) 307. 233 : 1 H. & N. 21. See, as to the ^ Cross v. Pagliano, L. R. 6 Ex. 9. 192 THE SHIPBEOKEE. [CHAP. IV. delay was due to tlie shipowner himself, and therefore verdict for the plaintiff for the full amount claimed.^ Under a charter- party from Liverpool to Singapore, thence to Akyab or Bassein to load a cargo of rice for London or Liverpool, " the ship to be addressed to A. B. & Co. [charterers' brokers] should she return to Liverpool, or to their agents if to any other port of discharge ; " the vessel loaded accordingly, and discharged at London, being there put into other hands than those of A. B. & Co.'s agents. Action by the charterers against the shipowner for this breach, claiming on behalf of A. B. & Co. the reporting fee and 2| per cent, commission on the freight inwards. Much evidence was given on both sides as to the usage and the amount of commission ; but a special jury found that there was no usage entitling A. B. & Co. under the circumstances to commission on the freight, yet that by usage they were entitled to a fee as if they had reported the ship.^ TION, HIS EEMTJNERA- The amouut of the brokerage, in the absence of special agreement, seems to be 1 per cent, on the purchase-money in case of sales ; ^ 5 per cent, on the gross freight for procuring a charter outwards or homewards,* or both ; ^ and from 2 to 2|- per cent, on Government transport or emigrant charter- parties, whether for a definite or indefinite time, or only for a particular voyage.^ The broker is entitled to be paid as soon as he has done his work, without waiting till the value of the homeward freight, if contingent, is determined by the event.'^ ' Besides a claim for excess of freight ■• Brown v. Nairne, 9 C. & P. 201 ; received by the shipowner, the items Cohen v. Paget, i Campb. 96 ; Roberts • recovered were : — Reporting ship ex i). Jackson, 2 Stark. 225. Bordeaux, 11. Is. ; payment of ton- ^ Roberts v. Jackson, 2 Stark. 225 ; nage rates, II. Is. ; petty expenses in Hill v. Kitching, 3 C. B. 299. liea of interest, 5s. ; commission on ^ Ho!l v. Pinsent, 6 Moore, 228. freight at IJ per cent., 11. is. id. ; Upon information of good authority, I Bradley v. Goddard, tried at Guildhall, have it that the rates named in the text 1863. are at this day still the regular ruling There was annexed to the stipulation rates at the port of London ; but I am in question the phrase /»rf of commis- also aware that, by special agreement, .Hon, but no notice was taken of it by the business, in particular oases, is done counsel or judge. — MS. at a lower commission. " Meibuhr v. Prichard, Liverpool ? Hill ii. Kitching, 3 C. B. 299 ; Spring Assizes, 1867. — MS. overruling Winter r. Mair, 3 Taunt. 3 "Wilkinson ii. Martin, 8 C. & P. 1. B30. CHAP. IV.] HIS TITLE TO BROKERAGE. 193 "For," says Maule, J., "if the broker's right to commission were to depend upon the arrival of the vessel and the quantity of the cargo, he would be pro tanto an insurer, not only against the perils of the sea, but also against the chance of cargo not being put on board. ■ This shows that the argument which would make the payment of freight contingent, has no founda- tion in reason or convenience." ^ In that case the question of amount was left to the jury upon evidence of what was customary in similar cases, and the course thus pursued at Nisi prius was approved of by the Court in banc. The insurance broker, sometimes called a policj'' broker, is The iNstiEANOE an agent or middleman between the assured and the under- ° ... . FDNOTIONS. writer to eifect policies of insurance on ships, freight and cargo, or any of them, ^ and is usually entrusted to manage the adjust- ment and settling of losses where they occur, and to obtain the return of premiums when the occasion arises.'^ By the acceptance of his retainer, and what amounts to that ^^''^'^ ^^" skill. will be a question of fact for the jury,* he is bound to do his duty within a reasonable time ; ^ faithfully communicating all such material information as he is possessed of, and the under- writer ought to know ; ^ and to use reasonable skill in the Reasonable skill . . . and diligence. discharge of his duty, so as to insert only such terms in the policy as the nature of his instructions or of the particular case may require,'' and at the same time all such terms as are usually inserted in policies of the same kind, or upon similar adventures.^ Negligence, or want of reasonable skill, or of due diligence on his part, will be a ground of action against him ' Per Maule, J., Hill v. Kitching, 3 * See Bell v. Jutting, 1 J. B. Moore, C. B. 299, 306. 155. 2 He may deal in liEe policies also ; ^ Turpin v. Bilton, 5 M. & G. 455 ; but that is a subject beyond the limits Callander v. Olericks, 6 Bing, N. C. of this treatise. A new kind of risk 58. has been insured of late years, viz. : ^ Maydew v. Forrester, 5 Taunt. 615 ; the life of passengers by sea during the Seller v. Work, 1 Marsh, Ins. 305. voyage only. ' Park v. Hammond, 4 Camp. 344 ; ^ See the subject very fully treated, 6 Taunt. 495, S. C. 1 Amould on Insurance, 5th ed. 157- ' Chapman v. "Walton, 10 Bing. 57. 227 ■'•^^ THE INSURANCE BEOKEE. [CHAP. IV. by his principal, who may recover damages for any loss directly accruing in consequence.^ If, therefore, the broker apply for a policy to an incorporated company, it his duty to obtain a policy under seal without unreasonable delay, otherwise he will be answerable if a loss occur in the meantime ; ^ and so he will be, if, upon failure to effect a policy on the terms contained in his instructions, he do not use due diligence in communicating this failure to his principal.^ He is also bound to know what is unquestionably material to be communicated to the underwriter, and is liable to his principal if the policy is avoided through such information not having been communicated and a loss occurs.* It is also within the knowledge expected of him, that a policy on goods with the clause, " beginning the adventure from the loading thereof on board," and without more, attaches only on goods loaded at the port which is the terminus a quo of the voyage insured, and therefore where directed by a person at Malaga, to "insure goods shipped on board The Pearl from Gibraltar to Dublin," who added, that " he would take the risk on himself from Malaga to Gibraltar Bay; " it is gross negligence in the broker to effect a policy in such a case and leave this clause unaltered.^ It is also required of his skill, in effecting or altering policies, that he should procure the insertion of all such risks and privileges as are usual in cases of the same kind ; ^ and, therefore, in a policy at and from Tenerifife to London, as there is usually liberty to touch and stay at all or ' Wilkinson v. Coverdale, 1 Esp. 75 ; 46, 51 ; Robertson v. French, 4 East, Wallace 1). Tellf air, cited iiiiZ. An un- 130, 140, 142; Spitta ■«. Woodman, 2 skilled person who volunteers to effect Taunt. 416, a policy and proceeds about it, is liable ^ But whether the evidence of other for gross negligence ; a skilled person brokers and underwriters be admissible is bound to use reasonable skill in that to show what, in their judgment, he about which he proceeds, although he ought to have done in the particular is a volunteer, ibid. case, is doubtful ; the Court of Queen's 2 Turpin v. Bilton, 5 M. & G. 455. Bench having rejected such evidence 3 Callander v. Olericks, 5 Bing. N. C. Campbell v. Eickards, 5 B. & Ad. 840 58. Carter v. Boehm, 3 Burr. 905, 913, 914 ■" MaydewD.Eorrester,5Tauut.615; DurreU d. Bederley, Holt, N. P. 283 Seller v. Work, 1 Marsh, Ins. 305. and the Court of Common Pleas having " Park'!). Hammond, 4 Camp. 344. admitted it. Chapman v. Walton, 10 Bee Horneyer v. Lushlngton, 15 East, Bing. 57. CHAP. IV.] IN RELATION TO PAYMENTS. 195 any of the Canary Islands, the omission of this, through the negligence or unskilfulness of the broker, will render him liable.i With regard to payments due in respect of the policy from payments by the assured and from the underwriter, the course of trade, as observed in London, and most of the large ports of this country, has placed the broker in a position that somewhat complicates his relation to each, and the rule of law with regard to that relation. " According to the ordinary course of trade," says Mr. Justice Bayley,^ "between the assured, the broker, and the under- writer, the assured do not in the first instance pay the premium to the broker, nor does the latter pay it to the underwriter. But, as between the assured and the underwriter, the premiums are considered as paid. The underwriter, to whom in most instances the assured are unknown, looks to the broker for pay- ment, and he to the assured. The latter pay the premiums to the broker only, and he is a middleman between the assured and the underwriter. But he is not solely agent ; he is a principal to receive the money from the assured and to pay it to the underwriters." Hence the general rule of law is, that the broker is the His relation m ° ' _ Law. debtor of the underwriter for premiums, and the underwriter the debtor of the assured for losses.^ The broker, therefore, as a general rule, may, whether he has previously paid the underwriter or not, recover for the premiums against the assured ; * and it is no defence that the policy was to be effected under such names as should be approved of by the assured, and the names were never sub- mitted for approval, if the defendant has meanwhile lain by till the voyage came to a prosperous termination.^ 1 Mallough V. Barber, i Camp. 150. Power, 6 M. & S. 282, 287 ; Shee v. •2 Power V. Butcher, 10 B. & C. 329, Clai-kson, 12 East, 507, 511 ;' Fisher 339. See the general course of busi- v. Smith, 4 App. Gas. 1. ness stated very fully per Blackburn, * Power v. Butcher, 10 B. & C. 329 ; J., in Xenos v. Wickham, 33 L. J, (C. but a count for money paid did not P.) 13, 16. lie, nntil payment was made by the 3 1 Amould, Ins. 192 ; Power v. broker, ibid. Butcher, 10 B. & 0. 329 ; Jenkins v. ^ Dixon v. Hovill, 4 Bing. 665. 2 196 THE IXSUEANCE BROKER. [chap. IV. When Policy is left in Ms hand. Effect of passing Sams in Ac- count. Contingent Pre- mium, when recoverable. It is usual for the assured to leave the policy in the hands of the broker, who is thereby impliedly authorised to adjust the policy in case of loss, and bound to use all diligence to collect and pay over the sums due in respect of it.'^ When the policy has been adjusted, payment, according to usage in the business, is due from the underwriter in a month after ; but instead of payment being made in cash, the more usual course in London and other large ports, is for the underwriter and the broker, at the expiration of the month, to pass the amount severally to the account of each, and to strike the name of the underwriter out of the policy and indorsement.^ As for the broker, he is in that case liable to the assured for the amount of the loss, which may be recovered as money had and received for his use,^ unless his subsequent dealing with the broker was such as to show that he had waived his right.* The liability of the underwriter to the assured for the loss continues, notwithstanding the amount is passed in account with the broker,^ unless the assured is cognisant of the usage, and so acts as to be an assenting party to this mode of settle- ment.® As the amount of premium is often subject to a reduction, contingent upon the happening of a future event, the broker in the meanwhile is, as to the assured and the underwriter, their mutual agent, for the one to pay, and for the other to receive.'' It is in the power of either, at any time before the event, to put an end to his agency ; the assured, by taking the policy out of his hands, and the underwriter, by calling for payment of the unreduced premium.^ But if the agency continues until the event happens which reduces the amount of the premium, the broker is entitled to make the deduction before payment, or ' Bousfield V. Creswell, 2 Campb. 645. See ^e?- Blackburn, J., Xenos v. Wickham, 33 L. J. (C. P.) 13, 21. ^ 1 Aruould, Ins. 194. ' Andrew v. Eobiuson, 3 Campb, 199. ■• Ovingtou V. Bell, 3 Campb. 237. 5 Bartletti). Pentland, 10 B. & C. 760. * Sweeting v. Pearce, 9 C. B. N. S. 634 ; 30 L. J. (C. P.) 109 ; Scott v. Irving, 1 B. & Ad. 605, 612, 613 ; Bartlett v. Pentland, supra ; Stewart v. Aberdein, 4 M. & W. 211 ; Macfarlane ■0. Giannocopulo, 3 H. & N. 860 ; 28 L.J. (Ex.) 72. 7 Per Lord EUenborough, Shee r. Clarkeon, 12 East, 507, 510. 8 I'er Lord EUenborough, Shee v. Clarkson, 12 East, 507, 511 ; per Mansfield, C. J., in Minett -y. Forrester, 6 Taunt. 543, 544. CHAP. IV.J IN EELATION TO PAYMENTS. 197 to set it off in an action by the underwriter for the unreduced premium.^ The broker, while he retains the policy in his hands, has a His lien on the lien upon it for the premium and commission due in respect of it, and also for the general balance of his account against the same principal in respect of insurance,^ but in respect of nothing besides ; ^ and his general lien is not defeated by any subsequent notice that his principal is, as to the policy in hand, himself the agent of another.* But if at the time he was employed to effect the policy, he was informed or might reasonably infer, that his employer was acting as agent for another, his lien is restricted to the premiums and commission due in respect of that particular transaction only.^ A mere depositary with whom the policy is left for safe custody acquires no general lien upon it.^ 1 Shee V. Clarkson, 12 Bast, 507, 3 See Olive v. Smith, 5 Taunt. 56. 509, 510, 511. ■* Maun v. Forrester, 4 Campb. 60. 2 Per Gibbs, J., in Olive v. Smith, s Cahill v. Dawson, 26 L. J. (C. P.) 5 Taunt. 56 ; Mann v. Forrester, i 253 ; Maanss v. Henderson, 1 Easti Campb. 60 ; Westwood v. Bell, i id. 335 ; Westwood v. Bell, i Campb. 349. 349 ; CahiU v. Dawson, 26 L. J. (C. P.) « jiuir ^. Fleming, 1 Dow. & Ey. 253. 29. Policy. CHAPTER V. THE MAEINEES. Master Mariner . . . .198 His Qualifications certified 199 Duty to the Owners . 201 Authority on hoard . 203 Duty to Crew and Pas- sengers , . 207 Dismissal . . . 208 Wages and Disburse- ments . . 210 The Seamen 212 ' Hiring . . . .212 Discharge . . . . 224 The Seamen — (contmued). Wages . . . .226 when payable . . 226 what amount . . 227 forfeiture of . . . 240 recovery of . . 248 Discipline and Provisions 255 Protective Laws . . . 261 Wills of Seamen . . 266 Barratry 268 Destroying Ships . . . 270 Non-Keeistanoe to Enemies . . 271 The Master Mabinek.i We have already considered the authority conferred on the master, as the agent of the owners, in his dealings with strangers. In his command on board, duties and qualifications of a totally different description are required of him. Some of these are peculiar. The office itself is singular for the wide variety of functions and duty which it combines. The responsi- bility of his position ; the careful providence of his adminis- tration ; the tact and temper of one who daily lives among those whom he is to govern and conciliate, including, when ' The application of the Merchant Shipping Act, the 17 & 18 Vict. c. 104, to the subjects considered in this chap- ter, is specifically defined by § 109 ; and by the 25 & 26 Vict. c. 63, § 13. By this last enactment, it is provided that " the following vessels : that is to say, (1) Eegistered seagoing ships exclu- sively employed in fishing on the coasts of the United Kingdom ; (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 Pait of the 17 & 18 Viet. c. 104 [coextensive in point of subject with the present chapter nearly] ex- cept Sections 136, 143, 145, 147, 149, 150, 151, 152, 153, 164, 155, 157, 158, 161, 162, 166, 170, 171, 231, 256, 279, 280, 281, 282, 288, 284, 285, 286, and 287. By § 8, 9, 10, no stamp is necessary for instruments in the form required by the Board of Trade ; otiier forms are not admissible in evidence for owners or master, and the use thereof involves a penalty not exceeding Wi. CHAP, v.] THE MASTER MARINEE. HIS QUALIFICATIONS. 199 passengers are on board, individuals probably of every grade ; the skill and seamanship, and divining sagacity of the navigator ; the vigilance of one who must rely on wind and sea with unceasing distrust, and still hold human life and material wealth in his keeping ; and the courage, self-posses- sion, and prompt decision of the mind that rules alone through storm and sunshine, — such are the accumulated requisites of this one office. It is a little remarkable, however, unless it be traceable to his qitalipica- TIONS the famiharity of our people with the sea, as contrasted, for instance, with the French nation,^ that in the greatest mari- time country the world has yet seen, the public had provided no means of ascertaining tiU a few years ago,^ in respect of those to whom they freely committed property and life, whether they possessed the qualifications required of them by so arduous, hazardous and responsible a calling. Pro- vision is now made by the Merchant Shipping Act,^ for giving certificates of fitness to those who are found, by testimonials and personal examination, to be qualified by previous good conduct, and by ability, skill, and knowledge, to take such a command. The possession of such a certificate by any one going to sea from this country in the capacity of master or mate is compulsory ; and the use of fraudulent means for the purpose of dishonestly supplying the want is declared to be a crime.* There are certificates of competency for master, and first or Certificate of . Qualification for second, or only mate of a foreign-gomg ship, and for master master and and mate of a home trade passenger ship.^ The certificate for the higher office quahfies for the lower, and that for the foreign-going ship qualifies for the home-trade passenger ship ; but the reverse does not hold good.^ 1 The first article under the title Du ^ i7 & 18 Vict. c. 104, § 131-140. Cajjitaine ia the second book of the * Hid. § 136, 140. Marine Ordinance of Louis XIV. in * Ibid. § 134. 1681, requires experience and a public ^ 17 & 18 Vict. c. 104, § 136, 137. examination on the part of every candi- " Foreign-going ships " shall include date for this office. See Cleirac on the every ship employed in trading or go- first article of the laws of Oleron ; ing between some place or places in French Ordinance, liv. 2, tit. 1. Du the United Kingdom, and some place Capitaine, and Valin thereon ; Hans. or places situate beyond the following Ord.of 1614,tit.3,art.l— 2Pardess.532. limits ; that is to say, the coasts of the 2 13 & 14 Vict, c, 93. United Kingdom, the islands of Guem- mate. 200 THE MASTER IVUEINEK. [chap. V. Compulsory. UnBeawortlii- ness. A certificate of service entitles an officer who has served as master or mate in a British foreign-going ship before the 1st January, 1851, or as master or mate in a home-trade passenger-ship before the 1st of January, 1854, to serve in those capacities again ; and it also entitles an officer who has attained, or attains, 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, to serve as master of a British merchant ship.^ No British ship may lawfully go to sea from any port in the United Kingdom, unless valid certificates, appropriate to the station of the holders, or of a higher grade, have been obtained and are possessed by the master, and first and second or only mate of a foreign-going ship, and by the master and first or only mate of a home-trade passenger ship. And on board every such ship, being of 100 tons burden, and going to sea from a port in the United Kingdom, there must be at least one officer, however his office may be named, besides the master, who has obtained and possesses a valid certificate appropriate to the grade of only mate therein, or to a higher grade.^ It is still undecided, but scarcely doubtful, that the effect of this provision, considering how directly it bears on the proper navigation of the ship, will be to render the ship unseaworthy within the meaning of the pohcy of insurance if she proceeds to sea from a port in the United Kingdom with officers of the grades referred to who have not obtained appropriate certificates of qualification, or whose certificates have been cancelled or sus- pended and remain so.^ A penalty of 50L is, besides, imposed on every one who goes to sea as such officer in that condition, sey, Jersey, Sark, Aldemey, and Man, and the continent of Europe between the river Elbe and Brest inclusive. " Home- Trade Passenger ship " shall include every ship employed in trading and carrying passengers, or going within the following limits ; that is to say, the United Kingdom, the islands of Guernsey, Jersey, Sark, Aldemey, and Man, and the continent of Europe between the river Elbe and the river Brest, inclusive. Hid. § 2. ' 17 & 18 Vict. c. 104, § 135. 2 Hid. § 136. =* Farmer o. Legg, 7 T. E. 186 Freard v. Dawson, 1 Marsh, Ins. 171 Cunaid v. Hyde, 29 L. J. Q. B. 6 compd. with Cunard v. Hyde, 27 L. J. (Q. B.) 408, and Wilson v. Rankin, 34 L. J. (Q. B.) 62. See, as to the can- cellation, &c., of certificates, ibid. § 241, 242 ; and the recording of all grants of certificates and subsequent orders respecting the same, ibid. § 138. SPECT OF THE SHIP. CHAP, v.] HIS DUTIES IN RESPECT OF THE SHH". 201 and on every one who employs him so to go without ascertain- ing whether he was legally qualified at the time.^ The duties of the master to his owners engage him primarily the master's to watch for the safety of the ship in port and at sea, — to repair it when necessary abroad, for which purpose we have already considered his resources,^ — to avoid injury to it from loading or unlivery in improper berths,^ or from improper stowage,* over -loading or deck-loading,^ especially if it be winter: and should the vessel be attacked with force of arms by the Queen's enemies, pirates, or mutineers, both duty and honour engage liim and the crew to resist, to the uttermost, whenever it is not absolutely hopeless. The same considerations bind him, in time of war, to wait for convoy and observe the regulations issued in connection with that service. If his course obliges him to approach a dangerous shore, it may become his duty to signal for a pilot, and only proceed without one when it would be unreasonable and dangerous to wait longer ; ^ but in any port where pilotage is usual, the interests of the ship can scarcely ever allow him to sail without a pilot, as that course may discharge the underwriters from liability for damage happening to the ship in such waters. In a word, the interests of the master are so bound up by his duty to the owners with their interests in the fate of the ship,'' that, when it comes to the worst, nothing short of the evidence of overwhelming facts should suffice to satisfy him that the recovery and repair of the vessel is impossible, except at an unreasonable cost ; and even then, if the wreck can be pre- served without undue expense or deterioration, he should communicate with his owners before seUing.^ 1 17 & 18 Vict. c. 104, § 136. ' He is liable to a mandatory injuiio- 2 See c. i. and iv. tion at the suit of a patentee if the •■* The master for this reason will be ship is fitted with pumps on the prin- cautions how he contracts for the em- ciple of his patent without authority, ployment of the ship to ports and rivers Adair v. Young, 12 Ch. Div. 13. of insufficient depth for her draught of « Royal Exchange Assur. Co. v. Idle, water. 3 B. & B. 151 ; (in error) 8 Taunt. 755 ; « See Eedman?;. Wilson, 14 M.&W. Hunter v. Parker, 7 M. & W. 322; 476. The Margaret Mitchell, 4 Jur. 2Sf. S. 5 As to these points, post, u. vi. 1193 ; "Wallace v. Fielden, 7 Moore, 8 PhUUps V. Headlam, 2 B. & Ad. P. C. 398 ; Cammell v. Sewell, 8 H. & 380 ; Law i: Hollingsworth, 7 T. E.160. N. 617. Ante, p. 159. 202 THE MASTER MAEINEE. [CHAP. V. Illustration, A ship, with her cargo on board, having struck the gx'ound on her way down the St. Lawrence, and sprung a leak, was overtaken by tempestuous weather, it being the month of November, and in spite of the exertions of the crew, assisted by additional hands at the pumps, the water steadily rose, till it stood six feet deep in the hold, and still was rising. It was deemed necessary, therefore, to run the ship ashore, but in that attempt she grounded on the outside of a reef, and lay exposed to the force of the river and in the way of drift ice as soon as that should set in. This happened ninety miles below Quebec, where two part-owners resided, and where the master immediately communicated with them. The result of two surveys, which were made by competent persons, was a recom- mendation that, considering her perilous situation, it would be prudent, and for the benefit of all concerned, to sell the ship and cargo ; and the sale accordingly took place by the direction and in the presence of one of the part-owners. The ship survived the winter in the same position, and in the following spring, having been floated off, was repaired at an expense of 546Z., and afterwards arrived, with a full cargo, in this country. These facts were set out in a special verdict, and the Court of Common Pleas held that they justified the sale ; biit the King's Bench, sitting as a court of error, found nothing ia the- facts to make the sale necessary, and awarded a venire de novo} To coinmuiucate The master's situation, and that of the ship together, may be such, that it would not be advisable for him to communi- cate with the owners under the notion of waiting the return of the post for instructions;^ but it always is his imperative duty, in case of injury to the ship, to iaform them forthwith of the extent of it, that they may protect their interests with the underwriters.^ In other respects he is bound to see that nothing happens, or is done, which can be avoided, whereby the liability of the underwriters may be discharged, and the owners deprived of their right and protection under the policy; or whereby penalties against the owners, or the forfeiture of . 1 The Eoyal Assurance Co. v. Idle, 4 Jui. N. S. 1193. See Wilkinson v. 3 B. & B. 151 ; (in error) 8 Taunt. "Wilson, 8 Moore, P. C. 459, 478. : Ante, 756. p. 163. 2 The Margaret Mitchell, Jamieson, ^ Gladstone v. King, 1 M. & Sel. 35. CHAP, v.] HIS AUTHOEITY ON BOARD. 203 the ship, may be incurred under the registry enactments, or the Passenger Acts.^ The owners are also entitled to a clear and explicit account To account and from the master of his receipts and disbursements ; ^ and to the ^^^ °^' journal of events written and dated at the time of each occur- rence, called the ship's log. Irregularities in the contents of this document, and in keeping it posted up, are often most injurious to the interests of the owners when their claim to insurance is disputed. In addition to this, he is bound, by statute, subject to penalties, to have the "official log" regularly kept, under the date of the entry and of the occur- rence, in accordance with the requirements and in the form set out in the Act ; ^ and the wilful destruction, mutilation, or obliteration thereof, or the making, or assisting to make, any false or fraudulent entry or omission therein, is declared a misdemeanour.* It is weU to bear in mind the responsibility of the master his attthokitt for the safety of the ship, and for the life and health of all on „. •' ^ His responsi- board, in estimating the governing authority entrusted to him tiiity for the safety and by law when the ship is at sea. The end in view, the necessity health of aJl on imposed by his situation, and the evil eifects of bad example in so small and inseparable a society, if not repressed im- mediatety with vigour, form the reason and the excuse for giving him despotic power.' For the use that he makes of it, however, he is answerable to that same law from which he derives it ; which at once determines the limits to its exercise, and reserves. for the courts of justice the right of judging afterwards of the occasion, and the manner, of its use.^ His authority, given him for the purposes of safety and good government, extends to the passengers also, to be exerted in that degree which the occasion renders necessary for the 1 17 & 18 Vict. c. 104, § 52, 103 ; been made by the master, 17 & 18 Vict. 26 & 27 Vict. c. 51, § 13. Ante, p. 70. c. 104, § 175. 2 Topham v. Braddick, 1 Taunt. 572 ; M7 & 18 Vict. c. 104, § 280-284. White V. Lady Lincoln, 8; Ves. 309 ; " Hid. § 284. Lady Ormond i), Hutohjnson, 13 Ves. ' So called, ^er Alderson, B., Eeg. r. 47, 58. The Toucher of the superin- Leggett, 8 C. & P. 191, 194. tendent is evidence to the owner that » Hid. the payments specified therein have board. 204 THE MASTER MARINER. [CHAP. V. preservation of the ship, and the maintenance of his rule, and for the protection of the rest of the passengers.^ DiBoipline. But it is to the crew chiefly that reference is made by the law in providing for discipline on hoard. By the common law, the crew are bound, and by their agreement for service promise, to obey the master's commands in all lawful matters relating to the navigation of the ship, and the preservation of good order; his power within these limits being despotic, and himself re- sponsible for the use of it only to the courts of the country. In case of disobedience or disorderly conduct, he may lawfully correct them in a reasonable manner ; the English law likening his authority in this respect to that of a parent over his child, or of a master over his apprentice or scholar ; ^ but having, by this analogy, indicated the humane temper and the dispas- sionate view with which the master is to act on such occasions, it wisely abstains from attempting more on so delicate a subject. " No statutable regulations," says Lord Stowell,^ " exist upon this subject. The only authorities are supplied by the decisions of the courts of law, acting upon considerations of necessity and just discretion ; and upon such grounds I think the following rules may be considered as sufficiently estab- lished. In the first place, that the punishment must be applied with due moderation. 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 mis- behaviour, as a master possesses over his apprentices ; mean- ing, 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 1 King v. Franklin, 1 F. & F. 360 ; magister in discipuloB, dominus in Prendergast v. Compton, 8 C. & P. 454 ; servos vel f amiliares,— Casaiegis, Disc. Boyce v. BaylifEe, 1 Camp. 60. 136, no. 14 ; see Valin on the French 2 Magister nullam hatet jurisdic- Ordinance, vol. i. p. 449; and also tionem ingentem suaJum naYium, sed Ordinance of Philip II. (1563) — 2 Ma- quandam tantnm oeconomicam potes- gens, 19 ; MoUoy, bk. ii. c. 3, § 12 ; tatem vel disoiplinam, qase usque ad Watson v. Christie, 2 B. & P. 224. levem castigationem, pro corrigenda ^ Tj^e Aginoourt, Mahon, 1 Hagg. insolentia et male moratS, vita sen Ad. 271, 272. The judgment of the licentia nautarum et vectorum ; quern- court in this case is replete with wis- admodum earn tenet pater in filios, dom and humanity. CHAP, v.] HIS AUTHOKITY ON BOAKD. 205 measure of punishment, because the apprentice is generally a youth of comparatively tender years, and whose acts of mis- behaviour can hardly produce the same destructive conse- quences as may attend the negligence of the mariner — an experienced person of confirmed strength, capable of sustain- ing 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 corollary, that, in all cases which 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 dehberate procedure. Such are cases where the criminal facts expose themselves to general notoriety, by the public manner in which they are committed, or where the necessity occurs of immediately opposing attempted 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." The master, on his return to this country, may be called Master not upon by action at law, to answer to a mariner, who has been '"^^P""^' beaten or imprisoned by him, or by his order, in the course of ' See per Tindal, C. J., Murray v. was justifiable at once to quell it by Moutrie, 6 C. & P. 471. striking the first blow :" The Lima, 2 Per Sir J.Nicholl, " if W. in liquor Fewson, 3 Hagg. Ad. 346, 353 ; Bing- held up his fists to strike his captain, ham v. Gamault, Bull. N. P. 17. it is so near an act of mutiny that it 206 THE MASTER MARINER. [cHAP. T. a voyage ; and for the justification of his conduct, he should be able to show not only that there was a suf&cient cause for punishment, but also that the punishment itself was reasonable and moderate, otherwise the inariner may recover damages proportionate to the injury received.^ In judging of the cause, it is clearly the right of the master at the time, and the duty of any higher tribunal afterwards, " to look back and to see whether the offence for which the punishment was awarded was an isolated act, or a continuation and habit of misbehaviour." ^ At the same time the master should be on his guard lest a preconceived opinion of the offender blind him to the effects of disease, and betray- him into punishing in the patient the obduracy of his malady as a habit of misbehaviour. For if the phenomena were such as would attract the attention of a humane and reasonable man, when the punishment was inflicted, not to say continued, and death ensues, the most painful consequences known to our criminal law may overtake the master." "It is not sufficient," says Sir M. Foster, "that the act upon which death ensueth, be lawful or innocent ; it must be done in a proper manner, and with due caution to prevent mis- chief. Parents, masters, and other persons, having authority inforo domestico, may give reasonable correction to those under their care ; and if death ensueth without their fault, it will be no more than accidental death. But if the correction ex- ceedeth the bounds of due moderation, either in the measure 1 Aitkin V. Bedwell, M. & M. 68 ; tion ; Watson v. Christie, 2 Bos. & Lamb v. Burnett, 1 Or. & J. 291 ; Miir- Pull. 224 ; Hannaf ord v. Hunn, 2 C. ray v. Moutrie, 6 C. & P. i71. To an & P. 148. action of this sort, the master by his But the sentence of a court. martial defence must state that the plaintiff is not conclusive evidence for the de- committed such a particular fault, and feadant in an action of this kind, if it that he corrected him moderately for it. is not pleaded as an estoppel ; and it is The plaintiff by his reply may either i open to the jury to inquire into the deny the cause of Correction, or, ad- truth of the charges, Hannaford v. mittihg the cause, may insist that the Hunn, 2 C. & P. 148. correction was excessive. The master ' Per Lord Stowell, The Lowther must set out his defence specially. Castle, Baker, 1 Hagg. Ad. 384 ; and and cannot rely in the absence of such see his valuable , observations in deve- express defence on being allowed to lopment of this view, ibid. give in evidence, for the purpose of '' Per Alderson, B., Eeg. v. Leggett, mitigating damages, facts, which, if 8 C. & P. 191, 194. pleaded, wbtild amount to a justifica- CHAP, v.] HIS DUTY AS TO NECESSARIES. 207 of it, or in the instrument made use of for that purpose, it will be either murder or manslaughter, according to the circum- stances of the case. If with a cudgel or other thing not likely to kill, though improper for the purpose of correction, man- slaughter. If with a dangerous weapon, likely to kill or maim, due regard being always had to the age and strength of the party, murder." ^ The master should, by force, restrain the commission of great Serious Crimes. crimes. He ought to secure the person of the offender, and have him brought before a proper tribunal of his country ; ^ but he has no judicial authority to punish such a criminal. The common law duty of the master to provision the ship his duty to pro- tide NE0KS3A- with necessaries and medicines, sufficient in quantity, and of a bies and mkdi- T . . . ,. ,^ CINES ON BOARD. proper quality, givmg any of the passengers or crew a corre- sponding right of action in case of damage suffered by them through his neglect of this dutj^, is now more definitely ascer- tained by statute both for passengers ^ and seamen ; * but the penalty imposed for the public wrong in neglecting that duty does not supersede the common law right to recover damages for the private injury sustained in consequence.^ With i-egard to seamen, the statute has gone further; it has fixed the daily allowance in money, to which they are entitled for any period during which the provisions served out have been reduced in quantity, unless for the purposes of discipline, or have been bad in quality, and unfit for use ; ^ and it has provided for their expenses during any illness arising therefrom ; '' and these rights of the seamen are irrespective of any question of tort in the master.® ' Foster's Crown Law, 262. Atkinson i). Newcastle Waterworks Co., 2 17 & 18 Vict. c. 104, § 268, 282, 2 Ex. Di v. 441. See now 39 & 40 Viot. no. 2. c. 80, § 5. 3 18 & 19 Vict. c. 119, § 35, 43. n 17 & 18 Vict. c. 104, § 228. * 17 & 18" Viot. c. 104, § 221, 223, ? 30 & 31 Vict. c. 124, § 7. 225, 230 ; 30 & 31 Vict. c. 124, § 4 ; « The Josephine, 1 Swabey, Ad. 152. 39 & 40 Vict. c. 80, § 5 ; Form of In fact it must be viewed as a question Articles, Appendix. of wages merely ; and it does not ap- » Couch V. Steel, 3 B. & B. 402 ; 23 pear that the master would not be still L. J. (Q. B.) 121, S. C. ; Young v. civilly responsible for injury to a sea- Fewson, 8 C. & P. 65. The decision man from the wi-ongful supply of food in Couch v. Steel has been gravely in diminished quantity or of deterio- doubted by the Court of Appeal in rated quality. 208 THE MASTER MARINER. [chap. V. DISMISSAL OF THE MASTBK. By hia owners. By what otheT authorities. The confidential relation between a master and his owners, and the importance of the trust committed to him, leave it prohable that his appointment was not made, except upon deliberate consideration of his fitness and competency for the place ; and it is not reasonable, therefore, to suppose that very- slight differences should be the occasion of his dismissal ; but if this result is inevitable, the owners should proceed with a careful regard to the agreement between them, and to any usages of the trade at the port, not excluded by express stipulation ; otherwise the master may recover damages against them for a wrongful dismissal. If the engagement be indefinite as to time, it ought not to be terminated on either side, except for extraordinary cause, without reasonable notice.^ But the public have so direct an interest in the proper discharge of his functions, that the power of removing him and appointing a successor has been entrusted by parliament to any court within Her Majesty's dominions exercising Admiralty jurisdiction, or a naval court on the high seas, or anywhere abroad, to be summoned by the officer in command of one of Her Majesty's ships on any foreign station, or in the absence of such officer, by any consular officer.^ The removal of the master must appear to the satisfaction of such Admiralty Court, upon evidence given on oath, to be necessary ; ^ but this neces- sity to justify the exercise of such a power by a naval court, must, in their unanimous opinion, be such, that the safety of the ship or crew, or the interest of the owner, absolutely requires it.* Such court, exercising Admiralty jurisdiction, may be set in motion in this case by application from the owner, or the part- owner, or consignee, or the agent of the owner, or any certifi- cated mate, or one-third or more of the crew of the ship.^ A naval court may be lawfully summoned together, if- the com- plaint made, or the interest of the owner either of ship or cargo appears to require immediate investigation ; ^ and such courts 1 Green v. Wright, 1 C. P. Div. 591. ■> Hid. § 263. 2 17 & 18 Vict, c, 104, § 240, 263. ^ Ibid. § 240. ' Ibid. § 240. 1= Ibid. § 260. CHAP, v.] HIS DISMISSAL. 209 are empowered to have the ship surveyed.^ But the appoint- ment of his successor must he with the consent of the owner or his agent, or of the consignee of the ship, if any such there he then at the place, ^ or within the jurisdiction of the court.^ If the master is thus superseded, or quits the ship in the course of the voyage, he is bound under a penalty not exceed- ing 1001. to deliver up to his successor the various documents relating to the navigation of the ship and to the crew thereof ; and the successor is immediately on assuming command to enter a list of the documents so received in the of&cial log.* These sections of the statute appear to contemplate cases of His competency exigent necessity affecting private interests. But touching the iLuh-ed into • * qualifications of any person for the place of master or mate, and apart from any actual appointment or immediate instance of incompetency or misconduct therein, it is important that the certificates, given by the proper authorities, should be trust- worthy vouchers of fitness ; and therefore it is provided that 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, an investigation may be had, and if he is reported to be incompetent, or to have been guilty of any gross act of misconduct, drunkenness, or tyranny ; or if, upon investigation conducted under the provi- and Ms liability sions in the Eighth part of the Merchant Shipping Act, or casualties. made by a Naval Court constituted under that Act, it is re- ported 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 upon investigation made by any tribunal authorised, or hereafter to be authorised, by the Legislative authority in any British possession, such a report is made of him; or if he is superseded by the order of any Admiralty Court or such naval court ; the court or authority investigating or trying the case may cancel or suspend his certificate, and he is thereupon required to deliver up his certificate to such court or authority, or if not, then to the Board of Trade ; ^ or if he i 34 & 35 Vict. c. 110, § 8. ^ IKd. § 240. 2 17 & 18 Vict. c. 104, § 263, this M7 & 18 Vict. c. 104, § 259 ; The section uses the word consignee only, St. Olaf, 35 L. T. N. S. 428. but I apprehend it does not exclude * Ibid. § 241, 242, 432, 433, 438 ; the others named in § 240. 25 & 26 Vict. c. 63, § 23. P 210 THE MASTER MAEINEE. [chap. V. Wreck Com- missioner. is shown to have been convicted of any offences, then the Board of Trade may suspend or cancel his certificate.'' In addition to the authorities for holding investigations created by these Acts, a Wreck Commissioner has been created for the same purpose, with all the powers applicable to such investigations previously vested by statute in the authorities above referred to.*^ Moreover, the occasion of holding such an investigation has been extended by this new statute to the stranding or damage of any British ship, or the loss or supposed loss of any British ship.^ But his power to punish, notwithstanding this extended occasion of inquiry, is carefully restricted to the casualties specified in the previous statutes and referred to above ; and this general word casualty, or shipping casualty, as by the new Act it is called, is restrained to a well-defined meaning by the Act of 1854. Consequently, where the ship was stranded under circumstances that manifested negligence, but unattended by any of the shipping casualties definitely named in the previous enactments, the suspension of the master's certificate by the Wreck Commissioner was unauthorised, and the sentence quashed on certiorari.* HIS WAGES AHD DISBURSEMENTS. — BIGHTS AND REMEDIES FOB. The master for his wages or disbursements was originally without lien, so that his only remedy was personal ^ either at law or in equity. Upon this state of the law supervened the statute, giving him the same rights, liens and remedies for his wages as were possessed by the ordinary seaman.^ His dis- bursements were not placed on the same footing by this statute, which provided that only in case a plea of set-off to a suit for his wages were put on the record, he might be allowed to go into the general account between him and his owners.'^ Thereupon the 24 Vict, c. 10, § 10, gave the Admiralty Court jurisdiction " over any claim by the master of any ship ^ See preceding note. 2 39 & 40 Vict. c. 80, § 29 ; 42 & 43 Vict. c. 72. 3 39 & 40 Vict. c. 80, § 32. * Expm-te Storey, 8 Q. B. Div. 166 ; 47 L. J. (Q. B.) 266. 6 Smith V. Plummer, 1 B. & Aid. 574 ; Wilkins -v. Carmicliael, 1 Doug. 101 ; Hussey v. Christie, 9 Bast, 426. See Bristow v. Whitmore, in the Ho. of ' Lords, 81 L. J. (Ch.) 467. 6 17 & 18 Vict. c. 104, § 191. 7 Ibid. ; The Caledonia, 1 Swab. Ad. 17 i The Olive, 1 U. 292. CHAP, v.] HIS WAGES AND DISBURSEMENTS. 211 for wages earned by him on board the ship, and for disburse- ments made by him on account of the ship." This provision is construed as giving him a maritime lien both for his wages and his disbursements, provided the one be earned on board, and the other made on account of the ship of which he is master ; ^ and this, although he were put on board by a person in fraudulent possession of the ship, if the master were himself ignorant of this defect.^ He could always have insured his wages,^ a thing not known in the case of ordinary seamen or the other officers of the ship. The master is held to be within the 17 & 18 Vict. c. 104, * § 187, in virtue of § 191, and consequently entitled to double pay not exceeding ten days,* or the continued accrual of his wages,' during the time that they are improperly detained, according as it is a home-trade or foreign going ship. But in case of tender and refusal, the Admiralty Court reserves a right of adjusting the costs in each case according to the merits.^ Disbursements within the meaning of the statute, include " all proper expenditure made by the master upon the ship," subject to this, that such expenditure was actually applied to the use- — -and required by the necessities — of the ship.'' The learned judge of the Admiralty Court expressed himself of opinion that disbursements included liabilities,^ differing in that respect from his predecessor (Dr. Lushington),^ but not neces- sarily deciding it, as the freight being in court enabled him on the authority of Bristow v. Whitmore '^° to allow claims of this nature. Wliere he had given a bond subject to a penalty in consequence of damage in collision through his default, as a > The Maiy Ann, L. R. 1 Ad. 8. 151. 2 IMd. See as to how a master is ^ Webster v. Be Tastet, 7 T. E. 157, to proceed to recover disbursements '' The Princess Helena, Lush. Ad. in case the company-owner is being 190. wound up, and also a mortgagee is in ^ 4:3 Sc 44 Vict. c. 16, § 4. possession, Me Eio Grande Do Sul f' The Lemuella, Lush. Ad. 147 ; Steam Ship Co. 5 Ch. Div. 282 ; Me The William, Ibid. 199. Australian Direct Navigation Co. L. E. ' The Feronia, L. E. 2 Ad. 65, 75 ; 20 Eq. 325. The Limerick, 1 Prob. Div. 292. See In Ireland the Court of Bankruptcy The Riga, L. E. 3 Ad. 516. refused to restrain the master from ^ The Feronia, supra. proceeding in the Admiralty, Court ' The Chieftain, Br. & Lush. 104 ; against the ship, except on the terms The Edwin, Id. 281. of depositing a sum to answer the > 31 L. J. (Ch.) 467 ; 9 Ho. of Lords, claim and costs, lie J. 0. 11 Ir, (Bq.) C. 3>1. f2 212 THE MARINERS [chap. V. wrong-doer he has no right of action against his owners for this liahility.^ As regards the lien upon freight, whenever formerly it existed, it was an equitable and not a maritime lien ; and he was entitled to it, not in respect of his ordinary expenses as a master, but in respect of an outlay made or liability incurred of so unusual a character as to give him rights as an agent in addition to those he possessed as master.^ But now, in virtue of the statute, and following the analogy of wages, it is probable that freight is subject to the statutory lien, and available for the ordinary expenses of the master.^ The Sbamen. We come now to consider the contracts, rights, and duties of seamen. This meritorious class of Her Majesty's subjects, so essential to the power and prosperity of this country, long have been favoured objects with the British Parliament ; and still in every later enactment alike their merits and their need continue to be acknowledged, by the accumulation of guards and protection in addition to those with which they were already surrounded. HIRINO OP SEA- MEN ABD BINDING APPRENTICES.^ By the existing statute, the use of authorised shipping- masters, introduced by the 8 & 9 Vict. c. 116, is continued for the purpose of facilitating the engagement and discharge of seamen^ furthering in every reasonable way their interests and the honest intentions of owners and masters, and of standing between dishonest designs and their accomplishment on either side. The functions of these officers, now known as Super- intendents, and. Deputy -Superintendents, of the Mercantile Marine offices,^ are necessarily guarded by severe penalties on any who should usurp them, and on aU others that shall employ or use the services of such offenders.® 1 The Limerick, 1 Prob. Div. 292. 2 See per Lords Campbell, Cran- worth, and Kingsdown, 31 L. J. (Ch.) 467, 468, 470. 3 24 Vict. c. 10, § 10 : The Feronia, L. R. 2 Ad. 65. * Seamen and apprentices are within the Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90); and any agreement between the owner or master and a sea- man or apprentice may be rescinded by any Court before which any dispute in connection with such agreement is brought. 43 & 44 Vict. c. 16, § 8, 11. 5 25 & 26 Vict. c. 63, § 15. » 17 & 18 Vict. c. 104, § 147. CHAP, v.] AND APPRENTICES. 21B The hiring of seamen by the master of any British foreign- going ship must be transacted before such a superintendent, or in foreign ports before a consular officer/ who is required in that case to read over and, explain the agreement to the seamen, and afterwards to attest the signature of each seaman, written, as it must be, in his presence. Recourse to a superintendent, either for hiring or discharge of the seamen, is not compulsory on home trade ships ; but still in that case also the agreement for hiring must be read over and explained, and the signature of each seaman must be put to it in the presence of, and be attested by, a witness ; ^ and such agreement is not invalid, though it be for a specified service on board two or more vessels, if they are expressly named, and belong to the same owners ; but the transfer of the seaman in that case from one ship to another does not entitle him afterwards to stipulate for, or the master to promise, higher wages.^ The superintendent, if applied to, is required to be aiding in the apprenticing of boys to the mercantile marine service ; the necessary indenture, exempt from stamp duty,* is to be in duplicate ; and one part to be left with a superintendent, or the Registrar-General of seamen, in order to be recorded, together with any subsequent assignment or cancellation thereof, or death or desertion thereunder.^ In the case of union or parish apprentices, the indenture must be executed, by the boy and the person to whom he is bound, in the presence of, and be attested by, two justices of the peace, present together, and acting within their jurisdiction (for it is a judicial act), and appearing so to be by the attesta- tion ; ^ but such justices are fii'st to ascertain that the boy consents, is twelve years of age, and of sufficient health and strength for the service, and that the master, to whom he is to be bound, is a proper person for the purpose.''' Subject to 1 17 & 18 Vict. c. 104, § 150, 170, s i7 & 18 Viot. c. 104, § 142 ; Eeg. 163. V. Totness, 11 Q. B. 80 ; 18 L. J. (M. C.) 2 JHd. § 155, 156. 46, S. C. ; Eex v. Hamstall Eidware, 3 Ibid. § 156 ; Frazer v. Hatton, 3 3 T. E. 380. C. B. N. S. 512. 7 17 & 18 Vict. c. 104, § 142. Siicli » 17 & 18 Vict. c. 104, § 9. an apprentice has a lien for his wages, « 17 & 18 Vict. c. 104, § 141, 143. but he might not in the Admiralty 214 THE MAEINEES. [CHAP. V. these conditions, such apprenticeships are governed by the rules and regulations applicable to pauper apprenticeships generally, when made in Great Britain ;i but when made in Ireland, special rules are expressly enacted with regard to them.^ Agreement in The hiring of Seamen must be by written agreement, requir- wnting. _ ° J a ing no stamp,^ in the form issued by the Board of Trade, for aU ships, except ships of less than eighty tons registered tonnage, exclusively engaged in the coasting trade of the United Kingdom.* Kules of Evi- The agreement being in writing, it is nevertheless enacted that a seaman may prove the contents of it, or otherwise sup- port his case, before any court of justice, without producing, or giving notice to produce, it ; ^ and it is besides enacted, that any erasure, interlineation, or alteration therein, not proved to have been made with the consent of all the persons interested . in such change, by the written attestation (if made in Her Majesty's dominions) of some superintendent of a mercantile marine of&ce, justice, officer of customs, or other public functionary, or (if made out of Her Majesty's dominions) of a British consular officer, or where there is no such officer, of two respectable British merchants, is wholly iaoperative»* Two of the established rules of common law, the rule of best evidence with regard to written instruments,'^ and the rule which makes any contract void that is altered in a material part without the consent of all the contracting parties,^ both rules being stUl of force with regard to all the rest of the community, Comi recover the penalty in Ms in- porary verbal promise ; White n. Wil- denture for breach of the contract ; son, 2 B. & P. 116 ; The Isabella, The Albert Crosby, Lnsh. 44. Brand, 2 C. Rob. Ad. 241 ; Blsworth 1 43 Eliz. u. 2 ; 51 Geo. 3, i;. 80 ; v. Woolmore, 5 Esp. 84. The principle 54 Geo. 3, c. 107 ; 66 Geo. 3, c. 139 ; of these cases is not affected by Clut- 3 & 4 W. 4, c. 63 ; 7 & 8 Vict. c. 101 ; . terbuck v. Cof&a, 3 M. & G. 842. 14 & 15 Vict. c. 11 ; 38 & 39 Vict. c. M7 & 18 Vict. c. 104, § 163. Ad- 86, § 6. ditions to the articles in shipping sub- 2 17 & 18 Vict. c. 104, § 144. stitutes or new hands engaged after the " Ibid. § 9. first departure of the ship are excepted. < Ibid. § 149. Ibid. 6 17 & 18 Vict. c. 104, 165. But he ' The Queen's case, 2 B. & B. 289 ; is not thereby entitled to give evidence Vincent v. Cole, M. & M. 258 ; Strot- of anything not contained in the agree- her v. Barr, 5 Bing. 151. ment, bo as to recover, e.g., a perqni- ' Davidson v. Cooper, (in error) 13 site which was customary in the trade, M. & W. 343 ; Bigot's case, 11 Co. 27 ; or a higher rate of wages on a contem- Com. Dig. " Fait " (F, I.) CHA1>. v.] THE ship's ARTICLES. 215 have thus been abrogated with regard to seamen, a class of men, says Lord Stowell, "on all accounts requiring protection, even against themselves." A generous equity, exercised by the Court of Admiralty, among other things, over such altered contracts, had tni now effected the same purpose ; ^ but the written attestation required by the statute to alterations was still a necessary precaution to save the prior interposition of the superintendent from being afterwards rendered illusory and worthless. Although the agreement is not in writing, or not in the authorised form, it seems, nevertheless, to be binding and provable in favour of the seaman,** but inadmissible in evi- dence for the owners or the master against him.* The agreement * is to contain the following particulars : — Contents of (1.) The nature, and, as far as practicable, the duration of the intended voyage or engagement; or, the maximum period of the voyage or engagement, and also the places or parts of the world (if any) to which the voyage or engagement is not to extend ; (2.) The number and description of the crew, specifying 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 tliat each seaman is to receive ; (6.) A scale of the provisions which are to be furnished to each seaman ; (7.) Any regulations as to conduct on board, and as to fines, 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 which the parties agree to adopt. This agreement, although contained in one document, is with the crew severally, and the rights and obligations of the seamen under it are in severalty, and not joint.^ 1 The Minerva, Bell, 1 Hagg. Ad. in this country for service on board a 347 ; and see the observations of Lord foreign ship, is still governed by the Stowell, ibid. 354, 357. common law ; and need not be 2 Eidley -k. The Plymouth Baking stamped ; Wilson v. Zulueta,, 14 Q. B. Company, 2 Bxch. 711. 405. 3 17 & 18 Vict. c. 104, § 8 ; and * As to rating seamen A. B., see 43 there is a penalty besides, ibid. § 10 ; & 44 Vict. o. 16, § 7. and see § 157. ^ See Form of Articles in Appendix. « 17 & 18 Vict. c. 104, § 149 : 36 & Frazer v. Hatton, 3 C. B. N. S. 512 ; 37 Vict. c. 85, § 7. Any agreement Beecham v. Smith, 27 L, J, (Q. B,) 257. 216 THE MARINERS. [chap. V. Obligation of shipowner to crew with re- spect to sea- worthiness of Ship. Description of ge. By the 39 & 40 Vict. c. 80, § 5,—" In every contract of service, express or implied, between the owner of a ship and the master or any seaman thereof, and in every instrument of appren- ticeship whereby any person is bound to serve as an apprentice on board any ship, there shall be implied, notwithstanding any agreement to the contrary, an obligation on the owner of the ship, that the owner 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 means 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." In the first of these particulars, appears the consideration which the mariner is to give ; and in the fifth the remuneration which he is to receive ; both of them cardinal points in the ship's articles, on which Lord Stowell was occasionally obliged to interpose for the protection of the seaman against the fraudulent devices of dishonesty .-"^ A definite statement of the intended voyage, modified only by the exigencies of commerce, is indispensable to a binding agreement. It is not bad for being in the alternative.^ But such additions as these — "or elsewhere"^ — "to any port or ports in Europe " — and the like, are unreasonable and most suspicious, and incapable of being enforced against the seamen, except in a very restricted sense. In the following cases, there- fore, after the ship had reached a certain point in her course, the refusal of the seamen to serve longer did not operate a forfeiture of the wages already earned. In the first* the voyage was "to go to "Van Diemen's ' See The Miner-va, Bell, 1 Hagg. Ad. 317 ; The George Home, Young, 1 id. 370 ; The Prince Frederick, Hart, 2 Hagg. Ad. 394. ' Frazer v. Hatton, 2 0. B. N. S. 512. 3 " They are no description of a voy- age ; they are an unlimited description of the navigable globe, a universal alibi for the whole world, indefinite other- wise both in space and time ; " per Lord Stowell, The Minerva, 1 Hagg. Ad. 361. * The Countess of Haroourt, Bunn, 1 Hagg. Ad, 248. CHAP. V.J THE ship's ARTICLES. 217 Land via Cork and elsewhere, and back to London," and the ship, after sailing to Sydney, and thence to Batavia, had arrived in the Downs, when the sailors refused to go with her to Holland ; in the second^ it was " from London to Batavia, the East India Seas, or elsewhere, and until the final arrival at any port or ports in Europe," and the ship on her return had reached Cowes, when the seamen refused to carry her to a port in HoUand ; and in the third ^ it was " from the port of London to Swan Eiver, West Australia, from thence to any port or place in the Indian or China Seas, and during her stay and trade there, until her return to a port of discharge in Great Britain or Continent of Europe (in either case the voyage to end in Great Britain), and term of time not to exceed three years," and the ship had arrived at Cowes on her return, when the crew refused to proceed to Holland, — and in this case, not- withstanding the hmitation as to time, they were sustained, as they were in the other two, in their refusal to proceed. Where the contract was for a voyage to New South Wales and India or elsewhere, and to return to a port in Europe, Lord Stowell said the words " or elsewhere," were not to be taken in that indefinite latitude in which they were expressed, but must receive a reasonable construction, and a limitation, extended or narrowed, according to the situation of the primary port of destination, and did not authorise the master to carry the seamen from Port Jackson to New Zealand, thence to Valparaiso, and Lima, and Otaheite ; back to Sydney Cove, and thence to Calcutta.^ It seems to follow that if the master deviate from the speci- New Extensions. fied voyage into a new extension, the seamen are not bound, unless by a new agreement, with regard thereto ; * and that in judging whether it is such a deviation, general terms must be understood in a modified sense in relation to the voyage speci- fically described in the articles. In the absence of any express agreement, if the extended voyage is accompHshed, the addi- tional remuneration due, would probably be determined under 1 The George Home, Young, 1 Hagg. ^ The Mmerva, Bell, 1 Hagg. Ad. Ad. 370. 347. 2 The Westmoreland, Brigstook, 1 ^ Ibid. 362, 363 ; The Elisabeth, 2 "W. Rob. Ad. 218. Dods. 408. 218 THE MARINERS. [CHAP. V. ordinary circumstances on the same scale as the rest of the voyage ; this is the express provision made for such a case in the Code de Commerce.^ If instead of a new extension, there be an alteration from apeace risk to a war risk ; e.g., if the vessel that seemed to be chartered for a voyage of a purely commercial nature, were, when at sea, placed under the orders of the agent of a foreign government at war with a government in friendly relations with the govern- ment of this country, though only used as a store-ship in attendance on vessels of war, the seaman is entitled to quit the vessel, and to recover damages, and damages in the nature of wages which he has been prevented earning, — first because the war service is not the service he engaged for ; and secondly, because in all probability it is illegal for him to go into such service if he were willing.^ Where a foreign-going ship is in the habit of making short voyages, of less duration than six months, it is permitted to make running agreements with the seamen to extend over two or more voyages, but so always that such agreement does not extend beyond thfe next following 30th of June or 31st of December respectively, or the first arrival, after such date, of the ship at her port of destination in the United Kingdom. The master in such a case is bound, at the end of every voyage, to discharge, before the superintendent, such seamen as are entitled thereto, and to endorse the agreement with a memorandum of that fact, or that no discharges or engage- ments have been or are intended to be made.^ Number of By the second particular, the seaman, before signing articles, is enabled to judge whether the manning of the ship is suffi- cient ; and although, by the fifth, he undertakes, for a specific amount or rate of wages, to navigate the ship in 'a specified capacity to the terminus named in the contract, and is there- fore incapable of enforcing any subsequent stipulation for increased wages for performing the same duties,* it by nh 1 Code de Com. art. 255. ■• Frazer v. Hatton, 2 C. B. N. S. 2 Burton V. Pinkerton, L. R. 2 Ex. 512 ; Harris v. Carter, 3 E. & B. 659 ; 340 ; The Foreign Enlistment Act, 33 23 L. J. (Q. B.) 295, S. C. ; Harris v. & 34 Viot. c. 90. Watson, Peake, 72 ; Still v. Myrick, ' 17 & 18 Vict. c. 104, § 151, 152, 2 Gamp. 317. 153, 161 no. 2. hands. CHAP, v.] THE ship's ARTICLES. 219 means follows that there may not be such a change of circum- stances as would entitle him, in view of the second particular, to enter into a new contract binding upon the owners. Accordingly, where a vessel sailed from Liverpool, with thirty- When reduced six of a crew, and while she lay at Port Phillip, that number was annuiThe'*^ diminished to nineteen, of whom only five were able seamen, -^gi^eement. and the master was unable to procure additional hands, he agreed with the five able seamen for an increase of wages,, if they would continue to navigate the ship with this diminished crew. The validity of this contract being contested, the Court of Queen's Bench were unanimously of opinion, on the jury finding that it was unreasonable for a vessel of 1045 tons to proceed to sea with a crew of only nineteen hands, that the verdict for the plaintiff ought to stand.^ Lord Campbell, C. J., on that occasion said : — "I am most anxious that it should be understood that I found my opinion on the answers of the jury to the third question ; ^ for, but for that answer, I should have held that the undertaking was not binding on the captain. The substance of the answer I consider to be this, that the ship was so short-handed at Port Phillip that it would have been dangerous to life to proceed on the voj^age to Bombay with such a crew ; that is, so dangerous to life that the plaintiff and the other seamen were not bound to re-embark under their articles. If there had been merely additional labour, and the voyage dangerous to life from this excess only, I should have thought that the new contract was not binding on the master, any more than on the owners. But I think that we must take it, from the finding, that the plaintift' and the remaining crew were not bound under these articles to proceed on the voyage, and so were free men, and at liberty to make a fresh bargain. There was therefore no coercion accord- ing to that finding of the jury, and there was also consideration for the promise of the master ; for ex hypothesi the plaintiff and the other seamen were not bound to go on board for the voyage to Bombay, and therefore, in consideration of their voluntarily ' Hartley v. Ponsonby, 26 L. J. ^ " That it was unreasonable for a (Q. B.) 322, 324 ; 7 E. & B. 872, S. C. vessel of 1045 tons," &c., as stated See England v. Davidson, 11 A, & B. above, 856. 220 THE MAEINEES. [chap. V. Time from which Wages run. Amount of Wages liable to be altered. Diet and Dis cipline. undertaking the risk, the master voluntarily undertook to pay them the extra sum of 401. each. There was therefore a voluntary agreement on good consideration, and that amounts to a verdict for the plaintiff." ^. The third particular, by fixing the time for the seamen to be on board or begin work, ascertains the period when wages begin to count, unless he actually commences work earlier, and then this latter is the time from which wages are to run.^ But the amount of his wages, though fixed by the fifth particular, is liable to be diminished or increased under the fourth,' if it should turn out either that he is not qualified to serve in the capacity for which he contracted, or that he was of necessity promoted above it to a higher charge.^ The important rights and liabilities ascertained by the sixth and seventh particulars of this agreement, relating to diet and discipline, will come to be discussed in their order hereafter. * Allotment Notes. The seaman maystipulateforanallotment of hiswages, payable to certain persons, or to a savings' bank, in fixed instalments, at particular times ; but it seems that for the allotment note to be vaUd, it must be in the form sanctioned by the Board of Trade, and that the stipulation for it be inserted in the ship's articles, stating the amount and times of payment.* To the allottee in whose favour the note is made,^ the statute gives special faciUties of recovery on it, either in the County Com't, or in the summary way hereafter mentioned, provided such allottee be the wife, or the father or mother, or the grandfather or grandmother, or any child or grandchild, or any brother or sister of the seaman.^ A consideration not being practically provable, is, by the statute, not necessary to be proved, the only evidence required being that the plaintiff is the allottee named in the note,'' and that it ^ See also per Dr. Lushington, The ArarQinta, 18 Jut. 793 ; per Lord Campbell, Harris v. Carter, 3 E. & B. 559. ' 17 & 18 Vict. 0. 104, § 181. ' Hanson v. Eoyden, L. E. 3 C. P. 47 ; The Providence, 1 Hagg. Ad. 391 ; The Gondolier, 3 Hid. 190. < 17 & 17 Vict. c. 104, § 168 ; 43 & 44Tict. c. 16, § 3; seeNote inAppeudlx. * Crowe V. Eogers, Strange, 592 ; Bourne v. Mason, 1 Vent. 6 ; Price v. Easton, 4 B. & Ad. 433. « 17 & 18 Vict. c. 104, § 169 ; and see supra, n^. ' If the wife is the plaintiff, the marriage is provable by parol, although registered, Evans v. Morgan, 2 Cr. & J. 453 ; E. 0. Allison, E. & E. 109 ; Harrison v. The Corp. of Southampton CHAP, v.] VOID STIPULATIOKS. 221 was given by the owner, master, or an authorised agent of the owner. It is for the defendant to show, either that the seaman is disentitled to wages, or that the plaintiff is, by subsequent events, disentitled to recover. The wife has no authority at common law to contract in her husband's name for necessaries, if she is living away from his home and guilty of adultery,^ or if she elopes from him, although without any act of unchastity ensuing ; ^ and the statute, by analogy to this, provides that, " if she deserts her children, or so misconducts herself as to be undeserving of support from her husband, she shall thereupon forfeit all right to further payments " on the note.^ The owner in such a case, if the fact of her misconduct be known to him, pays her the allotment money at his peril ; he is still hable for the amount to the husband. Yet he is not liable at all, although owner on the register, if the ship be under demise, and lessee's master who appoints the crew has given the note.* The seaman is presumed to be duly 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 signed by the master in accordance with the Merchant Shipping Act ; ^ or by a duly certified copy of some entry in the official log-book, to the effect that he has left the ship ; ° or by a credible letter from the master of the ship to the same effect, or by such other evidence, of whatever description, as the Court, in its absolute discretion, 28 L. J. (Oh.) 722. Yet the following Smith's L. C. 429, S. C. note is appended to the printed form ^ i7 & 18 Vict. c. 104, § 169. The of the note issued by the Board of case of the absent seaman is unpro- Trade : — " In case of a wife the mar- teoted at common law ; Smout v. H- riage certificate must be produced, if bery, 10 M. & W. 1 ; see Drew v. Nunn, required, when payment is demanded." 4 Q. B. Div. 6G1 ; 48 L. J. (Q. B.) 591 ; Unless this be a way of saying that and the statute seems intended to cure evidence of the marriage must be given that evil in respect of any right of the if demanded, the authority of it for wife under it to take up his wages. It anything further may be doubted. assumes that she is living at his home, 1 See Hetherington v. Graham, 6 but may be misconducting herself. Bing. 135 ; Morris v. Martin, Str. 647, * Meiklereid v. West, 1 Q. B. Div. 706 ; Hardie v. Grant, 8 C. & P. 512 ; 428. Govier v. Hancock, 6 T. R. 603 ; » 17 & 18 Vict. c. 104, § 158. Eobinson v. Greinold, 1 Salk. 119 ; M7 & 18 Vict. c. 104, § 282, no. 2, Smout V. Ilbery, 10 M. & W. 1. 6, 9 ; § 285, 169. 2 Manby v. Scott, 1 Sid. 109 ; 2 222 THE MARINEBS. [chap. T. Advance Notes. Ad'ditional stipulations. Void stipula- tions. 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.i Money received under an allotment note by a Savings' Bank is not to be paid out except upon application through a Super- intendent of a mercantile marine office, or the Board of Trade, by the seaman, or, if he is dead, by some person to whom the same might be paid under § 169 of the Act 1854.^ After 1st August, 1881, any advance note made to a seaman conditional on his sailing with the ship is void ; and money paid on such a note cannot be deducted from his wages, or made the subject of an action against him.^ Although a valid agreement must contain the statutory stipulations already considered, the parties to it are not confined to these, if they think it desirable by any other to ascertain and modify their respective rights. By way of pre- caution, however, and in defence of the vital interests of the seamen, it is enacted that : — " No seaman shall, by any agreement, 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 every stipulation in any agreement inconsistent with 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, shall be whoUy inoperative." * The policy of that provision, and of the statutory scheme for the hiring and discharge of seamen, is abundantly justified by the facihty of this class of men in regard to their contract 1 n& ,18 Vict. 0. 104, § 169. 2 43 & 44 Vict. c. 16, § 3. » Ibid. § 2. * 17 & 18 Vict. c. 104, § 182. ("Not to apply to any ship, ■yirhich according to the terms of the, agreement is to be employed on salvage service ; " 25 & 26 Vict. c. 63, § 18.) To the like purpose, the French decree 4th March, 1852, is; — Sont consid&^es comme dispositions d'ordre public anxquellea il estinterdit de ddroger par des conventions parti- calibres, les prescriptions des articles ci-desBOus indiqu^s ; savoir : — Articles 262, 263, 266, et 270 du Code de Com- merce; — Ordonnancedu lerNovembre, 1745 ;— Article 37, de celle du 17 Juil- let, 1816 ;— Articles 1, 5 et 8 de Far- r6t6 du 5 germinal an' XII., et 252, paragraphe 5 du Code de Commerce ;— Paragraphes 2 et 3 de 1' article 3 de I'ordonnauoe du 9 Octobre, 1837, CHAP. V.J VOID STIPULATIONS. 223 rights, especially when these are ascertained by writings. Lord Stowell strained his equitable power to a length hardly warrant- able in his endeavour to save them from their own agreements, and yet was not always successful. A stipulation, for instance, in one of these contracts, sub- jected the seaman, after some sixteen months' service, performed in a variety of voyages on the other side of the globe, in which the ship had earned numerous freights, to the loss of all his wages, in consequence of the loss of the ship on her arrival at the mouth of the Thames. The owners, it appears, were shameless enough to follow their defrauded victim into the Court of Admiralty ; but there Lord Stowell met them with the equitable jurisdiction of the tribunal, and declared the engagement contrary to natural justice, and therefore void.-'- " To such men," said the same learned judge, in another case, referring to the sailors, some of whom could neither read nor write, — " To such men, no such response can be made as that which is irresistibly made in other cases of contract ; it is your own contract, you have signed it with your eyes open; for they want both organs of sight for reading, and organs of dis- cernment for judging. To those who are acquainted with this court, it can be no secret how deeply some of these men are aifected with surprise and concern, when they find that they have ever executed an engagement drawing after it consequences so disastrous."^ In that particular case, some such interposition as this was PoKoy of such humane and salutary ; and, unfortunately, there were many ^5°^^;*"°°''^ occasions for this extraordinary vindication of justice.^ Such exertions of judicial power in defence of the helpless, have had the approval, not only of Lord Stowell, but of Lord Somers,* and, perhaps, also, of Lord Holt;^ but they have met with the ' The Juliana, OgiMe, 2 Dods. Ad. The Countess of Harcouit, Biinn, 1 id 504 ; and again cited by Lord Stowell 248 ; The George Home, Young, 1 id. in The Minerva, Bell, 1 Hagg. Ad. 347, 370 ; The Hoghton, Brady, 3 Hagg. 857. Ad. 100. 2 The Minerva, Bell, 1 Hagg. Ad. ^ Edwards v. Child, 2 Vernon, 727. 358. = Anon., 1 Ld. Raym. 639, 739, ' The Minerva, Bell, 1 Hagg. Ad. nomine Edwards v. Child, supra. See 847 ; The Juliana, Ogilvie, supra; The also Buck v. Eawlinson, 1 Brown, P. C. Prince Frederick, Hart, 2 id. 394, 396 ; 137. 224 THE MAEINEES. [chap. V. Exceptional legislation for seamen. disapproval of Lord Lyndhurst,^ and perhaps also of Lord Tenterden.^ In the United States, however, they have had the high sanction of Chancellor Kent,^ and Mr. Justice Story,* and perhaps, in some of the states, have been incorporated by judicial decision with their maritime law.' In a court of limited jurisdiction, such as that of the Admiralty, administering justice in matters of wages to a single class, it might not be impossible for the judge to have a reserve of principles for the sake of that class alone ; but in courts to which the public in common resort for justice, such partiality would be injustice, and the general application of a principle that would discharge men from their written agreements, would be an unmixed evil. The courts of common law, therefore, were unable to assume the exercise of such a defective jurisdic- tion. They continued to be guided by general principles, applicable to all cases, and in accordance with these, they held the unfortunate seamen bound by the written engagements into which they had been drawn.^ That which no judge could do, has been accomplished by the Legislature. In the language cited on pages 216, 222, they have declared what shall be the general purport and main stipu- lations of certain agreements, and that any stipulation not in accordance therewith shall be illegal and void. There is here a general principle confined by a special application, which excludes the general community, and protects a class of men who have too often been the victims of cruel and designing iniquitj^. BISOHAKGE OP SEAMEN. The discharge of seamen from foreign-going British ships, in the United Kingdom, with the settlement of their wages, when a competent court does not otherwise direct, takes place before a superintendent, to whom an account of all wages due, and deductions incurred, must have been delivered by the master twenty-four hours, at least, before the time of paying off; or ' Jesse V. Roy, 1 Cr. M. & E. 316. ^ Abbott on SMpp. 4 ed. p. 456. s 3 Kent, Com. 193. •* Abbott (Amer. ed.), 610 note. 5 lUd. ' Appleby v. Dods, 8 East, 300 ; Jesse V. Roy, 1 Cr. M. & R. 316 ; and see Cutter v. Powell, 6 T. R. 320 ; Hillyard v. Mount, 8 C. & P. 93. CHAP, v.] THEIR DISCHARGE AND WAGES. 225 such account may be delivered to the seaman himself at or before the time when he leaves the ship. The book in which all deductions must be entered at the time of their being incurred, may be called for ; and any deductions which might have been included in the account,^ or that should have been entered at the time of the occurrence in such book,^ but are not, cannot be allowed. A mutual release, not under seal, as to all claims, in respect of the past voyage or engagement between the parties, is to be signed by the owner or master and each seaman, > and signed and attested by the super- intendent. The original is retained by the superinten- dent, and a copy certified under his hand is the only evidence of such release or satisfaction.^ If the seaman leaves the settlement of his wages to a superintendent of a mercantile marine office, the superintendent's receipt operates as a release.* The statutory^ release is conclusive at common law upon all Statutory Re- the parties to it against any demand arising out of the same ' voyage or engagement ; and equity will not relieve against it, except upon evidence that fraudulent advantage was taken of ignorance ; * or that items, important enough to induce the Court to re-open the account, have been omitted through mistake.'' It is too late after this, therefore, for a seaman to sue on some additional claim for wages, if he has released the owner on payment of a lesser amount. And if he has given no release, but refuses a good tender of the lesser sum, he loses his costs, in case he recover no more than the amount in the plea of tender.^ But it is not a good tender if made conditionally on the signing of the usual release before the ' 17 & 18 Vict. c. 104, § 170, 171 ; the person to give a legal discliarge for 43 & 44 Vict. c. 16, § 4. It is optional the amount found to be due, is the with the master or owner of a home attorney or proctor of the party, The trade ship to go before a shipping- Araminta, 2 Jur. N. S. 310. master, 17 & 18 Vict. c. 104, § 170. ^ 43 & 44 Vict. c. 16, § 4. Agreements to serve on board more ' In other form, it is not evidence than one such ship for the same owner for master or owner, iMd. § 8. need not terminate, half -yearly, 35 & " Slanes v. Parker, 9 Beav. 385. 36 Vict. c. 73, § 16. ' Pritt v. Clay, 6 Beav. 503. 2 Frontine v. Frost, 3 B. & P. 302. ^ This is the rule also in the Court ^ 17 & 18 Vict. 0. 104, § 175 ; but of Admiralty, The Eleanora Charlotta, upon the conclusion of a suit for wages, Osterman, 1 Hagg. Ad. 156 ; The John Q 226 THE MARINERS. [chap. V. Eeterence to Superintendent. superintendent ; ^ and owners or masters should be careful when there are disputes about wages, which the seaman thinks proper to litigate, to make a proper tender of the amount which they think due, and in a way that shall not prejudice any right to try the question, so as to prevent the penalty in the statute of two days' pay for every day's delay during ten days, or otherwise the continuous accrual of wages. ^ It is always in the power of both parties, by writing, to submit any question between them to the arbitration of the superintendent, whose award is binding and conclusive ; and any document (which need not be under stamp) purporting to be such award, is prima facie evidence thereof.^ A question as to wages not involving more than 51. thus referred to him, he may decide finally.* Not liable to attacliment. ■when payable. When wages have become a debt, they were, till recently, liable, in England, to attachment by a judgment creditor in the hands of the employer,^ and in Scotland to arrestment in execution, or for security;^ but a seaman's wages are ex- pressly excepted from this liabiUty, and payment of them to him is vaUd, notwithstanding any previous sale or assign- ment thereof, or any attachment, incumbrance, or arrestment thereon.' At common law, wages are due and payable as soon as they are earned, unless the custom of the trade, or the express contract of the parties, has fixed a different time for payment. By the Merchant Shipping Act, the seaman at the time of his" discharge from a home trade ship is to be paid a sum equal to one-fourth of the wages due to him, and the balance within two days afterwards ; * and in the case of foreign going ships (except ships in and Thomas, Baxter, 1 id. 157 n. ; The Frederick, Hearn, 1 id. 211, 218. Secns in case of a master, The William, Lnsh. Ad. 199. 1 The Mobile, 3 Jnr. N. S. 893, 894 ; Frick V. Miller, 5 C. B. 428 ; Bowen v. Owen, 11 Q. B. 130. 2 17 & 18 Vict. 0. 104, § 187 ; 43 & 44 Vict, c, IB, § 4. 3 Ihid. § 173. ^ 43 & 44 Vict. c. 16, § 4. M7 & 18 Vict. 0. 125, § 61. This is no longer so ; 33 & 34 Vict. c. 30. « Stair's lust. 388, 389, 1 Bell's Com. 530. A limit has been placed on this power ; 33 & 34 Vict. c. 63. M7 & 18 Vict. c. 104, § 233. « 17 & 18 Viot. 0. 104, § 187. CHAP, v.] THEIU WAGES. 227 the Southern Whale Fishery, or other trades for which ' the seamen are compensated by shares in the profits of the adventure), the seaman is to be paid 21. or one-fourth of the wages due to him, whichever is least, on his leaving the ship, and the balance within two clear working days after- wards.^ " Every master or owner who neglects or refuses to make Penalty, payment in 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 which payment is delayed beyond the respective periods aforesaid, and such sum shall be recoverable as wages." ^ It would seem that this enactment is now restrained to the case of home trade ships, by reason of the effect of the section that is next cited. In the case of foreign going ships it is enacted that, " 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 the act or default of the seaman, or to any reasonable dispute as to liability, or 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.^ In these several enactments, as to the period of discharge and payment of wages, lies additional reason for the jealous surveillance authorised by the statute over the length of the engagements, and the actual discharge of the seamen there- under, in certain classes of foreign-going ships.* Hitherto we have spoken of the discharge of seamen, and Wages— what payment of their wages, on the assumption that wages were due ; but whether wages in any particular case are due, and to M3 & 44 Viot. c. 16, § i. . entitled to double pay or continued - 17 & 18 Vict. c. 104, § 187 ; The accrual of his wages as the case may Carolina, 34 L. T. N. S. .399. be. The Princess Helena, Lush. Ad. 3 43 & 44 Vict. c. 16, § 4. We 190. have seen that the master himself i 17 & 18 Vict. c. 104, § 151, 152, regarded as the recipient of wages 161. is within this section so as to be Q 2 228 THE MARINERS. [CHAP. V. what amount, is a question dependent on a variety of principles •which, now come to be considered. Freight not the The general principle of the maritime law, that freight is the mo ei wages. jjjQ^jjgp Qf wages, which had produced so much hardship and injustice as to drive the Courts to refinements for the purpose of evading its application, to the ■ unfortunate seamen, has at length been erased by statute from the law of this country.^ All other principles formerly in force on these questions remain applicable as before ; but we shall see that the claim for wages earned is nevertheless liable to be barred in cases of wreck, or loss of the ship, upon proof that the seaman did not exert himself to the utmost to save the ship, cargo, and stores.^ ■When the whole First, with regard to the cases in which the whole of the are due. i i i • i i • ^ wages agreed to be given are to be paid. It is obvious that a seaman who has faithfully performed his service on board, during the whole period of the intended voyage, is entitled to receive the whole of the stipulated reward. By the maritime law that reward is not to be diminished in consequence of the seaman's inability to render the stipulated service, if such 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 voj'age.^ The same is still the law of this country, when the master retains him on board,* unless such illness incapacitating him for duty, be the eifect of his own wilful act or default, in which case he is not entitled to wages during the period of such incapacity.^ But a seaman who has misrepresented his competency, or his health, at the time of the contract, is liable to be disrated 1 17 & 18 Vict. c. 104, § 183. 2 H. Bl. 606, note (a) ; and by Lord " Ibid. Mansfield in the case of Paul v. Eden, 3 Laws of Oleron, art. 6, 7—1 Par- in the King's Bench, B. T. 25 Geo. 3 dess. 327 ; Wisby, art. 20, 21—1 Par- {Abhott) ; so, in the United States, dess. 473, 474 ; Hans. Ord. (1591) art. Williams v. The Brig Hope, 1 Peter's 40, 46 ; id. (1614) t. 14, art. 1, 2—2 Ad. Eep. 138 ; Shakerley v. Pedrick, Pardess. 519, 521, 556 ; French Ordi- Crabbe, 63 ; 3 Kent's Com. 186. nance, Ut. 3. tit. 4, Des Zm/ers des " 17 & 18 Viet. c. 104, § 185. Matelots, art. 11—4 Pardess. 366 ; Code = 30 & 31 Vict. c. 124, § 8. de Com. art. 262 ; Chandler v. Grieves, CHAP, v.] THEIE WAGES. 229 upon subsequent failure, and to be remunerated, if at all, on a lower scale .^ If a master, in violation of his contract, discharges a seaman from the ship during the voyage, the seaman will be entitled to his full wages, or at common law wages for the , time on board and damages in respect of the remainder, up to the termination of the voyage, deducting such sum as he may, in the meantime, have earned in another vessel.^ And such termination, varying with each contract, will not neces- sarily be the next port at which freight is earned, but the port in view of both parties to the contract as the place where that engagement was to end. A seaman had been shipped for the round voyage out and home ; in the course of the voyage the ship was sold at a foreign port, and the seaman was paid his wages up to the time of sale, and provided with a passage home ; — per Blackburn, J. — " The question not satisfied by what has been done, would be to what extent was the seaman worse pecuniarily by reason of such a determination of his engagement than if he had completed the intended voyage, making all proper deductions for gain of time, re-employment, &c." ^ Wages are agreed on, sometimes by the voyage, sometimes by the month for the voyage. The law of France, when the voyage is interrupted by discharge of the seaman, gives the full amount to the end of the voyage in the former case, and in the latter, the full wages earned by service on board, together with half the wages that might have been earned on the residue of the voyage.* This is the law of the Code ; but that of the French Ordinance,^ which has received the approval 1 See 30 & 31 Vict. c. 124, § 8, and art. 43; Hans. Ord, (1614), tit. 3, art. the following American authorities : 3 7 — 2 Pardess. 519, 534. In the United Kent, Com. 186 ; Atkyns v. Burrows, States, Keane v. The Brig Gloucester, 1 Peter's Ad. 247 ; Mitchell v. The 2 Dallas, 36 ; 8 Kent, Com. 187 ; Ship Orozimbo, 1 id. 250 ; Sherwood Abbott, Ship. (Amer. ed.) 620. V. Mcintosh, Waxe, 109. ^ Mitchell v. Foe, moved by L. 2 Eobinet v. The Ship Exeter, 2 C. Temple, coram Q. B. B. T. 1866, MS. Bob. Ad. 261 ; The Beaver, Grierson, * Code de Com. art. 252. 3 C. Bob. Ad. 92 ; per Lord Stowell, ^ French Ord. liv. 3, t. 4, art. 3— The Elisabeth, Gull, 3 Dods. Ad. 405 ; i Pardess. 364 ; Pothier, Louage des Eoccus, not. 43 ; Hans. Ord. (1591), Matelots, no. 203. 230 THE MAEINERS. [cHAP. V. of Chancellor Kent, and been acted upon in some instances in America, is, that in the latter case, wages should he given for the time of actual service, and for such a reasonable period further, as would allow the seaman, by the directest route, to reach the port of departure.^ The maritime law,^ adopted in this particular by France ^ and the United States,* gives the mariner his expenses also home to the port of departure ; and some of the American cases appear to maintain that any wages earned in the mean- while by him, are a set-off to these expenses only ; ^ but by the law of this country, and perhaps of the United States, such wages are a deduction from the general damages to be recovered.^ The English rule, however, instead of fixing any terminus ad quern with regard to personal expenses, gives such expensed only as are necessarily incurred in consequence of the wrongful dismissal ; '' and, it seems, he may sue immediately, without waiting for the termination of the voyage.^ If any temporary detention of the ship happens during the voyage, by reason of superior force, e. g., embargo,' or capture 1 3 Kent, Com. 187 ; Hoyt v. Wild- 222, note *. fire, 3 Johns. 518. See the Euglish * JPer Lord Eldon, " The Toyage is case of the Elisabeth, Gull, 2 Dods. then ended, as to the man, when he is Ad. 40.5. dischai'ged from the ship by the mas- 2 See note ^, p. 229, ante. ter," Sigard v. Eoberts, 3 Esp. 71 ;^er ' Code de Com. 252 ; unless a pas- Lord Kenyon, Limland v. Stephens, 3 sage is procured for the seaman to that Esp. 269 ; and see the observations on port. • Hulle v. Heightman (2 East, 145) 2 < Abbott, Ship. (Amer. ed.), 620. Smith's L. C. 19 ; in the United States, ^liid.; Hutchinson v. Coombs, Hoyt'U. Wildfire, 3 Johns. 518 ; Ward i;. Ware, 65 ; Emerson v. Howland, 1 Ames, 9 id. 138 ; Sullivan v. Morgan, Mason, 45. 11 id. 66 ; Brooks v. Dorr, 2 Mass. 39 ; ^ See note '■', p. 229, ante. The law Luscomb v. Prince, 12 Mass. 576 ; of damages as at common law is con- Abbott QAmer. ed.), 620. See the sidered in Hochster v.^ De Latour, 22 question determined as at common L. J. (Q. B.) 455. law, in the afiirmative, Hochster v. ' Per Lord Stowell, The Frederick, De Latour, 22 L. J. (Q. B.) 455 ; Frost Hearn, 1 Hagg. Ad. 211, 218. By the 1J. Knight, L. R. 7 Ex. Ill, in error. French law the master who thus wrong- ^ Beale v. Thompson (in error), 4 fuUy dismisses is liable to pay the wages East, 546 ; 3 B. & P. 405 ; Johnson v. of the seaman and his expenses without Broderick, 4 East, 566; Thompson v. right of recovering the same from the Rowcroft, 4 East, 34 ; Hadley v. Clarke, owners— Ord. Uv. 3, t. 4, art. 10 ; Code 8 T. E. 259 ; Delamainer v. Wintering- de Com. art. 270 ; and any contract ham, 4 Camp. 186 ; Brown v. Milner, with the seaman to the contrary is void 7 Taunt. 319 ; Robertson v. Ewer, 1 — Dteret du 4 Mars, 1852, ante, p. T. R. 127 ; Pratt v. Cuff, coram Lord CHAP, v.] THEIR WAGES. 231 followed by recapture/ the fuU wages are due, not only for the voyage, but for the time of detention also ; unless the engage- ment was at a fixed sum for the voyage, for then the parties are supposed to have contemplated all the accidents that sea-faring is liable to ; modus et conventio viucunt legem. Secondly, with regard to cases in which part only of the 'Wten part only , . , is due. agreed wages is due. A master has authority to discharge' a seaman during the voj'age for unfitness or inability to proceed, if he proves the same to the satisfaction of a superintendent, or other similar functionary withia her Majesty's dominions, or of the consular Inconsequence ~, , , . , . , of discharge. omcer abroad, or two respectable merchants, and obtams the certificate of such officer or merchants, endorsed to that efi'ect on the ship's articles ; and the seaman in that case is entitled to his wages up to the day of his discharge.^ If, upon complaint made to a consul at an intermediate port Sent home as a 1111- !• 1 ■ Witness. against another person on board the ship, one ol the seamen is sent home to England as a witness on the charge, his contract of hiring with the owners is thereby dissolved, and his right to wages ceases thereunder from the time of his quitting the ship.^ If a seaman dies in the course of the voyage, it is said by In case of death Heath, J.,* and seems to be admitted in two other cases,^ that voyage. Kenyon, Guildhall, H. T. 1798, cited Little John, 1 id. 115, Abbott (Amer. 4 East, 43 ; Marshall v. Montgomery, ed.), 621. 2 Dallas, 170. 2 ^7 & 18 Vict. c. 104, § 185, 209. 1 Molloy, bk. 2, c. 4, § 13 ; Berg- Button v. Thompson, L. R. 4 G. P. Strom V. Mills, 8 Esp. 36 ; j)er Lord 330. The wages are to be paid if Ellenborough, Beale v. Thompson, 4 possible in money ; but if by bill, then East, 560; Hooper -!>. Perly, 11 Mass. great facilities of recovery thereon 545. Lord Stowell, however, in a case against the owner are given by 25 & 26 where a seaman was taken out of the Vict. c. 63, § 19. ship at the time of the capture, and ^ Melville v. Be "Wolf, 24 L. J. was a prisoner at the time of the re- (Q. B.) 200 ; 4 B. & B. 844, S. C. capture, and so continued till the The rate of wages is a fair criterion of voyage ended without xeioining the the compensation for loss of time in ship, held that only the wages due the case of a seaman detained to give before the capture could be demanded evidence, The Olive. 1 Swab. Ad. 292. by that man— The Friends, Bell, 4 C. " -Pct' Heath, J., Beale v. Thompson, Rob. Ad. 143. Jn the United States, 3 B. & P. 405, 427. in such a case, the mariner has been *• Cutter v. Powell, 6 T. R. 320, 324 ; awarded full wages, Watson v. The Armstrong v. Smith, 1 B. & P. N. E. Rose, 1 Peter's Ad. 132 ; Hart v. The 299. 2B2 THE MAEINEES. [CHAP. V. by the law of this country, wages would be due and payable up to the time of his death, where this is not inconsistent with the express terms of the contract. General Mari- The maritime law on this point is by no means specific or time Law. consistent. The laws of 01eron,i followed in this provision almost' verbatim by those of Wisby,'* and of the Hanse-Towns,^ direct that his wages shall be paid to his representatives, in general words, without distinction as to the terms upon which he Vv'as hired ; and it is not clear whether the payment thus directed is to be understood of a sum proportionate 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. This want of perspicuous distinction in these ordinances respecting cases that differ so widely in their facts, and the nature of the con- tract involved in them, is the more remarkable when compared with the provisions of the Consolato * on the same subject. By that authority half the stipulated sum is to be paid to the seaman's representatives if he die after putting to sea and before arriving at the place of destination ; clearly implying, for this is all that is expressed, that should the death happen after putting to sea on the homeward voyage, the whole of the gross sum would be payable ; and this is the opinion of M. Cleirac,^ and M. Pothier.^ They are completely con- firmed in that opinion by the chapter of the Consolato. that follows. It is this -."^ "If the mariner is hired by the month and dies, his representatives must be paid for all the time that he shall have served." These provisions of the Consolato were adopted in the ordinance promulgated by the Emperor Charles the Fifth, for the Commerce of the Low Countries.^ And afterwards the French Ordinance of Louis the Fourteenth,^ and the Code de Commerce of the present day,^" expressly distinguishing 1 Laws of Oleron, art. 7 — 1 Pardess. on the LawB of Oleron, art. 7. 327, 328. « Pothier, Louage des Matelots, no. 2 Ord. "Wisby, art. 21—1 Pardess. 192. Hi. ' Consolato, c. 85—2 Pardess. 125. s Ord. Hans. (1591) art. 46 — 2 Par- ' Cleiiao, libi mpo-a. dess. 521. 9 Ord. Uv. 3, t. 4, art. 13, 14. ' Consolato, c. 84—2 Pardess. 124. '" Code de Com. art. 265. ' Cleirac (Us et Coutumes de la Mer) CHAP, v.] THEIE WAGES. 233 between the case of a hiring by the month and a hiring for the voyage, directs, in the first case, the payment of wages up to the day of the death of the seaman, and in the other case, the payment of half the stipulated sum if a seaman dies on the voyage outward, and the whole, if he dies on the voyage home. It is somewhat singular that this point never appears to American Law. have been the subject of decision, or even discussion, in any of the courts of this country. It is, perhaps, more remarkable that in the courts of the United States, where the claim has been frequently litigated,^ the decisions are directly conflicting in the same particular, although all professedly founded on the 7th article of the laws of Oleron. In five cases which came before the district courts of that country in the early part of the present century, the hiring appears to have been on the usual terms, by the month, for the voyage, and in three of the cases, the judge of the district court of Pennsylvania held that wages were due to the end of the voyage described in the ship's articles.^ One of them was appealed to the United States Circuit Court, where Mr. Justice Washington reviewed the principle of law involved, and confirmed the decision of the district court.^ In the fourth case, Judge Davis, in the district court of Massachusetts,* aware of the decision of Mr. Justice Washington, held that wages were due up to the time of the death only, founding that opinion upon a critical exa- mination of the article in the laws of Oleron, as given in Cleirac's text, compared with the ordinances of Wisby and the Hanse Towns, calling to his assistance the early French com- mentators, whose age and nation brought them into nearer relation with the time and language of that compilation. Upon a full review of these authorities, he concludes, that the expression tout comptant, in the laws of Oleron, is almost indefinite, and is adequately translated by the words, " full wages," and that it receives a specific meaning from the contract to which it is applied, according as the hiring is by ' Abbott (Amer. ed.), 624. ' Jackson v. Sims, 1 "Wash. C. C. 2 Walton V. The Neptune, 1 Peter's 414 ; 1 Peter's Ad. 157, S. C. Ad. 142; Scott v. The Greenwich, 1 < Natteistromr. The Hazard, inserted id. 155 ; Jackson v. Sims, 1 id. 157. in Bee's Eep. 441. 234 THE MARINERS. [chap. V. In case of change of Owners. the month, or by the voyage.^ The same opinion was adopted in a later case, by the judge of the district court of South Carolina, expressly holding himself free to differ from the principle of the decision of Mr. Justice Washington.^ In case there is a change of owners during the voyage, the seaman's service on board ceases under the original articles ; and if new articles are signed, his right to wages for the residue of the voyage is under these. If new articles are not signed, and yet the seaman continues to serve on board, there is evidence of an agreement on the terms contained in the old articles. But if the seaman leaves the ship, as he lawfully may do, upon hearing of the change, or some time after, without entering into a new engagement, there is evidence from which a jury may infer a contract with the new owner to pay him, •pro rata, for his services in the meantime.^ Neither the original owner, however, nor the master, is discharged from his obligation under the first ai'ticles in case the seaman should sustain damage by the change. • Unfortunately for the verbal criti- cism of Judge Dayis, it is founded on a corrupt text, and half the phrase tout comptant is wanting in the superior text supplied to the jurists of Europe by M. Pardessus in his splendid Col- leotion de Lois Maritimes ant4rUwes au 18mc. sikcle; but the conclusion to which that criticism led him seems to be assisted and fortified by the read- ing of the later recension. M. Cleirac, whose Us et Contwmes was before the learned judge, gave the text thus : — Et s'il guarit, il doit avoir son loy er tovt eomptant, en rabatant les frais, si le maistre luy en a fait ; et s'il meurt, sa femme et ses prochains le doivent avoir pour luy. According to the text of Pardessus, taking the article earlier for the sake of his translation, it is : — Et si la neef est preste k s'en aler, elle ne doit pas demourer pour li, ainz se doit aller ; et s'il guarit, il doit avoir son louyer tout a long ; et s'il moerge, sa femme, ou ses priv6s le doib- vent avoir pour li. Translated by M. Pardessus, — Lorsque le navire est en 6tat de partir, le patron n'est pas oblig^ d'attendre la gu^rison du malade, qui conserve le droit d&tre pay6 de ses loyers ; et s'il meurt, sa femme et ses h^ritiers ont les m&mes droits. The printed text copied in the Black Book of the Admiralty, recently edited by Sir Travers Twiss in the RoUs Series, vol. ii. p. 4iO, has the phrase tout eomptant. The same point as given by the Ord. of the Hanse Towns and that of Wisby, each of them a reproduction of the article in the Laws of Oleron, is thus presented by the translation of M. Par- dessus. Ord. Hans. (1591) art. 46. Si le malade se r^tablit, il recevra son loyer en totality ; s'il meurt, ce loyer sera remis k ses h^ritiers. Ord. of Wisby, art. 21. S'ils gu&issent. Us auront I'int^gralit^ de leurs loyers ; en cas de d^c^s, la totality en sera pay^e k leurs veuves ou k leurs h^ritiers. 2 Carey v. The Kitty, Bee, 255. 3 Robins v. Power, 27 L. J. (C. P.) 257. CHAP, v.] THEIE WAGES. 235 When the voyage is interrupted by the wreck or loss of the In consequence ship, the seaman is entitled to wages up to the termination of his services ; ^ but where the casualty to the ship, though short of a total wreck, is of so serious a nature, that great delay is necessary to put her in a state of repair, there is an implied authority in the master under such circumstances to discharge the crew ; and the seamen in that case appear to be entitled to their wages up to the time of discharge, and for such a reasonable period further, together with such expenses, as will enable them to reach the port of departure ; ^ subject, however, to deductions for wages earned by them in the meantime.^ The ship Elisabeth, when it was late in the season, stranded on the Swedish coast, and received such injuries, that repairs too extensive to be executed before the ice closed the Baltic, were become indispensable ; the master, therefore, discharged the crew, and wages were decreed to them up to the time of their return to this country, with the necessary expenses incurred by them in coming home.* Wages we have seen are now due notwithstanding the In consequence capture of the ship, if it be followed by recapture ; but, before the Merchant Shipping Act, if no recapture followed, then wages were due only in proportion, as freight had been earned, if any, prior to the capture.^ Capture, therefore, comes under the general provision in section 183 of the statute, as a case in which wages were dependent on the earning of freight. And as this is one of the perils of the sea that may fairly be included within section 184, under the term " loss," it seems that wages are now due up to the time of the capture, and not for any further period.® 1 17 & 18 Vict. 0. 104, § 185. Prior 405. to the 7 & 8 Vict. o. 112, § 17, which 3 Robinet v. The Exeter, 2 C. Bob. is re-enaoted by the Merchant Shippiag Ad. 261. Act, as above, the seaman did not lose ^ The Elisabeth, Gull, 2 Dode. Ad. all his wages by the wreck of the vessel 405. if there was any part of it saved, not- * Wiggins v. Ingleton, 2 Ld. Kaym. withstanding freight had not been 1211 ; per BuUer, J., Yates v. Hall, 1 earned. The Neptune, Clark, 1 Hagg. T. E. 73, 79 ; Hernaman v. Bawden, 3 Ad. 227 ; The Eeliance, Green, 2 W. Burr. 1844. Eob. 122. 15 17 & 18 Vict. c. 104, § 183, 185, s The EHsabeth, Gull, 2 Dods. Ad. 236 THE MAEINEKS. [CHAP. V. NotB-ithstanding To encourage seamen to enter the Eoyal Navy, it has been entry into Eoyal ° •' , , • Navy. held at common law,^ and it is provided by statute, that his rights at the time of his so doing, although in the course of a voyage, shall be secured to him against forfeiture ; ^ but he is not within this protection, unless his leaving the merchantman be for the purpose of forthwith entering into the naval service of Her Majesty.^ A mariner, therefore, who quitted his vessel in defiance of the master, with opprobrious language, and without any declara- tion at the time of his intention to enter a King's ship, although he did so within twenty-four hours afterwards, was held to have forfeited, by desertion, his wages in the merchant- man, notwithstanding the 2 Geo. 3, c. 36, § 13.* A seaman, however, 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.' But entering, or being impressed, into the Eoyal Navy, does not give the mariner an absolute right to his wages up to the time, nor place him in a better position, as to such wages, than he would have occupied, if he had remained on board the ship. He was, therefore, liable still to lose all his wages, e.g., in consequence of capture before freight was earned, as the law stood heretofore ; * and it would seem that under such a con- tract as that in Cutter v. Powell,'^ viz., to be paid wages if he complete the voyage, he has no right at all to wages if he enters the Eoyal Navy before the complete performance of his engagement. Moreover, if an advance of wages has been made to such seaman by the owner or master of the merchantman beyond ' Wiggins V. Ingleton, 2 Ld. Eaym. Ad. 403, 405. 1212. 5 Pauli). Eden, 1 K. B. (B. T.) 25 2 2 Geo. 2, c. 36, § 13 ; 7 i^ 8 Vict. Geo. 3 (Abiott). c. 112, § 50 ; 17 & 18 Vict. c. 104, ^ Another case «mJ Wiggins u. Iiigle- § 214. ton, 2 Ld. Eaym. 1211 ; Anon. 2 Camp. 3 17 & 18 Vict. c. 104, § 214. 320 n. * The Amphitrite, Morgan, 2 Hagg. ? Cutter v. Powell, 6 T. E. 320. CHAP, v.] THEIE WAGES. 237 the sum actually earned by him, the excess is to be repaid to the owner or master out of his wages earned in Her Majesty's service.^ And if the owner or master is obliged to give higher wages to a substitute than would have been due to such seaman had he continued on board, he may obtain the differ- ence by application to the registrar of the Court of Admiralty, and the same is chargeable upon the navy estimates for the jeav.- If the ship is arrested during the voyage for fraud or mis- Ii. cases of failure of conduct, or illegality of purpose on the part of the owners, or Voyage. master, so that the voyage is lost, the seamen not being privy to the illegality, are entitled, if hired by the month, to their wages up to the time of the seizure, and any expenses which they are necessarily put to in consequence.^ If hired for the voyage, or by the month for the voyage, the seamen would be entitled to damages besides, for being prevented by the acts of the owners or their servant, the master, from earning wages for the voyage. The French code accordingly gives them in addition, as indemnity, half their stipulated wages for the pre- sumed duration of the voyage ; and it awards to those who are hired for a gross sum the entire amount besides expenses.* Formerly if a seaman were wrongfully discharged after In case of dis- signing the ship's articles, and before the voyage began, he was the Voyage entitled to his full wages for the voyage, in case it were prose- ^^s^"^- cuted, subject to the deduction of wages earned by him in the meantime ; ^ but if the voyage for which he engaged was not prosecuted, he had his wages for the time that he had served,® and his action at common law for any special damage suffered by him through breach of the contract. This could not be the subject of a suit in the Admiralty Court ; the other might have been.''' But the legislature have laid down a general rule, applicable to these cases, and in many others the master may have re- course to it, frequently with advantage to seamen and owners, 1 17 & 18 Vict. 0. 104, § 216. 25i. 2 Ibid. § 217, 218, 219. * The City of London, Reynolds, 1 3 The Malta, Young, 2 Hagg. Ad. W. Eob. 88. 162 ; Molloy, bk. 2, c. 3, § 7 ; 3 Kent, « Wells v, Osman, 2 Ld. Kaym. 1044. Com. 188. ' P^'i' Dr. Lushington, The City of « Co. de Com. ait. 252 ; see art. London, Eeynolds, 1 W. Kob. Ad. 88. 238 THE MARINEES. [chap. V. Under breach of Discipline, When no Wages are due. for the purpose of evading some of the diflSculties of the law and many of the consequences of uncertainty. " Any seaman who has signed an agreement, and is afterwards discharged hefore the commencement of the voyage, or before one month's wages are earned, without fault on his part justifying such dis- charge, and without his consent, shall he entitled to receive from the master or owner, in addition to any wages he may have earned, due compensation for the damage thereby caused to him, not exceeding one month's wages, and may, on adduc- ing such evidence, as the court hearing the case deems satis- factory, of his having been so impropei'ly discharged as afore- said, recover such compensation as if it were wages duly earned." ^ In terms the rule appears inapplicable to an engagement at a gross sum for the entire voyage, in which case the rule already mentioned is still binding. The intention of the concluding words of the section is to enable the seamen to proceed for such unliquidated damages in the summary manner pointed out in section 188 ; and the full effect of the rule, read in connection with section 189, will be to exclude all cases governed by it from the Court of Ad- miralty and the superior courts of record, save under the circumstances expressly excepted by the latter provision.^ 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 agree- ment 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 ; ^ nor for any period during which he is incapacitated for performing his duty by illness caused by his own wilful act or default.'' This provision preventing the accrual of right finds its place here, while those enactments under which the seaman forfeits the right when accrued remain to be considered elsewhere."^ Thirdly, as to cases in which no wages are due. By the provision, already given at length, with regard to void 1 17 & 18 Vict. c. 104, § 167. 2 Xlie Admiralty Couit Act, 24 Vict. c. 10, § 10, gives jurisdiction " over any claim by a seaman for wages earned, on hoard tlie ship.'" ■ 3 17 & 18 Vict. c. 104, § 186. * 30 & 31 Vict. c. 124, § 8. 6 Post, p. 240. CHAP, v.] THEIR WAGES. 239 stipulations in ship's articles, every stipulation by which the seaman consents to abandon his right to wages in case of the loss of the ship, and every stipulation maldng his right to wages dependent on the earning of freight, being one of those that are inconsistent with the provisions of the Merchant Shipping Act, is wholly inoperative.^ But the seaman may still make a binding contract, and In case the Con- , -i • 1 i- J.1 J- i J- • J- 1 • tract is indivi- perhaps it is by tar the more frequent lorm m use, for his sjbie, and the service on board to a particular place, either at a fixed rate of ^artia"^""^ wages per month, or a sum certain for the voyage, and if he afterwards voluntarily quits the vessel, although with the per- mission of the master, or is removed by death, before the end of the voyage, there is no right to wages for the period of service actually rendered.^ Lord Tenterden indeed ruled in one case where the seaman quitted with the permission of the master, that he was nevertheless entitled to recover on a quantum meruit ; ^ but that is not to be regarded as a general rule ; * unless it be in cases of the same nature with the one then before him, where the stipulation operates rather by way of forfeiture of a right accrued ; and then if the permission of the master is to be viewed as a waiver, the seaman would seem to be entitled, at least in the case before Lord Tenterden, to his remuneration under the contract. That was the case of a South Sea whaling adventure upon which the plaintiff embarked under contract to be paid for his services by a fixed proportion of the profits, it being further stipulated that if any of the ofiicers or men did not return with the ship to London, he should lose his share ; the ship sailed with the plaintiff on board, and after the active part of the expedition was closed, and she was on her return home, the master agreed with the master of another ship which was on her way to begin a similar adventure, and had several of her hands sick, to exchange some of his able seamen, the plaintiff being one of them, for the sick men ; this was done, 1 17 & 18 Vict. c. 104, § 182, 183, (N. S.) 778. ante, p. 222. ^ Hillyaid v. Mount, 3 C. & V. 93. 2 Cutter v. Powell, 6 T. R. 320 ; * Per Wniiams, J., in Robins v. per Cockbum, C. J., Eobins v. Power, Power, 27 L. J. (C. P.) 257, 259. 27 L. J. (C. P.) 257, 261 ; 4 0. B. 240 THE MARINERS. [chap. V. Forfeiture of Wages by de- sertion. What amounts to Desertion. and afterwards in an action for his share of the profits, issue being joined on a replication of licence to a plea of desertion,^ Lord Tenterden ruled as we have mentioned, stating at the same time, that the question as to what might be the effect in law of the facts of the case in relation to the plaintiff's rights under the contract had not been raised on the record.^ A seaman by desertion from the ship incurs, under the general maritime law,^ a forfeiture of all his wages, and there is no power in the Court to modify the penalty ; * but by statute there is a large discretion in the Court as to the amount of punishment and extent of forfeiture to be applied in each case. The deserter is no longer liable to imprisonment,^ but he is liable to forfeit all or 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 the 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 United Kingdom,^ 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.'' The offence of desertion consists in the abandonment of the ship by any apprentice or by any seaman lawfully engaged, before the due termination of his engagement, without just ^ For the sake of human nature, let this be supposed the suggestion of the pleader entirely. 2 Hillyard v. Mount, 3 C. & P. 93. ' Per Lord Stowell, the Baltic Mer- chant, Smith, Ed. Ad. 86, 94 ; per id. The Pearl, Denton, 5 C. Kob. 224, 230 ; per Dr. Lushington, The West- moreland, Brigstook, 1 W. Kob. Ad. 216 ; Consolato, art. 223, 112, 113— 2 Pardess. 289, 141, 142 ; Hans. Ord. (1378), art. 4 — 2 Pardess. 456 ; capital punishment is added by the Ord. of 1380, art. 2, which is changed to im- prisonment by Ord. of 1418, art. 13 ; again changed to death, by Ord. 1530, art. 16, altered again to branding by Ord. 1591, art. 44 ; Ord. 1614, t. 4, art. 25—2 Pardess. 456, 457, 471, 493, 520, 542 ; French Ord. liv. 2, t. 7, art. 8. By the Ord. of Wisby, art. 62, and Amsterdam, art. 25, (1 Pardess. 500, 415,) desertion by a seaman after obtaining his wages was a capital crime. " The Pearl, Denton, 5 C. Eob. 224, 230 ; The Blake, Hadden, 1 W. Eob. Ad. 87. " 43 & 44 Vict. c. 16, § 12. ^ Kecoverable by the prior master, owner, or his agent in the same manner as the deserter might have recovered the same ; 17 & 18 Tict. c. 104, § 253. 7 17 & 18 Vict. c. 104, § 243. CHAP. V.l FORFEITURE OF THEIR WAGES. 241 cause, and with the intention of not returning to the vessel.^ Although the quitting be without leave, or even in defiance of prohibition, if there is the animus revertendi, followed by the fact of return, there is no desertion ; ^ and if the fact of return is prevented, e.g., in consequence of the hasty imprisonment of the seaman by the master, the law presumes there was the animus revertendi, and it is for the owner or master to rebut this presumption by proof.^ The nature of the offence, however, is not necessarily de- pendent on the ultimate issue of the departure ; for if a seaman leave with the intention of deserting, and afterwards enter himself on board the Royal Navy, it is still a desertion, and the statute * will not avail him. So it was held, in a case where a seaman left the ship in defiance of the master and with opprobrious language, not stating at the time any intention to join the Eoj^al Navy, but within twenty-four hours afterwards went on board a king's ship ; his desertion was akeady com- plete, and his wages were forfeited.^ Obviously, mere leave to go on shore, will never justify the seaman in not returning to the ship ; ^ and even express per- mission to quit entirely, though given by the person in chief command, will be no justification, if the permission is counter- manded by superior authority in time to prevent the desertion.'' But if the master compromise himself in the heat of a quarrel by something like a permission to quit entirely) and the seamen act upon it, the Court is not disposed to construe this a deser- tion, nor wiU it under such circumstances necessarily award them wages up to the end of their term of engagement.^ ' The Westmoreland, Brigstook, 1 The Ealing Grove, Falconer, 2 Hagg. W. Kob. Ad. 216, 221 ; The Two Ad. 15 ; The Agincourt, Mahon, 1 Sisters, Davison, 2 W. Bob. Ad. 125, Hagg. Ad. 281 ; Button v. Thompson, 137. L. R. i 0. P. 330. 2 Sigard v. Roberts, 3 Esp. 71 ; The " 17 & 18 Vict. c. 104, § 214. Ealing Grove, Falconer, 2 Hagg. Ad. ^ The Amphitrite, Morgan, 2 Hagg, 15 ; The Two Sisters, Davison, 2 W. Ad. 403. Rob. Ad. 125. * The Bulwer, Brown, 1 Hagg. Ad, 3 The Westmoreland, Brigstock, 1 W. 163, 167, 168. Rob. Ad. 216 ; as to the onus proiandi, ' The Pearl, Denton, 5 C. Eob. Ad, see 2 W. Eob. 134 ; a sailor got drunk 224, 230 ; The Jupiter, Crosbie, 2 Hagg. and missed the boat and was afterwards Ad. 221 . imprisoned for desertion, but recovered » The Frederick, Hearn, 1 Hagg. Ad, his wages, as there was no desertion, 211. K 242 THE MAKINERS. [chap. V. Legal excuse for Desertion. If a seaman quit the ship on account of the cruel and oppressive treatment of the master/ or because the ship is unfit to proceed to sea,^ or because the provisions supplied are through default of the master, unreasonably scanty or bad, or both,^ and afterwards sue for wages, there is a good defence for him m either case to the plea of desertion. Nor is it any desertion' if he quit because the ship is about to deviate from the voyage described in the articles, for he is not bound except by his contract.* But it would be no justification for his quitting, that the ship had been driven out of her coui'se by stress of weather,^ or that in consequence of such involuntary deviation or detention the crew had been put on short allowance,^ or that her crew had been diminished by desertion or casualties, unless the number were so reduced that to put to sea in the same condition would be a risk of life/ 1 Edward v. Trevellick, 4 B. & B. 59 ; Limland v. Stephens, 3 Esp. 269 ; The Minerva, Bell^ 1 Hagg. Ad. 347, 368 ; The Castilia, Stewart, 1 Hagg. Ad. 69 ■; The Test, Brown, 3 Hagg. Ad. 315. ^ I think this would be a good de- fence, if the master were made aware of her condition and he refused to make it good. See 34 & 35 Vict. c. 110, § 11, 7, 8. The latter sections merely provide for a survey, in case of application tiy one-fourth' of the crew or not less than five seamen ; but by the 39 & 40 Vict. o. 80, § 5, the obli- gation of the ownet to provide and maintain by all reasonable means the seaworthy condition of the ship is a necessary part of every agreement with a seaman or apprentice. 3 Per Lord StoweU, The Castilia, Stewart, 1 Hagg. Ad. 59, 60 ; 17 & 18 Vict. c. 104, § 221, 225, 226, and form of ship's articles. * The Westmoreland, Brigstock, 1 "W. Bob. 216 ; The EHza, Ireland, 1 Ha!gg. Ad. 182 ; The Countess of Har- oourt, Bunn, 1 id. 248 ; The Minerva, BeU, 1 id. 347 ; The George Home, Young, 1 id. 370 ; Bmion v. Pinkerton, Jj. E. 2 Ex. 340. Mr. Justice Story says : — " Where the shipping articles authorise the master to touch at cer- tain intermediate ports, ' or as he may du'ect,' it is no violation of his contract with 'the seamen to stop at a place not named, and affords no justification to them for leaving the vessel ; " Wood v. Ihe iBrigantine, Nimrod, Gilpin, ' 83, 226, 227, 1 HaU, Law Journal, 209 ; Smith V. The Brookline, 8 Law Rep. 70, But this note by the learned judge (Abbott, Amer. ed. 174) must beunder- stood with this, modification, that the port so touched at but not named in the articles fairly takes rank with the other intermediate ports named, and is not a deviation from the rest of the voyage as being either unusual or unreasonable when considered in relation thereto. See the principle of construction laid down by Lord StoweU in the Minerva, Bell, 1 Hagg. 891, Ad. 247, ante, p. 223. * The Cambridge, Barber, 2 Ha|g. Ad. 243, 247. ^ But this would be good cause for compensation under the statute. The Josephine, 1 Swab. Ad. 152 ; 17 & 18 Vict. u. 104, § 223. ' Semble, per Lord Campbell, C. J., Hartley v. Ponsonby, 7 E. & B. 872 ; CHAP, v.] FORFEITURE OP THEIR WAGES. 21c An engagement for the voj^age extends, bj^tlie maritime law, Quitting before to the discharge of the cargo, and binds the seaman, when the secure!'^' ''^ ship has come into the roadstead and cannot immediately get into the port, to remain on board at least a reasonable time. If he quits earlier it is desertion, by the maritime law,^ and continues to be so under the present Acts. Under the 5 & 6 Will. 4, c. 19, a seaman deserted his ship after her arrival at her port of discharge, and before delivery of the cargo, without incurring the forfeiture assigned to desertion by the 9th section of that statute, in consequence of the follow- ing clause appearing in the 7th section: — "And in case any seaman after the shij)'s arrival at her port of delivery, and before her cargo shall be discharged, shall quit the ship without a previous discharge or leave of the master thereof, he shall forfeit to the master or owner one month's pay out of his wages." The com't were of opinion that the offence com- mitted, though found to be desertion, was described by that clause, and consequently that the section i^roperlj' applicable to desertion could only apply to cases of desertion occurring abroad.^ The clause in the present Act is by no means similar to that which formed the basis of this decision. It is this: — "For quitting the ship without leave after her arrival at her port of per Dr. Lushington, The Araminta, 18 under the express terms of the oon- Jur. 793. tract. By the law of the United States, if ^ M'Donald v. Jopling, 4 M. & "W. the mate and a majority of the crew 285. See also Prontine v. Frost, 3 after the voyage is begun, but before B. & P. 302, under the 2 Geo. 2, c. 36, the vessel has left the land, deem the § 3, 6, 9. The object of the Legislature vessel unsafe, or not duly provided, by the previous enactments being to and shall require an examination of mitigate the penalty from forfeiture of the ship, the master must proceed to the entire wages for desertion under or stop at the nearest or most con- such circumstances, they in effect re- venient port, where an inquiry is to be moved many instances of desertion into made, and the master and crew must a category not known by that name, conform to the judgment of the ex- This is no longer necessary in conse- perienced persons selected by the dis- quence of the discretion left in the trict judge or a justice of the peace, 3 Court as to the amount of punishment Kent, Com. 177, 178. to be awarded in any case of desertion 1 The- Baltic Merchant, Smith, Edw. whatever. So that the offence of Ad. 86, 91 ; The Pearl, Denton, 5 C. desertion is now under the statute Bob. Ad. 224 ; The Cambridge, Barber, what it always was by the maritime 2 Hagg. Ad. 246 ; see Neave v. Pratt, law, but the punishment is not neces- 2 N. R. 408, as to the right of quitting sarily any longer the same in all cases. K 2 244 THE MARINEES. [chap. V. Forfeiture by Misconduct. In the case of Officers. In the case of delivery and before she is placed in security, he shall be liable to forfeit out of his wages a sum not exceeding one month's pay."i The express limit to this prohibition points to the continu- ing peril of the ship, and thereby distinguishes from desertion the quitting here intended, as that mere leaving the deck to go ashore, which temporarily deprives the owner of his services in protecting the vessel from danger that may at any moment arise. The seaman may also incur the forfeiture of his wages, under the maritime law, by his misconduct, if it be of a nature to warrant this extreme punishment. Lord Stowell said that " any acts which will justify a master in discharging a seaman during the voyage, will also deprive the seaman of his wages." ^ But Dr. Lushington, taking exception to that way of stating the rule, lays it down in preference, " that the wages may be forfeited, not in cases of discharge for mere misconduct alone, but where the misconduct has been such as to render the dis- charge of the seaman imperatively necessary for the safety of the ship, and the due preservation of discipline." ^ In the case of a mate, whose position on board imposes on him duties of a higher order than are expected from the com- mon seaman, drunkenness, neglect of duty, and disobedience are certainly offences of a high nature, fully sufficient to justify the forfeiture of his wages.* And negligence in such an officer need not be wilful ; it is enough if it appear to be habitual inattention to the ordinary duties of his station, such as would expose the ship to danger ; for the mate stipulates against such negligence.^ Conduct of a decidedly mutinous tendency in an officer of such influence, trust, and command in the ship, enures therefore to a forfeiture of his wages.^ In the case of the ordinarj"^ seaman, a class whose morality 1 17 & 18 Vict. u. 104, § 243, no. 3. 2 Kobinet v. The Exeter, 2 C. Rob. Ad. 261. 3 The Blake, Hadden, 1 W. Eob. Ad. 73, 75. 4 Per Lord Stowell, Eobinet v. The Exeter, 2 C. Eob. Ad. 261, 263 ; pej- Dr. Lushington, The Duchess of Kent, Newby, 1 "W. Rob. Ad. 283, 285. Oc- casional drunkenness even in the mas- ter does not operate a forfeitm-e of his wages ; The Atlantic, Lush. Ad. 566. ^ The Lima, Pewson, 3 Hagg, Ad. 346, 356. CHAP, v.] FORFEITURE OF THEIR WAGES. 245 unfortunately is not very high, or his self-restraint either strict Common Sea- or habitual, it would be impossible to administer any code which visited every instance of misconduct with this extreme penalty. It is not for a single act of intemperance,^ although the means are purloined from a locker accidentally left open in the cabin,^ or for slight and occasional intoxication,^ that this punishment will be inflicted ; it must be habitual drunkenness, mutinous conduct, or other gross disobedience and insubordi- nation, such as endangers discipline on board and the safety of the ship.* But in judging of these offences, the Court draws a strong line of distinction between disobedience of orders in port, and any insubordiaation whatever when the vessel is on the high seas ; ^ it will take account of the conduct of the master, and the degree of discipline maintained on board, when these are such as to be a palliation of the offences imputed to the seamen ; ^ and it will take care, when the conduct of the master is intentionally such as to induce a forfeitm^e of the men's wages, that the penalty shall not follow.'' In addition to those here mentioned, there are min or offences and breaches of discipline, for which, by statute or under the ship's articles, the seaman is liable to forfeit part of his wages by way of penalty.^ The subject properly under consideration here, however, is wages, and not discipline. In cases where the seaman, either by desertion or disobe- Waiver of For- dience and iasubordiaation, has beyond any doubt incurred the forfeiture of his wages, it is competent to the master to waive the forfeiture, and he impliedly does so when he receives the 1 The Malta, Young, 2 Hagg. Ad. Ad. 73, 75, ante, p. 244 ; The Malta, 158, 168 ; Eobinet v. The Exeter, Young, 2 Hagg. Ad. 158, 168 ; The 2 C. Rob. 261 ; The New Phoenix, New Phcenix, Lewthwaite, 1 Hagg. Ad. Lewthwaite, 1 Hagg. Ad. 198, 199 ; 198 ; The Susan, Hamilton, 2 Hagg. The Lady Campbell, Beetham, 2 Hagg. Ad. 229 n. Ad. 5 ; The Ealing Grove, Falconer, ' The Blake, Hadden, 1 W. Bob. id. 15 ; The Lima, Pewson, 3 Hagg. Ad. 73, 87, 88. Ad. 346, 362 n. ° The New Phoenix, Lewthwaite, 1 2 The Gondolier, Rhodes, 3 Hagg. Hagg. Ad. 198, 200 ; The Aginoourt, Ad. 191. Mahon, 1 Hagg. Ad. 271, 290 ; The •'' The New Phoenix, Lewthwaite, 1 Test, Brown, 3 Hagg. Ad. 315. Hagg. Ad. 198 ; The Duchess of Kent, '' Per Lord Tenterden, Trains, Ben- Newby, 1 W. Bob. 285, 286. nett, 3 C. & P. 3. * See the rule laid down by Dr. Lush- » geg 17 & 18 Vict, c, 104, § 243 and ington, The Blake, Hadden, 1 W. Rob. post, p. 256. 246 THE MAEINEES. [CHAP. V. Statutory Evi- dence for declar- ing a forfeiture. seaman back after desertion, and, either in that case or after misconduct, allows him to work the ship as one of the crew.^ But in Lord Tenterden's opinion, it was clear that under circumstances of distress — for instance,, if the ship were aground — the master might call for the assistance of any seaman who had previously incurred a forfeiture, without any waiver thereby of his owners' rights, provided he did not con- tinue to use such assistance after the vessel was delivered out of her distress.^ In connection with the minor breaches of discipline to which the statute^ or the articles signed by the crew* attach forfeitures out of wages, varying in amount, it is also com- petent to the master or owner to waive his right, and the same may be implied, although from what acts it would be difficult in such cases to say beforehand. With regard to the proof of any of the offences enumerated in section 243, it is provided that entries thereof shall be made in the official log, as soon after the occurrence as possible, and, if not made on the same day as the occurrence, shall be dated of the day of the entry, and signed by the master and mate or one of the crew, and it must appear by the same entry that it was read over, or a copy furnished, to the offender, and that his answer, if any, has been added thereto.' Such an entry in the official log of an alleged offence, is a condition precedent to the enforcement of any forfeiture or exaction of any fine in regard thereto.^ These entries are made evidence by statute,'' and, if not produced in court, may, it seems, be 1 Miller v. Brant, . 2 Camp. 590"; Train v. Bennett, 3 C. & P. 3 ; and see The Ealing Grove, Falconer, 2 Hagg. Ad. 15, 19 ; The Test, Brown, 3 id. 815 ; 17 & 18 Yict. c. 104, § 243, u. 2, " desertion not treated as such by the master ; " § 247, 248. 2 Train v. Bennett, 3 C. & P. 3. 3 17 & 18 Vict. 0. 104, § 248. * The Board of Trade have sanctioned and issued a paper (b) specifying a series of twenty-two breaches of disci- pline with the penalties incurred there- by attached, any or all of which, in addition to those mentioned in the statute, may be inserted by consent of the master and crew in the ship's articles, with the view of promoting discipline on the one hand, and defi- nitely ascertaining the maximum pe- nalties on the other. 5 17 & 18 Viet. c. 104, § 244, 281. No entry of any occurrencfe previous to the ship's arrival at her port of final discharge shall be made more than twenty-four hours after such arrival. 1= 17 & 18 Vict. c. 104, § 282, no. 2 ; Frontine v. Frost, 3 B. & P. 802, ? 17 & 18 Vict. c. 104, § 285. CHAP, v.] FOEFKITUEE OF THEIR WAGES. 247 proved by certified copies from the proper custodian of the originals.^ In the absence of the originals, or of certified or examined copies, it is in the discretion of the Court to refuse other evidence of the offence.^ In cases of desertion abroad, the chief officer of customs, or the British consular officer at the next port thereafter, at which the ship touches and remains forty-eight hours, is required to make and certify a copy of the entry in the ofScial log respect- ing such desertion, and this certificate when transmitted to the Registrar-General of Seamen in England, if purporting to be so made and certified, and to be certified as coming from the custody of such Registrar, is evidence of the entries contained therein.^ The burthen of proving desertion lies upon him who sets it Onus prohandi. up in answer to a claim for wages ; '^ but it suffices if he prove (I.) that the alleged deserter was duly engaged in, or that he belonged to, the ship deserted ; (II.) that he quitted such ship before the completion of the voyage or engagement — or, if the voyage was to terminate in the United Kingdom, and the ship has not returned, that he is absent from her ; (III.) and that an entry of the desertion has been duly made in the official log.^ It then lies on the seaman or apprentice Defence, so charged with desertion to show a proper certificate of dis- charge, or to justify, on legal grounds, the fa:ct of his leaving the ship,^ unless he can show that no entry has been made in the official log, or effectually impeach the truth of it, or otherwise shake the credibility of the evidence adduced against him. The proceeds of forfeitures fdr desertion are applicable to Forfeitures, how applied. ' Ibid. § 285, 244, and the General part of the owners, if it appear that the Evidence Act, 14 & 15 Vict. c. 99, non-production or want of proof of the § 14. entries in the official log was owing to 2 17 & 18 Vict. c. 104, § 244. What fault or negligence of the owners or is it which is left in discretion ? In their servants. Frontine v. Frost, 3 B. & P. 302, the 3 i7 & 18 Viot. c. 104, § 249. requisite entry in. the book by the * The Two Sisters, Davison, 2 W. master was held to be a condition pre- Bob. Ad. 125, 134 ; Robins v. Bower, cedent to his right to make a deduction 27 L. J. (C. P.) 257, from wages. What is probably left in = 17 & 18 Vict. c. 104, § 250; The the discretion of the Court is to refuse George, Banifcr, 1 Hagg. Ad. 168 n. other evidence of the defence on the ^ x7 & 18 Vict. c. 104, § 250. 218 THE MARINERS. [cHAP. V. the expense occasioned thereby to the master or owner of the ship whence the desertion was made, and the residue belongs to the Crown for the purposes of the Consolidated Fund ; all other forfeitures already referred to, if not otherwise specifically directed by the Court, are for the benefit of the master or owner by whom the wages are payable.^ Recovery of By the 17 & 18 Vict. c. 104, 8 191, the master who had Wages. heretofore occupied a disadvantageous position, is clothed with the same liens, rights and remedies, in respect of his wages, as are possessed by the ordinary seaman,^ and, therefore, in con- sidering what liens, rights and remedies the latter possesses, we may omit all further mention of the master. The remedy of the seamen for the recovery of their wages is either by suit against the owners or the master personallj^, or by process against the ship in any Court having Admiralty jurisdiction, for the enforcement of the lien which they have in that respect in virtue of the law maritime.^ A contract to share in a fishing adventure and bear part of the burden thereof on the part of a master [or seaman], is a contract as to wages and within the Admiralty jurisdiction of the County Court.* If the ship is already in arrest at the suit of other creditors, the seamen have a right to enter their claim for wages, and notwithstanding the fund in court is insufficient for those claimants who have no recourse against any other, it is not competent for the Court to order the seamen, who have, to proceed against the owners or master personally.' Nor are the seamen ousted of their right of proceeding in this court, by the pendency of a suit for the same debt, or even judgment obtained without execution, in another court.^ Lien for Wages. This lien, constituting the ship the primary security for the seamen's wages,'' is recognised in the maritime law of Europe 1 lUd. § 253. 6 The Bengal, 5 Jur. N. S. 1085. 2 The OUve, 1 Swab. Ad. 292 ; The ? Per Dr. Lushington, The Golub- Arab, 5 Jut. N. S. 517. chick, Bernardoa, 1 W. Eob. Ad. 143 ; 3 He foregoes his lien if he is offered The Sydney Cove, Fudge, 2 Dodson, money and prefers to take a bill of ex- Ad. 7, 13 ; The Batavia, 2 id. 500 ; The change ; The William Money, 2 Hagg. Margaret, Nuun, 3 Hagg. Ad. 240 ; Ad. 136. Richardson v. Campbell, 5 B. & Aid. 4 The Blessing, 3 Prob. DIy. 35. 203 n. 6 The Arab, 5 Jur. N. S. 517. CHAP. V.J EECOVERY OF THEIR WAGES. 249 from the earliest times ; ^ it extends to the whole of the ship, and not merely as a ship, but to everj' plank of her, should no more survive of the wreck ;^ it remains indelible notwithstanding the sale of her to a bond fide purchaser, although without notice ; ^ and it takes precedence of all other liens or claims upon the same corpus ; * but in some particular cases the lien attaching for damage done by collision has been allowed prece- dence.^ Moreover, as freight follows the right to the ship, it Admiralty juris- is the right of the seamen also to have the freight paid into the wages. ' treasury of the Admiralty Court to answer any deficiency there may be of the fund arising from sale of the ship.^ Any stipu- lation in the ship's articles whereby the seaman agrees to forego this lien for his wages is void ; '' but on the other hand, a policy of insurance for seamen's wages is invalid.^ Owing to the jealousy with which proceedings in the Admiralty On ordinary con- Court were regarded by the courts of common law in former seal. times, and the prohibitions granted by these against the asser- tion of its jurisdiction over claims for wages, the limits of this jurisdiction were perplexed with refinements. Now, however, by the 24 Vict. c. 10, § 10, this Court has jurisdiction over any claim by a seaman of any ship for wages earned by him on board of the ship,^ subject to this only, that if he recover " The Consolato, oc. 13; 18, 94, 113, incorrect. 148, 182 — 2 Pardess. 67, and note 4. ^ The Benares, Brown, 7 Notes of 2 The Neptune, Clark, 1 Hagg. Ad. Cases, 50 ; The Linda Flor, 4 Jur. N. 227, 238 ; The Reliance, Green, 2 "W. S. 172. But wages earned on a pre- Eob. Ad. 119, 122. vions voyage may be postponed to a ' The Sydney Cove, Fudge, 2 Dods. bottomry bond or salvage attaching Ad. 7, 13 ; The Margaret, Nunn, 3 subsequently ; see The Mary Ann, 9 Hagg. Ad. 238, 240 ; The Batavia, 2 Jur. 95. Dods. Ad. 500. At common law the ^ The Mary Ann, 9 Jur. 94 ; per right of action for such wages would curiam, The Lady Durham, Stuart, 3 be against the owners for whom the Hagg. Ad. 200, 201 ; The Eiby Grove, service was performed, Robins v. Power, Dean, 2 W. Piob. Ad. 52, 59 ; The 27 L. J. (C. P.) 257. Juliana, Ogilvie, 2 Dods. Ad. 510, 516 ; 4 The Consolato, swpra; The Ma- Neclanham i). Foljamb, 6 Vin. Abr. 439. donna D'Idra, Paphagica, 1 Dods. Ad. ? 17 & 18 Vict. c. 104, § 182. 40 ; The Sydney Cove, Fudge, 2 Dods. ^ The Juliana, Ogilvie, 2 Dods. Ad. Ad. 7, 12 ; The Hersey, Grimwood, 209 ; The Neptune, Clark, 1 Hagg. Ad. 3 Hagg. Ad. 407. But as against a 239 ; The Lady Durham, Stuart, 3 ship doing damage, wages due to sea- Hagg. 201. Not so, of the master's, men on board her have no title to ante, p. 211. priority. The Linda Flor, 4 Jur. N. S. ' So in case of the Admiralty Court 172. The marginal note to this case is of Ireland, 30 & 31 Vict. c. 114, § 33. 250 THE MARINERS. [CHAP. V. not 50^., he , gets no costs unless the judge certify that the cause was fit to be tried in that court. By the 31 & 32 Vict. c. 71, § 3, any county court having Admiralty jurisdiction has jurisdiction over any claim for wages not exceeding 150Z., subject to a right of appeal to the Court of Admiralty in case the decree be for more than 501. Foreign Seamen. The Court of Admiralty entertains proceedings against foreign ships in the ports of this country, at the suit of any of their crew for wages due by the general maritime law, notice at the same time being given as a courtesy to the accredited agent here of the government of their country.^ Even in the absence of an action for wages, if the ship be in arrest in the Court, payment of them out of freight in the hands of a bottomry plaintiff wiU be allowed, and the crew discharged ; ^ together with their expenses going home, in case there be a certificate of the foreign consul either that they are going or gone home.^ But the Court will not enforce the municipal regulations of a foreign country, unless they are incorporated as part of the contract ; and suits in so far as they seek to enforce any regulations not so incorporated will be dismissed.* If the contract sued upon contain a stipulation that the mariner wiU not sue for wages elsewhere out of the coimtry to which the ship belongs, the Courts of this country when it is not a British ship will not entertaiu the suit, notwith- standing the vessel is confiscated here, and the voyage thereby ended.^ By what law. In a suit for wages commenced in the Admiralty Court of this country by the master of a ship belonging to the United States, it was objected, that the lex loci contractus disallowed of any suit in the Admiralty Court by the master ; but it was 1 The Courtney, English, Bdw. Ad. 366 ; The Julina, 35 L. T. N. S. 410. 239 ; The Vrowmina, Behrends, 1 ^ jj^^ . ^he EafEaelluooia, ibid. Dods. 234 ; The Golubohick, Bemar- 365. dos, 1 W. Kob. Ad. 143 ; The Milfoi-d, * The Courtney, English, Edw. Ad. 4 Jut. N. S. 417. 239. An Act of the United States Con- The Court will not proceed against gress was printed on the back of the the protest of the foreign consul. The contract, but ilot incorporated with it Herzogin Marie, Lush. Ad. 292 ; The even by reference. lb. Octavie, 33 L. J. (Ad.) 115 ; The Nina, * Johnson v. Machielsne, 3 Camp. L. K. 2 Ad. 44. 44 ; Gienar ii. Meyer, 2 H. Bl. 603 ; 2 The Bridgwater, 37 L. T. N. S. Eulle v. Heightman, 2 East, 145. CHAP, v.] EECOVERY OF THEIE WAGES. 251 held that the Court was bound in such a suit by the lex fori as altered by the Merchant Shipping Act, which conferred on the master the same rights, liens and remedies for wages as the common seamen had theretofore possessed.^ Compensation by way of damages for wrongful dismissal was allowed in one case by Dr. Lushington to be recovered in a suit for wages in the Admiralty Court.^ It is quite competent to parties in the Admiralty Court Parties may ,..,.. T qiT ■! appear imder to plead to the jurisdiction under protest,'' and there, as mthe Protest, and other divisional courts of the High Court, in order to be j^^sjietion certainly available, the objection ought to be taken in the first instance.* When the pleadings are finished on both sides, the question of jurisdiction is then ripe for decision. Pro- hibitions are abolished except as against inferior Courts.^ All suits and actions brought in the Com't of Admh'alty for Statute of Limi- , ' , , ,.,,.. , n tations in the seamen s wages must be commenced within six. years next alter Admiralty the cause of such suit or action shall accrue, unless the party *^°^'^- entitled to sue shall at that tune be within the age of twenty- one years, a feme covert, non compos mentis, or imprisoned, or unless such party, or the party sued, shall be at that time beyond the seas ; in which cases the suit may be brought within six j'ears after the party 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 sea.® Instead of arresting the ship, the seamen may sue either Proceedings at . . . , , Common Law. the master, as the person immediately contracting with them and answerable to them, or the owners, as the persons virtually contracting with them through the agency of the master, and answerable for the performance of his engagement. In case there is a change of owners in the course of the In case of change • • , ■ n 1 ,1 1 J- ii "^ Owners, voyage, the master is, m presumption oi law, tne agent ot the new owner, until there be time to appoint another, or continue 1 The Milford, 4 Jur. N. S. 417. S. C. ; Coote's Practice, 93, 232. Secus, if the plaintiff have bound him- ^ Per Dr. Lushington, in The David self by express contract to submit to a Luckie, 9 Monthly Law Mag. p. 210 ; particular tribunal only, The Nina, cited Coote's Practice, 93. L. E. 2 Ad. 44. ^ Judic. Act, 1873, § 24 (5). 2 The Great Eastern, Lush. Ad. 384. « 4 Ann. o. 16, § 17, 18, and 19. 3 The Fortitude, Douglas, 2 W. Eob. In the Revised Statutes, 4 v% 5 Ann. Ad. 217 ; 2 Notes of Cases, 51,5, 519, c. 3, §, 17, 18. 252 THE MARINERS. [OHAP. V. Limitation of Actions. Non-joinder of Plaintiffs at Common Law. J9inder of Plain- tiffs in Admiralty Court. Jurisdiction in respect of amount. him in his command. The new owner is answerable to the seaman, not on the old articles, but on any new engagement implied or expressed for his services on board from the time of the change.^ The master, who made the original articles, and the former owner, his principal in that engagement, are still severally liable thereon for any damage the seaman may sustain by the change. These personal actions are also limited to the same period of six years, with the same provisoes ; ^ unless thej' are founded on a contract under seal; and in that case, to a period of twenty years, subject to similar ' provisions in favour of persons under disabilities at the time the cause of action accrued.^ In personal actions for wages, as the contract for service is ijiade with the seamen severally, there cannot be a joinder of plaintiffs, but any question of law affecting aU the others may be raised and settled in one case, with the consent and support of the rest. In actions against the ship any number of plaintiffs, having a common interest, may join, the action being based, not upon contract, but upon services rendered in respect of the res benefited thereby and bound in consequence thereof by a maritime lien. The master, or seaman, is now deprived of the right of proceeding * in the High Court, for wages, when the amount is under SOL, except imder the circumstances expressly named in the following enactment : — "No suit or proceeding for the recovery of wages, under the sum of 50Z. shall be instituted by, or on behalf of, any seaman or apprentice, in any Court of Admiralty, or Vice-Admiralty, or in the Court of Session in Scotland, or in any superior court of record in her Majesty's dominions, — unless the owner of 1 Eobins v. Power, 27 L. J. (C. P.) 257 ; 4 C. B. (N. S.) 778. 2 21 Jas. 1, 0. 16, § 3 & 7, and i Ann. c. 16, § 19. 3 3 & 4 W. 4, 0. 42, § 3, 4. * This is a difference from the enact- ments respecting the jurisdiction in the County Court Acts (9 & 10 Vict. c. 95, § 129 ; 13 & 14 Vict. c. 61, § 11) to the advantage of the seaman, whose adviser is not allowed the option of proceeding in the superior courts, on condition of the plaintifi 's recovering no costs, and ^iicere whether the effect of this provision can be evaded by joining counts for other causes of action to the count for wages, Rossi v. Grant, 5 C. B. (N. S.) 699. CHAP. V,] EECOVEEY OP THEIE WAGES. 253 the ship is adjudged bankrupt/ — or unless the ship is under arrest, or is sold by the authority of any such court as aforesaid, or unless any justices acting under the authority of this Act, refer the case to be adjudged by such court, — or unless neither the owner nor master is or resides within twenty miles of the place where the seaman or apprentice is discharged or put ashore." ^ It has been said that this section is repealed by the pro- vision of the Admiralty Court Act, 1861, cited above, because the language of it is " any claim ; " ^ but whereas the one statute affirmatively gives jurisdiction, and the other negatively, within certain limits, debars the suitor from the court, there seems to be no contradiction between them such as would otherwise imply the repeal of the earlier statute. And besides this, the many peculiar limitations already noticed as having vexatiously frittered away the jurisdiction, not only justify the largeness of the language, but also suggest the full force and effect of it as being confined to these limitations. If any suit not within these exceptions is brought in the Statute must be improper court, the statute should be pleaded in bar in the ^^^ ^ ' other courts,* and in the Admiralty Court under protest of the defendant.^ If the owner's usual place of residence be Blakeney, in Norfolk, and the vessel's port of discharge London, the master is entitled to sue in the Admiralty Court, notwithstanding the owner regularly attends the corn-market in London, and on these occasions frequents the house of his agent, in Mark ' These words obviously refer to the 481, where a judge's order was made on result of judicial proceedings, and not a master of a United States vessel in a to mere private condition. The Princess port of this country, to put in bail to an Eoyal, 2 W. Eob. Ad. 373 ; and there- action for seaman's wages, upon an fore where an owner had committed an affidavit of debt and meditatio fugcd act of bankruptcy by filing a declara- under the 1 & 2 Vict. c. 110. tion of insolvency under the 6 W. 4, ' Williams and Bruce's Admiralty c. 14, the Irish Bankrupt Act, and two Practice, p. 176, note (e). months had elapsed, but no commission ■'Taylor •;;. Blair, 3 T. R. 452; issued, he was held not to be a bank- Parker v. Elding, 1 East, 352 ; West rupt within the meaning of a similar -y. Turner, 6 A. & E. 614 ; 2 Bac. Abr. enactment in the 7 & 8 Vict. c. 112, 313, Costs, D. § 16. ^ The Edwin, Robertson, 3 Hagg. 2 17 & 18 Vict. 0. 104, § 189. See 364. See Coote's Practice, 92, 93. Bums V. Chapman, 5 C. B. (N. S.) 254 THE MARINERS. [chap. V. Summary pro- cedure for sums under 502. Suits Abroad by BritLsli Seamen. Lane.^ And when the seamen are entitled to enter that court with a claim for wages, there is no power to deprive them of the right, although the res is insufficient to satisfy the claims restricted to that fund, and the owners, against whom the seamen might proceed at law, are solvent and aifluent; the Court, for the ends of justice, may marshal assets, hut it cannot shut out rightful claims.^ As we have seen, the Admiralty jurisdiction of the county court more than covers the extent of this exclusive limitation.* Besides this, it is provided that "any seaman* or apprentice, or any person duly authorised on his behalf, may sue in a summary manner, before any two justices of the peace [or one stipendiary magistrate ^ ], 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 county, within which any such place is situated, for any amount of wages due to such seaman or apprentice, not exceeding 501. over and above the costs of any proceeding for the recovery thereof, as soon as the same becomes payable ; and every order made by such justices or sheriff in the matter, shall be final." 6 A seaman whose engagement or voyage is to terminate in the United Kingdom is not entitled to sue in any court abroad for wages, unless he has been discharged with the sanction of the superintendent, or the chief officer of customs at the port, or the British consular officer, or two respectable merchants there, and with the written consent of the master, — or unless he proves such ill-usage on the part of the master, or by his authority, as to warrant reasonable apprehensions of danger to life by remaining. But on his return to the United Kingdom, 1 The Blakeney, 5 Jur. N. S. 418. See under the County Court Acts, Kerr V. Haynes, 29 L. J. (Q. B.) 70 ; Lake V. Butler, 24 L. J. (Q. B.) 273:; Taylor V. The Crowland Gas and Coke Com- pany, 24 L. J. (Ex.) 233 ; Duaston v. Paterson, 5 C. B. (N. S.) 267. 2 The Arab, 5 Jur. N. S. 417 ; The Constanoia, 10 Jur. 845 ; 4 Notes of Cases, 285, 513, 677. 3 Ante, p. 250. * Or any master, 17 &18 Vict. c. 104, § 191. = Ibid. § 519. 6 IMd. § 188. CHAP, v.] DISCIPLINE ON BOARD, 255 if he proves the master or owner guilty of such conduct or default as would have entitled him, but for the statutory prohi- bition, to sue for wages before the termination of the voyage or engagement, he is entitled, besides his wages, to a compensation not exceeding 201} Probably the British colonial courts will give effect to this statutory prohibition, with respect to all suits before them in derogation of it; but unless it is incorporated also in the ship's articles, it is likely to prove a nullitj' in all courts, out of Her Majesty's dominions, proceeding in such suits by foreign seamen in accordance with the principles of the general mari- time law.^ "Wherever the law, for the purposes of a perilous calling, bisoiphne and reposes absolute though not irresponsible authority, there it j, . expects a prompt and unreserved obedience to all lawful com- to the Master.^ mands. Such also is the dictate of common sense, the sugges- tion indeed of self-preserving instinct under the circumstances. There is no room for negligence in such a vocation as that of the seaman, no time to consider the propriety of the word, when it is passed for an alteration in the trim of the ship ; unity and decision of command, followed by the promptness of combined execution, are the conditions of existence for the ship and all she carries. Disciphne, moreover, in so small and inseparable a com- munity, necessarily descends into the minuteness of household economy. Regulations of police take there a personal character, and if need be, are despotically enforced. Uncleanly or vicious habits, though individual, cannot be private; and as being public, offensive to all, and menacing the existence of dis- cipline, they must be extirpated. Disposition, even while it is humoured in what is innocent, though odd, is to be subjected to a vigorous influence, with a view to repressing quarrelsome- ness and preventing assaults. 1 17 & 18 Vict. c. 104, § 190, 207. ing the conflict of laws within Her 2 See the principles on which our Majesty's dominions. own courts proceed in such oases, ^ As to the master's authority over ante, p. 250 ; and see § 290 of the the seamen in matters of discipline, see Merchant Shipping Act, 1854, respect- ante, p. 204. 256 THE MARINERS. [chap. V. Statutory Offences and Punisliments. Eye-servants anywhere are an evil ; on board ship they are a source of danger ; and such are all skulkers and malingerers. But positive disobedience is an offence of the grossest kind. It challenges the existence of authority. If open and avowed, especially if accompanied with insolent language or acts of violence to the of&cers, it speedily engenders mutiny, and com- promises the safety of the ship and all on board. The prompt reaction of lawful force in the commencing disorders of mutiny may be a measure of precaution, preliminary to subsequent punishment. In smaller matters of public notorietj', instant punishment, proportioned to the offence and to the salutary effect to be produced on others, may be indispensable to check the influence of a bad example, or to quell an infectious spirit of rising discontent and insubordination.^ The statute, with a view to courts on land in their action upon offenders brought from sea, has ascertained some of the greater offences against discipline, and graduated the maximum of punishment, terms of imprisonment with or without hard labour, and in some cases forfeiture, assignable to each offence.^ Besides the offences of desertion and absence already men- tioned,^ it assigns to wilful disobedience, four weeks' imprison- ment, and, at the discretion of the Court, two days' pay ; continued wilful disobedience, or neglect of duty, twelve weeks' imprisonment, and, at the discretion of the Court, for every twenty-four hours' continuance of the offence, six days' pay, or the expenses properly incurred in hiring a substitute ; assault- ing any master or mate, twelve weeks' imprisonment; com- bining to disobey, or to neglect duty, or impede the navigation of the ship, or the progress of the voyage, twelve weeks' imprisonment ; wilfully damaging the ship, or embezzling, or wilfully damaging, any of her stores or cargo, forfeiture of wages to the amount of the loss, and at the discretion of the Court, twelve weeks' imprisonment ; smuggling, whereby loss or damage is occasioned to the master or owner, liability to ' See the remarkable judgment of Lord Stowell, The Agincourt, Mahon, 1 Hagg, Ad. 271, and The Lowther Castle, ibid. 348. 3 17 & 18 Vict. c. 104, § 243. The ancient ordinances ventured upon greater detail in prescribing discipline than is now thought advisable. See the laws of Oleron, art. 12 — 1 Pardess. 332. 2 Ante, p. 240. CHAP, v.] DISCIPLINE ON BOARD. 257 pay the loss or damage, the amount of which the master or owner may, of right, retain out of wages, without prejudice to any further remedy. It is the duty of the master to enter all offences committed, and punishments inflicted, on board, in the official log,i and with regard to the offences punishable by a court on shore, referred to immediately above, he is to have the entry signed by himself and the mate, or one of the crew, and read over, or a copy thereof furnished to the offender, if still on board, whose answer, if any, to the charge, must also be entei-ed, together with a statement that this was done. This entry must be pro- duced or proved at the trial, or the Court may refuse to receive evidence of the offence.^ In cases of desertion, temporary absence without leave, or Pimislmient may neglect or refusal to join the ship, or to proceed to sea, no ^^ ''«'"'"«'*• term of imprisonment may be awarded, but the offender, when found, may be conveyed on board for the purpose of proceed- ing on the voyage, unless he has given forty-eight hours notice prior to leaving the ship of his intention to do so ; and in that or any other case, he may demand to be taken before a Court of Justice, where if it appear that he has been conveyed on board or taken before the Court on insufficient grounds, the master, mate, owner, ship's husband, or consignee shall incur a penalty not exceeding 20L^ In case a seaman or apprentice have been detained on a charge of desertion, or any kindred offence, .and the ship upon survey is proved to be not in a fit condition to proceed to sea, or that her accommodation is insufficient, the owner or master shall compensate him for the detention as the Court may award.* No conviction may be had under the Merchant Shipping Limitation as to Act in any summary proceeding in the United Kingdom or any summary pro- British possession, unless such proceeding is commenced ceedings. within six months after the offence was committed, or within two months after both parties arrive, or are, at one time, within the jurisdiction ; and no order for the payment of ' 17 & 18 Vict. c. 104, § 282. ^ jj,.ia_ § 247 ; 43 & 44 Viot. c. 16, 2 17 & 18 Tict. c. 104, § 244. See § 10. ante, p. 240. 'i 36 & 37 Vict. c. 85, § 9. 258 THE MARINEES. [CHAP. V. any money may be made under this Act in any summary proceeding in the United Kingdom, or any British possession, unless such proceeding is commenced within six months after the cause of complaint arose, or within six months after both parties arrive, or are at one time within the jurisdiction.^ Right of Seamen The duty of the Owner and master to find the ship in provi- as to Provisions . , , „ , . ,. , . ai • , •■, and Medicines, sions and water, 01 proper description and m sumcient quantity for the use of the crew,^ obliges him now to specify the description and quantity in the contract,^ and to furnish the crew with the means of weighing and measuring the articles when served out.* The seamen have thereby a right to damages for breach of the contract. Bj'^ statute there is a compensation to be paid them for short allowance, or if any of the provisions are bad in quality, and unfit for use.^ Unfitness for use may be owing to quality or condition, and, in either sense, if this is to be read as a qualification upon the prior word " quality," and not in the alternative, " and " appearing for " or," this protection is of little practical value to the seaman. Such as it is, however, it must be regarded as a compensation in the nature of wages, and as being the money value of the mere deficiency or inferiority.^ In that view it does not displace the common law right of the seaman to damages, for injury sustained by him from the wilful or negligent conduct of the master or owners, in respect of provisions.''' But if the voyage is unduly protracted by events, which the master could not provide against or control, such right to damages for personal injury, in consequence of short allowance, does not arise, and the statutory compensation, being, in fact, in the nature of wages, is all that is due.^ 1 17 & 18 Vict. 0. 104, § 525. « The Madonna D'Idra, 1 Dod. Ad. 2 The Castilia, Stewart, 1 Hagg. 59, 37, 40. 60. 7 Couch V. Steel, 3 E. & B. 402 ; 23 3 17 & 18 Vict. c. 104, § 149 ; and 1. J. (Q. B.) 121, S. C. The authority the Form of Contract sanctioned by the of this case has been' seriously ques- Board of Trade. See the dietary table tioned by the Court of Appeal in At- in the Coneolato, u. 100 — 2 Pardess. kinson v. Newcastle "Waterworks Co. 137. 2 Exch, Div. 441 (C. A.). ■• 17 & 18 Vict. c. 104, § 225. s The Josephine, 1 Swab. Ad. 152 ; 5 Ilid. § 223. 2 Jur. N. S. 1148, S. C. CHAP, v.] THEIR RIGHT TO PROTECTIOX. 259 A similar statutory duty is created with respect to the providing of medicines and anti-scorbutics, in accordance with the authorised scale, and the supply thereof, on proper occa- sions to the crew, and if it is a foreign-going ship, with 100 persons, or upwards, on board, she must carry a duly qualified medical practitioner.^ By the neglect of such duty, the owner or master incurs a penalty,^ besides liability for expenses occasioned thereby,^ and for damages recovered, by any one of the crew who suffers injury in consequence.* Medicines, and surgical or medical advice, with attendance whilst on board, are to be at the expense of the owner ; and if the patient is temporarily removed, to prevent infection, or otherwise for the convenience of the ship, and he subsequently returns to his duty, the owner is to bear the expense of such removal, and the necessary advice, with attendance, medicines, and subsistence whilst the patient is absent from the ship.^ When the master, or any seaman or apprentice, receives hurt or injury in the service of the ship, he is to be supplied at the expense of the owner, with surgical or medical advice, attend- ance, medicines and subsistence, until he is cured, or dies, or is brought back to some port in the United Kingdom or in any British possession, according as he shipped from one country or another, and the expense of his conveyance thereto, or burial, is to be borne by the owner.^ Very similar provisions are to be found in the maritime ordinances, both with regard to sickness, and hurt or injmy, received in the service of the ship ; '^ but these same laws throw upon the seaman the expense of his own cure from any illness 1 17 & 18 Vict. c. 104, § 226, 230 ; a proper sequence to these precautions 30 &.31 Vict. 0. 124, § 4. As to duly that the master or owners should be qualified medical practitioner, see 21 enabled, to call for the medical inspeo- & 22 Vict. c. 90, § 34, 36 ; and 39 & 40 tion of the seaman, 30 & 31 Vict. c. Vict. c. 41. 124, § 10. 2 lUd. " 1-7 & 18 Vict. 0. 104, § 228. 3 30 & 31 Vijst. c. ,124, § 7. ' Laws of Oleron, art. 7—1 Pardess. * Couch V. Steel, 3 E. & B. 402 ; 23 327 ;, Ord. of Wisby, art. 21—1 Par- L. J. (Q. B.) 121, S, C. ante, p. 258, dess. 474 ; Ord. Hans. (1591) art. 46— note'. See i?CJ- Lord' Bldon, "Wolfe ■!). 2 Pardess. 521; Ord. (1614) t. 14— Claggen, .3 Esp. 257, 30 & 31 Vict. 2 Pardess. 556 ; French Ord. liv. 3, c. 124, § 7, proviso. t. 4. art. 11—4 Pardess. 366 ; Code de 5 17 & 18 Vict. c. 104, § 22. It is Com. art. 263. 260 THE MARINERS. [chap. V. Eight in case of personal injury or death. Seamen's right to be properly accommodated. or injury occasioned by his own improper conduct/ and beyond the provisions already stated, the law of this country is to the same effect.^ But even injury received in the service of the ship, gives the seaman no right as against the owner, when he is in the country that he shipped from,^ upon the well- established principle, that a workman undertakes, as between him and his employer, to run all the ordinary risks of the service.* For injury occasioned by the wilful act of a fellow-servant, although it be in the course of his lawful duty, no employer is liable ; ^ but the sufferer has his remedy at common law, or his personal representatives under the statute,^ against any one not in the service of the ship doing him personal injurj''; such remedy, however, when the injury is occasioned by another ship, is subject to the statutory provisions, already noticed, for limiting the responsibility of shipowners.^ For the health of the seamen, there is a specified amount of space for each, to be provided in the place appropriated to them on board, and such place is to be kept free from encroachments, to be protected from sea and weather, and from effluvium, and in all other respects securely constructed and well lighted and ventilated ; ^ the statute imposing a penalty for neglect, and thereby creating a liability to an action for damages by any seaman who suffers injury in consequence.® In case of com- ' Laws of Oleron, art. 6 ; Ord. of Wisby, art. 20 ; French Ord. liv. 3, t. 4, art. 12 ; Code de Com. art. 264. 2 17 & 18 Vict. 0. 104, § 228. ' Organ v. Brodie, 10 Exch. 449. * Priestly v. Fowler, 3 M. & W. 1 ; Hutchinson v. The York, Newcastle, and Berwick Eailway Company, 5 Ex. 343 ; Wiggett v. Fox, 11 Ex. 839 ; Degg V. The Midland Eailway Com- pany, 26 L. J. (Ex.) 171 ; Potter v. Faulkner, 31 L. J. (Q. B.) 30. 5 M'Manus v. Crickett, 1 East, 106 ; Bowcher v. Noidstrom, 1 Taunt. 568 ; The Druid, Newton, 1 W. Kob. Ad. 391. In Gallagher v. Piper, 33 L. J. (C. P.) 331, Willes, J., says: "Per- haps the most authoritatiye of agents is the master of a ship. If the master of a ship were to start from an inter- mediate port, the owner not being pre- sent, with his ship unseaworthy, and the ship were therefore driven on a rock, and some of the crew were in- jured in consequence, I should like to consider how far it would be just or in accordance with the authorities, to hold that the owners would be liable to the sailors as they undoubtedly would be to third persons." See 39 & 40 Vict, c. 80, § 4. Sending a ship to sea unseaworthy, so as to endanger life, is a misdemeanour. « 9 & 10 Vict. c. 93. Ashworth v. Stanwix, 30 L. J. (Q. B.) 183 ; Mellors V. Shaw, ibid. 333. <■ Ante, c. iii. ; p. 115. 8 30 & 31 Vict. c. 124, § 9. ' See Couch v. Steel, 3 E. & B. 402, where, in the absence of any such CHAP, v.] THEIE BIGHT TO PROTECTION. 261 plaint of insufficient accommodation on board being made by not less than one-fourth of the crew, or by five of a crew exceeding twenty, there must be a survey by the proper authorities to ascertain the grounds of the complaint.^ It is by statute a term in every contract of service between Seaworthiness ., T , ,.,..,.,. a, term of the the owner and any master, seaman, or apprentice, bmdmg him engagement. to serve on board, that all reasonable means shall be used to make the ship seaworthy for the voyage at its commencement, and to keep her in a seaworthy condition during its continuance ; no express agreement to the contrary may be set up in defence, but it may be shown that in the circumstances the ship's con- dition was reasonable or justifiable.^ For the protection of seamen, British law secures an oppor- laws poe the PROIBOTI' SEAMEN. tunity of complaint and investigation wherever, at any port or place, there is a British magistrate, or a British consular officer, and wherever, on any sea, a ship flies the flag of the Royal Navy. On such an occasion, the master is required by law, to allow, as soon as the duties on board will permit, any seaman or apprentice to go ashore, or else to send him ashore in proper custody, when desirous of making com- plaint agamst the master or any of the crew.^ The large powers confided to consular officers, in case of complaint,* are amplified in the hands of a naval court, such as may be sum- moned upon matters of urgency and importance, that judicature being empowered to supersede the master, discharge any seaman, forfeit wages, and otherwise take steps to allay differences, and to send offenders for trial ;^ and heavy penalties and punishment are enacted agaiust any one obstructiag or preventing the making of any complaint proper for investi- gation before such a court as this.^ If unseaworthiness of the ship is alleged by one-fourth of the crew, or by five of a crew exceeding twenty, a survey must be held by public statutory duty, the plaintiS failed in ^ 34 & 35 Vict. c. 110, § 7. his action, although he had suffered by ^ 39 & 40 Vict. o. 80, § 5. the owner's neglect. But there is now ^ U Sil8 Vict. c. 104, § 232. an impUed undertaking as to the sea- * Ibid. § 268, 269. worthiness of the ship in a seaman's '' Hid. § 260-266. engagement. See siepra, and note '. ^ Ibid. § 266, 262 THE' MAEINEES. [chap. V. Complaints as to Stores. Public super- intendence of Seamen. authorised surveyors ; but by quitting the ship without leave the crew disentitle themselves to such survey.-^ All offences against person or property, committed by mariners out of Her Majesty's dominions, whether on shore or afloat, may be tried and punished in this country, as if they had been committed within the jurisdiction of the Admiralty of England;^ and any crime or offence committed by any British subject on board any British ship, or on board any foreign ship to which he does not belong, may be punished by any court of justice in Her Majesty's dominions having jurisdiction over such crime or offence when committed on board a British ship within its jurisdiction, as if the said crime or offence had been committed within its jurisdiction.^ Upon the complaint of any three or more of the crew of a British ship that the provisions or water on board are bad in quality and unfit for use, or deficient in quantity, the officer in command of one of Her Majesty's ships, a British consular of&cer, superintendent, or chief oificer of customs, to whom such complaint is made, is to examine into the grounds thereof, and the master is required to remove any occasion of the same under a penalty for neglect.* But any frivolous complamt in abuse of this power, forfeits to the owner a sum not exceeding one week's wages from each person so improperly complaining.^ The medicines and medical stores are to be inspected in port by persons appointed for that purpose generally;^ and any person selling such articles for ship's use of a bad quality is liable to a penalty for each offence.'' For the pm-pose of placing every seaman and apprentice effectually within the cognisance and protection of British law, the agreement made with the crew in duplicate,^ the exact state of the crew up to the hour of sailing,^ and the official Hst, of the crew and casualties, made by the master, — in case of foreign- going ships, upon arrival at the ship's final destination in the United Kingdom,i° — or in case of home-trade ships, every half- 1 34 & -35 Vict. u. 110,'§'7. 2 17 & 18 Vict. c. 104, § 267 ; 7 & 8 Vict. c. 2 ; 28 Hen. 8, c. 15 ; 18 & 19 Vict. c. 91, § 21. 3 30 & 31 Viot. 0. 124, § 11. ■» 17 & 18 Vict. c. 104, § 221. s 17 & 18 Vict. c. 104, § 222. « 7to.§226. f 30 & 31 Vict. c. 124, § 5. 8 17 & 18 Vict. e. 104, § 150, no. 3. » lUd. § 158. i» Ihid, § 273, 274, 276. CHAP, v.] THEIR EIGHT TO PEOTECTION. 263. year,i — are forwarded to the Eegistrar- General of, Seamen in London,^ -who is also in communication with all superintend- ents of mercantile marine offices, and officers o'f customs at home or in any British possession, and British consular officers in foreign parts, with regard to the daily occurrences in the British merchant service all over the world ; ^ and is himself appointed hj, and under the control of the Board of Trade,* the department of government in this country charged by parliament with " the general superintendence of matters relating to merchant ships and seamen, and authorised to carry into execution aU statutes relating thereto." " " The maritime law of any country is averse to the discharge in case Seamen of native seamen in foreign ports." ^ It is a misdemeanour orieftbehmd in the master of a British ship, or any • person, wrongfully abroad, to force on shore and leave behind, or otherwise- wilfully and wrongfully to leave behind in any place whatever, any seaman or apprentice. It is a misdemeanour in the master to discharge any seaman or appentice at any place out of Her Majesty's dominions, or in any British possession (except when such discharge is in the possession where he shipped) without pre- viously obtaining the sanction in writing, indorsed on the agreement, of the public superintendent, or if there is none, .of the chief officer of customs at the place if in any British possession, or, if abroad, of the British consular officer, or, in his absence, of two respectable merchants, respectively, who may investigate the reasons for this act and take evidence upon oath for that purpose. And it is a misdemeanour to leave such a seaman or apprentice behind at any such place, without a cer- tificate from such officer or merchants respectively, as the case may be, also indorsed on the agreement, and stating the fact and the cause of such leaving behind, there being the same power to investigate the matter by evidence upon oath.'' The liroduction of such sanction or certificate, and the proof of it, or that it was. impracticable to obtain it, lies upon the ; .1 :17. & 18 Vict. .c. 104'; §, 275. . , ^ /jj^. §. g. ; " Ibiii. ^, 1^3] 277. ' : « Per Lord StoweU, ThQ Elisabeth, ^ Zm.% 277, 279. ■ 2iDo(Js.,Ad. 403, 405. ' ■* Ilid § 271. ■ ,.. 7 17 & 18 Vict. 0. 104, § 20,6,;207. . ■ •264 THE MARINERS. [CHAP. V. master in any subsequent proceedings against him in relation thereto.^ The wages of the person so left behind, are to be accounted for to such functionary or merchants, and if any are due, pay- ment is to be made on the spot, by bill or in money (if possible in money),^ to the seaman himself if in a British possession, and to the consular officer if he is not.^ Provision is made (subject to the regulations of the Board of Trade)* in all necessitous cases occurring abroad for subsisting and relieving seamen, being British subjects, and sending them, home, or burying any who die in such circumstances, at the public expense, with a right of recovery over against any master or owner liable to pay penalties, or wages, or such expenses, or any or all of them.' If a British ship be transferred and disposed of at a place out of Her Majesty's dominions, and a seaman or apprentice then refuse to complete the voyage in her,— or if the seaman's en- gagement terminate at such a place, — in either case, the master must give him a certificate of discharge, pay his wages, and either provide him with employment in some other British ship bound to the port in this country at which he shipped, or any other port in this country agreed on, or furnish the means of sending him there, or provide him with a passage home, or deposit sufficient for that purpose and for his subsistence in the meantime ; otherwise the same may be done at the public expense, with a right of recovery over against the owner of such ship for the time being/ Effects of de- When any seaman or apprentice dies on board a British cease m ■ ^j^j^^ ^^ entry of the money and effects left by him, of any sale of such effects, and the proceeds thereof, and of the wages due to him and deductions therefrom, is to be made in the ofi&cial log, signed by the master, and attested by a mate and one of the crew.'' The master is to account for, and pay over the same, to the Board of Trade, through the proper 1 17 & 18 Vict. c. 104, § 208. M7 & 18 Vict. c. 104, § 211, 212, = 25 & 26 Vict. c. 63, § 19. 213 ; 18 & 19 Vict. c. 91, § 16. 3 17 & 18 Vict. 0. 104, § 209, 210 ; ^ 17 k 18 Vict. c. 104, § 205. 25 & 26 Vict. c. 63, § 19. 7 Ibid. § 194, 196. < 25 & 26 Vict. 0. 63, § 22. CHAP, v.] THEIE EIGHT TO PROTECTION. 265 functionary at any intermediate port or the superintendent at the ship's destination in the United Kingdom ; ^ and if the death occurs in the United Kingdom, wages or effects are to be accounted for to the superintendent at the port where the deceased was, or would have been discharged.^ But if the death occurs, and effects and money are left on shore at any place abroad in or out of the British dominions, the money and proceeds of the effects are to be remitted home to the Pay- master-General, with accounts to the Board of Trade by the chief officer of Customs, or the British consular officer, at or nearest to the place.^ The Board of Trade is empowered to provide for remittances SaviDgs' Banks by seamen through superintendents, and for payment of the Orders, same notwithstanding the loss of the money-order by the applicant ; and also savings-banks for the deposits of seamen, their wives, or families, to an amount not exceeding 1501. in the whole at any one account.* If a seaman incurs a debt of more than 5s. in amount after Debt incurred he has signed articles, it is not recoverable until the service so agreed for is concluded.^ For the purpose of protecting seamen and apprentices from Imposition by imposition by lodging-house keepers and others, the statute xeepeil. inflicts a penalty on any one who charges in respect of board or lodging for a longer time than is proper, or who improperly detains, or absconds with any money or effects of any seaman, or who without authority goes on board any vessel about to arrive at the place of her destination, before her actual arrival in the dock or at the place of discharge, or who within twenty- four hours afterwards solicits, on board, any seaman on behalf of any lodging-house keeper, or takes out of the ship any of his effects without permission of the master and marmer.^ If a vessel be in a dock, although not at the quay where she 1 17 & 18 Vict. c. 104, § 195, 196, 197. Trade of the wages of seamen or ap- 2 jjt<;. 8 198. prentices who have been lost with the '> Ibid. § 197. This section includes ship, see 25 & 26 Vict. c. 63, § 21. "any seaman or apprentice who has ■* 17 & 18 Vict. c. 104, § 177-180 ; within the six months immediately pre- 19 & 20 Vict. c. 41 ; and ante, pp. 220, ceding his death belonged to a British 222. ship ;" 25 & 26 Vict. c. 63, § 20. » 17 & 18 Vict. c. 104, § 234. As to the recovery by the Board of " 17 & 18 Vict. c. 104, § 235-238. 266 TEE MARINERS. [chap. V. ultimately discharges, the Act is satisfied, so that going on board is no offence within it.^ If any unauthorised person goes on board, or after being warned remains on board any ship aboi^t to arrive or arriving or which has arrived, he is liable on summary conviction to a fine not exceeding 20^. or six months imprisonment.^ SEAMEN S WILLa. In writing, and attested, when. If no will in writing. Limitation as to claiming Effects. The right of the merchant seaman^ to dispose of his personal property by nuncupative will, as at common law, was expressly preserved to him by the Statute of Frauds and the general WiUs Act,* but in respect of any money or effects in the hands of the Board of Trade, any disposition,, to be certainly effectual in favour of all parties claiming thereunder, must be by will in writing in accordance with the requirements of the Merchant Shipping Act. If made on shipboard, the will should be in writing, and signed or acknowledged by the testator in the presejice of the master or first or onty mate of the ship, and attested by such master or mate, otherwise the Board of Trade may refuse to give effect to it in favour of any person claiming under it. If made elsewhere than on shipboard, it should be in writing, and signed or acknowledged by the testator in the presence of, and be attested by, two witnesses, one of whom must be a superintendent, a minister, or officiating minister, or curate of the place, or if 'there are no such persons, a justice of the peace, British consular officer, or officer of customs, otherwise the Board may refuse to give effect to it in favour of any one claiming under it who is not related to the testator by blood or marriage,^ If there is no will, or if the Board refuse under these provisions to give effect to such will as exists, the property is to be dealt with, as in the case of other intestates, according to the Statutes of Distribution. If no claim to such 1 Attwood V. Case, 1 Q. B. Div. 134. 2 43 & 44 Vict. c. 16, § 5. This pro- vision may by Order in Council be ex- tended to the ships of foreign countries with theii' consent ; § 6. ' The wills of seamen in the Eoyal Navy have been successively regulated by the 26 Geo. 3, u. 63 ; 32 Geo. 3, c. 34 ; 11 Geo. 4 & 1 W. 4, c. 20 ; 2 & 3 W. 4, c. 40. See 17 & 18 Tict. c. 104, § 204. See In the goods of J. G. Beavan, L. E. 1 Prob. 15. •• 29 0. 2, c. 3, § 23 ; 7 W. 4 & 1 Vict. c. 26, § 11. Part of a letter written at a foreign port was held to be vrithin this 11th section, and ad- mitted to probate. In the goods . of John Parker, 28 L.J. (Prob.) 91 ; In the goods of D. Saunders, L. E. 1 Prob. 16. 5 17 & 18 Vict. ^. 104, § 200. CHAP, v.] THEIR WILLS. 267 property has been substantiated within six years after the receipt of it by the Board, they may refuse or allow any subsequent claim, and in the meanwhile pay the proceeds to the account of the Consolidated Fund.^ When the money and effects in the hands of the Board of When Probate Trade do not exceed the value of 50L, the Board may require ornot!''^* probate or letters of administration, or (in Scotland) confirma- tion, to be taken out ; but payment thereof by the Board, without this, is good and effectual, and there is a statutory obligation on the personal representatives, though not legally constituted, to distribute such money and effects according to law. In respect of all sums above that amount, payment can only be made to the legal personal representatives of the deceased, duly constituted by probate or otherwise.^ With respect to the claims of creditors to be satisfied out of Claims of Credi- such money and effects, no creditor can entitle himself to of^eceased" ^ claim such money or effects from the Board by taking out administration or confirmation, or be entitled by any means to payment out of such fund if the debt accrued more than three years before the death, or the demand was not made within two years thereafter. In other cases, if the demand is made in the prescribed form, duly signed with the name and abode of the creditor, and verified before a justice, the Board may satisfy the debt, upon its being duly proved. But if before this demand is made, or within one year thereafter, and before it is satisfied, any claim to such money and effects of the deceased has been allowed, the creditor's rights and remedies at law are then against such person to whom the Board may effectually pay over the same, notwithstanding notice of such demand.^ In case of a conflict of the laws in force within Her Majesty's Conflict of „ -r T A. /• n J^ ,, British Laws. dominions, exclusive of India,* respecting any oi the matters considered in the preceding part of this chapter, being the matters which occupy the third division of the Merchant Shipping Act, it is enacted — that, 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 (the Merchant Shipping) Act, 1854, any provision on the 1 17 & 18 Vict. c. 104, § 200, 202. -^ Ibid. § 201. , 2 Ilnd. § 199. * IMd. § 108. 268 THE MARINERS. [chap. V. subject which is thereby expressly made to extend to such ship, the case is to be governed by such provision, and, if there is no such provision, the case is to be governed by the law of the place in which such ship is registered.^ Bakratey op Master and Mariners. What it is. Privity of Owners. Innocent acts may become, barratrous. Those acts of the master or mariners which are fraudulent or criminal in respect of the owners, and are not merely breaches of discipline properly understood, still remain to be considered. " Barratry of the master and mariners," being one of the perils insured against in the common English form of policy, is a breach of their duty in respect of the owners with a fraudulent or criminal intent, whereby the subject of the insurance is endangered and afterwards lost.*^ To run the ship on shore without any justifying necessity,^ to run awayvdth her and sell her,* to persist in weighing under a foul wind, and, contrary to the pilot's opinion still further, to cut the cable so as to drift her on the rocks,^ trading with the enemy,^ or smuggling,'' are all acts of a nature so obviously fraudulent or criminal as to be in presumption of law breaches of their duty to the owners, and therefore barratrous, unless positive evidence is given to the contrary. But if it is shown that the owners are privy and consenting to such acts, or that their gross negligence has contributed to the offence, it is no longer barratrous, for no one shall profit by his own wrong.* Acts, however, which are innocent in themselves when they are the result of ignorance or of negligence, or the consequence of overwhelming force, such as deviations,^ breach of blockade,^" 1 17 & 18 A^ict. 0. 104, § 290. ^ See Gorham v. Sweeting, 2 Wms. Saund. 202 c. n. 13 ; per Lord Ellen- borough, Earle v. Ko\s croft, 8 East, 126 ; per Lord Mansfield, Yallejo v. Wheeler, 1 Cowp. 143 ; 2 Amould, Insur. 760. 3 Scares v. Thornton, 7 Taunt. 627. 4 Faulkner v. Eitchie, 2 M. & Sel. 290 ; Dixon v. Eeid, 5 B. & Aid. 597 ; Jones V. Nicholson, 10 Exch. 28. ^ Heyman v. Parish, 2 Camp. 149. " Earle v. Rowcroft, 8 East, 139. 7 Havelook v. Hancill, 3 T. E. 227. ' Pipon V. Cole, 1 Camp. 434 ; Stamma v. Brown, 2 Str. 1173 ; Nutt V. Bourdieu, 1 T. E. 323 ; Hobbs i-. Hannam, 3 Camp. 63. 9 Phyn V. The Eoyal Exch. Ass. Co. 7 T. E. 505. See Bottomley v. Bovill, 5 B. & C. 210. 1" Everth v. Hannam, 6 Taunt. 375. CHAP. V.J OFFENCES IN RESPECT OP SHIPS. 269 become barratrous when done in wilful resistance to the law,^ or for the private benefit of the master in fraud of his owners,^ or when associated with illegal means notwithstanding the object is the advantage of the owners if it be without their consent.^ An act is not barratrous, except when it is to the prejudice What act not of the owner,* and this it cannot be in law when the master is sole owner, and the act is his own ; ° but if he is part-owner merely, his acts may be barratrous in respect of the other part- owners ; ® and even in respect of himself, whether sole or part- owner, there may be barratry by the mariners, when the circumstances are such as to negative connivance on his part with their act, or gross negligence in not preventing it.'^ And if the ship is let out to another to be sailed by him, either with or without a master and seaman of his appointing, he is such an owner pro hdc vice that barratry is possible in respect of him.® This term barratry, often used as well by foreign writers, as Foreign use by 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 prejudice of the owners of the ship." In France it is generally used in a more enlarged sense, ' Breacli of Blocltade, Goldsohmidt ^ Barle v. Kowoi-oft, 8 Bast, 126 ; V. Whitmore, 3 Taunt. 508 ; resistance Moss v. Byrom, 6 T. E. 379. to the right of search, per BuUer, J., ■* Per Lord Mansfield, Nutt v. Bour- in Saloucci v. Johnson, B. E. 25 Geo. 3, dieu, 1 T. E. 323, 330. cited 8 East, 129 ; Dederer ». Delaware, * Ihid. Ins. Compy. 2 Wash. G. C. 61 ; Wil- 6 jgnes v, Nicholson, 10 Exoh. 28. cocks V. Union Ins. Compy. 2 Binney, ' Toulmiu v. Anderson, 1 Taunt. 579 ; leaving port, the port dues being 227 ; Toulmin v. Inglis, 1 Camp. 420 ; «?!^ai^, Knights. Cambridge, cited j?er Hucks ■!). Thornton, Holt, N. P. 40; Lee, C. J., in Stamma v. Brown, 2 Str. and it is barratry, notwithstanding 1174, and per EUenborough, C. J., in others, prisoners of war, had conspired Earle v. Eoworoft, 8 East, 126 ; sailing and assisted in the acts with any of the out of port in breach of embargo, and crew, ibid. loss by detention, barratry, though the " Vallejo v. Wheeler, 1 Cowp. 143 ; loss for mages and provisions should Nutt v. Bourdieu, 1 T. R. 323 ; Scares not be recovered under a policy on the v. Thornton, 7 Taunt. 627 ; Marcardier body of tlw ship, Eobertson v. Ewer, 1 -0. The Chesapeake Ins. Compy. 8 T. E. 127, explained _p(;r EUenborough, Granch (Amer.), Rep. 39. C. J., 8 East, 138. " 1 Emerigon, 366. M. Emerigon 2 Tallejo V. Wheeler, 1 Gowp. 143 ; cites the opinions of many authors, and Eoss V. Hunter, 4 T. E. 33 ; and see the provisions established in different Eosoow V. Corson, 8 Taunt. 684. countries in respect of it, ibid. : and 270 EARHATEY. [chap. and comprehends acts of mere ignorance or unskilfulness, not accompanied with a fraudulent design.^ This word taken even in the more limited sense, in which it is used in this country, does not denominate any species of crime punishable by law ; but 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, which we shall now proceed to mention. WlLPULLT Destkoyinq or Damaoinq Ships. With regard to destroying ships, it is enacted, that if any one shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, whether complete or unfinished ; or set fire to, cast away, or destroy any vessel with intent to prejudice thereby any owner or part-owner of the ship or of any goods on board, or any underwriter of a policy on such ship, freight, or goods, or attempt to do the same, or place or throw into, upon, against or near any ship, with intent to destroy the same or any machinery, goods, &c., he is guilty of felony.^ Maliciously to damage, otherwise than by fire, any ship^ complete or unfinished, with intent to destroy or render it useless, or to destroy any part of a ship in distress, wrecked, stranded, or cast, on shore, or any goods, or articles belonging thereto, is felony.* Unlawfully masking, altering, or removing any light or see the riote by M. Boulay-Paty, Hid. p. 370 ; he says : La commission du projet du Code de Commerce n'avait entendu par buraterie du patron, que Je crime dont un capitaine se rend coupable en pr6variquant dans ses f ono- tions. La cour royale' de Kennes observa que.l'usage avait donn6 k ce mot beau- coup plus d'6tendue ; que la, iaraterie comprenait les simples fautps des oa- pitaines exemptes de do}, son imp6- rijiie, ses negligences, en un mot, tons lesjfaitsi dont Fart., 216, rend le pro- prietaire responsable. En consequence, elle Fernanda que les fautes fussent express^ment comprises sous I'expres- sion iaraterie. Cette addition fut adoptee. II faut done dire, avec Valin et Pothier, que ces termes de Iaraterie d% patron comprennent toutes les espScea, tant de dol et fraude que le simple im- prudence, d^faut de soins et imp^ritie, tant du patron, que du maltre d'6qui- page. 1 2 Valin, 80. Pothier, Des Assur- ances, no. 65. See preceding note. 3 24 & 25 Vict. c. 97, § 42, 43, 44, 45-; 24.& 25 Vict. c. 100, § 13. « 24 & 25 Vict. c. 97, §46, 49. CHAP, v.] RESISTING PIRATES AND ENEMIES. 271 signal, or exhibiting any false light or signal, or unlawfully and maliciously doing anything that tends to the immediate loss or destruction of any ship in distress, is felony.^ Any master of, or any seaman or apprentice belonging to any British ship, who 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 tending immediately to endanger the life or limb of any person belonging to, or on board of such ship ; or refuses or omits to do any lawful act proper and requisite to be done by him for preserving such ship from immediate loss, destruc- tion, 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 offence be deemed guilty of a misdemeanour.^ As to the offence of not resisting pirates and enemies.^ It Offence of not appears formerly to have been a practice with the Turkish jjies. pirates to restore a ship, and the goods of the master, and mariners, and sometimes even to paj^ 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 in the reign of Charles the Second, forbidding the master of any vessel of a burthen .not less than two hundred tons, and furnished with sixteen guns, to yield bis 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 were released, and anything given by the pirates to the master, such gift and his share of the ship were to go to the owners of the goods. And any ship of less burthen or force than before mentioned was forbidden to yield to a Turkish pirate, not having double her number of guns, without fighting.* An extraordinary instance of the courage and skill, which the legislature of those times attributed to English seamen, and ' 24 & 25 Vict. c. 97, § 47. 37 — 2 Pardess. 518 ; Roccus, Not. 70. 2 17 & 18 Viot. c. 104, § 2.S9. ■• 16 Car. 2, u. 6, expired, but repro- 3 See Ord. Hans. (1.591) art. i?5, 36, duood in the 22 & 23 Car. 2, c. 11. 272 RESISTING PIRATES AND ENEMIES. [CHAP. V. which the exploits of succeeding generations have so often and so gloriously exemplified ! By the same statute it was 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, that every mariner who shall be found guilty of declhiing or refusing as aforesaid, shall lose all his wages due to him, together with such goods as he hath in the ship, and suffer imprisonment, not exceeding the space of six months, and shall diiring such time be kept to hard labour for his or their maintenance." ^ These statutes have been repealed by the Naval Prize Act, 27 & 28 Vict. c. 2,5, and by the 45th section of- that Act power is reserved to Her Majesty in Council to issue an Order in Council concerning ransom. I am informed that no such Order has been yet made on the subject. 1 22 & 23 Car. 2, c. 11, § 7. CHAPTER VL PILOTAGE, TOWAGE, SAFETY PROVISIONS, DAMAGE. PILOTAGE 273 SAFETY PEOVISIONS {continued) Qualified Pilot . . . 274 Deck and Load Lines 293 His Eights and Duty 274 Ship's Draught . . . 294 Powers aboard . . 277 Boats .... 294 Legal Relation to the Anchors and Chain Cables 294 Owners . 278 Signals of Distress or for Pilotage Eates . . 283 Pilot .... 294 remedy for . 285 Lights and Fog Signals . 296 TOWAGE 286 Steering and Sailing rules 300 Legal relation of Tug and Duties under Collision . 303 Ship in tow . 287 DAMAGE 304 Legalrelationof Tug, Pilot, Eemedy for Damage . . 304 and Ship in tow . . 288 Maritime Law as to Dam- Liability in case of Dam- age ... . 304 age ... . 289 Statutory and Common SAFETY PKOVISIONS . . . 290 Law as to Damage . . 310 TJnseaworthy Ships . 291 Cases upon Damage. 311 Dangerous Goods . . 292 Lien for Damage . . . 321 Grain Cargoes . 293 Ships of war doing Dam- Deck Cargo . ... 293 age ... . 321 The name of pilot, though it may be used to designate a Piiotage. particular officer, serving on board during the course of the voyage, who has the charge of the helm and the ship's route, and is more frequently named the saiUng master, is applied, by the Merchant Shipping Act,^ exclusively to a person who does not belong to the ship, but has the conduct of it, as the case may be, through a river, roadstead, or channel, or from, or into a port, being usually taken on board at a particular place for that purpose only. The great benefit resulting to merchant shipping from the exercise of their calling, early entitled men of this description to the considerate protection of the Crown, by which they were incorporated, under royal charter, with a variety of powers and privileges at difi'erent places on the shores and navigable rivers of this country ; and still further, in order to ensure, at all times, a due supply of such men, well qualified by skill and knowledge, and ready to brave the perils of their 1 17 & 18 Vict. c. 104, § 2. "Pilot:' 247 THE PILOT. [chap. VI. vocation, parliament has, at sundry times, made the employ- ment of these licensed pilots within their several districts compulsory, in general, on outward or homeward bound ships engaged in foreign trade.^ An account of these pilotage authorities, and of the districts to which they relate, would be improper in a general treatise. Their existing powers and jurisdiction have been confirmed to them by the Merchant Shipping Act, in so far as they are not inconsistent with its provisions; and very extensive powers are recognised as being in their hands, to be exercised by bye-law, subject to the assent of Her Majesty in council, for the licensing and government of the pilots, and the control and regulation of the pilot-funds and pilotage districts ; with a right of appeal on the part of individuals to the Board of Trade, in the case of particular bye-laws made by these autho- rities in the exercise of theii* general powers.^ — HI3 KIGHTS AND DUTY. QUAiiFiED PILOT -A- duly liccnsed pilot becomes by the registration of his licence with the principal officer of the Customs, at the place nearest to his place of residence, " a qualified pilot" for the district named in his licence, provided it be within the compe- tence of the pilotage authority,^ and for that only;* and within that district, any master being in a condition to employ him, and refusing to do so, or any unqualified pilot assuming charge or continuing in charge of the ship after such refusal,, incurs the penalties in the Act,^ if such qualified pilot produced his 1 The prior general statutes in force ' The Earl of Auckland, Lush. Ad, with regard to pilotage, were the 52 164, 180 ; Hossach v. Gray, ,6 B. & S. Geo. 3, c. 39 ; 6 Geo. 4, c. 125 ; 16 & 698. See Beilby v. Eaper, 3 B. & Ad. 17 Vict. c. 129 ; Law v. Hollingaworth, 284. 7 T. K. 160. ■• 17 & 18 Vict. c. 104, § 349. It is 2 17 ^ 18 Vict. c. 104, § 330-334 ; not enough that the licence signed and and 25 & 26 Vict. ^. 63, § 39-41. As sealed is lying at the office of the pilot- to the Trinity House, 17 & 18 Vict. c. age authority, the pilot is still unqua- 104, § 358-375, 377, 383-387. The lified, and the ship not exeiupt from pilot must produce or deliver up his damages for collision while he was on licence when required by the pilotage board ; The Killarney, Lush. Ad. 202. authority so to do ; their power is abso- * 17 & 18 Vict. c. 104, as to the lute, and his refusal renders him liable master, § 353 ; Beilby v. Shepherd, 3 to a penalty, § 352, Henry v. Newcastle Exch. 40 ; as to the pilot, § 361, under upon Tyne, 4 Jur. N. S. 685 : 27 L. J. which a master is not liable, Beilby v, (M. 0.) 57, S. C. Shepherd, su^ra. CHAP. VI.] HIS RIGHTS AND DUTIES. 275 licence to the master,^ and it be sliown, and is so alleged in the conviction or commitment, that such previous application and refusal, were known to the unqualified pilot at the time of his acting.^ But this general enactment does not apply to any mere Hia rights witliin change of moorings, or taking the ship into or out of dock, after the voyage has been brought to a termination.^ Thus, where the mate of a ship engaged in the Lisbon trade, steered the ship, which at the time was not quite cleared of her hoine- ward cargo, and had a custom-house officer on board, down the river Thames, from Horsleydown New Stairs to Cherry Gardens, being about half-a-mile, and from thence to Fountain Stairs; it was held that he was not subject to the penalty, for otherwise the station of a ship could not be changed for the purpose of delivering or receiving goods at different wharves without the expense of pUotage.* In like manner, where a ship had been conducted by a regular pilot up the river Thames to Limehouse-hole, and was left by him, and afterwards moored there, but being forced by the wind upon the mud, lay four days in a bad situation, and it betoming dangerous for her to remain there till the tide should ebb again, she was conducted by a waterman about a mile and a half further up the river ; the Court, referring to its former decision, and considering the voj'age, in this case, to have been ended, when the ship was left at Limehouse by the pUot, determined that the waterman was not subject to the penalty.' It is otherwise, however, if the voyage cannot be said to have terminated. Accordingly, where a ship from Lisbon, with a cargo of fruit and vdne, the former being uppermost, went into the London Docks instead of going further up the river, to deliver the fruit at Coxe's Quay, as she was bound to do, it was held that she had not reached her original destination when in 1 17 & 18 Vict, u. 104, § 351 ; Ham- Eeg. v. Chaney, G Dowl. P. C. 281. mond V. Blake, 10 B. & C. 424 ; and The master of a tug which is employed the oniis of proving such production cannot be prosecuted under this section is on the plaintiff who sues for the as a pilot, Beilby v. Scott, 7 M. & W, penalty, Usher v. Lyon, 2 Price, 118 ; 93. and see Peake v. Carrington, 2 B. & B. ^ 17 & 18 Vict. c. 104, § 362. 399. * Eex v. Lambe, 5 T. E. 76. a Chaney v. Payne, 1 Q. B. 712 ; » Eex v. Neale, 8 T. E. 241. T 2 276 THE PILOT. [chap, VI. the docks, and that a pilot must be employed to take her thence, afterwards, up to Coxe's Quay.^ Master's duty to At the same time that he makes signal for a qualified pilot engage Pilot. . , _ to board the vessel,^ the master maybe in circumstances where delay would expose him to impending danger, for example, from storm, leakage, or wind and currents in a dangerous neighbourhood, and it would then be his duty to engage in the meantime, the best assistance that immediately offers,^ or in the absence of better, to proceed with such skill as the ship herself happens to carry.* It is hardly conceivable, however, that this remark can apply to a vessel in port when about to start on her voyage outwards.' Besides, the master is bound, in that case, by the warranty of sea-worthiness in the policy on the ship, to proceed from port with a pilot wherever pilot- age is usual ; ® and it has even been held, though it is by no means an established principle, that to enter a port where pilotage is compulsory, without a pilot, is a breach of this warranty.'' Pilot's duty to The refusal or wilful delay of a qualified pilot, without rea- ta e rge. gonable excuse, to take charge of a ship within the district for which he is licensed, subjects him to a penalty, and makes him liable to suspension or dismissal by the pilotage authorities,* and to an action at the suit of the aggrieved party, who, if he has suffered injury in consequence, may recover substantial damages. But in case the ship cannot be boarded, and the 1 M'lntosli V. Slade, 6 B. & C. 657. ? Law v. HoUingsworth, 7 T. R. 160 ; ^ See the regulations as to signalling per Patteson, J., in Hollingsworth. v. a pilot ofE Dungeness in the case of Brodrick, 7 A. & E. 40, 44 ; per Tindal. ships coming from the westward for the G. J., in Sadler ii. Dixon (in error), 8 Thames or Medway, 17 & 18 Vict. u. M. & W. 895, 900 ; but it seems to be 104, § 378. See as to the general sig- the general principle of our law, that nals for a Pilot, 36 & 37 Vict. c. 85, the warranty of seaworthiness attaches Sched. II. only at the time of sailing, and that no 3 Eex V. Neale, 8 T. E. 241 ; Phillips subsequent state of unseaworthiness V. Headlam, 2 B. & Ad. 380. An un- can preclude the assured from recover- qualified pilot may lawfully accept em- ing for loss immediately caused by ployment in that case, 17 & 18 Vict. c. the perUs insured against ; Parfitt -o. 104, § 362. Thompson, 13 M. & W. 392 ; Sadler v. * PhiUips V. Headlam, siipra, Dixon, supra; Jenkins v. Heyoock, 8 * Per Lord Tenterden, Phillips v. Moore P. C. 351 ; 2 Amould, Ins. 640. Headlam, 2 B. & Ad. 380, 382. » 17 & 18 Vict. c. 104, § 365 : a 6 Hid, penalty not exceeding 1001. CHAP. VI.] HIS FUNCTIONS AND CAPACITY. 277 pilot in his boat leads the vessel, there being no qualified pilot on board at the time, he is entitled to full pilotage for the distance run as though he had been on hoard and had charge of the ship.^ On the other hand, wilful misrepresentation of the circumstances upon which the safety of the ship may depend, made by any one with a view to obtain the charge of the ship, is also followed by a penalty, and by liability to suspension or dismissal, if a qualified pilot,^ and to an action, if damage has accrued to the ship in consequence, by the master or her ' owners. A pilot, as soon as he assumes his proper functions on board, pilot's funo- supersedes the master in his control of the conduct of the ship, jiohative and is entitled, for all purposes bearing upon the due prose- -^boakd. cution of the voyage, to the prompt obedience of the crew. It is therefore the master's duty to take care that this obedience is promptly rendered f but not otherwise to interfere with the conduct of the ship, except in cases of extreme necessity, so long as the pilot continues to act.* This jealous protection of his authority and prerogative is afforded him by the law in consideration of the great responsibility which it imposes upon him, and the skill, experience, and care, which it presumes he possesses.^ Another consideration is that unity of command is indispensable to prompt action, a definite course, and ulti- mate safety. He is charged with the safety of the ship and of all that she ' 17 & 18 Vict. 0. 104, § 356. except under most extraordinary cir- 2 17 & 18 Vict. c. 104, § 367 ; a cumstances, that the master could be penalty not exceeding 1001, justified in interfering with the pilot in 3 The Diana, Greig, 1 W. Eob. Ad. his proper vocation ;" The Maria, Witt, 131, 136 ; The Portsmouth, 6 Oh. Eob. 1 W. Eob. Ad. 95, 110 ; The Lochlibo, Ad. 317 n. The Massachusetts, Prit- Boyd, 3 W. Eob. Ad. 310, 321 ; The chard, 1 W. Eob. Ad. 373 ; The Julia, Admiral Boxer, Jones, 1 Swab. Ad. Lush. Ad. 224, 233 ; Bowcher v. Noid- 193, 196. As to what circumstances strom, 1 Taunt. 568. As a general rule, might justify such interference, see it is the master's duty to repeat the The Duke of Manchester, 10 Jui. 865 : pilot's orders, the consequences of the (on appeal) Hammond v. Eogers, 7 manceuvres so executed being entirely Moore, P. C. 160, 171, S. C. The Giro- on the responsibility then of the pilot ; lamo, Guiranovich, 3 Hagg. Ad. 169, The Admiral Boxer, Jones, 1 Swab. Ad. 176 ; The Lochlibo, svpra. 193. * The Maria, Witt, 1 W. Eob. 95, * Per Dr. Lushington, " It would be 110 ; The Lochlibo, Boyd, 3 W. Rob, a most dangerous doctrine to hold Ad. 310, 321. 278 THE PILOT. [chap. VI. carries, being bound to use due diligence and care, and reasonable skill in the exercise of his important functions. He is answerable^ if the ship either does or suffers damage through his default, negligence, or want of skill, while the helm is under his control ; and he cannot discharge himself from this responsibility by deserting the vessel, before he has completely performed his duty, and placed her in port in a position of safety, or otherwise conducted her to the appointed limits of his district.^ If he acts with reasonable prudence under circum- stances of known danger he is not liable for loss accruing, and such knowledge will be no bar to recovering against third persons whose neghgence has occasioned the danger and the loss. Hence, where the pilot knew there was risk in taking the vessel out of dock with her cargo on board from want of water in the basin because of the mud there, and the ship grounded, he was excused, and the Dock Company were held liable for the damage accruing from their negligence.' The responsibility however of a Trinity House pUot has been limited by statute to one hundred pounds, the amount of the bond executed by him on his appointment, in addition to the amount of the pilotage due to him in respect of the voyage on which he is engaged at the time of the negligence or default.* HIS LE8AL RELA- At commou law the pilot, being appointed by the owners, TIOH TO THE . ... OWNERS. or then' servant the master, is their agent, and they are He is Agent at responsible for damage done by the ship while under his charge.^ 1 3 Kent's Comm. 176 ; The Ports- mouth, 6 G. Rob. Ad. 317 n. ; The Duke of Sussex, Forss, 1 W. Eob. Ad. 270, 273. 2 17 & 18 Vict. c. 104, § 365 ; CaiTu- thers».'SydebOtham, i M. & Sel. 77 ; Rex V. Neale, 8 T. R. 241 ; but the master might dismiss him from all further charge, Law v. Hollingsworth, 7 T. R. 160. ' Thompsons. North Eastern Ry. Co. 30 L. J. (Q. B.) 67 ; in error, 31 L. J. (Q. B;) 194 ; S. P. Clayards v, Dethick, 12 Q. B. 439. " 17 & 18 Vict. c. 104, § 873. * The Neptune the Second, 1 Pods, 467 ; The Eden, Parsons, 2 W. Rob, 442, 445 ; The Girolamo, Guiranovich, 3 Hagg. 169, 175 ; The Killarney, Lush. Ad. 202 ; _per Dr. Lushington, The Protector, 1 W. Eob. 45, 54 :— In this case the learned judge has pointed out, that Lord Stowell in the Neptune the Second, proceeding on the general law, without reference to the alteration made in it by statute (52 Geo. 3, c. 39) and Sir John NichoU in The Transit, 1 Law Mag. 582, founding on Lord Stowell's decision without reference to the 6 Geo. 4, c. 125, pronounced deci- sions at variance with the statute law, in respect to the liability of the owners CHAP. VI.] HIS COMPULSORY EMPLOYMENT. 279 How far the master, as having employed him, may be con- sidered in the light of a principal, and answerable in that capacity for his acts, may be doubtful ; but as master merely, not^ithgitanding the dictum of Mansfield, C.J.,^ the better opinicm seems to be, that^he is not responsible while the ship is in the hands of the pilot, if he takes care that the pilot's orders are promptly obeyed by the crew.** No owner or master of any ship is answerable for any loss Not Agent when or damage occasioned by the fault or incapacity of any qualified is'^oommjso^? pilot in charge of such ship, but not appointed by him, as for instance, where the employment of such pilot is compulsory by statute.^ The 17 & 18 Vict. c. 104, which makes the employment of qualified pilots within certain districts compulsory (sec. 363, 354, 376), on certain vessels, declares (sec. 388) the immunity of any owner or master for the loss or damage occasioned by the fault or incapacity of such pilots within the statutory district. Such immunity rests on the law of principal and agent, and is so little the creature of statute, . thai, .where a foreign code expressly took away such immunity, notwith- standing it had made the employment compulsory, the English in case of damage through the fault of the master. It is his duty to secure a pilot imposed on them by the law, the safe conduct of his vessel, by issu- and at variance with the decison of ing the necessary orders, and it is the Sir Ch. Kobinson, in The Christiana, duty of the crew to carry these orders Larsen, 2 Hagg. Ad. 183, founded im- into execution ; and for the due per- mediately on the 6 Geo. i, c. 125. formance of their relative duties, the ' Bowoher v. Noidstrom, 1 Taunt. master and crew are stiU respectively 568. responsible." The pilot, however, as ^ Aldrich v. Simmons, 1 Stark. 210; being chief in authority while on The Portsmouth, 6 C. Eob. Ad. 317 n. board, is to be implicitly obeyed, per The Diana, Greig, 1 W. Eob. Ad. 131, Parke, B., delivering judgment in 136 ; per Dr. Lushington, " It was Hammond v. Eogers, 7 Moore, P. C. rightly observedby the Trinity Masters, 160, 171. that the mere fact of taking a pilot on ^ Eeedie v. Lond. & N. W. Ry, Co., board, under the provisions of the sta- 4 Exch. 255 ; Brown v. MuUett, 5 tute, did not exonerate the master and C. B. 599 ; Laugher ■«. Pointer, 5 B. crew from the proper observance of & C. 553 ; per Dr. Lushington, The their own duty. Although the direc- Maria, 1 W. Eob. Ad. 95, 106 ; The tions of the pilot may be imperative Hibernian, L. E. 4 P. C. 511 ; The upon them as to the course the vessel Halley, L. E. 2 P. C. 198 ; The Peer- is to pursue, the management of the less. Lush. Ad. 103 ; The Annapolis, ship itself is still imdeij the cofl-troj of Liisji, Ad. 295. 280 THE PILOT. [chap. VI. When and where it is compulsory. On what Ships compulsory. courts refused to give it eifect, as being a cause of action unknown to the lex fori} By the Merchant Shipping Act the employment of a qualified pilot is declared to be compulsory in all pilotage districts in which it was so before the 1st of May, 1855, subject to the same exemptions as theretofore existed" until the pilotage authorities in the exercise of their powers contained in this Act and otherwise, revise and extend these exemptions.* The districts of the Trinity House within which the employment of pilots is compulsory, are declared* to be the London district' and the Trinity House out-port districts^ thereby excepting the English Channel district.'' The compulsory employment of qualified pilots within any pilotage district is declared to be binding on every ship carrying • The HaUey, L. E. 2 P. C. 193. The defence of compulsory pilotage being successful, no costs follow in the Admiralty Court ; The Dadoz, 37 L. T. N. S. 137 (C. A.). Seem, in the other divisional courts of the Sigh Court, General Stm. Navig. Co. v. Lond. & Edinb. Shipping Co., 2 Exch. Div. 467. See the observations of Dr. Lush- ington, The Maria, Witt, 1 W. Eob. Ad. 95, 105. The learned judge, by his re- vievr of the cases on the Liverpool Act, convincingly reconciles these cases with principle, and relieves one of them from the confusion imported into it by the reporter. He shows, that in the At- torney-General V. Case, 3 Price, 303, the vessel doing the damage was at anchor, and that although she had a pilot on board, this was the voluntary act of the owners, left optional, under such circumstances, by the Liverpool Act, and did not relieve them from responsibility ; whereas in Carruthers ■u. Sydebotham, 4 M. & Sel. 77, the vessel was coming up the river, a con- dition on which attached the compul- sory employment of a pUot by the same statute, and therefore the owners were held irresponsible. See also the Agricola, 2 W. Rob. Ad. 10, 15. A vessel at anchor in the Mersey, and in the hands of the riggers, although she intends to sail next day, is not a vessel proceeding to sea, within the meaning of the pilotage sections of the Liver- pool Act, Bodriguez v. Melhuish, 10 Exch. 110. 2 17 & 18 Vict. c. 104, § 353, 376 ; Stanton v. Banks, 8 E. & B. 445 ; The Earl of Auckland, Lush. Ad. 164. In Stanton v. Banks, it is laid dovm that §§ 353, 376 are independent sections. 3 IMd. § 332, 376. * lUd. § 376. * Comprising the waters of the Thames and Medway as high as Lon- don bridge and Eochester bridge re- spectively, and also the seas and chan- nels leading thereto or therefrom, as far as Orfordness to the north, and Dungeuess to the south, iUd. § 370. * Comprising any pilotage district for the appointment of pilots within which no particular provision is made by any act of parliament or charter, iUd. § 370 ; e.g., The Falmouth dis- trict, The Juno, 1 Prob. Div. 135. As to the construction of the word parti- cular in § 370, see Hardgraftr. Hewith, L. R. 10 Q. B. 350. ' Comprising the seas between Dungeness and the Isle of Wight, ibid. § 370. CHAP. VI.] HIS COMPULSORY EMPLOYMENT. 281 passengers between any place situate in the United Kingdom, or the Islands of Guernsey, Jersey, Sark, Alderney, and Man, and any other place so situate,^ unless the master or mate on board have a pilotage certificate applicable to the ship and the Kmits within which a qualified pilot ought otherwise to have been employed.'"* The following ships, when not carrying passengers, are Oi^ ^"/^^ ships exempted from compulsory pilotage in the London district, and in the Trinity House out-port districts, namely : — (1.) Ships employed in the coasting trade of the United Kingdom ; (2.) Ships of not more than sixty tons burthen ; (3.) Ships trading to Boulogne, or to any place in Europe north of Boulogne ; (4.) Ships from Guernsey, Jersey, Alderney, Sark, or Man, which are wholly laden with stone, being the produce of those islands ; (5.) Ships navigating within the limits of the port to which they belong ; (6.) Ships 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 Kmits, nor anchoring therein,^ or loading or discharging within the same or at any place above such district on the same river or its tributary .''■ It follows that vessels to which these exemptions are ap- pUeable become responsible for damage done to any other during the time when such exemption applies, notwithstanding a duly quaKfied pilot on board has by his fault or negligence caused the collision. While the exemptions are thus limited to particular ships or ' Ibid. § 354. iwt being a port or place in relation ^ Ibid. § 354, 340, 355. to which particular provision hath 3 17 & 18 A'iot. c. 104, § 379. heretofore been made by any Act or ^ 25 & 26 Viot. c. 63, § 41. By rea- Acts of Parliament, or by any charter son of the 6 Geo. 4, c. 125, § 59, in or cliMrters for the appointment of contrast with § 376 of the Act of 1854, pilots, and by virtue of the charter of it was thought that there was a direct James II. to the Trinity House, which conflict as to compulsory pilotage, e.y., provides for the appointment of pilots within the limits of the port of Lou- within the said jjort, &c., the supposed don ; The Stettin, Br. & Lush. 199 ; conflict is disposed of ; The Hankow, Gen. Stm. Navig. Co. v. British and 4 Prob. Div. 197. Pilotage, therefore. Colonial Navig. Co., L. E. 3 Ex. 330 ; within the limits of the port of London 4 Ex. 238. But by virtue of the clause is held compulsory on a vessel belong- in § 59, " within the limits of the port ing to that port, ibid. or place to which she belongs, the same 282 THE PILOT. [chap. VI. classes of ships, the obligation to employ a qualified pilot, und«erthe general Act, covers the pilotage ground in' the waters of the United Kingdom, and therefore applies to all ships not specifically exempted, of every class and nation that pass within the appointed limit. Foreigners are subject to the compulsory obligation; and their owners are entitled to the corresponding advantage of irresponsibility.^ Conditions of But it is not enough as a defence merely to allege that a esponsi 1 1 y. gua^jjggj pQg^ ^^^ ^^ board the vessel, which did the damage, at the time the accident occurred. The pleadings ought to set forth, not only that there was a qualified pilot on board at the time, but also that the damage was due solely to the fault or incapacity of such pilot, and was done at a place within the limits within which it was compulsory on the vessel in question^ Onus of proof, to have such pilot on board ; ^ and the burthen of proof, as to which a different rule had for a long time prevailed both in the courts of law and admiralty,* is now cast upon those who seek to bring themselves within the benefit of the Act.^ The owners are not entitled to this exemption, however much the pilot may be to blame, whenever it can be shown that the master and crew, or the defective equipment of the ship, con- tributed to the injury.® For instance, on the part of the ship, ■' The General De Caen, Guichon, * Bennett v. Moita, 7 Taun. 285 ; 1 Swab. Ad. 9 ; The Protector, Edgar, Ritchie -i;. Bousfield, 7 id. 309 ; The 1 W. Eob. Ad. 45 ; The Maria, Witt, Christiana, Larson, 2 Hagg. Ad. 183. ' 1 W. Eob. Ad. 95 ; The Vernon, Gimb- * The Protector, Edgar, 1 W. Eob. lett, 1 W. Eob. Ad. 316 ; The Chris- Ad. 45, 58 ; The Agricola, Grayson, 2 tiana, Larsen, 2 Hagg. Ad. 183 ; over- W. Eob. Ad. 10, 13, 16 ; The Diana, ruling The Girolamo, Guiranovich, 3 Greig, 1 id. 131 ; Stuart v. Isemonger, Hagg. Ad. 169. (S. C. on appeal), 4 Moore, P^ C. 11 ; ■ The Lion, L. E. 2 Ad. 102. The Admiral Boxer, Jones, 1 Swab. ' The Canadian, Dixon, 1 "W. Eob. Ad. 193, 195 ; The Carrier Dove, 2 Ad. 343 ; The Admiral Boxer, Jones, Moore, P. C. N. S. 261 ; Pollok v. 1 Swab. Ad. 193, 195 ; The Proteptor, M'Alpin, 7 Moore, P. C. 427 ; Tlie Edgar, 1 "W. Eob. Ad. 45 ; The Peer- Mobile, Ponsonby, 1 Swab. 69 ; 1 id. less, Lush. Ad. 103 ; The Wobnm 127 (on appeal). Abbey, 38 L. J.. (Ad.) 58 ; Hammond ^ See the law as laid dovm in the V. Eogers, 7 Moore, P. C. 160. Of cases that follow, adopted by the Privy course, the pilot must be actually in Council, Hammond v. Eogers, 7 Moore charge of the ship at the time, and P. C. 160, 171 ; The lona, L. E. 1 this cannot be the case if he has gone P. C. 426 ; The Meteor, 9 Ir. Eep. Eq. below. The Mobile, Ponsonby, 1 Swab. 567. 69, 71 ; Catts v. Herbert, 3 Stark, 12. CHAP. VI.] PILOTAGE EATES. 283 there may have heen an insuflficient look-out ; ^ or an undue interference with the pilot in his own proper province ; ^ or the anchor may have been so light as to be insufficient to hold the ship ; ^ or the crew, either through want of will or want of skill, may have disobeyed the pilot's orders ; and for this purpose, a waterman on the river Thames, picked up by a French vessel to take the helm, because no one on board understood the English pilot, is for the time being one of the crew.* The damage, however, is not to be attributed to the master, merely because his interference might have prevented it, if such inter- ference must have been with matters exclusively within the province of the pilot.^ The onus of proof lies on the plaintiff alleging such contributory negligence.'' Among the other duties within the pilot's exclusive province. Pilot's other it has been held that it is for him to determine the course of the vessel, and whether to lessen sail, or to proceed, or bring up ; '' and to decide as to the mode, the time, and the place of bringing the vessel to an anchor,^ and the manner of casting the anchor preparatory to its being dropped ; ^ and whether or not it is prudent to take a vessel in tow.^" A qualified pilot is entitled to be remunerated for his services, pilotage rates. in accordance with the rates which have been fixed by the proper pilotage authorities,^^ and that there may be no difficulty about the amount, he is bound to produce, at the request of his employers, so much of the general Act as relates to pilots, 1 The Diana, Greig, 1 W. Rob. Ad. Ad. 310, 321, 331 ; The Maria, Witt, 131 ; Stuart v. Isemonger (S. C. on 1 W. Bob. Ad. 95, 110. appeal), 4 Moore, P. C. 11. ^ The Agricola, Grayson, 2 W. Eob. 2 The Lochlibo, Boyd, 3 W. Eob. Ad. 10 ; Tlie George, Roberts, 3 W. Ad. 310, 331 ; The Julia, Lush. Ad. Eob. Ad. 386, 388 ; The Gipsey King, 224, 233. 2 id. 537, 547. 3 The Massachusetts, Pritchard, 1 ' The Gipsey King, Campbell, 2 W. W. Eob. Ad. 371. Eob. Ad. 537, 547. * The General De Caen, Guiohon, 1 i" The Julia, Lush. Ad. 224, 233. Swab. Ad. 9. " 17 & 18 Vict. c. 104, § 333, 380, 6 Fer Dr. Lushington, The Lochlibo, 381 ; 35 & 36 Vict. c. 73, § 9. If cir- Boyd, 3 W. Eob. Ad. 310, 321. cumstances were such that he could ^ Clyde Navig. Co. •«. Barclay, 1 not board the ship, and he yet led the App. Cas. 790 ; The Daioz, 37 L. T. way, and so directed her in her course, N. S. 137 (C. A.). he is entitled to pilotage, 17 & 18 Vict. 7 The Lochlibo, Boyd, 3 "W. Eob. c. 104, § 356. 284 THE PILOT. [chap. VI. together with a copy of the rates, bye-laws, and regulations established within the district for which he is licensed.^ As these rates are governed partly by the draught of water made by the ship, it is the master's duty to declare her true draught if asked by the pilot, subject to a penalty for his refusal to do so, or for any false declaration thereof made by himself or with his privity ; and if any fraudulent alteration of the figures on the stem or stern-post denoting her draught of water is made by the master or other person interested in the ship, or with his privity, he is liable to a penalty not exceeding 500Z.^ The sum thus ascertained, as due to the pilot, by the table of rates, is liable to be diminished by so much as is payable to an unqualified pilot who properly and necessarily may have preceded him in charge of the ship, subject, however, to appeal in case of dispute to the pilotage authorities.^ But this sum is liable to be increased, if the pilot is taken beyond his liinits under circumstances of unavoidable necessity, or without his consent, by ten shillings and sixpence a day from and inclusive of the day that he passes the limit of his engagement, up to and iaclusive of the day of his being returned to the place where he was taken on board, either in the ship or at the expense of the ship.* Salvage reward. In addition to the sum due for ordinary pilotage services, he may have a just claim for services rendered by him as a salvor, and in that case the Coui't will take care that he is not baulked of his righteous reward. For while the Court is jealous over him, to see that he does not convert his pilotage duties into salvage services, it is also a settled doctrine, that no pilot is bound to go on board a vessel in distress to render pilot-service for mere pilotage reward ; and if he take charge of a vessel in that condition, he will be entitled to a salvage remuneration; ' 17 & 18 Viot. c. 104, § 350. official log as it was at the time of his 2 Ibid, § 359. In case of difference qmtting to go .to sea. as to the ship's draught, it is in the ^ 17 & 18 Vict. o. 104, § 360. power of the Trinity House to deter- < 17 & 18 Vict. c. 104, § 357. This mine it, § 384. See 34 & 35 Vict. c. charge is not pilotage Aues within the 110, § 5, enabling the Board of Trade meaning of the Act so as to be recover- to find the ship's draught, and re- able, e. g., from an agent ; Morteo v. quiring the master to enter it in his Julian, 4 C. P. Div. 216. CHAP. VI.] REMEDY FOE PILOTAGE. 285 but if he is promised pilotage only and refuses, he is liable to no censure.^ In the absence of any such reason for departing from the tabular rates of pilotagej it is the duty of the pilot to demand or receive — and of the master to offer or pay — neither more nor less than the sum so fixed as appHcable to the ship in question, subject to a penalty against the offender.^ Pilotage on foreign ships, trading to and from the port of London, is to be paid, after the same rate as in the case of British ships, to the Collector of Customs at London, without whose receipt for the amount no such vessel can clear out from the port.^ The persons liable to pay the pilotage dues for any ship kemedt pok FILOTAGIE that has had the services of a qualified pilot, are the owner or p j. ,.' , , master, or such consignees or agents thereof, as have paid or f™. 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 cjlears out, as to pilotage outwards ; and this amount, after a demand in writing and the expiration of seven days from the time of such demand, may be recovered summarily, in England or Ireland, before two or more justices, or one stipendiary magistrate, and in Scotland before the sheriif of the county, or two justices of the peace of the county or burgh where the defendant happens for the time to be.* ' The persons liable in regard to foreign ships trading to or from the port of London, are the master or other person having the charge of such ship, or the consignees or agents thereof, who have paid, or made themselves liable to pay, any other charge for such ship in the port of London, and the amount in this case may be recovered in the same way as in the case of other ships.^ The persons thus made Kable for the pilotage dues, not 1 Per Dr.Lushmgton, The Frederick, Ad. 226, S. C. Thurman, 1 W. Eob. Ad. 16, 17 ; The "' Not exceeding lOZ. ; 17 & 18 Vict. Hebe, Cole, 2 W. Eob. Ad. 246 ; The c. 104, § 358. General Palmer, Thomas, 2 Hagg. Ad. ^ jj^_ § 331^ 332. 323 ; The Elizabeth, 8 Jur. 365 ; Hal- ■> 17 & 18 Vict. c. 104, § 363, 518, sey V. Albertuszen, 11 Moore, P. C. 519, 531. 213, 319 ; The Jonge Andries, 1 Swab. * lUd. § 381. 286 TOWAGE. [chap. vr. being the owner or master, are empowered, severally to retain out of any moneys in his hands, received on account of the ship, or'belonging to the owner thereof, the amount of all dues so paid by him, and any reasonable expenses incurred in con- sequence of such payment or liability.^ For the statutory offences which a pilot may be guilty of in his vocation, and the penal consequences attending thereon, we must refer to the statute in the Appendix.^ TowAOE. The employment of a steam-vessel by the master or owners of another ship, for the purposes of towage, is a contract which implies the exercise of diligence, care, and reasonable skill in the. fulfilment of their engagement hj the parties to it on both sides and their agents and servants, the master and crew of the tug, and the master and crew of the ship in tow.^ The parties to the contract contemplate risk in the per- formance of it, the risk of winds and waves, and of obstacles, floating or fixed, that lie about or in their path. They both engage to be ready, armed with diligence, vigilance, and com- petent skill, against these risks, and besides this, on the part of the tug, with such a crew, tackle, and equipments, as are reasonably to be expected in a vessel of her class.* With all this performed, if there be notwithstanding inevitable accident and consequent damage to one of the parties, there is no liability in the other. But neither may by his fault or negligence aggravate the risk of the other with injury to him, without liability for the damage accrued, unless the other have contributed to the loss by his own fault or negligence.^ In all this, it is assumed on both sides, when the contract is made, that the risk will be no more than ordinary, under ordinary bad weather. But there is no implied warranty on the part of the tug, to 1 17 & 18 Vict. c. 104, § 364, and « 17 & 18 Vict. c. 104, § 365. see Sleigh v. Sleigh, 5 Exch. 514. ^ gge The Jane Bacon, 27 W. E. 35. Penalty under § 367 is not included in ■> The Galatea, Swab. Ad. 349 ; The pilotage dues so as to be recoverable Minnehaha, 30 L. J. (Ad.) 211, 212. from an agent ; Morteo v. Julian, 4 . * The Julia, Luah. Ad. 224, C. P. Div. 216. CHAP. VI.] TOWAGE. 287 bring the toio to the point of destination under all circum- stances and at all hazards.^ She engages to use her best endeavours for that purpose ; but she is relieved from her obligation, if she be prevented by vis major, or by accidents, not contemplated, which render performance of her contract impossible.^ She is not relieved, however, from her obligation because unforeseen difficulties occur in the completion of her task, — because the performance of her task is interrupted or cannot be completed in the mode in which it was originally intended, as bj'' the breaking of the ship's hawser.* But if, in the discharge of her task, by reason of the sudden violence of winds or waves, or other accidents, beyond the control of and without default in the tug, the to2v is placed in danger, and the tug incurs risks and performs duties which were not within the scope of her original engage- ment, she is entitled, on proof of this, if the ship be saved, to claim as a salvor instead of being restricted to the sum stipulated for mere towage.* Such a remuneration under the supposed circumstances becomes her right ; but in such circumstances it is not optional with her whether she will render the services — she is bound to do so. This is implied in her original contract, from which she is not relieved except by circumstances of difficulty, that render the performance of it impossible.^ By analogy to the common-law relation in which a pilot iegal relation stands to the owners and to the master and crew of the ship in °^ '"'^ ''°° ^™ his charge, it would seem that the master and crew of the tug are agents of the owners of the ship, and that for damage done to a stranger solely through the fault or incapacity of the crew of the tug, both parties are answerable ; and that if the master and crew of the ship have through fault or incapacity on their part contributed to the damage, there is no right of action between the ship and the tug to recover over. It would seem 1 The Minnehaha, 30 L. J. (AcL) rioles, Br. & Lush. Ad. 80 ; The Charles 211. Adolphe, Swab. Ad. 15,? ; The Albion, ^ Idem, supra. ■ Lush. Ad. 282 ; The Robert Dixon, 42 3 The Annapolis, Lush. Ad. 35.5 ; L. T. N. S. 344. The Edward Hawkins, 15 Moore, P. C. » The Saratoga, Lush. Ad. 318 ; The 48g_ Minnehaha, supra; The White Star, I The Minnehaha, supra ; The Pe- L, E, 1 Ad. 68. TOW. 288 TOWAGE. [chap. VI. also that the same analogy to the case of a pilot would place the master and crew of the ship under the orders of the tug in all things proper to the due and safe fulfilment of the contract, suhject only to analogous exceptions as to the right of the master of the ship under extraordinary circumstances to inter- fere and refuse to execute the orders from the tug ; and this opinion appears to be justified by the presumed local knowledge and experience of those who have been by the contract entrusted with the command of the moving power and the selection of the BBLATioN ov When a pilot is taken on board a ship which is being towed AND SHIP IN ^y ^ steam-tug, the pilot's control of the conduct of the ship '^''^' extends also to that of the tug which has her in tow, and, without exempting the master and crew of either vessel from the duty of exercising diligence, care, and skill in the working of their own vessel, such exercise must be in strict subordina- tion to the orders of the pilot, subject here also no doubt to those exceptions under extraordinary circumstances which have already been referred to. "In all ordinary cases of this kind," says Dr. Lushington, " I consider it to be a part of the contract itself, that the steam-tug should be subservient to the pilot on board the vessel in tow, and that it is the duty of the persons on board the steam-tug implicitly to obey and carry out his orders. I am speaking now of a steam-tug in the per- formance of an ordinary towage service. There maj"-, indeed, be cases in which this duty ought to be relaxed, and where the rule could not possibly be applied, as, for example, in cases of salvage, where the master of the steam-tug is called in to remedy the errors or misfortunes of the pilot, or where he sees a pilot acting in such a manner as to threaten the certain destruction of his own vessel, and to endanger the lives and property of others. In such cases the master of the steam- tug would unquestionably be justified in exercising his own discretion, and in acting upon his own knowledge independently of the pilot. But these cases, it is to be observed, form the exceptions to a general rule, and where such exceptions are » The Energy, L. E. 3 Ad. 48 ; The Jane Bacon, 27 W. E, 35. DAMAGE. CHAP. VI.] TOWAGE. 289 alleged, tliey must be proved by the fullest and most satis- factory evidence. I am Avell aware that mischiefs may in some instances arise from pilots having the entire control over steam- tugs, and giving directions contrary to the judgment and ex- perience of the masters of steam-tugs, conversant as they ai'e with every part of the waters in which they are employed ; at the same time I feel that still greater difiiculties would be occasioned by two conflicting and independent authorities being exercised in the navigation of one and the same vessel." Under the circimistances of the case then before the Court, the learned judge was of opinion, that although the pilot might not have exercised a sound discretion in the orders he gave, there was yet no sufficient justification of the master of the steam-tug in refusing to obey and carry those orders into efl'ect.^ The absolute rights and liabilities of each of the three liabilim for parties are not changed, the legal relation of either pair of them is not altered by their correlation when it becomes triple. The tug is the agent of the ship in tow, and liable over to her owners for any damage due to fault in it alone. ^ The pilot is, at common law, the agent of the same owners when appointed by them, and liable over in like manner for the consequences of his own fault inclusive of immediate damage by the tug, when that is the result of his orders. For the purpose of his func- tions he is still necessarily supreme in command, with the motive power in his control, whether that consist of sails, an engine on board, or an engine ahead of the vessel that he is conducting.'^ In respect of tug and of pilot, at common law the owners of the ship in tow are primarily liable to third persons suffering damage by the acts of either.* When the statute, then, puts a pilot on board against the will of the owners, although these are no longer in the position of princi- pals, the pilot's authority over the tug and the ship in tow is necessarily thereby confirmed, implicit obedience to his orders being the condition of irresponsibility on the part of the owners 1 Per Dr. Lushington, The Chris- 2 xhe Energy, L. E. 3 Ad. 48 ; The tiana, 3 W. Hob. Ad. 27, 29, 33 ; Julia, Lush. Ad. 224. Petley v. Catto, 6 Moore, P. C. 871, ^ The Christiana, supra. S. C. ; The Duke of Sussex, Forss, 1 * The Energy, mpra. W. Bob. Ad. 270, 272. 290 TOWAGE. [CHAP. VI. to others, and of non-liability on the part of the tug to them.^ Still if the tug in obedience to the wrong orders of the pilot do damage to another vessel and is sued, such orders of the pilot are no defence, although the pilot was compulsorily on board the tow and he was in fault.^ Nor would it be a defence for the tow to allege that she had been dragged into mischief by her own tug.^ Any disobedience therefore of tug or ship in tow, disentitles the owners of the latter to the statutory protection ; but the consequences ultimatelj' fall where the fault first originated. So that the assumption of independent authority, under any circumstances, howev-er exceptional, is always attended on the part of either with absolute liability for all the immediate results.* It follows from this, that if the damage done by a ship in tow, while a qualified pilot is compulsorily on board, is, at least partly, due to the fault of those in the tug, the owners of the ship in tow are, in the first instance, liable with a right to recover over, in case their own master and crew are clear of , blame. ^ But if the owners of the ship in tow have employed a pilot, although by the compulsion of law, under circumstances in which it was physically impos- sible for him to act, as any damage that may occur, cannot, in that case, be traced to his fault or incapacity, they are not entitled to the protection of the statute. Where, therefore, a vessel was being towed from the Victoria Dock, at Hull, in order to be placed in the Humber Dock basin, a short distance higher up the river, when it was night, and the weather thick, and she came into collision with^another ship lying at anchor in the river, the owners of the vessel in tow were held liable, although there was a qualified Humber pilot on board at the time.^ Safety Pko- To accommodate commerce and to lessen the dangers of VISIONS. maritime traffic, nations began early to set up sea-marks, to affix bells to solitary rocks, and came at length to establish 1 The Energy, supra; The Julia, W. Kob. Ad. 270, 272, 273 ; The Julia, supra. Lush. Ad. 224. 2 The Mary, i5 Prob. Div. li. * The Energy, svpra. ^ The Ticonderoga, Swab. 215. « The Borussia, Christianseu, 1 Swab. ■• See The Duke of Sussex, Forss, 1 Ad. 94. ■ CHAP. YI.l SAFETY PKOVISIONS. 291 permanent lights. A few rules of the road, existing only as a portion of seaman-craft, have grown with the increase of com- merce into a code, with a system of lights on board, and of fog and flag signals. In a word the benevolent power of legislatures and of governments has been exerted and ex- hausted for this purpose in measures of precaution by sea and land all round the globe. And now, last of all, what has been long assumed by these authorities — that men might be trusted with their own lives, has been abruptly displaced by experience of the inefficiency of external provisions for safety, unless the objects of such legislation, too familiar with dangers, shall be rudely shaken out of their false security and forced to exert themselves on their own behalf. Owners have- been found- that were capable of practising on Unseaworthiness this facihty and foolhardiiiess of seamen in order to send ships °^ *" ^^^' to sea in an unseaworthy condition. At length the criminal law has interposed. The sending or attempting to send or the being a party to such attempt or such sending a British ship to sea in such an unseaworthy state that the! life of any person is likely to be endangered thereby, is a misdemeanor, not punishable on summary conviction. It is a misdemeanor in any master if he knowingly takes a British ship in such a condition to sea. But it is a defence to the charge in either case, if it be proved that under the circumstanbes the act was either reasonable or justifiable.^ These enactments have a general regard both to the public and to the crew. We have seen that it is a term express or implied of every Seaworthiness a contract for service on board, that the owner, the master, and goXract of^ every agent charged with the loading &f the ship or the prepar- service on board. ing thereof for. sea, or the sending thereof to sea, shall use all reasonable means 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. But if" is a defence in any such case if it be proved that, owing to special circumstances, the sending to sea of the vessel in an unseaworthy state was reasonable or justifiable.^ For the purpose of giving effect to these salutary laws by Means of ! • ■ Enforcement. 1 39 i; 40 Vict. c. 80, § 4. ^ Ibid. § 5. U 2 292 SAFETY PEOVISIONS. [chap. VI. Wreck Commis- sioner. preventive measures it is enacted — that where a British ship, heing in any port of the United Kingdom, is by reason of the defective condition of her hull, equipments, or machinery, or by reason of overloading 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 may be provisionally detained for the purpose of being surveyed, and either finally detained or released as the result may admit. This very strenuous measure is guarded by further provisions and by the institution of Courts of Appeal for those that feel themselves aggrieved by the proceedings of the Board of Trade who are charged with the execution of this enactment. The Board is entitled to costs, recoverable as salvage is or otherwise, and liable to pay costs and compensa- tion, as the result, of the inquiry may determine.^ Foreign ships loading in any port of the United Kingdom, if unsafe by reason of overloading or improper loading, are placed within the powers of the Board of Trade to interfere with them on such ground.^ Further to enforce the observance of these and the other salutary laws mentioned in this chapter, a Wreck Commissioner has been appointed, with power to investigate into Shipping Casualties when they occur, with a view to determine whether they have been the consequences of incapacity or negligence in the owner or the master and crew, with aU, the powers given to stipendiary magistrates or two justices in such cases.^ Dangerous goods. The Carriage of dangerous goods on board, or even the attempt to carry them, unless the nature of them is distinctly marked outside the package, incurs a penalty not exceeding lOOl. on the master and owner.* Moreover it is the master's duty to refuse to receive goods which he may suspect of being dangerous when he has no notice of their true character ; he is empowered in that case to require the package to be opened for the purpose of ascertaining their nature ; and if such goods are already on board, not distinctly marked and not declared 1 39 & 40 Vict. c. 80, § 6,7, 8,9, 10,15. 2 Ibid. § 13.- Jbid. § 29, 30, 31, 32 ; 42 & 43 Vict. c. 72 ; ante, p. 210. < 36 & 37 Vict. c. 85, § 23-28. CHAP. VI.] SAFETY PEOVISIOXS. 293 by notice as to their nature, the opportunity of sending them ashore again being past, they may be thrown overboard without evil consequences ensuing to the master or owner from that act.^ A British ship laden with a grain cargo must take all neces- Grain cargoes. sary and reasonable precautions against the shifting of the grain, subject to a penalty of SOOl. on the master, the owner aiid the owner's agent. The master must deliver to the British authorities at the port of loading and of discharge a notice of the ship's draught and clear side, of the kind and quantity of the grain, the mode of stowage, and the pre- cautions taken, subject to a penalty of lOOL for omission of such notice, or for any false statement in it.^ Deck cargo subjects the ship to dues for the space occupied Deck cargo. thereby as if the same were part of her registered tonnage.^ Deck loads of timber, particularly described in the statute, carried by any vessel, British or foreign, arriving at and being bound for any port in the United Kingdom, between the last day of October and the 16th day of AprU, subject the master and also the owner, if the latter be privy to the offence, to a penalty not exceeding 51. for every hundred cubic feet of such wood goods so carried.* Spare spars and the like, so carried for ship's use, and the effects of either favourable or unfavour- able weather in bringing the ship within the prohibited period, are excepted from the section.^ Every British ship, except coasters under 80 tons, fishing- Deck ajiJ LoaJ craft, and pleasure yachts, must be marked on each side with deck lines, and with load lines, the latter indicating the maxi- mum load line in salt water. The offence of not marking, or of concealing, removing, altering, defacing, or obliterating such lines, or suffering any person to do so, or submerguig the load ' 36 iSc 37 Vict. c. 85, § 28 ; (danger- is laden with a grain cargo wliich 0U8 articles named are " aquafortis, carries mors grain than one-third of vitriol, naphtha, benzine, gunpowder, her registered tonnage, § 10. Pre- lucifer matches, nitro-glycerine, petro- cautions are prescribed for certain leum.") This is in addition to the voyages, § i. Explosive Substances Act, 38 & 39 Vict. ^ 39 & 40 Vict. c. 80, § 21!. c. 17. ■• Ihid. § 24. - 43 &44 Vict, c, 43, § 3, 6. A ship " Ibid. 294 SAFETY PEOVISIONS. [.CHAP. YI. Ship's DrOTght of Water. line by overloading, subjects any owner or master to a penalty not exceeding 1007. ; or if the said lines are inaccurately marked so as to be likely to inislead, the owner incurs a penalty not exceeding lOOL^ The Board of Trade in case of any ship, when leaving in order to proceed to sea, may ascertain and record her draught of water as shown on stem and stern posts, and alsd the clear sides of the same ship. The' master, on leaving to proceed to sea, is required to record the same particulars in the dfficial log, and to produce this record to any principal officer ■ of customs requiring it, under a penalty of 201.^ No decked ship, other than steam-tugs and fishing vessels, is to proceed to sea from any place in the ^United Kiiigdom, unless provided with boats duly supplied with all requisites for use, in number and size according to the scale of the tonnage of such vessel as by statutory -table is enacted.^ And if such boats are not provided, or are lost or rendered unserviceable through negligence or default of owner or master, or, if being accidentally lost or injured dming the voyage, the master wilfully neglects to replace or repair the same on the first opportunity, or if such boats are not kept so as to be at all times fit and ready for use ; — ^then the owner, if in fault, incurs a penalty not exceeding 1001., and the master, if in fault, a penalty, hot exceeding SOL* : Anchors and For the testing of anchors and chain cables, niost careful a es. provision has been made, and prohibition of the sale of the same untested is enacted by Parliament in the statutes rjeferred to below.** '>--' Passenger ships. Matters and provisions peculiarly affecting passenger ships are reserved for notice in the cotirse of the subsequent -chapter. The signals to be used by vessels in distress, or for a, pilot, are ascertained and prescribed by the 36 ■ The Sisters, 1 Prob. Dir. 117. See Hepburn, 1 W. Rob. Ad. 156. Hill V. New River Co., 7 B. & S. « The' Perth, Spink, 3 Hagg. Ad. 308. iU ; The Trident, 1 Ecc. & Ad. Rep. 2 The Bywell Castle, 4 Prob. Div. 217 ; The Sylph, 2 id. 75, 86. 219 (C. A.). ' The Ligo, Ligo, 2 Hagg. Ad. 356, 3 The Bilbao, Lush. 149. 359, 360 ; The Celt, Taylor, 3 id. 321 ; * The Cynthia, 2 Prob. Div. 52 ; The The Dumfries, Thompson, (on appeal) Belgio, 35 L. T. N. S. 929. 1 Swab. Ad. 125, 126. , ' 5 The Ericsson, Lowber, 1 Swab. Ad. ^ i^j^e Northampton, 1 Ecc. & Adj 38, 39 ; The Chester, Lawson, 3 Hagg. 152. So where the anchor under Ad. 316 ; The George, 9 Jar. 670 ; The ordinary circumstances was too light, Londonderry, 4 Notes of Cases, suppt. The Massachusetts, Pritchard, 1 W. xxxi. ; (on appeal) 4 id. xliii. ; Hay v. Rob. Ad. 371. See The Ulster, 6 L. T, Le Neve, 2 Shaw's Appl. Cases, 395. N. S, 736, Put bfewe is not imputaWe tor 4«> CHAP. VI.] DAMAGE CAUSES. 315 tack and in stays and helpless, and a vessel on the starboard tack aware that the other was helpless, were each hound under the circumstances to execute any practicable manoeuvre to avoid collision, and as neither did, both were held to be in fault.^ As it is of essential importance that observance of the Observance of rules of the sea, whenever they are applicable to the circum- course, stances, should be a matter of course in every seaman's mind, and of confident presumption with regard to the vessel on the opposite course, offenders are invariably visited with the conse- quences of their own neglect.^ The Prussian galliot, Jupiter, having the wind free, it being broad daylight, and fine weather, lay on the port tack to allow three sail on the starboard tack to pass in accordance with the rule of the maritime law ; two of them did pass, but the third, instead of keeping her course, began wearing, and a collision took place. The Jupiter was afterwards sued in the Admiralty Court for damage sustained by the third vessel, but the suit was dismissed, and the plaintiff condemned in costs, as the damage had been occasioned through his own breach of the established rules of the sea.^ If a vessel is in tow of another, the two are regarded for the purpose of the sailing rules as one vessel ; and consequently, if the vessel towing be under steam, the two together (irrespec- tive of the second being under steam or not) are subject to the sailing rules applicable to steamers ; so that if they meet a sailing vessel crossing their course close-hauled, their duty is to give way, whilst she holds her course. Where, therefore, the two vessels under steam did not give way and came into collision with the sailing vessel and sank her, and this because there was no proper look-out kept on board the steamer, both the vessel towing and that in tow were condemned as being to blame for the collision.* A vessel with her anchor down but not actually holden by or under control of it, is under way for the purposes of the regulation as to lights.^ » Wilsonc.The Canada Shipping Co., The Celt, Taylor, 3 id. 321. 2 App. Cas. 389 (P. C). ■• The American and The Syria, L. E, 2 Per our. The Mangerton, 1 Swab. 4 Ad. 226. Ad. 123 ; 17 & 18 A'ict. c. 104, § 299. « Tl^e Esk, L, B, 2 Ad, 350, 3 Xbe Jupiter, Heack, 3 Hagg, SSO; 316 DAMAGE CAUSES. [CHAP. VI. Lights. The steamer Simla, in the sea of Marmora, whilst on a course which was W. ^ S., saw The Cleopatra steamer, two mUes distant, with a course E. ^ N., and was seen by the other with her green and white lights, two points on the starboard bow of The Cleopatra, the circumstances thereby showing that the vessels were within the rule of the Act of Parliament. The Simla immediately put her helm a-port, but the other, coming rapidly on, with her helm hard a-starboard, ported only at the last moment, when it was too late to be of any avail, and was, consequently, held responsible for the damage occa- sioned by the collision that followed.^ The Danish barque Harriett, bound for Copenhagen from the West Indies, was to the westward of Beachy Head, on the night of the 26th of April, running E. by S., when the British ship Seringapatam, from London, bound for Ceylon, was coming down the Channel W.N.W. The evidence Avas conflicting as to the point from which the wind was blowing, but the Trinity Masters were of opinion that both vessels were, at the time, going close on the wind, and that both, under such circumstances, should have ported the helm. The Seringapatam did port her helm, and was right in so doing, and The Harriett kept her course, and was wrong ; but as The Seringapatam neither ported her helm in time, nor kept a good look-out, both were to blame, and the damage was shared between them.^ Lights. On the evening of the 18th of December, The Sylph steamer was proceeding up the Thames, close by the Kentish Coast, and therefore on the wrong side of the river. The Meteor steamer going down by the same shore, was mistaken by the other for a vessel at anchor, in consequence of her bowsprit light having gone out, and The Sylph, therefore, did not port her helm. The Meteor ported her helm, contributing thereby, in fact, to the collision, but presuming, on principle, that the other would obey the statutory rule. As The Meteor did not reverse her engines, however, when collision was imminent, and as her bowsprit light was not burning, she was in fault ; both, ^ The Cleopatra, Paton, Swab. Cases, 61, ruled under the second prin- 1.35 ; The Ericsson, Lowher, id. ciple of the maritime law as stated by 38. Lord Stowell, ante, p. 305. 2 The Seringapatam, 5 Notes of CHAP. VI.] DAMAGE CAUSES. 317 therefore, were to blame, and the damage was divided between them.^ The City of London steamer, on a clear moonlight night, with the wind blowing hard, was proceeding down the Thames at the rate of eleven knots, and the smack Celerity, hove-to at the lower end of the Gun Fleet Sand for the purpose of reefing her mainsail, was not seen, and was consequently run down by the steamer ; but as it was probable that the collision would not have occurred, if the smack had exhibited a light, at all events as the onios probandi was on the owner of the smack, and he had failed to show anything to the contrary, the suit was dismissed.^ The brig Victoria, proceeding up the Thames on a dark night, under whole topsails, courses, trysail, and staysail, six knots an hour, ran down llie Three Betseys, lying at anchor off the Middle Light, with no light aboard ; both vessels were therefore held to be in fault ; The Victoria for her speed under the circumstances, and The Three Betseys for exhibiting no light at anchor, and the damage, therefore, was divided between them.^ Under a dense fog, in broad daylight, The Carron steamer came suddenly in sight of the coUier Pursuit, off Flamborough Head, and a collision ensued imme- diately after, through the fault of both vessels ; for the steamer, although she had used caution and fog signals, did not starboard her helm, as she might have done, to avoid the collision, and the collier had not used the precaution of sounding a fog horn.* The presumption of law ^ in such cases is, that the damage Oms probandi in Damage CflUS6S ' The Sylph, 2 Eco. & Ad. Eep. 75. c. 104, § 298. 2 The City of London, Campbell, ' See The East Lothian, Lush. Ad. Swab. Ad. 245 ; even when there is 241. light, it may be exhibited in such a ^ The following somewhat artificial manner as to occasion collision. The rules are referred to in the Courts of Telegraph, 8 Moo. P. C. 167, 176; France ; they are to be found in Emeri- compare The Vivid, Swab. 88, (on ap- gon, Des Assur. vol. i. 408, et seq., and peal) nomine, Churchward v. Palmer, they are traced to much earlier sources 10 Moore, P. C 472 ; S. P. The Philo- by M. Boulay-Paty, Droit Maritime, taxe, 37 L. T. N. S. 540. vol. iv. p. 492-502 ; I cite them from 3 The Victoria, Mallabum, 3 W. M. Pardessus, Droit Com. vol. iii. no. Eob. Ad. 49. 652, 653. 1. Lorsque deux navires se ■• The Carron, 1 Bcc. & Ad. Rep. 91. pr^sentent pour entrer dans le m§me See the recent regulations as to Fog port, le plus 61oign6 doit attendre que Signals, a»^«, p. 299, and 17 & 18 Vict. le plus proche soit entr6 ; et s'ils 318 DAMAGE CAUSES. [chap. VI. was the result of pm-e accident ; and, therefore, the onus pror bandi is primd facie on the complaining party ; ^ but in virtue of his position, — at anchor, or in critical circumstances, owing to the dangers ' of navigation, or the risk of losing command of his ship, or in stays,^ — or, under the law maritime, being close-hauled on the starboard tack, at the time of the coUision, — the burden of proof mp,y be shifted to the shoulders of the other,^ to whom, however, it is open to show either that he was not to blame,* or, being to blame, that the neghgence of the plaintiff contributed to the collision.^ But the Admiralty Court will not suffei; either party.to plead or give in evidence a verdict and judgment recovered in the same case in a court of common law." abordent, le dommage est impute au dernier venu, tant qu'il ne prouve pas qu'il n'y a auoune faute de sa part ; 2. en cas de concours de deux navires, , le plus petit doit ceder au plus gros ; 3. le navire qui sort du port doit faire place a celui qui entje ; 4. celui qui sort le second est ce,ns6 avoir abord6 celui qui est sorti le premier ; 5. la pr&omption est centre le navire qui met a la voile pendant la nuit ; 6. le navire qui na- vigne k voiles d^ploy^es est presume avoir par faute de son capitaine, abord^ celui qui, iStant k la cape ou amarr^, ne pent se mettre k I'^cart, quand meme r^quipage de ce navire aurait &t6 averti de lever I'ancre et de le d^placer, s'il en a ^t& emp6cli6 par d^f aut de temps, par crainte d'un plus grand danger, ou autre motif l^itime ; 7. celui qui est mal plao6 dans le port, ou qui ne garde pas la distance pri§scrite, est r6put6 en faute ; 8. le navire amarr6 dans un lieu qui n'est pas destine k cet effiet, ou mal amarr^, ou dont les c§,bles sent in- suffisants, ou qu'on a laiss6 sans gar- dien, est ^galement r^putS en faute ; 9. il en est de m6me de celui qui avait ses ancres sans gaviteaux ou bouses, ser- vant de signes pour en fair reconnaitre la place et pr^venir du danger de s'en ap'proclier.' The 10th is the same in effect as art. 14, ante, p. 300. ? The City of London, Campbell, 1 Swab. Ad. 245 ; The Hibemia, 4 Jur. N. S. 1244 ; The Dumfries, Thompson, 1 Swab. Ad. 63, 64 ; The Ligo, Ligo, 2 Hagg. Ad. 356. And see Pailliet, and Emerigon, cited, ante, p. 308, ■in notis. 2 The Sea Nymph, Lush. Ad. 23. 3 The Dumfries, Thompson, 1 Swab. Ad. 63, 64 ; but see the difEerent view taken of the same facts on appeal, 1 id. 125 ; S. G. nomine, Thompson v. From, 10 Moore, P. C. 461 ; The Girolamo, Guiranovich, 3 Hagg. Ad. 169, 174 ; The Baron Holberg, Blom, S Hagg. 244 ; The Industrie, L. B. 3 Ad. 303. * The Bolina, 3 Notes of Cases, 209 ; The Thomely, 7 Jur. 659 ; The Shan- non, Higginson, 1 W. Rob. Ad, 463. The Dumfries, Thompson, (,on appeal) 1 Swab. 125. ■" The Victoria, Mallaburn, 3 W. Rob. Ad. 49 ; The Carron, 1 Ecc. & Ad. Rep. 91 ; The Telegraph, 8 Moore, P. C. 167, 176 ; The James, 1 Swab. Ad. 60 ; 17 & 18 Vict. c. 104, § 298 ; Morrison v. The General Steam Navi- gation Co., 8 Exch. 730, 738 ; TuCE v. Warman, 2 C. B. (N. S.) 740. « The Clarence, 1 Ecc. & Ad. Rep. 206 ; The Ann and Mary, 2 W. Rob. Ad. 189 ; The General Steam Navi- gation Co. 0. Tonkin, 4 Moore, P. C, 321. CHAP. VI.] DAMAGE CAUSES. 319 The measure of the damage to be given in these cases is Measure of . . . , . . . „ Damages. the amount of the injury sustamed, subject to no deduction lor new work in repairs, such as the law of insurance recognises/ but calculated, for actual loss, upon the principle of furnishing to the party a complete indemnification.^ He is not entitled, however, to a new ship for an old one, or to a sum equal to the gross freight, which was, at the time, being earned, or to a supposititious claim of so much per day during her detention for repairs, made on a mere assumption that contingencies during all that time would have been certainties both as to employment and liire.^ But where a smack was run down whilst rendering salvage services to a foreign ship, the value of these, as if they had been prosperously completed, was allowed in addition to the other compensation.* Consequential damage, when it naturally arises out of the Consequential . . . Damage, same collision, as proximate cause thereto, is recoverable at common law, or in the Court of Admiralty, in the same pro- ceedings. Where a fishing-smack on a voyage to Norway for a cargo of lobsters, was disabled by collision, the freight of the substituted vessel was allowed also.^ A vessel under charter having been damaged in collision was obliged to delay for repairs, and in consequence of the delay, the charterer can- celled the charter-party, it was held that she was entitled to recover inter alia, demurrage for the delay and compensation for the loss by the cancellation of her charter-party.^ A collier from Newcastle for West Cowes was struck by The Mellona when off Newarp Sand; she afterwards, the same night, became unmanageable, missed stays, and stranded, becoming a total wreck ; and the owners of The Mellona were condemned in the full value of the vessel, the presumption of law being, in the absence of proof to the contrary, that the 1 The insurance rule is to assess the ' The Gazelle, Hurst, tmpra ; The damage at two-thirds of the value of Clarence, 3 W. Eob. Ad. 283. the new work. Da Costa v. Newnliam, ■* The Betsey Gaines, Wilson, 2 Hagg. 2 T. E, 407 ; , Poingdpstre .v. Royal 28. Exch. Ass. Co., E. & M. 378 ; 2 ' The Yorkshireman, Forman, 2 Arnould, Ins. 901. Hagg. Ad. ,^0 n. As to demm-rage, 2 The Gazelle, Hurst, 2 W. Eob. 279 ; see The Black Prince, Lush., Ad. 568. 8 Jur. 429, S, C. ; The Matchless, 10 " The Star of India, 1 Prob, Piv. Jiu-. 1017. 466. 320 DAMAGE CAUSES. [CHAP. VI. collier became unmanageable in consequence of the prior collision.^ The Blenheim, on a dark, squally, and threatening night, ran foul of The Unition, the crew of which, thinking she could not live, abandoned her for The Blenheim; but The Unition was afterwards found at sea and brought into port, and the sum of 420i. paid to the salvors, was recovered from the owners of The Blenheim.^ Whether the costs of defending a salvage suit be recoverable, as consequential damage, depends on the reasonableness of taking that course, which at common law is a question for the jury,^ and in the Admiralty Court for the judge.* If the damage alleged as consequential be too remote to be naturally connected with the collision, to that extent the suit cannot be sustained.^ Where, therefore, it was alleged, in the case of The Royal Oak, that, after having a hole knocked in her side by collision, she was run ashore, and the pumps set in motion, but that the water notwithstanding so gained upon them, that her cargo of corn was injured ; and it apjseared that two tides had been allowed to intervene without attempting to close the hole so much as with canvas or tarpaulin, Sir John NichoU dismissed the claim. ^ Damages for loss of market occasioned by prolongation of the voyage through defects of the ship were disallowed, on appeal,^ the Court negativing any 1 The Mellona, Beale, 3 W. Rob. properly abandoned, and the salvage, Ad. 7. instead of being divided between the 2 The Blenheim, 1 Ecc. & Ad. Rep. two ships, as both were in fault, fell 285 :-^c»'Dr. Lushington, " Whencol- upon the owners of the abandoned lision takes place on a dark night, par- ship. ticnlarly at a tempestuous period of ' Tiudal v. Bell, 11 M. & W. 228. the year, and the vessel producing the * The Legatus, Beazley, 1 Swab. Ad. collision is of greater burthen than the 168. one struck, it is impossible to say with ^ See the notes to Vicars v. Wil- any degree of certainty, what are the cocks, Smith's L. C. vol. ii, ; Sedgwick precise circumstances that would jus- on Damages, c. iii. tify the abandonment of the vessel. If « The Bolides, Malngram, 3 Hagg. there were any reasonable prospect Ad. 367 ; the learned judge expressly that the lives of the crew are endan- states that his decision was given with- gered, I have always held that they out regard to the question of juris- are justified in quitting the vessel, and diction as affected by the place in the consequences must fall on the which the consequential damage oc- wrong-doer ; " Ibid. 289. See The curred. Linda, Melcher, Swab. Ad. 306. In ' The Parana, 2 Prob. Div. 118. that case the vessel had been im- CHAP. VI.] DAMAGE LIEN, 3^i application of cases of carriage by land to cases of long voyage over sea. Maritime lien for damage done attaches that instant upon maritime men the vessel doing it, and, notwithstanding any change of posses- doino damage. sion, travels with her into the hands of a bond fide purchaser though without notice, and being afterwards perfected by proceedings in rem, relates back to the moment when it first attached; such proceedings, however, to be effectual, must be taken with reasonable diligence, and followed up in good faith.^ The extent of this lien, or, in other words, the responsibility of the owners, and the limit set to it by the municipal law of this country in damage causes, and the legal proceedings there- upon, have already been considered in a previous chapter.^ Interest is recoverable on the statutory sum from the date of the collision.^ If the vessel in fault be a ship of the Royal Navy, the uabilhy in .,,,.„ CASE OF SHIPS person answerable lor the damage is not necessarily the chief of wak doino officer of the ship, but the officer in command on duty at the "'^'*'^'"^- time ; * and the owners are not liable, although the ship in fault be a hired transport, sailed by her own master and crew, but subject to the orders of such officer, if the damage result from obedience to positive orders from him ; but if the orders be such as to leave the master and crew a discretion under the circumstances, the owners are answerable for the injury occa- sioned by the negligence of their servants.^ ' Harmer v. BeU (in the case of The 6 ; Smith v. Kirby, 1 Q. B. Div. 131. Bold Buccleugh), 7 Moore, P. C. 267 ; * Nicholson v. Mounsey, 15 East, disapproving of the dictum in The 384. Volant, 1 W. Eob. Ad. 387 ; that 5 Hodgkinson v. Femie, 26 L. J. "damage confers no lien." (C. P.) 217, but see Fletcher v. Brad- ' Ante, c. iii. dick, 2 N. E. 182. 3 The Northumbria, L. E. 3 A. & B. CHAPTEE VII. PASSENGERS. Conti-act for Conveyance Time of Sailing Passage Money . Performance . Seaworthiness of Ship Health .... Provisions . 323 323 325 326 328 328 329 Discipline 330 Eemedies and Evidence . . 331 Statute, applicability of . . . 334 Statutory Duties, and Officers . 336 Damage by Negligence . . 338 Railway Companies as Carriers by Sea . . . , . 339 Statute and To regulate the conveyance of passengers, and to ascertain and enforce the public duties which are binding on owners and masters who engage in this description of traffic, the legislature have passed the 18 & 19 Vict. c. 119, amended by the 26 & 27 Vict. c. 51. But these acts apply, with some few exceptions,^ only to " voyages from the United Kingdom to any place out of Europe, and not being within the Mediterranean Sea," and aU but exclusively to " passenger ships," i.e., ships carrying more than fifty passengers, or a greater number of passengers than in the proportion of one statute adult to every thirty-three tons of the registered tonnage of such ships if propelled by sails, or than one statute adult to every twenty tons if propelled by steam.^ Most of the other cases of passenger traffic, no small pro- portion of the whole, remain still as they were at common law, subject to stipulation between the parties and to the effect of general usage at or between the ports, when such usage or stipulations modify the general common law rights of the passenger, owner, or master, respectively. But any right of action to which any one within the provisions of the principal statute is entitled at common law, is not taken away or abridged by the statute.^ 1 18 & 19 Vict. c. 119, § 4, 15, 48, 96, = 26 & 27 Vict. c. 51, § 3. 99, 100, 101 J ?4 & 35 Vict, 0, 52. ^ 18 & 19 Vict. c. 119, § 58. CHAP. VII.] THEIR CONTRACT. 323 When the contemplated voyage is to be of considerable the contract. duration, the contract usually is in writing, and, within the Passengers' Act, must be in the prescribed form,^ stating the ship's name and tonnage, the day of sailing or embarkation, the voyage from terminus to terminus with the intermediate ports to be touched at (if any), the passage monej', the part of the ship, cabin or steerage, to which the contract applies, with a dietary scale which is commonly annexed and incor- porated by reference. No stamp, however, is requisite.^ If the time of sailing be of the essence of the contract, the time of sailing. passenger is absolved from his obligation by delay of the ship, and entitled to damages with a return of the passage money ; but if it be matter of representation merety, delay, when it is not unreasonable, can be no breach of the contract, and refusal to go with the ship may even subject the passenger to forfeiture under a usage of the port in that particular trade. In the following case it was held that there was a warranty as to the time of sailing. A. in Ireland received, upon appli- cation, a letter from the defendants, agreeing to carry him and his family, for a sum named, to Australia, and on the fly sheet of the letter appeared a printed circular, headed, " Emigration to Australia," and stating that "ships will be dispatched on the appointed days (wind and weather permitting) for which written guarantees will be given." A list of ships was given in the same document, and The Asiatic, one , of them, was appointed to sail from London on the 15th of August, and from Plj^mouth on the 25th. It was stated in the same circular, "Passengers from Ireland can readUy join at Plymouth. A deposit of one-half the passage money to be paid at the time the berths are engaged, the balance to be paid prior to granting the embarkation order." A. engaged berths on board The Asiatic, and paid the deposit, but received no written guaranty. The ship, in fact, did not reach Plymouth till the 3rd of September, a delay not accounted for by the state of the wind or ' 18 & 19 Vict. c. 119, § 71, and in the printed directions prefixed to the Form case of steerage passengers, this section sanctioned by the statute, is applicable to any ship intended for a ^ Jbid. § 71. voyage that is within the Act, See the T 3 324 PASSENGERS. [chap. VII. Time of Sailing by Statute. Embarkation : and Sailing. weather ; and A, sailed by another vessel. In the action he recovered the deposit money and damages for the expense occasioned him at Plymouth by the detention, on the ground that there was here a warranty of the time of sailing.^ On the other hand, where the defendant had engaged a passage by a ship advertised to saU for the East Indies on the 10th of October, and afterwards refused to go with her because she did not sail till the 21st, the jury, under the direction of Tindal, C. J., found that the delay was not unreasonable, and that the time of sailing was matter of representation only ; and the captain, under proof of a custom in the East India trade, recovered half the passage money as damages for the defendant's breach of contract.^ The form of contract under the statute gives, for cabin passages the day of sailing, but for steerage passages the day of embarkation ; and the cabin passenger's rights thereon are chiefly at common law. The steerage passenger, however, is entitled by the statute to be received on board before six o'clock in the afternoon of the day of embarkation, or in case of refusal or neglect on the part of the ship, to recover the money paid by him, and damages, not exceeding 101.^ And if the ship, whether a passenger ship or otherwise, do not actually put to sea, and proceed on her voyage before three o'clock in the afternoon of the next day, he is to receive from the ship subsistence money at the rate of one shilling and sixpence per day for each statute adult during the first ten days' delay, and three shillings every subsequent day ; but if he is maintained on board as though the voyage had commenced, he is to receive nothing for the first two days of the ten, and nothing for any day of the delay if he is so maintained and the delay be unavoidable and not attribut- able to the act or default of the owner, charterer, or master.* For unreasonable delay, even in the absence of any fixed time for sailing, there is a right of action at common law,^ which is expressly saved by the statute.^ ' Cranston v. Marshall, 5 Exch. 395. 2 Yates V. Duff, 5 C. & P. 369. 3 18 & 19 Vict. c. 119, § 48. * lUd. § 49. " Per Alderson, B., Ellis v. Thomp- son, 3 M. & W. 456 ; Sansom v. Rhodes, 8 Scott, 544 ; Yates v. Duff, 5 C. & P. 369. « 18 & 19 Vict. c. 119, § 58. CHAP. VII,] THEIR PASSAGE MONEY. 325 If a passage by the particular ship is not provided according passage money. to the contract, there is, at common law, a right to a return Payment and = return of. of the passage money and damages ; ^ if it merely becomes impossible, and that through no fault of the parties, e.g., by the previous destruction of the vessel, there is a total failure of consideration, and the money is returnable ; * but if the destruc- tion does not happen until after the voyage specified in the contract is begun, although the passenger has not gone on board, the failure of consideration being partial under a contract which is entire, the passage money cannot be recovered back.^ The statute, however, gives the owners of a passenger ship the option of sending steerage passengers by an equally eligible ship to sail for the same port within ten days after the day of embarkation named in the contract, paying them subsistence money in the meantime, after the rate already mentioned, other- wise such passengers are entitled to a return of all money paid by them and damages besides, not exceeding lOZ. each.* A passenger, cabin or steerage, if relanded at the request of the emigration officer on account of his own sickness, or the sickness of any member of his family, and left behind, is en- titled, the steerage passenger to a return of the whole of the passage money for himself and any of his family so left ; but a cabin passenger to only one-half.^ The previous payment of the whole of the passage money. Payment, a con- if required, is an express condition of the statutory rights of ' ""^ ^"^^"^ a steerage passenger under the contract.® At common law, this will be so or not, according to the terms of the contract, subject to any usage of the port in respect of the voyage not ' So by statute, in regard to steer- Per Gibbs, 0. J., Hid. On the other age passengers limiting the damages hand the passenger could not plead to lOZ., 18 & 19 Vict. c. 119, § 48. such partial failure of consideration to ^ Per Gibbs, C. J., Gillan v. Simp- his promissory note of acceptance for kin, 4 Camp. 241. the passage money ; Sully v. Frean, 10 3 Ibid. The declaration was for Exch. 535 ; Triokey v. Lame, 6 M. & money had and received, " But if the W. 278. money had been to be paid at the end ■* 18 & 19 Vict. c. 119, § 48. of the voyage, the defendant could not * Ibid. § 46 ; amended by 26 & 27 have recovered any part of it, there Vict. c. 51, § 11. being an entire contract to carry the ° 18 & 19 Vict, c. 119, § 48. plaintiff from London to Antigua ; " 326 PASSENGERS. [chap. Vll. inconsistent with those terms ; ^ and if it is due at the com- mencement of the voyage, and not conditional on the prosperous termination thereof,^ though made payable in the place of destination, it is recoverable notwithstanding the loss of the ship and all on board during the passage.^ There is a lien for it on any luggage or property of the passenger on board, but the passenger himself, or anything that he is wearing at the time of leaving, may not be detained for it.* It is said that if a pregnant woman be delivered on board during the voyage, no passage money is due for the infant.' PERFOEMANOE Sr OWNEKS. In all eventa when. It is the duty of the owners at common law to repair any damage to the ship during the voyage that may be repaired at a reasonable expense within a reasonable time, so as to per- form their contract by completing the voyage ; but whether they are bound to forward the passengers to their destination by another vessel in case of the wreck of their own in the course of the passage, seems to depend on the terms of the contract." By statute in respect of steerage passengers, . the master, charterer, or owner of any passenger ship, wrecked or rendered unfit in a port of the United Kingdom before beginning her voyage, or after the commencement of it and the passengers or any of them shall have been brought back to the United Kingdom, shall within forty-eight hours give the eniigration officer or the chief officer of customs a written undertaking that they will embark and convey the passengers in some other eligible ship ' Per Gi'bbs, C. J., Gillan v. Simpkin, 4 Camp. 241. '^ See^ej'Gibbs, C. J., Gillan 41. Simp- kin, ante, p. 325, n. ; MuUoy v. Backer, 5 East, 316. In the United States, it is laid down generally that the rules of the maritime law applicable to freight, govern passage money, per Story, J., Pitman v. Hooper, 3 Summer, 50, 66 ; per Kent, Ch., 3 Com. 226 ; accordingly Judge Peters held that no passage money, by the law maritime, is due; unless the passenger is carried to tlie port of destination, whether paid in advance or not, Howland v. Ship La- vinia, 1 Peters' Ad. 123, 125 ; Griggs V. Austin, 3 Pick. Eep. 20 ; but of course, that if the parties make a special contract, e.g., to pay for re- ceiving the passenger on board, the question is within the ordinary law of contracts, and the usual rules of con- struction, Watson V. Duykinck, 3 Johns. 335 ; Abbott (Amer. ed.), 405, 408, 447. See per cur. ■ Mulloy v. Backer, 5 East, 316, 322, 324. 3 MofEatt V. The East India Com- pany, 10 East, 468, 474. * Wolf V. Summers, 2 Camp. 631. " Dig. 19. 2. 19, 17 ; Eoccus, not. 79 ; MoUoy, bk. 2, c. 4, § 8. ^ See Leman v. Gordon, 8 C. & P. 392 ; per Gibbs, C. J., Gillan v. Simp- kin, 4 Camp. 641. CHAP. Vn.] OBLIGATION OF SHIPOVVNEIIS. 327 to sail within six weeks from the date thereof to the port or place respectively for which the passage was taken : — or if the ship have put into a port of the United Kingdom in a damaged state, then an undertaking that she shall be made sea- worthy and fit in all respects for her intended voyage, and shall, witliin six weeks of the date thereof, sail again with her pas- sengers, they to be subsisted meanwhile at the expense of such owner, charterer, or master ; otherwise all passage money paid may be recovered back.^ Any steerage or cabin passenger by a " passenger ship," who, without default in him, finds himself within any colonial or foreign port or place other than that at which he contracted to land, may, unless the master of the ship undertake in writing to forward or carry on such passenger to his destination within six weeks, and shall forward or carry him on accordingly, be provided for, and forwarded to his destination by the British authorities there, at the expense of the owner, charterer, or master of such ship ; but he thereby foregoes any right at common law, or under the statute, to recover back the passage money, or any damages given by the statute for loss of passage.^ The expense thus incurred, and also any expense paid for tak- ing off any passenger or cabin passenger of a " passenger ship " from the wreck, raft, boat, or otherwise at sea, may be recovered as a debt due to the Crown from the owner, charterer, or master of the ship.^ When the immediate members of his family are included in Family not to be the same contract with the passenger, by any passenger ship, ^^^ ^^ ^ ' for such a voyage as the act extends to, he is entitled to a passage for all iir the same ship ; and if they are not all con- veyed in the ship named in the contract, or in any equally eligible ship sailing witliin ten daj'^s afterwards for the same port, he may recover back the passage money and damages not exceeding 101. in respect of each of such passages.* And if he ' 26 & 27 Viot. c. 51, § 14. As to from the acts of the master .and crew in who is not a passenger within this sec- landing him at an intermediate station, tion, see ElUs v, Pearoe, 27 L. J. (M. C.) Coppiu v. Braithwaite, 8 Jur. 875. 257. ' J^id. § 16. Special provision is ^ 26 & 27 Vict. c. 51, § 15 & IG. made for facilitating the proof of the This provision would not bar his right debt, il/id. to recover for special damage resulting ■* IS & 19 Vict. c. 119, § -18, 328 PASSENGEES. [chap. VII. or one or more of his family be prohibited by the emigration officer from embarking, or be required to reland in consequence of i^his own or their sickness, or for the purification of the ship, he may recover back the passage money for himself and as many of his family as are left behind in consequence of such interference of the emigration officer.^ SEAWORTHINESS OF THE SHIP. A warranty of seaworthiness is implied in the passenger's contract, and notwithstanding any penalty by statute on the owners for their neglect in that respect of their public duty, he may recover against them for the private damage suffered by him in consequence of such negligence or default.^ HEALTH OF THE FAS3EKQERS. Safe conveyance by sea on a voyage of duration implies in the same stipulation a certain amount of responsibility for the health of the passengers. In the absence of express terms, it may not be binding on the ship to carry a duly qualified medical practitioner ; yet to carry a medicine chest properly provided with medicines and medical comforts suitable in kind and quantity for the voyage, is an obligation at common law. The statute affirms this and other common law duties which regard the same common purpose, and prescribes a list of medicines and medical comforts, arrangements on board for light, air, and convenience, defining explicitly how many passengers may be carried by each ship, and on what decks, and requiring a medical practitioner to be carried whenever the number of persons on board exceeds 300, or whenever the steerage passengers are more than fifty in a sailing vessel for a voyage of eighty days, or in a steamer for one of forty -five 1 18 & 19 Vict. c. 119, § 45, 46 ; the emigration officer in such a case is to determine what members of the same family should not be separated, ibid. Cabin passengers are within the pro- visions in § 46 with this only, that they are not entitled to recover more than half their passage money, 26 & 27 Vict. c. h\, § 11. The Board of Trade are empowered to exempt emigrant ships from the requirements of the passenger Acts in reference to food, space accommoda- tion, or other particular or thing when the provision made in respect of the same is superior, though not a com- pliance ; 39 & 40 Vict. o. 80, § 20. 2 See Couch v. Steel, 3 E. & B. 402 ; 23 L. J. (Q. B.) 121, 125, S. C. ; 18 & 19 Vict. ^. 119, § 11, 19, 13, 27, 28, 29, 58, 63 ; 26 & 27 Vict. c. 51, § 13. The case of Couch v. Steel, supra, has been very gravely doubted. See Atkinson V. Newcastle Waterworks Co., 2 Exch, Div. 441 (C. A.). CHAP. VU.] PROVISIONS ON BOARD. 329 days' duration.^ But whether the duty be at common law or under ,the statute, any neglect of it which is attended with special injui-y is good cause of action for a passenger against the master or owners.^ With regard to provisions,* if a dietary scale,* such as is pkovisions. required by the statute, should not be incorporated with the written contract, it is then a question for the jury, what would be reasonable in respect of the plaintiff as a cabin or a steerage passenger, in quantity, quality, and due and regular supply. " I think," said Lord Denman, C. J., in a case of this kind, " 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 reaUy 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 ; the jury must be satisfied that there is a real grievance sustained by the plaintiff."^ No action lies for such a diminution, or even deterioration of the provisions distributed daily as is solely due to an accidental prolongation of the voj'age that could not be avoided or pro- vided against.® The crew in such a case come under a different principle ; they are entitled to a proportional allowance in money, because provisions to them must be viewed in the light of wages.'' 1 18 & 19 "Vict. c. 119, § 13, 14, 21, who had contracted with his predeces- 22, 24, 25, 26, 31, 33, 41, 43, 59, 60. sor, Siordet v. Brodie, 3 Camp. 253 ; 2 Com. Dig. Action on the Case (A.) ; whether the captain was bound by the Id. Action on a Statute (F.) ; Stat, of regulation sum with regard to the Westm. 2, c. 50 ; 2 Inst. 485, 486 ; passage money of an ofBcer of the Couch V. Steel, 3 E. & B. 402. Company, Adderley v. Cookson, 2 3 The peculiar charters made with Camp. 15. ships by the East India Company be- ■* 18 & 19 Vict. c. 119, § 35 ; 26 & 27 fore 1833 gave rise to questions which Vict. c. 51, § 9. are scarcely of any appreciable value in '^ Young v. Fewson, 8 C. & P. 55. respect of the general law and the usual ^ Corbin v. Leader, 6 C. & P. 32, 42 ; course of business, e.g., as to what are 10 Bing. 275, S. C. the rights of the representatives of ? 17 & 18 Vict. c. 104, § 223 ; The the captain against his successor, who Josephine, 1 Swab. Ad. 152 ; 2 Jur. supplied provisions to those passengers N. S. 1148, S. C. 330 PASSENGERS. [chap. VII. In cases of detention from and after the day fixed in the contract, the statute entitles the steerage passenger to sub-, sistence either on board, or at a specified rate per day on shore ; ^ and at common law such expenses when occasioned through default of the ship are recoverable, in case there is a warranty as to time, against the owners.^ Every steerage pas- senger " by a passenger ship," is entitled, for forty-eight hours after arrival at his place of destination, to sleep and be main- tained on board the same as during the voyage, unless the vessel should quit the plac6 sooner in the further prosecution of her voyage.^ ■ For the safety of the ship and well-being and comfort of all on board, the law has placed despotic power in the hands of the ma,ster,* who, however, is not to exercise it over the passengers, except in so far as may be necessary for these ends.^. Under circumstances of common danger, he may require their assistance, and it is their dnty to render it, whether in working the ship,® or in fighting an enemy,'' For extraordinary exertions the law will even reward them as salvors.* But nothing will justify resistance to any exercise- of the master's authority required by the discipline of the ship. Sanita-ry regulations are enforced for the common good.^ The a,uthority of the master is not slighted without manifest danger to the interests of all on board.^** And behaviour which might be tolerable in the .steerage, may be a serious nuisance in the cabin, and necessitate the removal of the ofi"ender from the common table.^^ But unnecessary harshness, undue restraint, or restraint improperly continued, will expose the master to an action for damages at the suit of the complainant.^^ 1 18 & 19 Vict. c. 119, § 47, 48, 49 ; Walters, 3 B. & P. 612, 615. 26 & 27 Vict. c. 51, § 14, 15, 16. l Boyce i>. BayliflEe, 1 Camp. 57, 60. 2 Cranston v. Marshall, 5 Exoh. 395. ^ Newman v. Walters, 3 B. & P. 612. 3 18 & 19 Vict. c. 119, § 57. s 18 & 19 Vict. c. 119, § 59, 60. ■• Per Alderson, B., Reg. v. Leggett, '»■ Boyceu. BayliflEe, 1 Camp. 57, 59 ; 8 C. & P. 191,194. jowIindal,C.J. ;Prendergastu Comp- ' King V. Franklin, 1 F. & F. 360 ; ton, 8 C. & P. 454. Aldworth v. Stewart, 4 F. & F. 957 ; " Prendergast d. Compton, 8 C.&; P, 14 L. T. N. S. 862. 454. n The Branston, Wilson, 2 Hagg. 3, '^ Boyce v. BaylifEe, 1 Camp. 57 ; note ; i)er Lord Alvanley, Newman v. Aldworth v. Stewart, sn])ra. CHAl". Vn.1 DISCIPLINE ON BOARD. 331 Whilst the plaintiff was a passenger in the gunner's mess on board an East Indiaman, in the year 1805, two strange sail appeared in the offing near the Cape of Good Hope, and were supposed to be enemies. The captain, on this presumption, mustered the crew and passengers, and assigned them their several stations in the hostilities that might ensue, requiring the passengers to fight with small arms on the poop. The plaintiff as he had some time before been forbidden the poop for his own pleasure, refused now to serve there at the captain's, at the same time expressing his readiness to fight with his messmates in any other part of the ship. For this he was immediately put in irons on the poop, and released only next morning, when it was discovered that the strange sail had disappeared. In an action against the captain for assault and imprisonment, Lord EUenborough at the trial expressed his opinion, " that a captain of a ship had authority to do what was necessary for the safety of those on board. On the approach of an enemj^ he had a right to assign them all a station, which it was their duty to accept. As the plaintiff had refused the orders given him, perhaps his confinement might be necessary to the dis- cipline of the crew and the security of the vessel, and if so, would be justifiable in law." But his lordship, on hearing that the confinement on the poop was continued throughout the night, was clearly of opinion that the captain had exceeded his authority ; and there was a verdict for the plaintiff.^ In that case the action had been laid with special damage, iegal remedies. the declaration being for assault and imprisonment -per quod the plaintiff was obliged to leave the ship and take his piassage home on board of another ; and it appeared that the plamtiff, upon the arrival of the vessel some time afterwards at St. Action for Helena, immediately quitted her, and paid lOOL for his passage home by another. On this part of the declaration. Lord EUenborough said : " it was necessary the special damage should be closely connected with the trespass which was the foundation of the action. But here the imprisonment was not the causa proxima of the transhipment. The latter was remote 1 Boyce v. Baylifle, 1 Camp. 57. 332 PASSENGERS. [chap. VII. Statutory remedy. Against whom. in point of time, and the plaintiff was not driven to it in order to redeem himself from any great peril or grievance. That a man should tranship himself and throw the expense of this upon another, the injury must continue down to the moment of his leaving the first ship, and he must then act with a view to the preservation of his life, or at least from a reasonable regard to his own safety."^ The statute ^ expressly saves any right of action which any passenger by any ship, or any person on his behalf, would have at law, for breach or non-performance of the contract between him and the master, charterer, owner, or passage broker f but for the breach or non-performance of the stipulations in any contract ticket within the statute,* it confers on any passenger, or cabin passenger, by himself, or by the emigration officer, or any number suing jointly by such officer, the right of proceed- ing summarily before two or more justices, a police or stipen- diary magistrate, and in Scotland before any sheriff, steward, sheriff-substitute, or steward-substitute, who is empowered thereupon to award a return of the passage money and a sum not exceeding 201. for damages and costs. ^ Notwithstanding the right of the passenger in sundry in- stances to recover against the charterer or master,^ or even the party to whom or on whose account passage money may have been paid,'' as well as the owner, it is the owner that is ulti- mately liable, in the absence of any agreement to the con- ' Boyce v. Bayliff e, snpra. To show how far attempts of this kind might be carried, if this necessary connec- tion were not insisted on, his lordship alluded to a case which used to be mentioned by Lord Alvanley, where the plaintiff complained of false impri- sonment per piod, being confined on shore, he lost a lieutenancy, ibid. 2 18 & 19 Vict. c. 119. By § 2, it is enacted that " in citing this Act in any instrument, document or proceeding, it shall be sufficient to use the expression ' The Passengers' Act, 1855 ; ' and in any process for enforcing the remedies or penalties given or imposed by this Act, it shall be sufficient without spe- cifying more particularly the cause of complaint or offence, to refer by num- ber, according to the copies of the Act printed by the Queen's printer, to the section or sections under which the proceeding is taken." M8 & 19 Vict. c. 119, § 58. MS & 19 Vict. u. 119, § 71 ; it re- quires that a contract ticket be given to a steerage passenger by any ship, and to a cabin passenger by a " passenger ship ; " the distinction is important, Ellis V. Pearce, 27 L. J. (M. C.) 257. 5 lUd. § 73, 84, 85, 86. See also § 46, amended by 26 & 27 Vict. c. 51, §11- « See 18 & 19 Vict. c. 119, § 48. 1 Ibid. § 51. CHAP. Vn.] THEIR RIGHTS OF ACTION. 333 trary, and the other parties may recover over any money so paid by them and their costs of suit against him ; ^ but not their costs of resisting the claim in the first instance,^ unless it was resisted at the request of the owner,^ or under such cir- cumstances as made the resistance reasonable,* and whether it was so is a question for the jury, and must be found by them in order to entitle the plaintiff to recover.^ It lies on the party claiming to be exempted from the pro- Evidence, visions of the " Passengers' Act," or any of them, or to be within the benefit of any special exemption, proviso, or condi- tion in any section of the same, to prove it ; and it is not necessary for the plaintiff or complainant in any process to negative any exemption, proviso, or condition, in any section on which the same is founded ; but in whatever country the statute may be enforced, any passenger suing under it is a competent witness upon such proceedings, although it be on his own behalf;^ and any emigration officer, assistant emigra- tion officer, or officer of customs, is competent to prove by parol, in any proceeding under the statute, that he is such officer.'' As against the public officers acting by virtue" of the statute. Suits against an action for anything done in pursuance thereof, may not be commenced — until after ten days' notice to such officer, distinctly specifying the cause of action — or after three calendar months next after the date of the act mentioned in such notice as the cause of action : — or be brought, laid, or tried in any other place than that in which the cause of action arose ; — otherwise verdict shall pass for the defendant. And such defendant may plead the general issue, and give the Act and any special matter in evidence, and if upon the merits of the case, or for the reasons already stated, the verdict should be for the defendant, or the plaintiff should be nonsuited or suffer a 1 18 & 19 Vict. c. 119, § 65. Stratton v. Matthews, 3 Bxch. 48 ; Ex 2 Knight V. Hughes, 3 C. & P. 467 ; parte, Marshall, 1 Atk. 262 ; Bleaden v. Bleaden v. Charles, 7 Bing. 246 ; Gil- Charles, 5 M. & P. 14 ; see Sparkes v. lett V, Eippon, M. & M. 406 ; Roach v. Martindale, 8 Bast, 593. Thompson, 4 C. & P. 194 ; Beech v. * Tindal v. Bell, 11 M. & W. 228. Jones, 5 C. B. 696. « 18 & 19 Vict. o. 119, § 89, 91, and 3 Garrard v. Cottrell, 10 Q. B. 679. see § 2, ante, p. 332, n. ■• Jones V. Brooke, 4 Taunt. 464 ; ? Ibid. § 90, public officers. 334 PASSENGERS. [CHAP. VII. discontinuance, or judgment on demurrer should be for the defendant, the defendant is entitled to full costs as between solicitor and client.^ Limitation of In the absence of any express provision to the contrary, no complaint or information for any breach or non-performance of the requirements of the Act, may be made or laid after the lapse of twelve calendar months next after such matter of com- plaint or information arose, or if a master of a ship is the object thereof, after twelve calendar months from his return to the country in which such matter arose.^ APPLioABiLiTT It is of great importance to the construction of the principal OF STATUTE. statutc to obscrvc the interpretation of terms given in section 3, and especially that the term " passage" includes all passages Persons within except cabin passages ; and the term "passengers" all pas- ^ " ■ sengers^ except cabin passengers and certain labourers with their families indentured to the Hudson's Bay Company when conveyed in ships chartered or owned by that company. Cabin Passenger, No one is to be deemed a cabin passenger within the Act, '^ ^ "■ unless the space allotted to his exclusive use shall be in the proportion of at least thirty-six clear superficial feet to each statute adult {i.e. any person of the age of twelve years or upwards), nor unless he shall be messed 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 him shall be in the proportion of at least thirty shillings for every week of the length of the voyage', as computed under the provisions of the statute* for sailing vessels proceeding from the United Kingdom to any place south of the equator, and of twenty shillings for such vessels proceeding to any place north of the equator, nor unless he shall .have been furnished with a duly signed contract ticket according to the form required by the statute.' Passenger Ship, The term " passenger ship" signifies every description of sea- is wliat. 1 18 & 19 Vict. c. 119, § 93. perly, steerage passengers. 2 Ibid. § 94. As to the manner of Section 46, is now to include cabin laying the complaint, see § 2, cited, passengers, 26 & 27 Vict. c. 51, § 11. ante, p. 332, n. K < 18 & 19 Vict. c. 119, § .SO. 3 For distinction, I have generally = 18 & 19 Vict. c. 119, § 71. denominated them, perhaps impro- CHAP, vn.] APPLICABILITY Of STATUTE. S35 going vessel, British or foreign, cai'rying, upon any voyage to which the provisions of the principal Act extends, more than fifty passengers, or a greater number of passengers than in the proportion of one statute adult to every thirty-three tons of the registered tonnage of such ship, if a sailing vessel, or than one statute adult to every twentj'^ tons if a steamer.^ The question whether a ship was a " passenger ship " within the principal statute, so as to entitle the plaintiff to a return of the passage money under the 51st section, was raised by the following circumstances : — The ship had sailed with nine steerage passengers, who had received contract tickets, and with twenty-one passengers who messed with the officers, and had the superficial space, and were to pay the weekly fare required by the statute to constitute cabin passengers, but who had received no contract tickets. Counting these twenty-one persons as " passengers," the proportion was greater than one statute adult to every fifty tons [the proportionate tonnage under the repealed section], and the vessel would have been a "passenger ship." But this result, apparently justified by the language of section 3 of the principal Act, and making the character of the ship dependent on the receipt of tickets, is not borne out by section 71, which makes the giving of tickets dependent on the character of the ship. The Court, therefore, held in accordance with section 71 that this was not a " passenger ship ; " that the plaintiff therefore was not entitled to receive a contract ticket, though a cabin passenger, or to sue for a return of the passage money under section 51 ; arid that the clause in section 3, referring to contract tickets for cabin passengers, must be read as applicable to passenger ships only, thus — " Nor unless [in the case of passenger ships] they shall have been furnished with a duly signed contract ticket according to the form in schedule (K)ofthis Act,"&c.2 We have already seen what voyages are properly within the Colonial Voyages, provisions of the statute;^ in addition to these, however, there are certain coloniaL voyages from Her Majesty's posses- sions, other than the East Indies and Hong-Kong, to this ' 26 & 27 Vict. c. 51, § 3, substituted ^ eiUs v. Pearce,, 27 L. J. (M. C.) for the definition in 18 «fe 19 Vict. c. 119, 257. § 3. ' Ante, p. 322. 836^ PASSENGERS. [chap. VII. Policy of Assurance. country, in respect of which some of the provisions of the statute, already noticed, are made conditionally applicahle.^ Any policy of assurance, effected in respect of passages, or passage money, or compensation, or any other risk under the Act, is not to be invalid by reason of the nature of the risk or interest sought thereby to be covered.^ BTATUTORT DUTIES AND OKFICEKS. Certificate for Passenger Ship. Conditions of obtaining it. It only remains now to point out with all brevity the chief provisions of the statute imposing public duties, and enforcing the observance of them by penalties, for the protection generally of property and life embarked in passenger ships for long voyages. The statute is to be carried into effect by the Board of Trade and the emigration officers,^ without whose certificate no " passenger ship " is to clear out or proceed to sea, either from her original port or any intermediate port into which she may have put in the course of the voyage, otherwise the ship may be forfeited.* The conditions of obtaining that certificate are numerous. The master, with the owner or charterer, or a sufficient substitute, must have executed a joint and several bond for 2000^ to Her Majesty, conditioned for the due performance of all duties required of them under the Act ; * the vessel must have been surveyed before shipping her cargo, and in respect of construction, berths, conveniences, ventilation, light, and the number of boats, and life buoys, reported sea- worthy;* she must have been inspected with a view to the number of passengers, the efficiency of her crew, the quantity and quality of the provisions and water, medicines and medical comforts, calculated for the length of the voyage, by a rule provided under the statute,''' the description of her ballast, and 97, 1 18 & 19 Vict. c. 119, § 95, 96, 98. With regard to India, § 99. 2 18 & 19 Vict. c. 119, § 55. See Gibson v. Bradford, 3 E. & B. 516 ; WilliB V. Cooke, 5 E. & B. 641. 3 18 & 19 Vict. c. 119, § 8 ; 35 & 36 Viot. c. 73, § 5. 4 18 & 19 Viot. c. 119, § 11, 60 ; 26 & 27 Vict. 0. 51, § 12, 13 ; in the last section, the Board of 'Jh-ade is to be read instead of Her Majesty's Secre- tary of State, 35 & 36 Vict. c. 73, § 7. 5 18 & 19 Vict. c. 119, § 63, 64. 5000Z. and a further condition as to ex- penses, in case neither owner nor char- terer reside in the United Kingdom, 26 & 27 Vict. c. 51, § 17. M8 & 19 Vict. c. 119, § 13, 19-27 17 & 18 Vict. c. 104, § 291, 292-294, 301-303, 305-309 ; 25 & 26 Vict. c. 63, § 5 ; 35 & 36 Vict. c. 73, § 8. ' 18 & 19 Vict. c. 119, § 14, 28, 30, 31-35, 43, 44, 50. See § 101. CHAP. VII.] STATUTORY DUTIES AND OFFICEES. 337 the description and quantity/ as well as stowage, of her cargo/ and approved therein ; and the officer must have been satisfied that in respect of carrying a duly qualified medical practitioner, interpreters, passengers' stewards and cooks, the vessel had compUed with the statute.^ The master must also have delivered the list of passengers in duplicate, one of which is to be redelivered to him in order that he may fill in all events by which their number is either increased or diminished during the voyage, and deliver the same to the proper officer at the port of destination.* The owner of any sea-going passenger ship or emigrant ship is liable to a penalty of lOOZ. and the master to 50Z. if such vessel go to sea without the signals of distress for night, and a proper supply of inextinguishable lights capable of being attached to life buoys.'^ To provide if possible against the devices and deception Passage Brokers T . n ,■ -, ■ ,ii-- 1 1 and their Eun- heretoiore practised on emigrants by designmg and needy men, ^ers licensed. it is enacted that no one shall act as a passage broker without a licence, or as an emigrant runner without wearing his badge in public view after being duly licensed and registered, and that each passage broker shall periodically keep the emigration officer duly informed of the agents and runners whom he is to employ, shall display their names obviously and legibly in his office, and shall employ no others." The Merchant Shipping Acts provide for the survey of all Survey and Cer- British passenger steamers, and the issue of certificates by the ggnger Steamers. Board of Trade, stating that the Fourth Part of that statute has been complied with, and also stating the restrictions as to length of voyage and number of passengers under which the particular ship, in accordance with the surveyor's report, may plj'.'^ Prevision is also made for the survey of foreign pas- > Steel V. Schomberg, 2i L. J. (Q. B.) ^ i8 & 19 Vict, o. 119, § 66-70, 75- 87. 81. 2 18 & 19 Vict.c. 119, § 29 ; amended ? 17 & 18 Viot. c. 104, § 303, 305, by 26 & 27 Vict. c. 51, § 8. See 36 & 37 312, 318, 319 ; 35 & 36 Vict. c. 73, § 8 ; Vict. c. 85, § 23-28. 39 & 40 Vict. c. 80, § 17, 18. 3 18 & 19 Vict. 0. 119, § 38-42. A steamer may carry passengers to ^ Ibid. § 16, 17. See § 100. 26 &27 the number of twelve, although not Vict. c. 51, § 6. surveyed or certificated ; 39 & 40 Vict. s 39 & 40 Vict. c. 80, § 21 ; 36 & 87 c. 80, § 16. Vict. c. 85, sohed. 1. 338 PASSENGERS. [chap. vir. Crowding, or improper Per- sons, on River Steamers. senger steamers within the Merchant Shipping Act, 1854, hy the 39 & 40 Vict. c. 80, s. 19. To prevent over-crowding of steamers chiefly plying on the rivers of the United Kingdom, although there is nothing to limit the provision, any person who persists in attempting to go on board after having been refused admission on account of the vessel being full, or because he is drunk or disorderly, or refuses, on being requested for the like reason, to come ashore, incurs a penalty, if his fare has been previously returned or ten- dered him ; and any one who knowingly and wHfuUy attempts to avoid payment of the du:e fare, or knowingly and wilfully refuses or neglects to quit the steamer at the point to which he has paid his fare, or after warning from the master or any ofi&cer of the steamer, molests any passengers on board, incurs a penalty.^ DAMAGE ET NESLlaENCE. For injury suffered by the passenger from the negligence of the owners or their servants on board, the owners are answer- able.^ If it is due to the negligence of another ship, the owners thereof are liable, notwithstanding there was negligence also on board the passenger ship, provided the accident could have been avoided with ordinary care by the other.^ But if both vessels have by negligence contributed to the accident, it is held that the passenger has no right of action against the other ship, his remedy being confined to the owner of that' in which he was being carried at the time.* To such an action by an infant, who requires another to take care of him, the negli- gence of that other is a good plea in bar, it being a term of the carrier's contract with the infant, that the latter shall be in the keeping of some one fit for that purpose during the passage.^ The limit set to the responsibility of the owners by statute has been considered in a previous chapter.* 1 25 & 26 Vict. c. 63, § 35. - Skinner v. London, Brighton, and South Coast Eailway Co., 5 Bxoh. 787 ; Carpue v. id., 5 Q. B. 7'J:7 ; Malton v. Ncsbit, 1 C. & P. 70 ; and see there as to the evidence which may be adduced to prove negligence. 3 Davies v. Mann, 10 M. & W. 540 ; Eighy V. Hewitt, 5 Exoh. 240. * Thorogood v. Bryan, 8 C. B. 115 ; but per Williams, J., the authority of that ease appears to be shaken. Tuff v. Warman, 26 L. J. (C. B.) 263, 265 ; see 1 Smith's L. C. 800. » Waite V. The North Eastern Eail- way Co., 27 L. J. (Q. B.) 417 ; (in error) 28 L. J. (Q. B.) 258. ° Ante, 0. iii. BY SKA. CHAP. VII.] RAILWAY COMPANIES' SHIPS. 339 In an action to recover damages for the death of passengers Evidence in lost with the ship, the master's list or the duplicate hst of of pTssengerf *" passengers delivered to the proper officer of customs are in the absence of proof to the contrary sufficient proof that such persons were passengers on board such ship at the time of their deaths.^ It is enacted by the Eailways Eegulation Act, 1868 (31 & 32 railway oom- Vict. c. 119, § 16), that, "Where a Company is authorised to oakkieks build, or buy, or hire, and to use, maintain, and work, or to enter into arrangements for using, maintaining, or working, steam vessels for the purpose of carrying on a communication between any towns or ports, and to take toUs in respect of such steam vessels, then and in every such case tolls shall be at all times charged to all persons equally and after the same rate in respect of passengers conveyed in a like vessel passing between the same places under like circumstances ; and no reduction or advance in the tolls shall be made in favour of or against any person using the steam vessels in consequence of his having travelled or being about to travel on the whole or- any part of the company's railway, or not having travelled or not being about to travel on any part thereof, or in favour of or against any person using the railway in consequence of his having used or being about to use, or his not having used or not being about to use, the steam vessels ; and where an aggregate sum is charged by the company for conveyance of a passenger by a steam vessel and on the railway, the ticket shall have the amount of toll charged for conveyance by the steam vessel distinguished from the amount charged for conveyance on the railway. " The provisions of the Railway and Canal Traffic Act, 1854, so far as the same are applicable, shall extend to the steam vessels and to the traffic carried on thereby." Hence a passenger recovered 731. for damage to luggage on board a Eailway Company's steamer, notwithstanding a general condition on the ticket that the Company would not ^be liable for more than 61., which was not signed by the passenger, for I 25 & 26 Vict. c. 63, § 56 ; 26 & 27 Vict. c. 51, § 6. Z 2 340 PASSENGERS. [CHAP. VII. it was held that passengers' luggage was within § 7 of the Eailway and Canal Traffic Act, 1854.^ On the other hand, a railway company, being the owners of steamers, are within the statute limiting the liability of ship- owners in respect of loss or injury suffered in respect of persons or goods.2 And by the 34 & 35 Vict. c. 78, § 12, the benefit of such limited liability is extended to railway companies pro- curing their passengers to be carried by steamers not the propertj' of the companies.^ ' Cohen v. South Eastern Eailway James, L. E. 8 Ch. App. 241. Co., 1 Exoh. Div. 217 ; 2 id. 253. ^ See Doolan o. Midland Ry. Co., 2 ' Lond. and South West. Ry. Co. v. App. Cas. 792. CHAPTER VIII. AFFREIGHTMENT. By Charter-party 341 By Bill of Lading 389 When it amounts to a Lease 3i2 Form of 392 Parties to . . . . 353 Evidence of a Bailment 393 Form of . . . 360 Symbol of Property . . 397 Stamp .... 361 Transfer of Contract under . 397 Usual Stipulations in . 362 Transfer of Property under . 398 Unusual Stipulations in . 382 Rights under, how Evidence of Usage 384 modified 400 Penal Clause . 388 Functions of, after landing . 404 Affreightment by charter-party,-' of which it is here Affreightment intended to treat, is a contract in writing by which an entire party. ship, or some principal part thereof, is let for the specified purposes of the charterer, during a specified term, or for a specified voyage, in consideration of a certain sum of money per ton, or per month, or both, or for the whole period or adventure described. A useful, though by no means perfect distribution of con- Classification of tracts of this nature, distinguishes the three following classes : — 1. Locatio navis — being a contract whereby the ship fviily equipped, but not manned, is let to hire or to freight ; 2. Locatio operis vehendarum mercium, — being a contract for the carriage and - delivery of the charterer's goods : 3. Locatio navis et operarum magistri — being a contract whereby the ship fully equipped and manned is let to hire or to freight. ' The term charter-party is generally understood to be a corruption of the Latin words oliarta partita, and to have originated in the custom of England and Acquitaiae to write a duplicate of the same instrument on one piece of jjarchment, which was afterwards di- vided by a straight line cut through some word or figure, so that one part should fit and tally with the other as evidence of their original agreement and correspondence. See Butler's note (138) to Co. Litt. 229 a ; Pothier, Charte- partie, no. 1, citing Boerius. 342 AFFEEIGHTMENT BY CHAETER-PARTY. [CHAP. VIH. ■WHEN IT AJIOUNTS TO A LEASE. Legal conse- quences of such Ownership. Such Ownership dependent upon Intention. This distribution, though comprehensive, is far from perfect, and the distinction on which it proceeds is of no value on the question of temporary ownership under the charter-party. In the law of insurance, as touching barratry, it is otherwise ; ^ and the use which a learned writer upon that law has made of this classification is fully justified by the diiference.^ By the general law of shipping, as distinguished from the law of marine insurance, possession of the vessel as owner is accompanied with rights and liabilities of great importance. The common law right to detain goods for the payment of freight is dependent on this possession of the ship, as giving that possession of the goods, without which there is no Hen.^ Keciprocal with this lien is that responsibility, in virtue of which the freighter's action lies for non-delivery of the cargo. But liabiUty for the supply of necessaries on the order of the master is a nicer question, capable of being complicated and varied by contract and by circumstances, and does not neces- sarily follow possession of the ship.* The Courts of law are, therefore, careful that a circumstance attended with consequences of so much importance to the shipper, as well as the owner and the charterer, shall not be determined by the eifect, strictly taken, of merely technical phraseology, the use of which in commercial instruments is too often the result of accident or sheer ignorance. It is now regarded as a question about the intention of the parties to the contract, whether or not possession is thereby transferred to the charterer ; and upon this, the whole of the instrument, considered together, and fairly interpreted, is the legitimate evidence submitted to the Court.^ That was not always the rule, however. There has been vacillation in the Courts, and, in consequence, a conflict of decisions, that renders it the more necessary to observe what rule on this question is from 1 Per Parke, J., in Christie v. Lewis, 2 B. & B. 410. 2 2 Amould, Insur. 771. 3 Per Gibbs, C. J., in Hutton v. Bragg, 7 Taunt. 14 ; Small v. Moates, 9 Bing. 579. < Brodie V- Howard, 17 0. B. 109 ; Mitcheson v. Oliver, 5 B. & B. 419, ante, p. 111. ' Christie ■«. Lewis, 2 B. & B. 410 ; Dean v. Hogg, 10 Bing. 345 ; Yates «. Eailston, 8 Taunt. 293 ; Tate v. Meek, 8 id. 280 ; Belcher v. Capper, 4 M. & Gr. 602, CHAP. Vin.] DEMISE OR NO DEMISE. 343 time to time in the ascendant.^ The following cases are, therefore, given by way of illustration ; and, for the sake of order, they are arranged with reference to the general classifi- cation of charter-parties already given. By a charter-party of the description assigned to the first of Locatio Navis. these classes, where the contract was for letting a ship to hire for twelve months, the owners engaging to keep the engine in repair, but the charterer binding himself to do all other repairs, to pay aU wages, to defray all charges incident to the employ- ment and navigation of the ship, and to indemnify the owners against all debts, &c., incurred in such employment, to pay the hire monthly, and keep the vessel insured in the names of the owners : — it is clear that the owners are divested of the possession, in favour of the charterer, who assumes the character of owner pro hdc vice, with the liabilities attaching thereto.^ In that case the charterer himself sailed the ship as master ; and so did the charterer in another case, where the ship was let to him for three years at lOOL a year, to be used and employed as he should think proper ; and upon his contract for the supply of stores to the ship, it was held that no action would lie against the owner.^ But where one Holmes being sole owner of a ship, sold a moiety thereof to two others ; and in the contract of sale it was agreed that the purchasers should be managing owners and ship's husbands, and have the exclusive control of the ship to employ her on any services they might think fit, a commission on the gross earnings being payable to them as remuneration in that respect ; and further, that they should pay Holmes 9001. as a charter for his half for the first six months (from the date of the ship being ready to receive her outward cargo), they to have in consideration thereof the entire use and control of the ship and all her earnings for that period: — it was held that Holmes had not thereby divested himself of the possession of the ship, and was liable, therefore, on the contract of the ship's husbands for repairs to the ship in the course of the first six months.* 1 See the observations of Tindal, ^ Eeeve v. Davis, 1 A. & E. 312. C. J., Belcher v. Capper, 4 M. & Gr. ^ Frazer v. Marsh, 2 Camp. 517 ; 13 502 ; and per Id. Dean v. Hogg, 10 East, 238. Bing. 345. * Preston v. Tamplin, 26 L. J. (Ex.) 344 AFFEEKiHTMENT BY CHAKTEE-PARTY. [CHAP. VHI. Locatio opens vehendarum In the case of charter-parties of the description belonging to the second of these classes, when the contract was for a speci- fied voyage, especially if the consideration money was a sum certain and irrespective of cargo, so that the charterer either might or did put the vessel up as a general ship, it was at one time held by the Courts that the owner had thereby so divested himself of possession as to have no Hen on the goods for his freight,^ and to be under no liability for their non-dehvery.^ " The defendant," said Gibbs, C. J., stating at once the case and the grounds of the decision, " is the owner of a ship ; the bankrupt is the charterer of the ship ; and for one sum of 2100Z., to be paid at different periods, he was to have the whole use of this ship for the voyage out to the Cape of Good Hope and home to London. It is clear that he might have put this up as a general ship, have filled her with the goods of other persons, and when they came home, the defendant could not have touched these goods by way of detaining them tiU his freight was paid him by the charterer."^ In the case of James v, Jones, the charterer, who had bound himself to load a full cargo, and to pay so much per ton, put the vessel up as a general ship ; and although the bills of lading made the goods deliverable, on condition that the shipper, a third person, should " pay freight per charter-party," Lord Kenyon, notwithstanding, held that the owner was not responsible for the delivery of the goods.* In this general form, the doctrine of these cases is no longer the law of this country ; ^ and the early case of Parish v. 346 ; 2 H. & N. 363, S. C. Accord. Bich 1). Coe, 2 Cowp. 636. See the construction put upon Colvin v. New- berry, in the Court below, 8 B. & C. 166, 183 ; 1 C. & F. 283, .300, where the Court held it to be perfectly com- petent to an owner and master to agree that " the ship shall earn a certam sum, and all beyond shall be for the master's benefit, he undertaking to make good any loss," without discharg- ing the owner from liability to third parties. The case actually before the Court was not such a case. 1 Button V. Bragg, 7 Taunt. 14. ' Mackenzie r. Howe, 2 Camp. 482 ; James v. Jones, 3 Esp. 27. ' Hutton V. Bragg, 7 Taunt. 14. * James v. Jones, 3 Esp. 27. The case of Vallejo v. Wheeler, 1 Comp. 143, arose upon a question of barratry, under a policy of insurance, and is not properly an authority on questions in the law of shipping. ^ Per Tiudal, C. J., in Dean v. Hogg, 10 Bing. 345 ; see the judgment of the majority of the Court in Christie v. Lewis, 2 B. & B. 410, as compared with that pronounced by Dallas, C. J., pro- ceeding on the authority of Hutton v. Bragg ,; and see per Tindal, C. J., in Belcher v. Capper, 4 M, & Gr. 502, 541. CHAP. Vin.] DEMISE OR NO DEMISE. 345 Crawford, supposed to have been over-ruled by them, is again of authority in the construction of charter-parties with a view to this question. In that case/ 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 quantity of moidores from London to Barbadoes, which had not been delivered there. The facts of the case were, 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.^ In the course of his judgment on this occasion the Chief Justice said : " The true condition is, whether 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 ? First, 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 two things taken together, that the implied contract arises. Though Crawford has not that freight which the merchants 1 Shortly reported in 2 Stra. 1251. iiijig, 4th ed. p. 22. The account of the case here given is ^ Under the 12 Geo. 2, c. 15, the taken from a manuscript note much statute which then limited the respon- fuUer than the report.— jlJicW, Ship- sibility of the owners. 346 AFFREIGHTMENT BY CHABTER-PAETY. [CHAP. VIII* pay for their goods, yet as he has the benefit of the freight in general, he has that equitable motive which makes him liable. With regard to Fletcher, what Crawford has done is only giving him a power to put goods on board. And it seems to me, the makers of the Act of Parliament could not have any notion of such an owner of the ship, for it speaks, generally of owners of ships ; but this Fletcher is not to be 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 dehvering up the ship for such time as the mortgage should be ia force. Therefore, I thinli, there is nothing appearing upon this evidence, that discharges Crawford as the owner of the ship." Locatio Navis et In charter-parties of the description assigned to the third of MafiZbrT these classes, when the terms of the contract were the proper terms of grant and demise, and the other stipulations of the instrument were not inconsistent with the requisites of a lease at common law, the inclination of the Courts at one time was to hold that the possession of the owner was thereby divested.^ In the Master of the Trmity House v. Glcurh,^ the owners, by the charter-party, had granted, and to hire and freight let their ship to the Government commissioners to be employed in the transport service for three months certain, and longer should the commissioners require it, at so much per ton by the month, the vessel to be manned and provided by the owners in accordance with the terms of the instrument ; and afterwards upon a claim against the owners for Trinity House dues, it was held that the vessel pro hdc vice was a king's ship, and the dues not leviable therefore in respect of her for the time being. Lord EUenborough, not overlooking on that occasion the nature of the service the ship was to be employed in, as bearing on the construction of the contract, availed himself, nevertheless, of all the force of the technical terms of demise 1 See per Lord EUenborough, in The Christie v. Lewis, 2 B. & B. 410. Master of the Trinity House v. Clark, ^ The Master, &c., of the Trinity 4 M. & Sel. 288, 295, 298 ; argument House v. Clark, 4 M. & Sel. 288, 295, in Newberry v. Colvin (in error), 7 297, 298. Bing. 190 ; pei- Burrough, J., in CHAP, vni.] DEMISE OR NO DEMISE. 347 •wMch lie found there to strengthen the conclusion at which he had arrived; and subsequent cases bear evidence, in the argument and reasons for decision, of the lasting impression which had been made by that part of his lordship's judgment.^ At length in Christie v. Lewis,^ where the owners and Constmotion charterers respectively for themselves, their executors, admi- intentior'lot nistrators, and assigns granted and to freight let — and hired ^^ technical . ... . Terms. and to freight took — the ship m question for a voyage from London to St. John's and Demerara, and thence to London again, the charterers paying 2600L in all, the majority of the Court, finding the provisions in the body of the instru- ment inconsistent with the absolute terms of demise at the commencement, held, notwithstanding the latter, that the owners retained possession of the ship ; aAd they took occa- sion very expressly to state, that the question in these cases was not one about the meaning of particular terms of art, but a question about the intention of the parties as evidenced by the whole of the instrument taken together. Accordingly Gibbs, C. J., who had decided Hutton v. Bragg, ^ in three cases subsequently thereto, and arising out of one charter-party, held that, notwithstanding terms of absolute demise, as the delivery of the goods and payment of the freight were, by a subsequent provision in the same instru- ment, made concomitant acts, the owner had a right to detain the charterer's goods for the freight, not having parted with the possession of the ship.* But where the contract of letting to hire was for a period of six months, and the charterer during] that time was to possess the entire and exclusive use and disposal of the whole reach and burden of the ship, with the exception of accommodation for the master, crew, and stores ; and the owners gave him power to appoint his own master, requiring him to be respon- ' See, e.ff., Christie v. Lewis, 2 B. & from by the majority of the Court in B. 410 ; Saville v. Campion, 2 .B. & Christie i;. Lewis, 2 B. & B. 410. Aid. 503 ; Belcher v.' Capper, 4 M. & ' Tate?;. Meelc, 8 Taunt. 280 ; Tates Gr. 502. i>. Radlston, 8 id. 293 ; Tates v. Mey- 2 Christie v. Lewis, 2 B. & B. 410. nell, 8 id. 302. See also Saville v. 3 Hutton v. Bragg, 7 Taunt. 14, Campion, 2 B. & AM. 503 ; Faith v. commentedon by Tindal, 0. J., Dean The East India Co., 4 B. & Aid. 630 ; V. Hogg, 10 Bing. 345 ; and dissented Paul v. Birch, 2 Atkins, 621, 348 AFFREIGHTMENT BY CHARTER-PARTY. [CHAP, VHI. sible for his conduct, the freight to be paid to such master according to the bills of lading for the use of the charterer, without any stipulation for the application of it in payment of the agreed price for the hire of the ship ; and by the contract it appeared to be contemplated that every part of the cargo would be delivered before the balance reserved would become payable, there being no stipulation which made the delivery dependent on the precedent or concomitant payment of any portion of the price : — there it was held that the possession of the ship was in the charterer, and that the master was in possession of the cargo as his agent, and not as the servant of the owners.' By the charter-party in Newberry v. Colvin,^ which was carried to the House of Lords, the owner covenanted with Betham that he should be master, — that the owner should be allowed to put on board 100 tons of iron for the outward voyage, — and that the ship should " be put and continued in the service" of Betham for twelve months ; with power to load such goods as he thought fit, and to trade to and from certain specified ports — the owners to man the ship and to provide stores and necessaries for the ship and crew during that period; and Betham, on his part, accepted the appointment as master, and covenanted to " accept, receive, and take the said ship into his service" for twelve months certain, and to pay "freight • for the use and hire of the ship " at the rate of 25s. per registered ton per month ; and it was further agreed between them, that an agent of the owners should continue on board, with power, in certain events, to displace Betham as master, and to appoint another in his stead ; — in that case it was held that by this contract the charterer, Betham, was constituted owner pro tempore, and that the owner of the ship was not liable upon a bill of lading for non-delivery of the goods therein specified. In Schuster v. McKellar,^ Lord Campbell, C. J., thus states the case so far as it applies to the point now under discussion, 1 Belcher v. Capper, 4 M. & Gr. which the judgment of tlie Court below 502. was reversed, Colvin v. Newberry, 8 2 Newberry n. Colvin, (in Ex. Ch.) 7 B. & C. 166. Bing. 190 ; (in Ho. of Lords) 1 C. & F. 3 26 L. J. (Q. B.) 281, 288 ; 7 E. & 283, affirming the judgment in error by B. 704, 723. CHAP. Vm.J DEMISE OR NO DEMISE. 349 and the law of it, and the legal consequences following on the formation of such relations between the parties : — " The ship had been chartered by McKellar the owner to Van Notten & Co., for the voyage from London to Calcutta, for a lump sum of 1800L, evidently to be put up by the charterers as a general ship, with a stipulation as to the master signing bills of lading for the benefit of the charterers. The master and crew were employed and paid by the owner. And this certainly cannot be considered locatio navis, — -a demise of the ship itself, with its furniture and apparel. It amounts to locatio navis et operarum magistri et nauticorum — a demise of the ship in a state fit for mercantile adventure ; which is to be distinguished from the locatio opens vehendarum mercium — a contract for the carriage of the merchant's goods in the owner's ship and by his servants ; where the owner has all the responsibility of a carrier of the goods. " Notwithstanding some early conflicting decisions, it seems now settled by a numerous class of cases, from Newberry v. Colviii to Marquand v. Banner, that where there is a hiring of the ship according to the second form above specified, with the intention that the charterer shall employ the ship as a general ship for his own profit, when the master signs bills of lading, he does so as the agent of the charterer, not of the owner. But still the owner being in possession of the ship by his master and crew, he has rights in respect of this possession — as to claim a lien on goods on board for freight due to him — and he is liable for the acts and negligence of the master, as master, irrespective of the contracts entered into by the master with the shipper of goods as agent for the charterer. Thus the owner, although the ship is so chartered, is clearly liable for a collision arising from the improper man- agement of the ship, and for what the master^ does within the scope of his general authority as master which cannot be ascribed to his agency for the charterer." ^ 1 Aceord. where the charterer sibility of the owner be expressly re- ordered him to do an illegal act, served in the charter-party, cadit Hobbs V. Hannam, 3 Camp. 93. quaistio, Sack v. Ford, 32 L. J. (C. P.) 2 Accord. Omoa Coal and Iron Co. 12 ; Wagstaff v. Anderson, 4 C. P. Div. 1). Huntley, 2 C. P. Div. 464 ; Steel v. 283 ; 5 id. 171. Lester, 3 C. P. Div. 121. If the respon- 350 AFFREIGHTMENT BY CHARTEE-PAKTY. [CHAP. VIII. Liatility of owners to third parties ignorant of the Charter- party. By memorandum of charter-party, the defendants in another case^ chartered ■ their steamer, Kingstown, to J. D. for six months, to he employed hy the latter in the coasting trade, they undertaldng to keep the vessel in good and sufficient order, and J. D. to pay 201. a week for the hire, and bear all disbursements, including harbour dues, pilotage, coals, oil and tallow, &c., for engines, insurance premiums, and the wages of the master and men ; and it appeared that J. D. had no power to appoint or dismiss any of the officers or crew, and that he never interfered in the arrangements of the vessel ; — iu that case it was held in an action against the owners for damage done by the vessel, whilst in the service of J. D., that they were liable, the vessel at the time of the accident being in the care of their servants, by whose negligence the damage had been occasioned. These instruments may not always be available for the protection of the parties if others are allowed to obtain rights in ignorance of the existence of the charter-party; if, for instance, third parties are permitted to ship goods on board in ignorance that the vessel is 'chartered, their rights will be governed by any express stipulations made with them, and by the principles of the law of agency in accordance with the apparent state of the facts and the presumptions of fact reasonably arising thereupon.' This appeared in the recent case of Sandeman v. Scurr.^ That was the case of a ship chartered to load a full cargo at a foreign port for the charterer at a stipulated rate of freight. The captain to sign bills of lading, if reqtiired, at any rate of freight, without prejudice to the charter-party. The charterer at the foreign port put her up as a general ship, and took on board the plaintiff's wine, for which the master signed biUs of lading containing no reference to the existence of a charter- party, as to which the plaintiff was left in ignorance. There was a leakage of the plaintiff's wine on board occasioned by bad stowage, and consequently an action by him for his loss against the owners of the ship. 1 B'entcm. v. The City of Dublin themselves the right of appoiatuig the Steam Packet Co., 8 A. & B. 835 ; see engineers only, the charterer being Eeeve v. Davis, 1 A. & B. 312, ante, himself the master, p. 343, where the owners reserved to ^ Ta.'R.'i Q. B. 80. CHAP. Vm.] WHO IS LIABLE. 351 The Lord Chief Justice Cockburn in giving judgment says : — " The result of the authorities from Parish v. Crawford downwards, and more especially the case of Neivberry v. Colvin, in which the judgment of the Court of Exchequer Chamber reversing the judgment of the Court of King's Bench was affirmed on appeal by the House of Lords, is to establish the position that in construing a charter-party with reference to the liability of the owners of the chartered ship it is necessary to look to the charter-party, to see whether it operates as a demise of the ship itself, to which the services of the master and crew may or may not be superadded, or whether all that the charterer acquires by the terms of the instrument is the right to have his goods conveyed by the particular vessels, and as subsidiary thereto, to have the use of the vessel and the services of the master and crew. " In the first case the charterer becomes, for the time, the owner of the vessel, the master and crew become to all iatents and purposes his servants, and through them the possession of the ship is in him. In the second, notwithstanding the tem- porary right of the charterer to have his goods loaded and conveyed in the vessels, the ownership remains in the original owners, and through the master and crew, who continue to be their servants, the possession of the ship also. If the master, by the agreement of his owners and charterer, acquires authority to sign biUs of lading on behalf of the latter, he nevertheless remains in all other respects the servant of the owners ; in other words, he retains that relation to his owners out of which by the law merchant arises the authority to sign bills of lading by which the owners will be bound. " It appears to us clear that the charter-party in the present instance falls under the second of the two classes referred to. There is here no demise of the ship itself, either express or implied. It amounts to no more than a grant to the charterer of the right to have his cargo brought home in the ship, while the ship itself continues, through the master and crew, in the possession of the owners, the master and crew remaining their servants. " It is on this ground that our judgment is founded. We think that so long as this relation of owners and master con- 352 AFFREIGHTMENT BY CHABTER-PARTY. [CHAP. VHI. tinues, the latter, as regards parties who ship goods in ignorance of any arrangement whereby the authority ordinarily incidental to that relation is affected, must be taken to have authority to bind his owner by giving bills of lading. We proceed on the well-known principle that where a party allows another to appear before the world as his agent in any given capacity, he must be liable to any party who contracts with such apparent agent in a matter within the scope of such agency. The master of a vessel has by law authority to sign bills of lading on behalf of his owners. A person shipping goods on board a vessel, unaware that the vessel has been chartered to another, is warranted in assuming that the master is acting by virtue of his ordinary authority, and therefore acting for his owners in signing bills of lading. It may be that, as between the owners, the master, and the charterers, the authority of the master is to sign bills of lading on behalf of the charterer only, and not of the owner. But in our judgment, this altered state of the master's authority, will not affect the liability of the owner, whose servant the master still remains, clothed with a character to which the authority to bind his owner by signing bills of lading attaches by virtue of his office. We think that untU the fact that the master's authority has been put an end to, is brought to the knowledge of a shipper of goods, the latter has a right to look to the owner as the principal with whom his contract has been made."^ In that case the voyage seems to have been performed before the shipper was made aware of the existence of the charter-party. But where, after the goods were put on board, the master refused to sign a bill of lading for them except " subject to charter-party," and then the shipper, aware for the first time that a charter-party existed, and not willing to be bound by some very objectionable terms in it, claimed to have liis goods again; it was held by the Master of the Rolls (EomiUy), that the shipper was, imder the circumstances, entitled to have his goods put ashore again, free of expense.** • Sandeman v. Scurr, supra. So, 209 ; Tharsis Sulphur, &o. Co. v. Cul- The St. Cloud, Br. & Lush. Ad. i, 15 ; liford, 22 W. E. 46 (Q. B.) ; Wagstaffi The Figlia Maggiore, L. E. 2 Ad. 106 ; v. Anderson, 4 C. P. Div. 282 ; 5 id. 171. Gilkison v. Middleton, 26 L. J. (C. P.) ^ Peek v. Larsen, L. E. 12 Eq. 378. CHAP, vm.] PARTIES TO THE ACTION. 353 This instrument, when the ship is let at the place of the parties to the , . 1 . T, i T 1 J.1 /• INSIRIJMENT, AND owners residence, is generally executed, by them, or some of ^o the action them (frequently by the master also), and by the merchant or "^"^ ^'^' his agent. In a foreign port it must of necessity be executed on the part of the owners by the master only, unless they have an agent resident in such port, duly authorised for this purpose. The execution of a charter-party under seal, by the master, When under although said to be done on behalf of the owners, does not furnish a direct action, grounded upon the instrument itself, against them. This depends upon a technical rule of the law of England,^ applicable as well to this as to other cases, and not affected hy the mercantile practice of executing deeds for and in the name of absent persons. This rule of our law is, that a deed cannot be executed except by the party himself, or by another for him in his presence, and with his direction ; or, in his absence, by an agent authorised to do so by another deed ; and in every case the deed must be made and executed in the name of the principal.^ 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.* In an action to recover freight or demurrage, claimed in pur- suance of a charter-party by deed, the statement of claim must be specially framed on the deed itself.^ If the owner, therefore, 1 A statement of claim cannot be attorney," or by writing " A. B. for good that does not show the right of C. D.," provided he delivers the in- the plaintiffs to sue upon the charter- strument as the deed of C. D. ; Wilks party when it is the foundation of the -u. Backe, 2 East, 142. action, Galloway v. Jackson, 3 M. & Parol ratification by the principal of Gr. 960. a deed executed by an agent without 2 Harrison v. Jackson, 7 T. E. 207 ; authority, does not make the deed and Horsley v. Rush (the case of a valid ; Hunter v. Parker, sitpra. What charter-party) there cited ; Berkeley v. evidence will warrant a presumption of Hardy, 5 B. & C. 355. authority in the agent, Lord Gosf ord y. 3 Hunter v. Parker, 7 M. & W. 322, Eobb, 8 Irish Law E. 217. 24:3. If C. D. by- a proper deed autho- ■* Gai-dner ■«. Lachlan, 8 Sim. 115; rise A. B. to execute a bond or other i Myl. & C. 129. deed for him, A. B. may do this ^ ^tty v. Parish, 1 B. & P. N. E. 104 ; either by writing " C. D. by A. B. his Schack v. Anthony, 1 M. & Sel. 573. A A 354 AFFREIGHTMENT BY CHARTER-PARTY. [CHAP. Vin. execute a deed to the merchant containing the usual covenant for a right delivery of the cargo, he cannot be sued by the merchant for not delivering it in an action grounded on the bill of lading signed by the master.''- "Whether the instrument be under seal or not, an action at law grounded upon it must be brought either in the name of one who is a party to it, or in the name of one to whom such party may have assigned the chose in action.^ The purchaser, therefore, of a ship, previously chartered, would still be unable to sue in his own name for the freight earned under the charter-party,^ unless it were assigned to him ; and yet payment to him will be a good answer to an action brought in the name of the vendor, at least, if the purchase was made before the ship sailed on the voyage.* For this reason where under a charter-party made with Partridge, to receive a cargo of fruit from the agents or assigns of Partridge, and deliver the same to him or his assigns, the master signed a bill of lading, stating the goods to have been shipped by Strange, by order of Rovedino and Moores, to be delivered to the order of Moores, it was held, in the absence of any evidence of assignment of the bin of lading to Moores, especially as the jury found that Moores was merety the agent of Partridge, that Moores could not maintain an action for negligence in stowing the fruit.^ Another technical rule of the law of England, applicable also to the contract by charter-party, should be noticed here. If a charter-party is expressed to be made between certain parties, as between A. and B., owners of a ship, whereof C. is master, of the one part, and D. and E. of the other part, and purports to contain covenants with C, nevertheless C. cannot bring an action in his name upon the covenants expressed to be made with him, nor give a release of them, even although 1 Hunter v. Prinsep, 10 Bast, 378. to the same contract, so the action 2 Judio. Act, 1873, § 25, subs. 6 ; faUed. Sanders v. Vanzeller, 4 Q. B. 260. As ^ gpUdt i-, Bowles, 10 Bast, 279, to the liability for freight and demur- where the charter-party appears to rage of the assignee of Bills of Lading, have been under seal ; Morrison v. Par- see Kemp V. Clark, 12 Q. B. 647 ; sons, 2 Taunt. 407, where it was not Stindt V. Eoberts, 17 L. J. (Q. B.) 166 ; under seal. 18 & 19 Vict. c. Ill, and post. In '' Morrison v. Parsons, siipra. Smidt V. Tiden, L. E. 9 Q. B. 446, the = Moores v. Hopper, 2 B. & P. N. Jl. parties to the action were not parties 411, CHAP, vni.] PAETIES TO THE ACTION. 355 he seals and delivers the instrument.^ But if the charter- party is not expressed to be made between parties, but runs thus : — " This charter-party indented witnesseth, that C, master of the ship W., with consent of A. and B., the owners thereof, lets the ship to freight to E. and F.," and the instru- ment contains covenants by E. and F., to and with A. and B. ; in this case, A. and B. may bring an action upon the covenants expressed to be made with them ; although, unless they seal the deed, they cannot be sued upon it.^ This latter, therefore, is the more proper form, when the instrument is under seal. More usually, when the object of the parties is the convey- ance of goods merely, the agreement of charter-party is not under seal ; and ia that case, one who contracts in his own name, although he is agent for another, and notwithstanding Executed by he adds this, being merely a description of himself, whether in the body of the contract,^ or after his signature,^' may sue or be sued on the charter-party.^ It is always competent, however, to show that either party contracted as agent, for the purpose of making the undisclosed principal plaiutiff® or When not under Seal. 1 Scudamore ■;;. Vandenstene, 2 Inst. 673 ; 2 Kol. Abr. Faits F. 1 ; Storer v. Gordon, 3 M. & Sel. 808 ; per Tindal, C. J., in Bushell u. Beavam, 1 Bing. N. C. 120 ; Ld. Southampton v. Brown, 6 B. & C. 718 ; Per Holt, C. J., " one party to a deed cannot covenant with another who is no party, but a mere stranger to it ; but one who is no party to a deed may covenant with another who is a party, and thereby oblige himself by sealing the deed," Garth. 77. 2 Cooker v. ChUd, 2 Lev. 74, and see Gilby v. Copley, 3 Lev. 138. 3 Parker v. Winlo, 7 B. & B. 942 ; 27 L. J. (Q. B.) 49, S. C. The phrase as agent in the body of an instrument executed by the same party in his own name simply, is held mere description and consequently of no effect, Paioe v. Walker, L. E. 5 Ex. 173, commented on in Gadd v. Houghton, 1 Exch. Div. 357 ; Hough •;;. MaiLzanos, 4 Exch. Div. 104. * Lennard v. Eobinson, 5 E. & B. 125 ; 24 L. J. (Q. B.) 275, S. C. Secus, where he contracted as agent in the body of the instrument, and at the end of it signs, for his principal, Des- landes v. Gregory, 29 L. J. (Q. B.) 93 ; 30 L. J. (Q. B.) 36. But yet in such a case local usage was allowed to make him liable, Hutchinson ii. Tatham, L. E. 8 C. P. 482. s Cooke V. Wilson, 1 C. B. (N. S.) 153 ; 26 L. J. (C. P.) 15, S. C. So, Kennedy v. Gouveia, 3 Dow. & E. 543 -jper Bayley, J., Sargent v. Morris, 3 B. & Aid. 277, 280 ; Higgins v. Senior, 8 M. & W. 834 ; Short v. Spackman, 2 B. & Ad. 962. See the discussion in Fawkes v. Lambe, 31 L. J. (Q. B.) 98. " Garrett D. Handley, 4 B. & C. 654 ; Bateman v. Phillips, 15 East, 272 ; per ouriam, Higgins v. Senior, 8 M. & W. 834, 844. Who may sue, Fawkes v. Lambe, svpra, Watson v. Swann, 31 L, J, (C. P.) 210. A A 2 356 AFFEEIGHTMENT BY CHARTEK-PARTY. [CHAP. VIII. defendant to the action ; ^ although he made the contract as his own agent, and stipulated therein for a cesser of liability after loading the cargo." But such evidence cannot be given for the purpose of discharging either party from the liability which upon the face of the contract it appears he has incurred ; ^ since that would be to admit parol evidence for the purpose of contradicting a written document. By the same rule, one cannot sue as prin- cipal on a contract in which he appears as agent for another whom he names therein;* but where part performance had been accepted, under notice of the real relation of the parties, there it was held that an action would he for non-acceptance of the residue and payment according^." For the same reason, the owner of the ship cannot sue on a charter-party concluded in the name of another styling himself owner, though that other was really an agent merely, and had no interest in the vessel, since evidence of this is not admissible.^ If an agent is desirous of protecting himself from HabiHty on the charter-party, it is pointed out by the courts that he ought to contract in the name of his iDrincipal, and sign in his name, or per procuration of the same.'' A clumsier way of effecting the same object is to insert a stipulation in the instru- ment, that the agent shall be held not to have incurred any liability under the contract.^ Exemptire The effect of such a protective clause varies, of course, with the terms employed in it. In Ogleshy v. Yglesias ' the clause in these terms — " It is further agreed that, this charter being ' Paterson v. Gandasequi, 15 East, ' Per Lord Campbell, C. J.. Parker 62 ; Thomson v. Davenport, 9 B. & C. u. Winlo, 7 E. & B. 942, 27 L. J. (Q. B.) 79 ; 2 Smith's L. C. 347, 364, S. C. ; 49, 52 ; per CressweU, J., Cooke v. per cimam,, Higgins v. Senior, supra. Wilson, 1 C. B. (N. S.) 153 ; 26 L. J. 2 Schmaltz i). Avery, 16 Q. B. 655 ; (C. P.) 15, 18, S. C. and in Deslandes CaiT V. Jackson, 7 Exch. 382 ; Adams v. Gregory, 29 L. J. (Q. B.) 93 ; 30 id. -D. Hall, 37 L. T. N. S. 70. 36. " On account of" in the body, , 3 Higgins V. Senior, 8 M. & W. 834 ; and at the end the name of the agent Jones V. Littledale, 6 A. & E. 486; simply is held sufficient to protect from Magee v. Atkinson, 2 M. & "W. 440. liability, Gadd v. Houghton, 1 Exch. ' Bickerton v. BurreU, 5 M. & Sel. Div. 357 (C. A.). 383 ; Fairlie v. Fenton, L. R. 5 Ex. « Oglesby v. Yglesias, 27 L. J. (Q. B.) 169. 356. » Eayner v. Grots, 15 M. &W. 359. » 27 L. J. (Q. B.) 356. 6 Humble v. Hunter, 12 Q. B. 310. CHAP, Vni.] EXEMPTIVE CLAUESES. 357 concluded by Yglesias for another party, the liability of the former in every respect, and as to all matters and things as weU before as after the shipping of the said cargo shall cease as soon as they have shipped the cargo," was held to protect the defendant from a claim for demurrage accrued at the port of discharge. In Milvain v. Perez,^ a clause in these terms — "This charter being concluded by Messrs. Perez, on behalf of another party resident abroad, it is agreed that all liability of the former in everj'- respect, and as to all matters and things, as well before and during as after the shipping of the said cargo, shall cease as soon as they have shipped the cargo," suffices to protect the defendants from a claim for not loading in regular turn, a cargo under the charter- party having, in fact, been loaded by them before action but out of turn. The clause in these two cases is so comprehensive and express in its terms relating to past and future claims as to leave no room for doubt whether the charterer was liable to be sued by the shipowner. It is when a clause is adopted in the charter-party which in terms purports to ground the cesser of liability of the charterer upon the rights expressed to be given to the shipowner over the cargo loaded, that ques- tions have perplexed the courts as to the cesser of liability in respect of claims not covered by the technical effect of the shipowner's conceded rights, or as to the extent of these con- ceded rights construed in a popular sense in order to cover the cesser of liability to the extreme limit of the words used. For instance, demurrage in its technical sense is strictly con- fined to liquidated damages stipulated in the charter-party for detention of the ship ; but in its popular sense it includes also unliquidated damages for detention; and the law does not recognise that any lien in respect of such unliquidated damages can exist.^ The courts have nevertheless been obliged by the seeming intention of the parties to these exemptive- clauses, in order to give such effect as would be just to both sides, to hold that, demurrage may in a certain connexion include unliquidated damages for detention, and that the stipulated 1 MUvain ■;;. Perez, 30 L. J. (Q. B.) ^ ggg (jj-ay v. Can-, L. K. G Q. B. 90. 523. 358 AFFREIGHTMENT BY CHARTER-PARTY. [CHAP. VIII. lien may attach for such damages. Such was the decision in Bannister v. Breslauer} There the clause was — " The char- terer's liahility to cease when the cargo is shipped, provided the same is worth the freight on arrival at the port of dis- charge, the captain having an absolute lien on it for freight, dead freight and demurrage, which he or owner shall be bound to exercise." The Court held that by this clause the charterer was exempted from liability for unliquidated damages incurred by delay in loading the cargo. This decision, though the subject of no little doubt at first among the judges, has been followed by many others on similar clauses involving the same principles, and now that decision is an accepted precedent in the High Court. Lord Justice Brett, in 1876, while yet a member of the Common Pleas Division, had occasion to review the various decisions there- tofore given, and in French v. Gerber ^ then before the Court, gives the result of his review in these terms. "In all the cases, then, it will be seen the dispute has been as to the extent of the absolution in respect of liabilities accruing before the loading ; in every case it has been assumed or expressly declared that it is complete as to liabilities which might otherwise accrue after the loading. The words of the clause must necessarily absolve from all future liability or mean nothing." " The rule therefore seems to be that where the words of the absolving part of the clause plainly show that all liability is to cease on loading, it is so to cease both as to antecedent and future liabilities, and without regard to any lien ; ^ but where the words of the absolving part are open to either inter- pretation, then, without regard to lien, liability as to future transactions is not to accrue, but liability as to antecedent breaches is to cease only so far as an equivalent lien is given.* ' L. E. 2 C; p. 497. cesco v. Massey, L. E. 8 Ex. 101 ; Kish 2 1 C. P. Div. 737, 744. v. Cory, L. E. 10 Q. B. 553. The case ^ Accord. Oglesby ■;;. Ygleaias, E. B. of French v. Gerber, being upon a sub- & B. 930 ; 27 L. J. (Q. B.) 356 ; Mil- sequent claim, the defendant was held vain V. Perez, 2 B. & B. 495 ; 30 L. J. exempted ; affirmed on appeal, 2 C. (Q. B.) 90. P. Div. 247. So, Sanguinetti v. Pacific ■• Held to cease, in Bannister v. Steam Navigation Co., 2 Q. B. Div. 238. Breslauer, L. E. 2 C. P. 497 ; Fran- Held not to cease, in Pedersen qj. CHAP. Vm.] EXEMPTIVK CLAUSES. 359 In Wake v. Harrop} the charter-partj'- was made with the defendant as agent of the charterers on terms which most effectually bound the defendant as a party to the contract ; but to an action for not loading under the charter-party, the defendant pleaded on equitable grounds, that it was agreed with the owner before making the charter-partji-, that the defendant was only to sign as agent for the charterers and was not to make himself liable as a principal for the performance of the said charter. This was held by all the judges in the court below and afterwards in error, to be a good equitable defence, Bramwell, B., and Willes, J., thinking it also a good legal plea. The defence to an action on a charter-party was that not the plaintiff but the T. S. Company were party to the instrument, and this on the face of it appeared to be so ; but the reply that the agreement was with the plaintiff, and the charter-party was made with and for him, but through inadvert- ence, a form of the T. S. Company, in which they appeared in print to be charterers, was used in drawing up the charter-party, and the name of the Company was neglected to be struck out, was held to be good in law, and the plaintiff recovered.^ If one sues another in a different capacity from that in which he appears in the contract sued on, e.g., as principal instead of agent, the onus probandi is on the plaintiff;^ but if the contract discloses the name of the alleged principal, and it was made without his authority, the person who made it as agent is liable, not upon the contract as principal,* but upon the implied warranty that he had authority to enter into the charter-party.^ And if the alleged principal has authorised and permitted the professed agent to act in such a manner, and Lotinga, 28 L. T. 267 ; Christophersen (the exemptive clause containing this 1!. Hansen, L. E. 7 Q. B. 509 ; Gray v. phrase, loading excepted, was held to Carr, L. E. 6 Q. B. 523 ; [In both cover delay in loading) ; Lockhart v. these latter cases the same Court Falk, L. E. 10 Ex. 132. proceeded'upon the technical mean- ^ 30 L. J. (Ex.) 373 ; 31 id. 451. ing of demurrage. Probably the ^ Breslauer v, Barwiclc, 36 L. T. N. same decision would not be repeated S. 52. by the same Court now on a similar ' Carr v. Jackson, 7 Exch. 382. case, since the Courts have acted upon ■* Jenkins v. Hutchinson, 13 Q. B. the popular sense of the term wher- 744. ever the parties appear so to have used * Collen v. Wright, 7 B. & B. 301 ; it in this exemptive clause.] ; Lister v. (in error) 27 L, J. (Q. B.) 215. Van Hansbergen, 1 Q. B. Div. 269, 360 AFFREIGHTMENT BY CHARTEE-PAETY. [CHAP. VIII. Government Agent. Rescinding or varying Charter- party. to such an extent that, from what has occurred publicly, the public in general might reasonably conclude, and persons dealing with him might naturally infer, that he was a general agent, the principal is bound by the charter-party, although, as between him and the agent, he takes care on every occasion to give special instructions.^ A very important exception to the principles affecting the liability of agents on contracts made for their principals, exists in the case of contracts, under seal or not, which are made by an agent of the Sovereign on account of the Sovereign in the public service ; the agent is not liable on such a contract.^ If after a charter-party has been made, another is made between the same parties inconsistent with the first, the effect of the second is to annul the former, provided no third party has, in the meantime, acquired an interest under the charter- party which was first made.^ But no such effect would be operated by a charter-party made by the master if the first were made by his owners ; he has no impHed authority to vary or rescind their charter-party ; * nor, has the agent of the char- terers in respect of a charter-party made by them,^ notwith- standing the other party to the contract is consenting. If the other side were not consenting, neither principal nor agent could vary the instrument.^ When not under seal, the instrument is called a Memorandum of Charter-party, and the following is the common form in blank : — Common Form of Charter-party not under Seal. London, It is this Day mutually agreed between of the good Ship or Vessel, called the of the Measurement of Tons, or thereabouts, now and of Merchants ; 1 Fer Pollock, C. B., Smith v. M'Gnire, 27 L. J. (Ex.) 465 ; .3 H. & N. mi, 560. 2 Macbeath v. Haldemaad, 1 T. E. 172 ; TJnwin v. Wolesley, 1 id. 674. 3 Ellis v. Lafone, 22 L. J. (Ex.) 124, 128 ; Hall v. Brown, 2 Dow. 367, 375. " Burgon v. Sharps, 2 Camp. 528 ; Pearson v. Goschen, 33 L. J. (C. P.) 265. ° Sickens v. Irving, 29 L. J. (C. P.) 25 ; Thompson v. Brown, 1 Moore, 358 : 7 Tannt. 656. " Croockewit v. Fletcher, 1 H. & N 893 ; 26 L. J. (Ex.) 153. CHAP. VIII.] THE CHARTER-PARTY. 361 That ilie said Ship Idng tight, utaunch, and strong, and every way fitted for the voyage, shall, with all convenient speed, sail and proceed to or so near thereunto as she may safely get, and there load from the Factors of the said not exceeding what she can reasonably stow and carry, over and above her Tackle, Apparel, Provisions, and Furniture ; and being so loaded, shall therewith proceed to or so near theretinto as she may safely get, and deliver the same on being paid Freight (tlie Act of God, the Queen's Enemies, Fire, and all and every other Dangers and Accidents of the Seas, Rivers, and Navigation, of whatever Nature and Kind soever, during tlie said Voyage, always excepted). The Freight to be paid on unloading, and right delivery of the Cargo. running Days are to be allowed the said Merchant (if tlie Ship is not sooner dispatched) for loading the said Ship, at An§, Days on Demurrage, over and above the said lie-days,^ at per Day. Penalty for Non-Performance of this Agreement, A charter-party, or any agreement or contract for the charter stamp. of a ship, or any memorandum, letter, or other writing, between the master or owner of any ship and any other person, for or relating to the freight or conveyance of any money, goods, or effects on board such ship, is hable to a stamp duty of sixpence.^ This duty may be denoted by an adhesive stamp, which is > I have substituted the proper Eng- pleading were discussed, tlie Master lish word for "lay-days" or "laying- assisting with the mellow geniality of days," usually found here ; yet it an old pleader, and with much patience; were a great presumption to expect but when he came to lie-days, he thun- eduoated people to lay aside the error ; dered out with irrepressible contempt although it might as well lie in their " lay-days is the word," at the same mouth to say " mendacity " when inen- time making the alteration with a self- diaity is meant. I had written lie-days satisfied air that seemed to say he had in a Special Case that was being settled not been so long on the Northern Cir- by a learned Master of the Superior cuit without knowing that. Courts. Points of construction and of ^ 33 & 34 Vict. c. 97, sched. 362 AFFREIGHTMENT BY CHARTER-PARTY. [CHAP. VHI. Prima facie evidence of Stamp. to be cancelled by tbe person by whom the instrument is last executed, or by whose execution it is completed as a binding contract.^ In the case of a charter-party first executed out of the United Kingdom an adhesive stamp may, within ten days after it is first received, and before it has been executed by any one in the United Kingdom, be affixed by any party thereto, who is required to cancel the stamp at the same time.^ Cancellation of adhesive stamps is effected by writing, the party's name or initials, or the name or initials of his firm across the stamp, and the true date of his so doing, so that the stamp may be effectually cancelled and rendered incapable of being used again ; and the person so required to cancel, who neglects or refuses effectually to do so, forfeits ten pounds.^ A charter-party executed before being stamped, may after- wards be stamped with an impressed stamp, — if within seven days after the first execution of it, on payment of the duty and a penalty of four shillings and sixpence ; — and after seven days, if within one month after the first execution of it, on payment of the duty and a penalty of ten pounds.* Where a charter-party had been left at the office of the sub- distributor of stamps at Cardiff, with the proper duty and postage, within the fourteen days then allowed, for the purpose of having it stamped, and no trace of it could be afterwards discovered, but proof was given of the routine course of duty in such a case at the offices in London and Cardiff, the Court presumed thereupon that it had been duly stamped and admitted secondary evidence of its contents.^ TisuAL sTipuiA- Qucstlons upon the construction of this instrument have tee^pamy'." " frequently been raised, on the assumption that of two things reciprocally stipulated in it to be done, performance of the one is dependent on performance of the other, in the nature of 1 33 & 34 Vict. c. 97, § 66. 2 n%d. § 67. ' Ihid. § 24 ; but it may be proved otherwise that the stamp was affixed in due time though not cancelled, ibid. * JMd. § 68. 6 Closmadeuc v. Carrel, 18 C. B. 36. See Stowe v. Querner, L. R. 5 Ex. 155. 8 If the plaintifE sues on a certain translation of a foreign charter-party, and the case go to trial, the Court in banc afterwards will regard only the case as it appears on the record, how- ever it may differ from the original charter-party when the foreign terms are properly interpreted, Gether ^>. Capper, 24 L. J. (C. P.) 69 ; (in error) 25 L. J. (G. P.) 260. CHAP. VrU.] CONDITIONS PRECEDENT. 363 a condition precedent. But whether that is so, stands not on Conditions pre- any formal arrangement of the words, hut on the reason and sense of the thing, as these are to be collected from the whole of the contract taken together. " The rule was well laid down by Lord Mansfield in Boone y. Eyre} that where mutual cove- nants go to the whole of the considerations on both sides, they are mutual conditions, the one 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."^ " A representation, properly speaking," says Vaughan WnHams, J., delivering the judgment of the Exchequer Chfimber, in Behn v. Bwrness,^ a leading' case on the con- struction of written contracts, — " A representation is a state- ment or assertion made by one party to the other, before or at the time of the contract, of some matter or circumstance relating to it. Although it is sometines contained in a written instrument, it is not an integral part of the contract, and, con- sequently the contract is not broken, although the representa- tion proves to be untrue, nor (with the exception of the cases of policies of insurance, at all events marine poUcies, which stand upon a peculiar anomalous footing) is such untruth any cause of action, nor has it any efficacy whatever unless the representa- tion was made fraudulently, either by reason of its being made with a knowledge of its untruth, or by reason of its being made dishonestly, or with a reeldess ignorance whether it was true or untrue. (See Elliott v. Von Glelm,^ and Wheelton v. HardistyJ' "A question,' however, may arise, whether a descriptive statement in a written instrument is a mere representation, or 1 Boone v. Eyre, 1 H. Bl. 273 note, v. Powell, 2 Smith, L. C. 11 ; Seegerv. cited 6 T. R. 573. Duthie, 30 L. J. (C. P.) 65 ; 29 id. 2 Per Lord Ellenborough, Ritchie v. 253 ; Santos v. Brice, 30 L. J. (Ex.) Atkinson, 10 East, 295 ■,per id. David- 108 ; Roberts v. Brett, 34 L. J. (C. P.) son V. Gwynne, 12 East, 381, 389 ; pm- 241, in Ho. of Lords ; Bradford -y. Wil- Pollock, C. B., Tarraboohia v. Hickie, liams, L. R. 7 Ex. 259. 26 L. J. (Ex.) 26, 28 ; 1 H. & N. 183, ^ 32 l. J. (Q. B.) 204, 205, 206, S. C. ; Stavers v. Curling, 3 Bing. N. C. 207. 355 ; Pordage v. Cole, 1 Wms. Saund. * 13. Q. B. 632. 319, 320 ; Hunlocke v. Blacklowe, 2U. = 8 E. & B. 232 ; 27 L. J. (Q. B.) 156 ; Peters v. Opie, 2 id. 352 ; Cutter 241. 364 AFFREIGHTMENT BY CHARTER-PARTY. [CHAP. VIII. whether it is a substantive part of the contract. If the Court should come to the conclusion that such a statement by one party- was intended to be a substantive part of this contract, and not a mere representation, the often discussed question may of course be raised whether this part of the contract is a condition precedent or only an independent agreement, a breach of which will not justify a repudiation of the contract, but only be a cause of action for compensation in damages. " In the construction of charter-parties this question has been often raised with reference to stipulations that some future thing should be done or shall happen, and has given rise to manj"- nice distinctions. Thus a statement that a vessel is to sail or be ready to receive a cargo on or before a given day has been held to be a condition — see Glaholm v. Hays,^ Oliver v. Fielden,^ Croockewit v. Fletcher,^ and Seeger v. Duthie ;* — while a stipulation that she shall sail with all convenient speed, or within a reasonable time, has been held to be only an agree- ment — see Tarrabochia v. Hickie,^ Dimech v. Corlett,^ see also Clipsham v. Vertue.^ " But with respect to statements in a contract descriptive of the subject-matter of it, or of some material incident thereof, the true doctrine established by principle as well as authority, appears to be, generally speaking, that if such descriptive statement was intended to be a substantive part of the contract, it is to be regarded as a warranty, that is to say, a condition, on the faUm-e or non-performance of which the other party may, if he be so minded, repudiate the contract in toto, arid so be relieved from performing his part of it, provided it has not been partially executed in his favour. If, indeed, he has received the whole or any substantial part of the consideration for the promise on his part, the warranty loses the character of a condition, or, to speak more properly perhaps, ceases to be available as a condition, and becomes a warranty in the narrow sense of the word, namely, a stipulation by way of agreement, for the breach of which a compensation must be sought in 1 2 Man. & G. 257. " 29 L. J. (C. P.) 253. 2 i Bxch. 135. 5 26 L. J. (Ex.) 26. 3 1 H. & N. 893 ; 26 L. J. (Ex.) « 12 Moore, P. C. 199. 153. 7 5 Q. B. 265. CHAP. VIII.] CONDITIONS PRECEDENT. 365 damages — see Ellen v. Topp,^ Evans v. Legg,^ adopting the observations of Williams, Serjt., on the ease oi Boone v. Eyre. " It is plain that the Court may be influenced in the con- struction not only by the language of the instrument, but also by the circumstances under which and the purposes for which the charter-party was entered into. For instance, if it were made in the time of war, the national character of the vessel is of such importance that a statement of it in the charter-party might be properly regarded as part of the shipowner's contract, and so amount to a warranty. Whereas the very same state- ment in the time of peace, being wholly unimportant, might well be construed to be a mere representation. So, if it were shown that the charter-party was made for a purpose, such that unless the vessel began her voyage from the port of loading with a cargo on board by a certain time, it Avas manifest that the object of the charter-party would in all probability be frustrated, the Court might properly be led by these circum- stances to conclude that a statement as to the locality of the ship, coupled with the stipulation that she should sail with all convenient speed, was a warranty of her then locality. " But we feel a difficulty in acceding to the suggestion that appears to have been, to some extent, sanctioned by high authority (see Dimech v. Corlett), that a statement of this kind in a charter-party, which may be regarded as a mere repre- sentation if the object of the charter-party be still practicable, may be construed as a warranty if that object turns out to be frustrated ; because the instrument, it should seem, ought to be construed with reference to the intention of the parties at the time it was made, irrespective of the events which may after- wards occur. It is true that in some of the cases, in which the question has been whether a stipulation in a charter-party amounted to a condition, the Court decided that question in the negative, and in so doing took occasion to suggest that neglect or delay on the part of the shipowner to execute his part of the contract, might be a breach of such an essential stipulation on his part as to justify the charterer in treating the contract as brought to an end thereby, and in refusing on that account to perform his part of it ; and further suggested ' 6 Exch. 424. ^ 9 Bxoh. 709. 366 AFFREIGHTMENT BY CHAETER-PABTY. [CHAP. Vni. Usual stipuUtions. Description of Ship. Capacity of Ship. that in deciding whether the breach on the shipowner's part was of such an essential stipulation as that described, the Court might advert to the fact whether such breach had frustrated that material object which the charterer had in view (see Freeman v. Taylor,^ Tarrabochia v. HicMe, and Dimech V. Corlett). But the Court did not, we apprehend, mean to intimate that the frustration of the voyage would convert a stipulation into a condition if it were not originally intended to be one." The following collection of decisions on the several stipula- tions more usually found in the charter-party in its ordinary form, is distributed in the order of the instrument itself with a view of showing its legal effect. The ship specified in the charter-party, by name, measure- ment, and master, is so engaged to the charterer, that he may refuse to load another instead ; the withdrawal of the first is a breach of contract for which an action will lie ; but a bill in equity for specific performance of the charter-party must fail.^ The Court, however, will restrain either party to the contract,^ or a mortgagee not in possession,* from doing any- thing inconsistent with its due performance. The single word descriptive of her national character may, during hostilities, or under a prohibitory policy, amount to a warranty.* If she loses her letter at Lloyd's before the contract is performed, it is enough that she had it as described in the charter-party, at the time of the making thereof.* Described as a steam ship, her principal motive-power, as used, must be steam, and not sails; but whether an auxiliary screw if used aU the day every day would answer that warranty, may be a question for the jury.'^ The description of her capacity as "of the measurement of 1 8Bing.l24. 2 De Mattos v. Gibson, 28 L. J. (Ch.) 498, 502. '' Ibid. ; Sevin v. Deslandes, 30 L. J. (Ch.) 457. < Collins V. Lamport, 34 L. J. (Ch.) 196. 6 Lothian -i;. Henderson (H. of Lords) 3 B. & P. 499. But a freighter may be estopped from setting up this defence. Eeusse v. Meyers, 3 Camp. 475, if he contracted with knowledge of the fact. ' Hurst V. Usborne, 18 C. B. 144 ; French v. Newgass, 3 C. P. Div. 163 (C. A.) ; Kouth v. Macmillau, 33 L. J. (Ex.) 38 ; see Dimech v. Corlett, 12 Moore, P. C. 199. ? Fraser v. Telegraph Construction &c. Co., L..E. 7 Q. B. 560. CHAP. VUI.J USUAL STIPULATIONS. 367 SO many tons or thereabouts," does not amount to a warranty entitling the charterer to refuse to load, unless there be some- thing in the rest of the charter-party to give it this effect.^ But it seems to be an independent contract, as to which it may be a question for the jury whether the ship tendered reasonably fulfils the description. A charter-party made at Liverpool after providing that the vessel should load at that port for Sydney, N.S.W., a full and complete cargo, contained this clause, that the charterer " shall and will pay for the use and hire of the said vessel in respect of the said voyage the sum of 1550L in full on condition of her taking a cargo of not less than 1000 tons of weight and measurement." Usually a vessel at Liverpool is loaded with one-third weight and two-thirds of measurement goods. A vessel for Sydnej' is said to be loaded two-thirds of weight and one-third of measurement goods. The vessel in question, after loading 525 tons weight, and 330 tons measure- ment, together 855 tons, was fully deep enough for her intended voyage, and still there were 160 tons vacant space. In an action for the unpaid residue of the stipulated 1550L, the jury at Liverpool found that the vessel was exactly 1000 tons capacity, and that the cargo loaded was an ordinary Sydney cargo. It was held by the Court below and afterwards on error ^ that the ship's capacity stipulated for in the clause cited above was for ordinary goods constituting an ordinary cargo loaded at Liverpool, and consequently that the ship answered the condition. The representation made of the ship's present locality or Present engage- engagement may be such, that performance under the new ™^" ^ " '^' contract is directly stipulated with regard thereto, and depen- dent upon it ; in that case it is a warranty, and breach of it will be a defence to an action on the charter-party. ' Windle v. Barker, 25 L. J. (Q. B.) Bast India Co., coram Kenyon, C. J., 349 ; 6 E. & B. 675, S. C. ; Hunter v. Guildhall, post, M. T. 1789. As to Fry, 2 B. & Aid. 421. See Corkling v. Windle v. Barker, seeder Williams, J., Massey, L. E. 8 C. P. 395. But if the in Behn v. Burness, 32 L. J. (Q. B.) freighter stipulating to pay so much 204, 205. per ton of goods put on board, did not - Pust v. Dowie, 33 L. J. (Q. B. ) also stipulate to lade a full cargo, the 172 ; 34 L. J. (Q. B.) 127 ; on demur- measure of the freight would be the rer, 32 L. J. (Q. B.) 179. See The quantity of goods on board ; James v. Norway, Br. & L. Ad, 377. 368 AFFREIGHTMENT BY CHAKTEE-PAETY. lCHAP. VIII, Thus, in a memorandum of charter-party, it was stipulated that the ship " now at sea, having sailed three weeks ago, or thereabouts," should proceed for cargo to Marseilles, after having discharged at Genoa ; but in fact, she had sailed at a much later period, and this was held a good defence for the freighter to an action for non-performance.^ So, the words after the name of the ship " expected to be in Alexandria about the 15th of December," in a charter-party stipulating that the vessel shall with all convenient speed sail and proceed to Alexandria, were held a warranty that the ship was in such a position that she might reasonably be expected to arrive there by that day.^ Where the ship was described as "now in the port of Amsterdam," these words were held to be a warranty in a charter-party stipulating that " she shall with all possible despatch proceed to Newport," &c., and as she was not then in the port of Amsterdam as described, though only prevented by contrary winds, the charterer was not bound to load her.' Seaworthiness. There is in every charter-party or contract for the carriage of goods by sea an implied warranty that the ship shall be sea- worthy ; * but this implied warranty does not amount to a con- dition.^ Those words relating to seaworthiness, in the common form of charter-party, " being tight, staunch, and strong, and every way fitted for the voyage," amount to an agreement or warranty which ,will entitle the freighter to compensation for iujury under breach thereof, but do not make a condition precedent.^ Yet it is not enough to satisfy those words that she sailed in a seaworthy condition, for if she afterwards become unseaworthy, and there be opportunity to repair, the owner must repair or not go to sea.''' 1 Ollive^. Booker, 1 Exch. 416. See " Kopitoffi v. Wilson, 1 Q. B. Div. Dimech ■;;. Corlett, 12 Moore, P. C. 199. 377 ; Lyon v. Melle, 5 East, 428 ; Steel 2 Corkling v. Massey, L. E. 8 C. P. v. State Line Steamship Co., 3 App. 395. Had the alleged breach been Cas. 72. wholly due to sea perils, the exception * Schloss v. Heriot, 14 C. B. N. S. of them in the contract would have 59 ; 32 L. J. (C. P.) 211. been a suiiicient answer, Harrison v. " Tarrabochia v. Hickie, 1 H. & N. Garthome, 26 L. T. N. S. 508 (Q. B.). 183 ; 26 L. J. (Ex.) 26, S. C. 3 Behn v. Bumess, 32 L, J. (Q. B.) ' Worms v. Storey, 25 L. J. (Ex.) 1 ; 204. See the observations in this case 11 Exch. 427 ; 34 & 35 Vict. c. 110, on Dimech u Corlett. § 11. CHAP. VIII.] USUAL STIPULATIONS. 369 The effect of a condition precedent ma.y be imparted to these words by other stipulations in the charter-party. Thus, where- it was also agreed that one-fourth of the freight should be paid in advance on the ship having sailed, less 5 per cent, thereon for insurance, &c., in that case it was held that the stipulation for insurance, importiag also a warranty of seaworthiness at starting, gave to those other words the force of a condition precedent with regard to the title to the advance freight.^ Accordingly, where in the absence of the words in question at the beginning of the charter-party there was in the body of it this clause, " That the vessel before and when receiving cargo shall be a good risk for insurance, and he [the master] wUl, when required, provide a survey report declaring her to be so, and during the voyage the master shall take all proper means to keep the vessel tight, staunch, and strong, well manned and provided, and in every way fitted and provided for the voyage ; " and a cargo of wet sugar which the vessel had agreed to carry, was, after being loaded, necessarily un- loaded, because the ship's pumps were unable to clear away the drainage from the sugar, a state in which the vessel could not have gone to sea with safety ; there it was held that the charterer was justified in refusing to reload the cargo, and would have been justified in refusing originally to load.^ The stipulation that she shall load a full and complete cargo Cargo, seems to make but an independent agreement, on which damages may be recovered by cross action or counterclaim.^ Subject to what may appear by express stipulation, the shipowner is bound to furnish a ship tight, staunch, and strong, and every way fitted to carry the agreed cargo on the prescribed voyage, and the charterer to supply him with a reasonable cargo of the description stipulated.* Cargo was held in a recent case ' Thompson [v. Gillespy, 5 B. & B. 1 C. P. 636 ; 2 id. 468. The popular 209 ; 24 L. J. (Q. B.) 340, S. C. oddity of this latter case is that the ^ Stanton v. Eiohardson, Eichardson vessel with half her cargo on board V. Stanton, L. E. 7 C. P. 421 ; 9 id. was lost on her voyage, and that the 390 ; and in the Ho. of Lords, 45 L. J. action was commenced after the loss (C. P.) 78. See Havelock i). Geddes, for not having supplied her with the 10 East, 555. other half. ' Eitchie v. Atkinson, 10 East, 295. * Per Bovill, C. J., in Stanton v. See The Norway, Br. & L. Ad. 377 ; Eichardson, L. E. 7 C. P. 421. So, the Cam;. Wallachian Petroleum Co., L. E. Ho. of Lords, S. C. %b% svpra. B B 370 AFFREIGHTMENT BY CHAETEE-PAETY. [CHAP. VTU. between merchants to mean a shipload, and that where the English buyer ordered a " small cargo " of about sixty fathoms of lathwood, and his foreign correspondent, not able to find so small a vessel chartered one that carried 83 fathoms, and on its arrival at the buyer's port tendered him 60 fathoms, part of the larger cargo, he might refuse to accept it.^ This decision has since been upheld in the Court of Appeal in a precisely similar case, the cargo consisting of barrels of petroleum.^ But whether as between merchants these decisions wiU be hereafter sustained, there is little doubt what is meant by a full and complete cargo in a contract to carry by sea. Under a charter-party containing these words, part of the cargo had been loaded when the ship caught fire and was necessarily scuttled". When got up the part of the cargo was sold as damaged, and the master demanded the residue of the cargo for his vessel but was refused it. Held that the charterer was bound to load the resi- due.^ Where it was stipulated for "a full and complete cargo, say about 1100 tons;" 1080 tons having been put on board; and the ship's capacity being 1210 tons ; it was held bj'' the Court, acting as a^jury also, that the shipowner undertook to be satisfied with 1100 tons or thereabout, i. e., 3 per cent, more or 1133 tons, and consequently that his title was to freight on 53 tons additional, subject to a slight deduction for expenses not incurred."* It is sufficient, however, to have once loaded the 'ship ; for if she reland it, for reasons appertaining to the ship, the charterer has satisfied his contract without reloading it.^ Time. On general principles, the law implies, in all contracts by charter-party, where there is no express agreement as to time, a stipulation that there shall be no unreasonable or unusual delay in commencing the voyage,® or if it has been commenced, 1 Kreuger v. Blanck, L. E. 5 Ex. 3 Jones v. Holm, L. R. 2 Ex. 335. 179. Blackburn, J., in the House of See Garr v. Wallachian Petroleum Co., Lords, seems to disapprove of this de- L. E. 1 C. P. 636 ; 2 id. 468. cision, Ireland v. Livingstone, L. E. 5 * Morris v. Levison, 1 C. P. Div. Ho. of Lords. (E. & L-.), 395, 410. See 155. Imperial Ottoman Bank v. Cowan, 29 ^ General Steam Navig. Co. v. Slip- L. T. N. S. 52. per, 31 L. J. (C. P.) 185 ; Strugnell r. 2 Borrowman v. Drayton, 2 Ex. Div. Friedriohsen, 12 C. B. N. S. 452. 15 ; Oockburn, C. J., and James, Mel- '^ Per Tindal, C. J., M' Andrew lish and Baggallay, L. JJ. , constituting Adams, 1 Bing. N. C. 29, 38 ; Mount the Court of Appeal, Lsvrkins, 8 Bing. 108. ■V. CHAP. YIII.] USUAL STIPULATIONS. 371 no deviation in the performance of it ; -^ but, although breach of this gives the freighter a right to damages, it is no defence to an action for non-performance of his own part of the contract,^ unless the plea also show that the purposes of the charter-party were altogether frustrated by the delay .^ By a charter-party of the 20th of October, it was agreed that the defendant's ship should proceed from Portsmouth to St. Michael's, and there receive a cargo of fruit for London, the thirty-five running daj^s allowed for loading and unloading to commence on the 1st of December following, and if the vessel did not arrive at St. Michael's by the 31st of January, the freighter to be at liberty to rescind the charter-party ; and in an action by the freighter for delay, it was held that the de- fendant was bound to have proceeded on the voyage at once, and was not at libertjr to make an intermediate voyage for his own purposes, although notwithstanding his doing so, he arrived at St. Michael's before the 31st of January.'' On the contrary, where the freighter under a charter-party in the common form was sued for refusing to load a cargo, and he pleaded the unreasonable delay of the plaintiff, to wit, for thirty-eight days, in arriving at the port of loading, in con- sequence of voyages made in the meantime for his own profit, the plea was held bad for not showing, in the absence of any warranty, an entire frustration of the purposes of the charter- party by the plaintiff's delay.' The obligatory operation of thi§ implied stipulation is reciprocal. If a shipowner agrees that the vessel shall proceed with all convenient speed from one intermediate port to another which is to be named to him at the former, the freighter imphedly binds himself to name the port within a reasonable time, and for unreasonable delay therein, he is hable to an action.*" ' Davis V. Garrett, 6 Bing. 716 ; a remark by the latter in Glaholm v. Freeman v. Taylor, 8 Bing. 124. Hays, 2 M. & Gr. 257. 2 MaoAndrewD. Chappie, L.E.IC. P. ' Clipsham ■!). Vertue, 5 Q. B. 265 ; 643 ; Jackson?). Union Marine Ins. Co., Jackson v. Union Marine Ins. Co., L. K. 8 C. P. 572 ; in error, L. R. 10 sv^ra. C. P. 125 ; Dimech v. Corlett, 12 Moore, * M'Andrew v. Adams, 1 Bing. N. C. P. C. 199 ; Tarrabochia v. Hickie, 1 H. 29. & N. 183 ; 26 h. J. (Ex.) 26, S. C, ' CUpsham v. Vertue, 5 Q. B. 265. where see the observations of Pollock, ^ Woolley v. Eeddelien, 5 M. & Gr. C. B., dissenting from Manle, J., as to 316. See Eae v. Haokett, 12 M. & W. B B 2 372 • AFFREIGHTMENT BY CHARTER-PARTY. [CHAP. Vni. Time of the " Stipulations ia contracts as to time or otherwise which essence of the ,, ,„ ,.,.»i i i jj. contract. would not before the passing of this Act have been cteemea to be or to have become of the essence of such contracts in a court of equity shall receive in all courts the same construction and effect as they would have heretofore received in equity." ^ " A Court of equity wiU indeed relieve against, and enforce, specific performance notwithstanding a failure to keep the dates assigned by the contract either for completion or for the steps towards completion, if it can do justice between the parties; and if, as Lord Justice Turner said in Roberts v. Berry, ^ there is nothing in the ' express stipulations between the parties, the nature of the property or the surrounding circumstances,' which would make it inequitable to interfere with and modify the legal right. This is what is meant and all that is meant, when it is said that in equity time is not of the essence of the contract." ^ Where time therefore is specified, and both parties contract with regard to it, whether it be the time at which the vessel is to be ready to receive cargo,* or the day of sailing, or of arrival outwards, or the day of any other event in the voyage, the courts hold that it is in the nature of a condition precedent to the rights of the owner under the rest of the charter-party.^ 'In Glaholm v. Hays,^ the charter-party stipulated in the com- 724 ; Stewart v. Kogerson, L. E. 6 viously on the grounds indicated by C. P. 424. Tindal, C. J., in Glaholm v. Hays, 2 1 Judic. Act, 1873 ; 36 & 37 Vict. c. M. & G. 257, 268, cited above ; ' the 66, § 25, subs. 7. voyage was performed, the considera- 2 3 D. M. & G. 284. tion, such as it was, had been accepted. 3 Per Lord Justice Cairns, Tilley v. So, where there was a charter-party for Thomas, L. K. 3 Ch. 61, 67. See also the employment of a ship for twelve jjer Alderson, B., sitting on the Equity months and a stipulation that the side of the Exchequer in Hipwell v. owner would forthwith at his expense Knight, 1 T. & C. 415, cited at length make her tight and strong, &c., and in Story, 2 Equity Jurisp. § 776, note. afterwards his neglect to do so was set ■> Oliver v. Fielden, 4 Exch. 135. up as a condition precedent to freight 5 Per Pollock, C. B., Tan-abochia «. actually earned, but the defence failed, Hickie, 1 H. & N. 183 ; 26 L. J. (Ex.) for the freighter had taken the vessel 26, 28, S. C. Martin, B., in this case, into his service and had the use of her, refers to the opinion of Le Blanc, J., Havelock v. Geddes, 10 East, 555 ; in Hall v. Cazenove, 4 East, 477, who, Olshen v. Drummond, 2 Chit. 705 ; 4 with Lawrence, J., thought the stipula- Doug. 356, S. C. tion to sail on a day named not to be a ^ Glaholm v. Hays, 2 M. & Gr. 257. condition precedent in that case, ob- CHAP. Vin.] USUAL STIPULATIONS. 373 mon form, that the ship being tight shall proceed to , and there load and thence proceed to , and deliver ; and then was interposed the clause, " the vessel to sail from England on or before the 4th day of February." Tindal, C. J., after pointing to the position and different natm-e of this clause among the other agreements, and to the purposes of the market which were to be served by timely performance, said -.^ " The present case appears to us to be distinguishable from those cited on the part of the plaintiff,^ in both the particulars to which we adverted, namely, that in this case the form of the stipulation is more nearly in the language of condition than in that of agreement, whilst in the cases cited, the stipulation is in the language of covenant only ; and again, that in this case the performance of the stipulation goes more to the verj^ root and whole consideration of the contract. And indeed, in most or all of those cases, the objection has not been taken until after the voyage had been performed, nor, in many cases, until after the goods had been accepted, so that it is manifest the breach of the agreement of which the defendant complained, and which he sought to set up as non-performance of a condi- tion precedent, could not go to the whole of the consideration of this contract. Such was the case of Constable v. Cloherie,^ where the shipowner covenanted that his ship should sail with the first fair wind ; the case of Bornmann v. Tooke,'^ where the covenant was that the ship should sail with the first favourable wind ; and the defence in which was set up against a demand for the freight after the ship had performed her voj^age, and the merchant had accepted the cargo ; so likewise, in Davidson y. Gwynne,^ the covenant to sail with the first convoy was held not to be a condition precedent, the voyage being in fact performed ; and so all the rest." In the case before the court, therefore, as the shipowner had not despatched his vessel on or before the 4th of February, it was held that he ' Glaholm v. Hays, 2 M. & Gr. 268. East, 381. 2 Boone v. Eyre, 1 H. Bl. 273, note ; ' Constable v. Cloberie, Palm. 347. Constable v. Cloberie, Palm. 347 ; Free- ■* Bornmann v. Tooke, 1 Camp. 377. man v. Taylor, 8 Bing. 124 ; Bornmann ^ Davidson v. Gwynne, 12 East, 381 ; 1). Tooke, 1 Camp. 877 ; Hall v. Caze- DefEel v. Brooklebank ; (in error) 4 nove, 4 East, 477 ; Ritchie v. Atkinson, Price, 30, 10 East, 295 ; Davidson v. Gwynne, 12 374 AFFEEIGHTMENT BY CHAETER-PAETY. [CHAP. VIII. had no right of action against the merchant for not providing a cargo. In lilie manner, where the contract was to provide a cargo at Jamaica, in time for the July convoy, provided the ship arrived outwards, and was ready to receive it by the 25th ' of June ; ^ and again, where it was agreed that the vessel should sail from Madeira to Winnyaw, in South Carolina, and that the freighter should be under no obligation to provide a cargo if the vessel were not at Winnyaw by the 4th of March ; ^ the stipulation as to time in each case was held to be a con- dition precedent, and breach thereof, unless covered by some exception, actually stipulated for in the charter-party,^ was a good answer to an action for non-performance by the merchant. By charter-party it was agreed that the defendants' vessel, the Conquest, then at Sunderland and bound for London, should be chartered to the plaintiff for- twelve months for as many consecutive voyages between Sunderland and London as the ship could enter upon after the completion of the then present voyage. The vessel completed her voyage, returned to Sunderland and gave the plaintiff notice she would be ready on the 9th of April, 1875. Afterwards, when the plaintiff had determined to load her on his own account, the Board of Trade detained the vessel for unseaworthiness, and she was not repaired and ready to receive cargo until the subse- quent .17th of June. " Therefore," say the Court of Appeal,* " the questions simply are, whether a person who has agreed to charter a vessel for twelve months, commencing from the 9th of April, is bound to wait until the 17th of June, before he obtains possession of the vessel, and whether he is then bound to take her for a period of less than ten months ? 1 8hadfoi-th v. Higgiii, 3 Camp. 385 ; « The majority were Kelly, C. B. Sharp 1). Gibbs, 1 H. & N. 801. and MeUish, and Amphlett, L. JJ., 2 Shubricki). Salmond, 3 Burr. 1637; from whose judgment delivered, _pf?' Sparrow u Paris, 7 H. & N. 594. MeUish, L. J., I have cited. Brett, 3 See Granger D. Dent, M. & M. 475 ; L. J., preferred groimding his judg- Qroookewit 1). Fletcher, 1 H. &N. 893; ment on this, that by the delay the Behn v. Burness, 32 L. J. (Q. B.) 204 ; object of the charter had been frus- Corkling v. Massey, L. R. 8 C. P. 395. trated. CHAP. Vm.] USUAL STIPULATIONS. 375 In other words, in a charter for a stipulated time is the time of the essence of the contract, or is the charterer bound to take the vessel for a time, substantially different from the time specified in the charter? We are of opinion that as in a charter for a voyage, the specified voyage would be of the essence of the contract, and the charterer, if he could not have the use of the vessel for the specified voyage, would not be bound to take her for any other voyage, so in a charter for time if the charterer cannot have the vessel for the speci- fied time, he is not bound to take the vessel for a shorter time, or a substantially different time, and if he cannot get the vessel for the specific time he ma}^ throw up the charter." ^ Brett, L. J., agreeing with the rest of the Court in the general result of the above case, preferred to regard it as resting on the principle that by delay which frustrated the purposes of the contract the party in fault had disentitled himself to enforce performance or to recover damages. So, in the following case, where the charterers of a ship for a voyage from Cadiz to St. Bias de California, and thence to Guayaquil, to take in a homeward cargo, caused another ship to be char- tered on their account, to go out in ballast and bring home a cargo from Guayaquil, with a proviso, that in the event of the non-arrival of the first-mentioned ship at Guayaquil, then the second charter should be void ; and the first ship did arrive at Guayaquil, but not until the 120 lie-days under the second charter had expired, and the second ship had left without a cargo; it was held that "non-arrival" meant non-arrival within such time as might answer the purposes of the charter of the second ship ; and that the first ship not having arrived in time to answer those purposes, and the delay not being attributable to the charterers, the charter of the second ship was void, and the charterers were not bound to provide a homeward cargo for her.^ I have given this case rather out of its order here chiefly to Meaning of illustrate the sense imparted to the phrase "non-arrival." There are other similar phrases frequently occurring which ' TuUy V. Howling, on appeal, ^ goames v. Lonergan, 2 B. & C. aflBrming judgment below, 2 Q. B. 564. Div. 182, 185, 187. 376 AITREIGHTMENT BY CHARTER-PARTY. [CHAP. VIII. demand attention in contracts that make the incidence of performance centre upon them. 1^ To sail," _ When the condition is "to sail," the result of all the cases is, that the ship by quitting her moorings, on or before the day named, in a state ready for sea, with the boiia fide intention of prosecuting the voyage specified in the charter-party, satisfies the condition, notwithstanding her progress is soon after delayed by an unforeseen event.^ But if the ship is not ready for sea when she quits her moorings, this is evidence that there was no such bona fide intention, and the courts will hold, any appearances to the contrary notwithstanding, that she had not "sailed."^ A vessel that had received her full cargo, took advantage of the spring tide to leave Sunderland harbour for the roadstead, where she was soon after lost, and upon an action for one-fourth part of the freight agreed to be advanced " on the ship having sailed," it was held that the owner could not recover ; her crew was still incomplete when she sailed to the roadstead, the master and mate were not come on board, her shrouds and cables were not in a proper condition for the voyage, and the bills of lading had not been signed for the cargo ; she had indeed left the harbour with the intention of not returning thither, but she had anchored for the purpose of still preparing for the voyage.^ So, where a vessel under warranty to sail on or before the 28th of October, quitted Portneuf on the 26th, with a full cargo, but an incomplete crew, and dropped down the St. Lawrence, arriving at Quebec on the evening of the 28th, and only obtained her clearances and completed her crew on the following day, not actually leaving the port of Quebec till the 30th, it was held that she had not satisfied the condition.* Under a time-policy on The Cyclops, with warranty not to sail for British North America after the 15th of August, she 1 Per Lord Tenterden, Pittegrew v. Hudson v. Bilton, 2 Jur. N. S. 784 ; Pringle, 3 B. & Ad. 514, 520 ; Thellns- 6 E. & B. 565, S. G. ; Sharp v. Gibbs, son V. Fergusson, 1 Doug. 361 ; Bond 1 H. & N. 801. V. Nutt, 2 Cowp. 601 ; Eaiie v. Harris, ' Thompson v. Gillespy, 5 B. & B. 1 Doug. 357. 209 ; 24 L. J. (Q. B.) 340, S. C. 2 Pittegrew v. Pringie, 3 B. & Ad. ■• Eidsdale v. Newnham, 4 Gamp. 514 ; Ihompson v. Gillcspy, 5 E. & B. Ill ; 8 M. & Sel. 456, S. C. 209 ; 24 L. J. (Q. B.) 340, S. G. ; CHAP. VIIT.] USUAL STIPULATIONS. 377 "was with much labour got readj^ for sea on the morning of that day ; but the vessel lay at the time in Dublin harbour with the wind blowing right up the river, and the master m.ust have known it was impossible under these circumstances to get to sea. She was, however, cleared at the Custom House, and hauled out of dock the same daj^, and warped down the river till the tide ebbed and left her aground ; the day following she was again warped down the river as far as that was possible ; and on the 17th the wind had shifted and she put to sea. Under these circumstances, the Court were of opinion that if the master was proceeding down the river, not merely for the pur- pose of complying with the warranty, but also with the bond fide intention of placing her in a more favourable position with regard to the prosecution of her voyage, it would amount to a legal satisfaction of the warranty ; but that if it was done solely in order to comply with the letter of the warranty, it was not a commencement of the voyage within the meaning of the policy ; and upon that question of intention, being a matter of fact, the case was sent back again to a jury.^ If the parties, by their contract, have sti]3ulated with regard to an impossible day, as where the charter-party is by deed and is delivered subsequently to the day in the condition, the covenant is nugatory and no part of the obligatory contract between the parties." When the condition is " to sail from," or " depart," it is Port. held that the ship must be out of port and on her voyage on or before the day specified ; ^ but although the limits of the "port" in such a case may be determined by evidence of usage,* yet in the absence of qualifying words, that term is never received as comprehending, in such a connection, all that is subject to one custom house or one port jurisdiction, but 1 Cochrane v. Fisher, 2 Cr. & M. Eoyal Exchange Assur. Co., 4 Camp. 581 ; (in error), 1 Cr. M. & R. 809. 84 ; 3 M. & Sel. 461, S. C, ; Id. v. M., 2 Hall v. Cazenove, 4 East, 477 ; as 6 Taunt. 240 ; Pittegrew v. Pringle, to the opinions expressed by Lawrence, 3 B. & Ad. 514; Lang ■«. Anderdon, J., and Le Blanc, J., about the stipu- 3 B. & G. 495 ; and see Graham v. lation as a condition precedent, see Barras, 5 B. & Ad. 1011. ante, p. 372 n. ^, and the judgment of * Lang v. Anderdon, 3 B. & C. 495 ; Tindal, G. J., in Glaholm v. Hays, 2 and see Graham v. Barras, 5 B. & Ad. M. & Gr. 257, ante, p. 373. 1011. 3 Per Lord BUenborough, Moir v. 378 AFFREIGHTMENT BY CHARTER-PARTY. [CHAP. Vin. rather as being synonymous with " place " and identical in meaning.^ Under a charter-party, however, in which it was agreed to advance three-fourths of the freight " on the ship's final saihng from the port" of Cardiff, and the vessel after receiving a full cargo in the docks cleared out, all ready for sea, and passed into a ship canal between high and low water mark, where she was still subject to local regulations and the authority of the harbour master of Cardiff, and where she became a wreck, it was held that the condition of the shipowner's title to the advance freight had not been satisfied.^ "Where the charter-party was that the ship should " sail and proceed from Amsterdam with all convenient speed for Liverpool, to leave Amsterdam not later than all March," it was held that the only warranty created by these words applied to leaving Amsterdam, and that the ship had complied there- with by quitting the docks at Amsterdam on the 30th of March with a small part of her ballast on board, and proceed- ing by the North Holland Canal to Alkmaar on the 31st, where she completed ballasting and sailed for Liverpool on the 3rd of April.s Naming Port of It is frequently the case that the port of discharge for a return voyage remains to be afterwards determined by letter, awaiting the arrival of the ship at some of the outports of the home country. The terminus of the outward voyage, however, must be named before sailing ; it is a condition precedent to the commencement of the voyage ; and the owner may refuse to receive a supercargo on board, who is afterwards to indicate it, unless that be a stipulation of the charter-party.* But if the ship is sent to other ports than that which is indicated in order to complete her cargo, the additional expense falls on the freighter ; and if the port of lading was so indefinitely indicated that there is a doubt which or how many places 1 PCT'Patteson, J.,Browiii). Tayleiir, See WooUey d. Reddelien, 5 M. & Gr. 4 A. & E. 241, 248. 316. In Stewart v. Rogersori, L. E. - Eoelaadts v. Harrison, 9 Exch. 444 ; 6 C. P. 424, this became the form 23 L. J. (Ex.) 169, S. C. of action, although the gravamen of 3 Van Baggen ii. Baines, 23 L. J. the suit was non-acceptance of the (Ex.) 213 ; 9 Exch. 523, S. C. cargo. * Eae V. Hackett, 12 M. & W. 724. CHAP. Vin.j USUAL STIPULATIONS. 379 were comprehended, , the question will be submitted to a jury.i It has been held that the stipulation to proceed to such a To proceed to or , ,1 , ,1 1 !• 1 I as near thereto. place, or as near thereto as the vessel can saiely get, neces- sarily comprehends her safety also in coming away when loaded, and justifies the vessel in crossing the bar at the harbour entrance with what cargo she can carry in doing so, and Ijdng-to outside for the rest of her lading.^ There seems to be in this decision, though favourable to the shipowner, the same principle that was apphed rather to his prejudice in the case that follows. A ship chartered to take a cargo from Alexandria to a " safe port " in the United Kingdom or the Continent, " or as near thereto as she can safely get and he afloat at all times of the tide, and deliver the same and so end the voyage," was ordered to Glasgow, and on her way to that port she brought up off the "Tail of the Bank," an open channel in the river Clyde off Greenock, 22 miles below Glasgow. The water at Glasgow was not such as to enable the ship to lie afloat there at ebb tide ; the shippers therefore lightened her at the Tail of the Bank of part of her cargo. This is customary in such cases in the Clyde. In connection with this it ought to be men- tioned that the words " according to the custom of the port " in the printed form of the charter-party coming before the words " and deliver the same " were struck out before signing the instrument. The ship, after being lightened, was ordered up to Glasgow to deliver the residue of her cargo there. The master took her up under protest, and discharged the rest of the cargo ; and then, counting his lie-days as beginning at the Tail of the Bank, he claimed demurrage, and raised an action in the Sheriff's Court, which was finally determined by the First Division of the Court of Session. There it was held. Lord Deas dissenting, that there was no right to demurrage, as the Tail of the Bank was not to be deemed the port of dis- charge within the meaning of the charter-party. The Lord President, in delivering judgment, chiefly relied on the reason- ableness of what had been done as the kind of performance 1 Brown v. .Johnson, Car. & M. 440. ^ Shield v. Wilkins, 5 Exoh. 304. 380 AFFREIGHTMENT BY CHARTEE-PAETY. [CHAP. Vin. that was contemplated by the parties to such an instrument ; and indicating his opinion that, if the lightening had extended to half the cargo (a fortiori if more), his decision would have been the other way.^ It is to be observed that in the above case the shippers offered every facility to the ship for lightening her draught, and so for giving a reasonable accomplishment of the intention expressed in the charter-party. It was otherwise in the fol- lowing case. The ship, chartered to take in a cargo at Bombay and proceed therewith to a safe port between Havre and Ham- burg as ordered, or so near thereto as she might safely get, was ordered to Koogerpolder in Holland, some distance up a canal. At the mouth of the canal it was found that at least one-third of the cargo must be discharged to enable the ship to proceed up the canal in safety. The charterers having sold the cargo afloat refused to make arrangements for lightening the ship ; and no others appeared to take delivery. Under these circumstances it was held that the master was justified in considering the voyage at an end and the shij) at her place of discharge at the mouth of the canal.^ It was remarked by the Court of Appeal in the case that follows as a mistake to suppose that the term safely in these stipulations was intended to mark the obstacle, still less the only obstacle, meant to give occasion to the alternative mode of performance. " The reference to safety is introduced to show what the alternative place of discharge is to be, not to show when the alternative is to arise." By the charter-party in this case^ the vessel being loaded was to proceed to London, Sm'rey Commercial Docks, or so near thereunto as she may safely get and be always afloat. These docks were so full that the vessel could not be admitted on her arrival at the dock gates, or perhaps for months afterwards. The char- terer had done all he could, and also the master to obtain admission, in vain. Moreover the charterer refused to name any other dock. The vessel therefore discharged her cargo 1 Hillstrom u. Gibson, 8 Sessions ^ Capper v. Wallace, 5 Q. B. Div. Cases, p. 463 ; 1870. See Ford v. 163. Cotesworth, L. E. 4 Q. B. 127- ; 5 id. ^ Nelson v. Dahl, 12 Ch. Div. 568. 544. CHAP. VIII.] USUAL STIPULATIONS. 381 into lighters at the nearest place to the dock gates at which she could do so safely. This was held by the Court of Appeal to be such a performance as satisfied the charter-party and entitled the shipowner to demurrage and damages for de- tention. Lord Justice James, says, " I read the clause thus : ' Shall proceed to the port of London and discharge in the Surrey Commercial Docks, or if she cannot from any physical or legal obstruction or other cause not being an accident of sea or river (which the ship takes on herself) get into such dock, then she is to go so near thereto as she can get, and as she can so get and lie with safety and always afloat.' " ^ The accidents of sea or river, existing or arising at the port or place, as the Lord Justice notes, are undertaken by the ship. Consequently, a vessel that was under charter to proceed to Galatz or so near thereto as she could safely get was not justified in proceeding to Odessa instead, although the water on the bar at the mouth of the Danube had been too low to allow her to cross and she had been waiting for manj^ weeks in the neighbourhood.^ And a master with a similar clause in his charter-party, requiring him to proceed to Taganrog, finding on his arrival at Kertch on the 17th of December that the buoys were removed and the navigation closed by the ice for the winter, was not justified in discharging his cargo at Kertch, a place 300 miles by sea and 700 by land from Taganrog, and therefore was not entitled to freight.^ "A safe port" being stipulated for, the words are not satis- fied by the natural safety of the port named, if the vessel would be exposed to confiscation or capture upon entering it.* By a stipulation to this effect — the vessel to be consigned Consignee of to charterer's agent at the port of discharge or loading, free of '^' ' JSTelsonr.Dahl, 12 Ch. Diy. 601,602. contrary is assumed to have taken 2 SchiUzzi V. Derry, 4 E. & B. 873 ; upon himself, the great distance of 24 L. J. (Q. B.) 193. Kertch from Taganrog should have ■* Metcalfe v. Britannia Ijonworks been taken into consideration, as it Co., 1 Q. B. Div. 613 ; on appeal, 2 seems to have been. See Hudson v. Q. B. Div. 423. Qucsre, whether the Ede, L. E. 2 Q. B. 566 ; 3 id. 412. closing of the sea by ice being a known ■* Ogden v. Graham, 31 L. J. (Q. B.) accident, which the shipowner in the 26 ; The Teutonia, L. R. 3 Ad. 394 ; 4 absence of express stipulation to the P. C. 171. 382 AFFREIGHTMENT BY CHARTER-PARTY. [CHAP. VIII. commission, the charterer is bound to name his agent there, and the shipowner to put the vessel into his hands on her arrival, but the agent's services for the ship when of the usual description are at the expense of the charterer ; otherwise, in the absence of any such clause, the shipowner may employ his own consignee of the ship, at his own cost.^ Other stipulations invariably found in this instrument, such as those binding the parties respectively to provide and receive cargo, specifying the number of lie-days, limiting the claim for demurrage, and ascertaining the amount or rate of freight, and the time at which it is payable, fall into other divisions of this work, and will be considered in their order. UNUSUAL STIPU- LATIONS IN OHARTBR-PARIT. Unavoidable delay, when liable for. Discharge of Ship within the Char- ter-party by The owner may indeed, and sometimes does, by special clauses make himself still further liable, rendering himself answerable in the case of accidents or misfortunes which other- wise would furnish him with an excuse. Thus, in the case of a charter-party made with the commissioners of the transport office, by which the owner covenanted that the ship should be manned with a specific number of men in proportion to her bulk, and that the whole number should be constantly on board, with a proviso that the commissioners should be at liberty to mulct and make such abatement out of the ship's pay, 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 in con- sequence of a service on which the ship was ordered at Quebec having been delayed for a considerable time from want of mariners, owing to the death of some of the crew by smaU-pox, and the desertion of others through fear of the distemper, and the impossibihty of procuring fresh hands in time.^ In a charter-party for a period of time at a certain monthly freight, to be paid at particular times therein mentioned, it was ' Of one or two per cent, on the freight, Bussell v. Griffith, MS. coram Erie, C. J., Guildhall Sitt. post, T. T. 1860 ; see Phillips v. Briard, 1 H. & N. 21 ; 25 L. J. (Ex.) 233. See the various cases of this kind stated, ante, c. iv. pp. 190, 191. 2 Beatson v. Schank, 3 East, 233. CHAP. VIII.] UNUSUAL STIPULATIONS. 383 stipulated that the vessel should be navigated by fifty iDersons, accidental and such further number, not exceeding 100, as the merchant ^^ "^"^ '""' should require, and that he should make an allowance to the owner, for the expense of the men beyond 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 the first intended voyage. An additional number of men was employed at the merchant's request, and after 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.^ By another charter-party it was agreed that the ship should Election of Port be at the disposal and direction of the merchant, that the Bill of Lading. master should receive a cargo at London and proceed there- with to any port or ports ia Spain and Portugal, or either as he should be ordered by the merchants, and there deliver the cargo agreeably to the bills of lading; the merchant loaded the ship for Lisbon, and the master signed bills of lading for delivery there ; and it was held that the merchant could not then change the destination and send the ship to Gibraltar without giving up the bills of lading to the master, or at least offering a sufficient indemnity against any claims that might be made upon him by the holders thereof.^ After chartering a vessel outward to Puerto Cabello, and homeward from Maracaito at a fixed freight, an additional clause was by agreement added that she should dehver part of the outward cargo at Maracaito, and in consideration of this " any and every expense the vessel may incur in consequence of this additional clause shall be borne by the charterers." At Puerto Cabello the vessel was not allowed by the authorities to land the goods intended for that place on the false ground that she carried contraband on board, and also because she had two manifests, the other being for goods intended for Maracaito. . A ' Havelock v. Geddes, 10 Bast, 555. See Tindal v. Taylor, 4 E. & B. 219 ; 2 Davidson v. Gwynne, 12 East, 381. The Patria, L. K. 3 Ad. 436. 384 AFFREIGHTMENT BY CHARTER-PARTY. [CHAP. Vin. fine of 500 dollars was exacted of the ship. She was obliged to repair damages sustained in that port by reason of her illegal detention. These expenses were claimed under the above clause, but disallowed by the Court as not being in con- templation of the parties within the meaning of the clause.'' Charter-party in May to load coals at A. and deliver at B., and the ship to load with G. or H. till the end of Sep- tember at captain's option, but after September with H., and to continue at the stipulated rate until March, 1872. The captain choosing before September to load with Gr., the charterers re- fused to provide a cargo. Held, that the charterers' breach entitled the shipowner to refuse to load at all under the charter- party.^ WHEN EVIDENCE Thc general rule, which our courts of law have adopted in ADMISSIBLE. the constructiou of this as well as other mercantile instruments, is, that the construction should be liberal, agreeable to the real intention of the parties, and conformable to the usage of trade in general, or of the particular trade ^ to which the contract relates. " The principle on which evidence of usage is admissible for such a purpose is, that the parties have not set down on paper the whole of their contract in aU its terms, but those only which were necessary to be determined in the particular case by specific agreement, and which of course might vary infinitely; leaving to implication and tacit understanding all those general and unvarying incidents which a uniform usage would annex, and according to which they must in reason be understood to contract, unless they expressly exclude them." * Accordingly, where a person had engaged a passage for himself to the East Indies, by a vessel advertised to sail on a particular 1 Sully V. Duranty, 33 L. J. (Ex.) of merchants, forms no part of the 819. mercantile law, and yet may be an 2 Bradford v. Williams, L. E. 7 Ex. accepted term between two persons 259. who fix what is undetermined by their 3 Lord Holt, in Lethulier's case, 2 contract with regard to the particular Salk. 44:3, dissents from the latter trade wherein the usage prevails, member of the rule, but upon a ground ^ Per Lord Campbell, C. J., Humfrey that leaves the rule intact ; particular v. Dale, 26 L. J. (Q. B.) 137, 140. usage not being of the general custom CHAP. Vni.] KVIDENCE OF USAGE. 385 day, but afterwards refused to go with her because she did not sail on the day fixed, the owner, as time was not of the essence of the contract, nor the delay unreasonable, recovered half the passage money, upon evidence of a usage between the two ports in such cases to forfeit that share .^ Such evidence has been admitted to show that " month " in a charter-party means a calendar month ; " to explain what was intended by the phrase " in regular turns of loading," ^ " in turn to deliver,"* " cotton in bales " ^ and that cotton " to be calculated at fifty cubic feet per ton," was, according to usage, bulked after coming from the screw at Bombay, and again when unloaded before delivery.^ In fact " evidence of usage has been admitted as to contracts relating to transactions of commerce, trade, farming, or other business, for the purpose of defining what would otherwise be indefinite, or to interpret a peculiar term, or to explain what was obscure, or to ascertain what was equivocal, or to annex particulars and incidents, which, although not mentioned in the contracts, were connected with them or with the relations growing out of them, and the evidence in such cases is admitted with the view of giving effect as far as can be done to the presumed intention of the parties."'' If the usages of a particular port are well known, at least in the trade to which the charter-party relates, it will be held, in the absence of exclusive words in it, to have been framed on the basis of such usages, although to one of the contracting parties these usages at the time were unknown.^ Such being the principle and the rule, the condition of 1 Yates D. DufB, 5 0. & P. 369. Hall v. Janson, 4 E. & B. 504 ; per ^ Jolly V. Young, 1 Esp. 186. Lord Lyndhurst, Blaokett -o. Royal 3 Leideman v. Schultz, 14 C. B. 38. Exch. Assiir. Co., 2 Cr. & J. 244 ; per ■* Eobertson -v. Jackson, 2 C. B. Lord EUenborongh, Da Costa v. Bd- 412. mund, 4 Camp. 143 ; per Lord Mans- ° Taylor v. Briggs, 2 C. & P. 525. field, Noble v. Kennoway, 2 Doug. 513 ; ^ Bottomley v. Forbes, 5 Bing. N. C. per Id. Felly v. Royal Excb. Assur. Co., 121 ; Benson v. Schneider, 1 Moore, 21 ; 1 Burr. 341 ; per Lord Eldon, Anderson and see, on the general question of the v. Pitcher, 2 B. & P 164. admissibility of usage, Cuthbert ■;;. ^ Hudson v. Ede, L. E. 2 Q. B. 566 ; Cumming, 11 Exch. 405. in error, 3 id. 412 ; Scruttoni;. Childs, 7 2 Phillips' Evid. 415, cited by 36 L. T. N. S. 212 ; Norden Steamship Lord Campbell, C. J., Humfrey ■«. Dale, Co. v. Dempsey, 1 C. P. Div. 654. 26 L. J. (Q. B.) 137, 140 ; see per Id. ^°° AFFEEIGHTJVIKNT BY CHAETEE-PAETY. [CHAP. Vlir. admissibility thereunder is that such evidence do not contra- dict the tenor of the written contract.^ The following ap- pears to be a case which almost crosses the line between rule and condition. 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 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 traffic ; his lordship suffered evidence to be given to prove this usage, observing, that although primd facie the deed excluded the privilege, he thought it might be explained by uniform and constant usage, as that would amount to a tacit exception out of the deed.^ But in the case of a charter-party, under which forty-one running days were to be allowed to wait at Portsmouth for convoy, and to discharge the cargo at Barcelona, and for all the time beyond the forty-one days thirteen shillings per ton were to be allowed for demurrage ; Lord Kenyon held that the demm-rage was only payable for delay beyond the forty-one days in waiting for convoy at Portsmouth, and in discharging the cargo at Barcelona, and not for delays in waiting for convoy at Falmouth, to which place the ship was ordered by the admiral's secretary, or at Gibraltar Bay, where she waited twelve days for convoy to proceed to Barcelona.^ In this case, where Portsmouth stood expressed, it was 1 Per Lord Campbell, C. J., Humfrey -wished to find a verdict accordingly, V. Dale, 26 L. J. (Q. B.) 137, 141 iper but the twelfth insisting that he could Id. Hall V. Janson, 4 E. & B. 504 ; not conform to the general opinion, as Phillips i>. Briard, 1 H. & N. 21 ; 25 this was a positive contract, a juror was L. J. (Ex.) 233 ; per Lord Lyndhurst, withdrawn by consent, and no verdict Blackett v. Eoyal Exch. Assur. Co., 2 pronounced in the cause. On the point Cr. & J. 244 ; Fleet v. Murton, L. K. of private trading by the master, the 7 Q. B. 126 ; Hutchinson v. Tatham, Master of the EoUs was of opinion that L. 11. 8 C. P. 482. such a custom could not be maintained, 2 Donaldson and Another v. Forster Gardner v. M'Cutcheon, 4 Beav. 534. and Others, Guildhall Sittings, p. Mich. Ante, p. 181. Term, 29 Geo. 3. Upon the evidence ' Marshall v. De La Torre, 1 Esp. his Lordship thought the usage- was N. P. 367. proved, and eleven of the jurymen CHAP. Vin.] EVIDENCE OF USAGE. 387 impossible to find Falmouth aud Gibraltar Bay implied instead ; that would be making a new contract, under pretence of construing a contract already made. The result might have been different had no place whatever been named for joining convoy. In an action on a policy of insurance upon a ship at London, bound to the East Indies, warranted to depart with convoy, the declaration showed that the ship went from London to the Downs, and from thence with convoy, and was lost, and it was objected, that this was a departure without convoy; but, per curiam, the clause of warranty to depart with convoy, must be construed according to the usage among merchants, i.e., from such place where convoys are to be had, as the Downs, &c. ; and the plaintiff had judgment.^ If the parties in their contract have so expressed themselves as to exclude the usage, any evidence thereof is inadmissible, as the effect of that would be to contradict the manifest inten- tion of the parties and the tenor of the written contract." The terms of a contract under seal cannot be varied or dis- Deed varied by pensed with by a parol agreement. But if such a contract be ^^^^' to take effect from a particular time, a contract relating to an earlier period of time will not be a variation or dispensation of the other, and may be good and binding notwithstanding. Thus, where a ship, by charter-party under seal, 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 was compelled to pay for the interval between clearing out and sailing from Gravesend.^ In a case upon the common printed form of charter-party, Printed and an attempt was made to attribute greater effect to the written than to the printed words of the instrument, according to an 1 Lethulier's case, 2 Salk. 443, Lord Shore v. Wilson, 9 CI. & F. 543. Holt dusentiente ; but the case is re- ^ Lewis v. Marshall, 7 M. & Gr. 729, f erred to with approval by Williams, J., ^ White v. Parkin, 12 East, 578. C C 2 388 AFFHEIGHTMENT BY CHARTER-PARTY. [CHAP. VIII. established usage among merchants, and now a recognised rule of the courts,^ with regard to policies of insurance in the common form, but the Court held it to be inapplicable to a charter-party, there being no usage among merchants that would require a departure, in respect of this instrument, from the ordinary rules of construction applicable to all instruments.^ PENAL CLAUSE. It is uot uuusual for the parties to these contracts to bind themselves and their personal representatives respectively, the ship and freight on the one hand, and the cargo to be laden on the other, in a pecuniary penalty, for the true performance of their respective covenants. This is commonly done by a clause at the end of the instrument. Such a clause, however, is not the absolute limit of damages on either side. The party may, if he thinks fit, ground his action on the other clauses or covenants, and recover damages beyond the amount of the penalty, should they, in justice, be found to exceed it ; ^ but if he sue on the penal clause, he cannot recover more than the damage actually sustained, or even so much if the penalty be less. But although the ship and freight are in terms bound for performance of the covenants on the part of the owners or master, conformably to the principles of the maritime law, there appears to be no mode of obtaining in this country the benefit of that security. It seems also, that the operation of such a clause as a lien on the cargo must be restrained to enforcing the payment or security of sums capable of being ascertained by computation, and which are, according to the terms of the instrument, properly payable in some form on the delivery of the goods,* and that it is not to be applied to the breach of a covenant which gives an action for unliquidated damages. It has been held that the master could not detain the cargo for the breach of a covenant to furnish a full lading, nor for demurrage, in a * Per Lord Ellenborough, C. J., ■* Harrison v. Wright, 13 East, 3i3. Robertson v. French, 4 East, 130, 136. * Per Lord Campbell, Tindal v. 2 Alsager v. St. Katherine's Dock Taylor, 24 L. J. (Q. B.) 12. 15. Co., 14 M. & "W. 794. CHAP. Vni.] AFFREIGHTMENT BY BILL OF LADING. 389 case where the charter-party did not contain this clause, and nothing was said in argument as to the omission of it.^ When a vessel is put up as a general ship for a particular Affreightment voyage, she is intended for a miscellaneous cargo composed of Lawho. the goods of any person that chooses to ship ; and whether it he the owners or charterers that thus dispose of the vessel, the contract of affreightment actually made is usually with the master ; hut both he and they are, in consideration of law, separately bound to the performance of it. This contract, however, is seldom reduced into writing Contract by . ... bailment. beforehand, or even orally stipulated. More frequently it is to be implied from the shipment of the goods, and a variety of circumstances attending thereon. There is an advertisement in the newspapers, or an announcement at Lloyd's, or by handbills, of the vessel as a general ship, laid on at such a port for such another port, stating her name and description, her burthen, and in times of war her force, and whether she is to sail with convoy. Particulars are personally learned from those who are authorised to supply them. There, is then a bailment of goods to the master of the ship, and, in the absence of any express contract, the rights and liabilities of shipper and owner are founded upon the contract implied in the bail- ment, modified, it may be, by these oral particulars, and those printed representations and warranties. The charterer of a vessel put her up as a general ship at Wan-anty by T 1 ) • • 1 1 -1 ■ 1 11 public Adver- Lloyd s, with notice that she would sail with convoy, and the tisement. plaintiffs having put goods on board, obtained policies of insurance on them, with warranty to that effect ; the ship, however, sailed without convoy, the preliminaries of peace having been gazetted in the meantime, and was lost the day after; but this particular of the notice at Lloyd's was held to be a warranty, and the plaintiffs recovered for loss of their insurance against the charterer.^ In a similar case. Lord Kenyon held the owners bound, although there was no evi- dence of their having authorisecl or assented to the insertion 1 Philips V. Bodie, 15 East, 547. - Phillips v. Baillie, 3 Doug. 374, 390 BILL OF LADESTG. [chap., VXH. Seaworthiness implied. Owner of general Ship common Carrier. of the clause/ and althoiigli it did not appear in the hill of lading.^ The seaworthiness of the ship is an implied stiptdation (not a condition) in every contract of this nature, and for breach thereof and injury sustained in consequence, an action by the shipper will lie against the charterer to recover damages ; which the charterer may have a right to recover over against the owner, together with the necessary costs of defending the prior action, the owner at the time having had notice of it, and declining to interfere.^ The owner of a trading ship is by the Common Law of England liable for loss or damage of goods carried by him in the nature of an insurer against all risks except the Act of God and the Queen's enemies, unless that liability is modified by the contents of the bill of lading.* We proceed therefore to the con- sideration of that iastrument, its nature and operation in law. Bill of Lading and Mate's Re- ceipts. Upon the shipment of goods for conveyance on payment of freight, whether the contract of affreightment be by charter- party or without it, bills of lading are to be signed by the master. The custom is, upon the goods being sent on board, for the master, or person acting for him, to give a receipt, and afterwards for the master, on the receipts being given up to 1 Einqiiist v. Ditchell, ^;os!;, M. T. 40 Geo. 3, at Guildhall : briefly stated by Gibbs, C. J., in Sanderson v. Busher, i Gamp. 54, in. order to correct the mistaken supposition that there was otherwise any express warranty in the case ; reported imperfectly, 3 Esp. 64 ; see Christin u. Ditchell, Peake Add. Cases, 141. The learned reporter ap- pears by his note to 4 Camp. 54, not to understand Gibbs, C. J., as intending to deny that the warranty to sail with convoy appeared also in the bill of lading, although Ms language is large enough to convey that meaning. The learned reporter says that such a case was still undetermined, and refers to the undecided case of Snell v. Marryatt, B. E. Mich. T. 48 Geo. 3, stated by Abbott, 4 ed. Add. p. 644, where the Court on granting a new trial direct counsel's attention to what may be the meaning of such a clause in the adver- tisement only, and what would be the effect of the bill of lading which made no mention of it. ^ Said to be so understood among merchants by the jury in the case of Rinquist v. Ditchell, Abbott ; and as that case is reported in 3 Esp. 64, Lord Kenyon founds his decision against the owners wholly on the appearance of this clause in the public advertisement. See Peek v. Larsen, L. E. 12 Bq. 378' as to the effect of advertising a ship as a general ship. => Blyth V. Smith, 5 M. & Gr. 405 ; Lyon V. MeUs, 5 East, 428, 487 ; 'Schloss V. Heriot, 14 G. B. N. S. 59 ; 32 L. J. (C. P.) 211. ■• See ante, p. 115. CHAP. Vm.] BILL OF LADING. 391 him, to sign two, three, or even more parts ^ of a bill of lading for the goods of each freighter acknowledged by the receipts to have been received on board. The master or owner refuses to give a bill of lading under these circum- stances at the peril of being sued as for a conversion of the goods, and being made liable for then- full value.^ It is at the time of receiving the bill of lading for his goods that a shipper ought to raise any objection which he has to the terms of this document. If without doing so, he retain it, he thereby accepts it in its terms and is bound by them. A clause to this effect — as per charter-party — may bind the shipper to most objectionable stipulations; yet he cannot object to a biU of lading with such a clause if he had know- ledge or notice of the charter-party at the time of shipment.^ In the absence of either knowledge or notice, he may object and demand the return of his goods.* It is sometimes the case that the shipper, instead of waiting to receive from the master a bill of lading signed, tenders to him a bill of lading for signature in the terms agreed upon, or in such terms as are desired by the shipper. In the latter case it is for the master to refuse his signature, if the terms be objectionable. Thereupon arises a practical difficulty ; for on the one hand, the master is not bound to sign such a bill of lading ; and on the other the shipper is entitled by law to have the master's signature to a proper bill of lading. If, in these circumstances, the master, without giving a bill of lading, but having been told the port of discharge and who is the consignee there, sails away on the agreed voyage and tenders the cargo to the consignee, it is not to be assumed that he or his owner is thereby liable as for a conversion of the goods ; ^ and if both parties be at fault, as is most likely to be the case, they may after a time find them- 1 In Lickbarrow v. Mason, 2 T. R. mains ; one for the shippers, one for 63, 72, some demur to there being four him to whom the cargo is deliverable, parts of the bill of lading and not three one for the master, and one for the only, is made by BuHer, J., but I am owner, Varmatew du idtiment. not aware that law or custom has defi- ^ Falk v. Fletcher, 18 C. B. N. S. nitely fixed a particular number. 403 ; 3i L. J. (C. P.) 146. By the French Ord. liv. 3, t. 2, art. 3 ^ Peek v. Larsen, L. E. 12 Eq. 378. — i Pardess. 360, three parts are to be * Ibid. signed ; by the Code de Com. art. 282, ^ Jones v. Hough, 5 Exch. Div. 115. there are to be four parts at least, au 392 BILL OF LADING. [CHAP. VIII. selves at the end of a very foolish lawsuit, neither of them victor, and hoth serious losers.^ If a master, after ohtaining possession of the mate's receipt, refuses either to sign a bill of lading or to return the receipt, he cannot by giving a bill of lading to some other person, alter the legal rights of the parties, and he may involve himself in legal habilities civil and criminal of a serious character.^ USUAL FOKM OF Qf tMs documBut the following is the ordinary form in blank BILL OF LADIN8. . at present in use : — ^ in good order and well conditioned hy in and upon the good Ship called the whereof is Master for this present Voyage and now riding at Anchor in the and hound for being marked and numbered as in the Margin, and are to he delivered in the like good Ord^r and well conditioned at the aforesaid Port of {the Act of God, the Queen's Enemies, Fire, and all and every other Dangers and A ccidents of the Seas, Rivers, and Navigation of whatever nature and hind soever excepted) unto or to Assigns Freight for the said Goods ^ with primage and average accustomed. Jn SStitntss whereof the Master or Purser of the said Ship hath affirmed to Bills of Lading all of this tenor and date, the one of which Bills heing accomplished the other to stand void. Dated in In the case of ships homeward bound from the West India islands, that 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 whole clause is as follows : " The act of God, the 1 Jones V. Hough, 5 Exch. Div. 115. owner is not to be liable for anything 2 Cowasjee -o. Thompson, 5 Moore, that may happen or be done, howso- P. C. 165. ever, and by whomsoeTer. ' Companies and others, being ship- ■• Stipulations for demurrage are owners, have enlarged the clause of sometimes inserted here, the advan- exceptions, and perplexed it with pro- tage of which will be considered ^^ostt visoes, till it is diflBcult to say what c. x, — Demwrage. is meant beyond this, that the ship- CHAP. VIII.] BILL OP lading; 393 King's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, save risk of boats, so far as ships are liable thereto, excepted." A bill of lading for goods, merchandise, or effects to be Stamp. exported or carried coastwise, is liable to a stamp duty of sixpence. It cannot be stamped after being executed or signed, and any one who makes or signs a bill of lading not duly stamped, forfeits 501} As in the case of a charter-party, so in respect of a bill of lading, evidence of usage or custom is admissible to determine the effect of it whenever the usage or custom is not such as to be inconsistent with the terms of the written instrument.^ This instrument is evidence of a contract safely to carry bill of ladingi. — EVIDENCE ( A BAILMENT. the goods, whereof bailment is acknowledged,'^ and to deliver ^^1"^"°^ °^ the same at the destined port to the person or his assigns, and upon the terms therein mentioned.* It is pointed out by Blackburn, J., that the contract in the The Contract. ordinary form of biU of lading, to deliver in the like good con- dition as shipped, is co-extensive with the obligation of a common carrier, and consequently, subject to the exceptions introduced into any other part of the document, is an insurance against all except the Act of God and the Queen's enemies.^ It is not to be confounded with the receipt already spoken of; that is more commonly signed by the mate, but even so, it is nevertheless binding on the owners; and for that reason bills of lading in respect of the same goods should never be given except in exchange for the receipts.^ The master, who is the bailee of the goods to carry them in Binds Master and Owners. 1 33 & 34 Vict. 0. 97, § 56, and Foster v. Colby, 28 L. J. (Ex.) 81, 85. Sched. s Ante, p. 117. 2 McLean v. Fleming, L. E. 2 Ho. " Craven v. Kyder, 6 Taunt. 433 ; of Lords (Scot.), 128, 130. Fragano v. Long, 4 B. & C. 219 ; 3 Russian Steam Navig. Co. o. Silva, Thompson v. TraiU, 2 C. & P. 334 ; 13 C. B. If. S. 610 ; Brown v. Byrne, 6 B. & C. 36, S. C. ; Schuster v. 3 E. & B. 703 ; Falkner v. Earle, 32 M'Kellar, 7 E. & B. 704 ; 26 L. J. L. J. (Q. B.) 124; The Norway, 3 (Q. B.) 281, S. C. ; Cowasjeej;. Thomp- Moore, P. C. N. S. 246. son, 5 Moore, P. C, 165 ; Falk r. " I>er BiiUer, J., in Caldwell v. Ball, Fletcher, 18 C. B. ST. s. 403 ; 34 L. J. 1 T. E. 205, 216 ; per Bramwell, B., (C. P.) 146. 394 BILL OP LADING. [CHAP. Vni. Ms owners' vessel, is the person to sign the bill of lading.^ He thereby binds himself and the owners to the performance of the contract. If it be signed by the ship's brokers, as they are not the known agents of the owners for this purpose, their authority must be proved.^ Even the master is not their agent to sign a bill of lading for goods which he never received on board ; and if he should do so, they are not bound by it, even to a holder for valuable consideration and without notice f but they are bound by it, although the goods were never on board, if they were delivered to the servants of the shipowners on the quay alongside and the master choose to sign the bill of lading for them.* When for goods actually received on board he has signed one set of biUs of lading, he is functus [officio, and cannot be required to sign another and a different set of bills of lading, except upon delivery of the former, or the offer of a sufficient indemnity ; ' but if he do, and afterwards deliver the goods to the holder of the second set, an action lies for the holder of the former, being the genuine bills of lading, to recover the value of the goods from the owners.^ Conclusive Evi- Between the shipper and the owners, a bill of lading is not conclusive evidence in respect of quantity, it stands on the footing of a written receipt not under seal ; "^ but as against an assignee for value, the owners are estopped by a statement therein of the rate of freight though merely nominal,^ or that freight has been paid f provided such statement, at the time it was made, did not exceed the master's authority.^" I By the French Law, Code de Com. * British Columbia Mill Co. v. art. 282, it is to be signed by the Nettleship, L. E. 3 C. P. 499. shipper and the master also, and that ' Tindall v. Taylor, 4 E. & B. 219 ; within twenty-four hours after ship- 24 L. J. (Q. B.) 12, S. C. ; Davidson v. ment, within which time the shipper Gwynne, 12 East, 381. is also bound to restore to the master ^ Hubbersty v. Ward, 8 Exch. 330 ; the receipts for the merchandise on 22 L. J. (Ex.) 113, S. C. board. See the Ord. liv. 3, t. 2, art. ? Bates v. Todd, 1 M. & Eob. 106 ; 4, which however required only the Berkley v. Watling, 7 A. & E. 29. master's signature — 4 Pardess. 360. ' Mercantile and Exchange Bank v. " Hayn ii. CuUiford, 3 C. P. Div, Gladstone, L. E. 3 Ex. 233. 410; iid. 182. ' Howard v. Tucker, 1 B. & Ad. ' McLean v. Fleming, L. E. 2 Ho. 712 ; Secns, where the defendant was of Lords (Sc.) 128 ; Grant ■;;. Norway, cognisant of the charter-party, Cam- 10 C. B. 665 ; Brown v. Powell Duffryn pion v. Colvin, 3 Bing. N. C. 17. Steam Coal Co., L. E. 10 C. P. 562. •"Eeynoldsij.Jex,34L.J.(Q.B.)251; See Bryans v. Mx, 4 M. & "W. 775. Piokemell v. Jauberry, 3 F. & F. 217. CHAP. Vm.] BILL OP LADING. 395 If there is any dispute, at the time of signing the bills of Contents lading, 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 according^. A closed package of goods, described on the bill of lading Effect of tliis as "linen goods," was received on board, and the master ^''^^""P*^™- before signing the bill of lading but without any inquiry on his part, stamped on the document the words " weight, value, and contents unknown." At the port of delivery it was dis- covered that the contents of the package were silk broad stuffs and that two of the pieces had been abstracted during the voyage. But this discovery was made after freight had been paid as for linen goods, although a higher rate was chargeable for silks. Under these circumstances the question was whether the shippers could recover against the shipowners. Held, that as the jury had negatived fraud in the misdescription of the contents of the package, the effect of the words stamped on the bill of lading by the master was to make it a contract to carry the package whatever the contents might be.^ "If any- thing is delivered to a person to be carried, it is the duty of the person receiving it to ask such questions about it as may be necessary ; if he ask no questions, and there is no fraud to give the case a false complexion on the delivery of the parcel, he is bound to carry it as it is." ^ Care about this matter is become a thing of great importance Statutory lia- to the master, since his responsibility was greatly increased by Master under the 18 & 19 Vict. c. 111. That statute, after reciting, that Bill of Lading, 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 hands of a bond fide holder for value, should not be ques- tioned by the master or other person signing the same, on the ground of the goods not having been laden as aforesaid, enacts, by section 3, — " Every bill of lading in the hands of a consignee or indorsee 1 A bill of lading signed "contents Co., L. E. 8 C. P. 88. unknown," is no evidence of an insur- ^ Per Parke, B., in Walker v. Jack- able interest ; Haddow v. Parry, 3 son, 10 M. & W. 161, 169, cited per Taunt. 303, 2 Amould, Ins. 1119. Bovill, C. J., L. R. 8 C. P. 97. 2 Lebeau v. General Steam Navig. 396 BILL OF LADING. [CHAP. VIH. for valuable consideration, representing goods to have been shipped on board a vessel, shaU be conclusive evidenee of such shipment as against the master or other person signing the same,i notwithstanding that such goods, or some part thereof, may not have been so shipped, unless such holder of the bill of lading shaU have had actual notice, at the time of receiving the 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 was caused without 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."^ French Law as By the French law it is required, that bills of lading should to Bill of Lading. . . ,, , ■, ,., ii .1 • ,. contam the nature and quantity, as well as tne species oi quality, and the marks and numbers of the merchandise, the name of the merchant who ships it, and of the person to whom it is to be delivered, the port of departure and destination, the name and domicile of the master, the name and tonnage of the ship, and the rate of freight.^ It is obvious that the quality, and frequently also the quan- tity, of the goods must be unknown to the master ; and the commentator* 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 are only according to the representa- tion of the merchant; of which practice he approves, and mentions two disputes decided in favour of the master in consequence of this precaution. Clandestine Some of the more ancient writers on maritime law, mention the case of goods put on boai'd 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 1 Consequently the owners not sign- ^ Code de Com. liv. 2, tit. 7 ; Ord. ing are not bound by it, Jessel v. Bath, liv. 3, tit. 2, art. 2 — 4 Pardess. 360. L. E. 2 Ex. 267 ; Meyer D. Dresser, 33 See the German Law of this instrument L. J. (C. P.) 289 ; but the master who considered, The Patria, L. E. 3 Ad. signs is, ibid, and see Bradley v. Duni- 438. pace, 31 L. J. (Ex.) 210 ; 32 id. 23. " A^alin, in looo, uU svi)ra. 2 Talierit). Boyland, L, E. 1 C. P. 382. CHAP. Vlir.] BILL OF LADING. 397 master upon delivery of them will be entitled to the usual freight for the voyage. So stands the law of this instrument, in so far as it is evidence of a bailment merelj'. By the custom of merchants, recognised from a very early eim oi' LABiua. . . _ — SYMBOI, OP period m the law of this country, it ' also operates, when in- pbopeett. dorsed and delivered to a bona fide indorsee for value, to pass the property in the goods comprised in it as the subject of bailment.-' If it be a clean bill of lading,^ such indorsee acquires thereby an insurable interest, and a saleable subject which by means of the same representative sj^mbol, he may hold or transfer, or may pledge as a security for advances.^ Upon refusal to deliver the goods when they arrive, he may sue the owners or the master for the conversion ;* but an action for not dehvering the goods, being founded on the contract whereunto he was no party, could not, before the statute, have been maintained by him.^ The reason was that the indorsement and dehvery of the bill of lading trans- ferred the property, but not the contract with the carrier ; and in that sense it was often briefly said not to be negotiable.'' If the transferee therefore were sued either for freight of the goods or for demurrage for the detention of the ship, it was necessary to declare specially on a new contract, the dehvery of the goods under it to the defendant at his request being at once the consideration and the evidence thereof^ In neither case would the common count have sufficed.^ This continued to be the law until the 18 & 19 Vict. c. 111. ti^ansfer op OONTBAOT UNDER That statute recites that, " Whereas by the custom of merchants bill of lading. 1 Buller, J., LickbaiTOW v. Mason, * Haille v. Smith, 1 B. & P. 564 ; H. of Lds. 6 East, 19, 23, n. ; Haille Falk v. Fletcher, 34 L. J. (C. P.) 146. V. Smith, 1 B. & P. 564 ; Cuming v. * Howard v. Shepherd, 9 C. B. 297 ; Brown, 1 Camp. 103 ; 9 East, 506, Thompson v. Dominy, 14 M. & W. S. C. 403. 2 Haddow v. Parry, 3 Taunt. 303 ; " Hid. ante, p. 895, n. K ' Kemp v. Clark, 12 Q. B. 647 ; see 3 See the mercantile usage stated i?«r as to the form of declaration in ^;ec Buller, J., 6 Bast, 34, 35 n. ; Hibbert Tindal, C. J., Sanders v. Vanzeller, V. Carter, 1 T. E. 745 ; ex parte West- i Q. B. 260, 267 ; Wegener v. Smith, zinthus, 5 B. & Ad. 817 ; Meyerstein 24 L. J. (C. P.) 25. V. Barber, L. K. 2 0. P. 38, 661. * Sanders v. Vanzeller, 4 Q. B. 260. 398 BILL OF LADING. [chap. vm. Condi bion on ■vfhioh the Con- tract is trans- ferred. a bill of lading of goods being transferable by indorse- ment, the property hi the goods may thereby pass to the indorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or ovmer, and it is expedient that such rights should pass with the property," — it is enacted, section 1, that "Every consignee of goods, named in a biU of lading, and every indorsee of a bin of lading to whom the property in the goods therein men- tioned, shall pass, upon or by reason of such consignment or indorsement, 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." It seems that the contract ^ is now transferred with the pro- perty by indorsement and delivery of a bill of lading ; former rights and liabilities are by the second section of the statute still preserved ; and imder the first, new rights and liabilities attach. But the condition on which the statute operates a transfer of the contract with its rights and liabiUties, is the vesting of the property, and that is a fact which is sometimes difficult of detection, being always dependent upon the evidence of intention in respect of it.^ The contract and the rights under it having once vested, wiU remain in the same person, notwithstanding he sell the cargo to another, provided he do not indorse over the bill of lading to the vendee.^ TKANSPEE OF PEOPERTY MEN- TIONED IN BILL OP LADIHO. Parke, B., pointing out a fallacy which lurks in the word appropriation as applied in such cases, says, it may be under- stood in different senses. It may mean a selection on the part of the vendor, where he has the right of choosing the article which he is to supply in performance of his contract ; or it may mean that both parties have agreed that a certain article 1 Per Bramwell, B., Poster v. Colby, Liverpool. 28 L. J. (E.X.) 81, 88 ; Shand v. San- derson, 28 L. J. (Ex.) 278, -where the declaration is based on the statute. This statute was introduced and car- ried through the House of Commons by the late Sir William Brown of 2 Per euriam, Van Casteeli). Booker, 2 Exch. 69 ; Bryans v. Nix, 4 M. & W. 775 ; Anderson v. Clarke, 2 Bing. 23 ; see Brown v. Hare, 3 H. & N. 484. 3 Fowler v. Knoop, 4 Q. B. Div. 299. OHAP. Vltt.] BILL OP LADING. 399 shall be delivered in pursuance of the contract ; and yet the property may not pass in either case. But it may also be used in another sense, namely, where both parties agree upon the specific article, in which the property is to pass, and nothing remains to be done in order to pass it.^ Where there is manifestly no intention to transfer the pro- perty, but only to give an authority, e.g., to stop the goods in transitu, by means of a mere agent in possession of an indorsed bill of lading, there is no right of action in such agent, at common law or under the statute, to recover damages for breach of contract or for property converted.^ It may be the intention, as it is in the power, of the consignor to divest himself of all property and risk by the dehvery of the goods to the master on board ; or to vest the general property in the consignee, subject to a special property in some third person, or subject to its being divested on the non-performance of a condition subsequent ; or he may retain the property and possession in himself, and convey to the vendee a right to both, subject to a condition precedent. This disposition of the property and possession may be varied still further by the correspondence between the parties, the contents of the invoice, but above all by the bill of lading. Possession may be deliver- able, under the bill of lading to the consignee by name or in virtue of endorsement and transfer, or to the shipper himself, who thereby reserves ^ the power of disposing of the goods at the port of destination as best may serve the purposes of his commercial relations, and secure the fruits of the adventure. The onus of proof lies on the person who asserts against the shipper an adverse right to the property in the bill of lading. " For this purpose it is not enough that he had become a bond fide holder of the endorsed bill of. lading for valuable ^ Per Parke, B., in Wait v. Baker, 2 advances to his principal, he may have Exch. 1. such an interest as will entitle him to 2 Per Buller, J., in Lickbarrow v. sue the owner or master, Anderson v. Mason, 6 East, 26 n., referring to Lord Clarke, 2 Bing. 20. Chancellor King, in Godfrey v. Furzo, ^ Per Buller, J., Caldwell v. Ball, 1 3 P. Wms. 185 ; Waring v. Cox, 1 T. Pu 205, 217 ; Mirabita v. Imperial Camp. 369 ; Coxe ?;. Harden, 4 Bast, Ottoman Bk., 3 Exch. Div. 164 (C. A.) ; 211, 217 ; Moores v. Hopper, 2 N. E. Ogg v. Shuter, 1 C. P. Div. 47 ; Gabar- 411 ; see however Morison v. Gray, 2 ron v. Kreeft, L. B. 10 Ex. 274. Bing. 260. But where a factor is under 400 BILL OP LADING. [CHAP. VIII. consideration. A bill of lading is not, like a bill of exchange or promissory note, a negotiable instrument which passes by mere deliTery to a bond fide transferee for valuable considera- tion, without regard to the title of the parties who make the transfer. Although the shipper may have indorsed in blank a bill of lading deliverable to his assigns, his right is not affected hy an appropriation of it without his authority.' If it be stolen from him, or transferred without his authority, a subsequent hond fide transferee for value cannot make title under it as against the shipper of the goods." ^ The bUl of lading only represents the goods, and it is when the transfer of the symbol operates a transfer of what is repre- sented, that the statute then operates a transfer of the contract to the same person.^ If that person again indorse the symbol with intention to transfer the property mentioned in it to another, the liabilities under the contract with the carrier pass with it, and the indorser's liability ceases. The document differs from a bill of exchange in this respect, that indorsers are not successive guarantors to the carrier.* It is therefore the last holder on receipt of the goods that may sue or be sued.^ But an indorsee for valuable consideration of a bill of lading, in which no words of negotiability such as, or order or assigns, appear has, it seems, an equitable right to the goods, and no more.^ Rights under the If a foreign merchant, buying to order, ships the goods " on how modmedf account and risk " of the consignee, but takes a bill of lading from the master deliverable to his own order, and transmits it unindorsed to the consignee, the property in the goods being already in the latter, he is entitled to possession of them on their arrival, but not to call on the master to deliver them to him ; if the master, however, contrary to Ms duty, dehvera them to the consignee, the latter is not afterwards liable for conversion of them at the suit of the consignor.'' 1 Gilbert v. Guignon, L. E. 8 Ch. 16. (G. P.) 214. 2 Per Lord Campbell, C. J., Gm-ney ^ Short v. Simpson, L. E. 1 C. P. V. Behrend, 23 L. ,T. (Q. B.) 265, 271 ; 248 ; The Freedom, L. E. 3 P. C. 594.' 3 B. & B. 622, S. C. See Schuster v. " Hendersonij.Comptoird'Escompte M'Kellar, 26 L. J. (Q. B.) 281. de Paris, L. E. 5 C. P. 253, 261. 3 18 & 19 Vict. c. 111. ' Coxe v. Harden, 4 East, 211, 217, * Smm-thwaite v. Wilkins, 31 L. J. 218. CHAP. VIII.J BILL OP LADING. 401 In this case of Coxe v. Harden, as also that of Giuiiey v. Behrend,^ there was notice to the vendee, in the letter contain- ing the invoice, that the vendor had drawn upon him for the amount, but in terms which could not he construed into a con- dition precedent or subsequent ; and it made no difference that in the latter case the indorsed bill of lading reached the vendee through the intervention of a firm " to whose protection" the shipper's draft on the vendee was commended by the same letter that conveyed the bill of lading.^ These cases differ in this particular from that of Walley v. Montgomery} The invoice, there, was " for account and at the risk " of the vendee, who received along with it an indorsed bill of lading, but the letter accompanying both required the acceptance of a bill of exchange for the amount, in terms which to the court appeared to be a condition subsequent ; but as the vendee had offered his acceptance, according to the terms of the letter, he recovered against an agent of the vendor who had taken possession of the cargo under another bill of lading, and had demanded payment in cash. If a merchant abroad buys goods, as agent, but with his own money, for another in this country, and ships and invoices them " on account of" the other, upon whom he draws for the amount, he thereby vests the general property in his principal ; but by the transfer of an indorsed bill of lading, dehverable to himself, with power of sale over the goods to the holder of the bill of exchange, in order to secure the payment thereof, he vests in the latter a special property in the cargo, which is a good answer to an action by the principal, for conversion of it, upon non-payment of the bill of exchange.* Where goods were bought to order, and shipped on board a vessel, chartered 1 Guraey v. Behrend, 3 E. & B. 622 ; 286 ; Shepherd v. Hamson, L. R. 4 23 L. J. (Ex.) 265 ; Brown v. Hare, Q. B. 196, 493 ; L. E. 5 Ho. of Lds. 3 H, & N. 484 ; 27 L. J. (Ex.) 372, 116 ; Ogg v. Shuter, 1 C. P. Div. 47 g_ Q_ (C. A.) ; Gabarron v. Kreeft, L. E. 10 2 See also Key v. Cotesworth, 7 Ex. 274 ; and the like is a good de- Exoh. 595 ; 22 L. J. (Ex.) 4 S. 0. ; fence for the master who delivers to Groning 'o. Mendham, 5 M. & Sel. the shipper being the holder of the bill 2g9_ of lading, notwithstanding the pay- 3 Walley v. Montgomery, 3 Bast, mentof freight at the shipper's request ggg by the consignee, Sheridan v. The New 4 Jenkyns v. Brown, 19 L. J. (Q. B.) Quay Company, 28 L. J. (C. P.) 58. D D 402 BILL OF LADING. [CHAP. VIII. and sent by the vendee, but it was a term of the contract that he should accept bills, for the goods, and he refused to do so, compliance therewith was held a condition precedent to the property vesting in him, this appearing to be the intention of the parties, not only by the contract, but likewise by the circumstance of the shipper having transmitted to his agent the only indorsed bill of lading to secure performance of the condition.^ Where the bill of lading made the goods deliverable — ^to J. S. if he should accept and pay a bill of exchange,-— if not, to the holder of the said bill of exchange ; and J. S. accepted the bill, and indorsed the bill of lading for valuable consideration, but did not pay the bill of exchange when due, it was held that the property in the goods vested in the holder of the bill of ex- change upon dishonour of it, and that he might sue the indorser of the bill of lading for conversion of the goods. ^ By a selection of goods, which the vendor is to supply in performance of a contract of sale by sample, and which he ships, under, a bill of lading " deliverable " to himself, sending the charter-party and an unindorsed bill of lading to the vendee, , he, does not vest the property in the latter, and it is still open to him, on a complaint that the cargo does not answer the sample, to carry away the bill of lading and indorse it to another, so as to vest in him the, property and a further right of action for part of it already delivered to the prior vendee.^. The case is not altered by payment of part of the price, and delivery of the goods into a vessel chartered and expressly sent by the vendee to receive- them, if the vendor have the bill of lading made " deHverable " to himself, and indorsed it over to another.^ , •, i , . , But where a return consignment of goods was shipped on board the consignee's own vessel " on consignee's account, as consignee's goods, and to be delivered to consignee," and the consignor afterwards deceived the master into signing bills of lading deliverable to or his order, which he indorsed and sent to this country with bills- of exchange, requiring the 1 Brandt v. Bowlby, 2 B. & Ad. 932. ■* Ellershaw v. Magniac 6 Exoh. 2 BaiTow v. Coles, 3 Camp.. 92. 570. 3 Wait V. Baker, 2 Exch. 1. CHAP. Vni.] BILL OF LADING. 403 acceptance of these by the consignee, as the condition of his obtaining the cargo, it was held that the property had already vested absolutely in the consignee, and was not divested by his refusal to accept the bills of exchange.^ Where there is no contract of sale with the consignee, and he is merely under advances for the estate of which the cargo forms part of the produce, no property vests in him by the shipment thereof on board his vessel, although it be under bills of lading " deliverable " to him, and he insure the cargo by request of the shipper ; and it is still in the power of the latter, by special indorsement of the bill of lading and transfer thereof to another hand, to require the acceptance of bills of exchange as the condition of his obtaining the consignment.^ Upon a purchase of cotton, made at the request and on account of B. & Co., at Liverpool, and invoiced " by order and for account of B. & Co., there, and to them consigned," there was a shipment of it on board B. & Co.'s own vessel, under a bill of lading deliverable " to order or to our assigns, paying for freight for the cotton nothing, being owner's property," and the shipper drew bills on B. & Co., which he sold, delivering therewith, by way of security, a bill of lading indorsed " deliver the within to the bank of Liverpool or order," it was held that the property did not vest absolutely in B. & Co. upon the cotton being delivered on board under such circumstances ; that the clause in the bill of lading stating the goods to be owner's property, was not, standing where it did, a warranty, or a repre- sentation with any binding effect ; and that the shipper by his indorsement of the bill of lading to the bank had not divested himself of his property in, or possession of, the goods so as to deprive him of the right of stopping them ira transitu after the bankruptcy of B. & Co.^ Subject to the general principle of these decisions the follow- ing distinctions, taken in an early case,* and recognised in recent times,^ are of admitted authority as general rules. " If 1 Ogle V. Atkinson, 5 Taunt. 795 ; 543. Key V. Cotesworth, 7 Bxch. 595 ; 22 ■• Evans v. Marlett, 1 Ld. Eaym. L. J. (Ex.) i. 271. 2 Mitchel V. Ede, 11 A. & B. 888. ' Per Best, J., in Sargent v. Morris, 3 Turner v. The Trustees of The 3 B. & Aid. 277, 282. See Binder v. Liverpool Docks (in eiTor) 6 Exoh. Wilks, 5 Taunt. Gil'. D D 2 404 BILL OF LADING, [CHAP. VIII. goods by bill of lading are consigned to A., A. is the owner, and must bring the action against the master of the ship if they are lost ; but if the bill is special, to be delivered to A. to the use of B., B. ought to bring the action ; if, however, the bill be general to A., and the invoice only shows that they are upon the account of B., A. ought always to bring the action, for the property is in him, and B. has only a trust." "Where bills of lading, constructively of the same import, and for the same good's, are in the hands of different holders, whose equities are equal, possession is determined in his favour who has the legal title. Where, therefore, a Jamaica planter pro- cured bills of lading to be signed by the master, one making the goods deliverable to his agent in this country, and two deliver- able to the shipper himself, and he indorsed the latter two to A. B., in this country, forwarding also the remaining one to his agent, who was informed of the indorsement of the others, and who nevertheless indorsed the bill of lading sent to him over to C. D., it was held first, that the agent being for the purposes of law identical with his principal, all the bills of lading were constructively deliverable to the shipper; and secondly, that the first legal title vested in A. B. by the indorsement of the bills of lading to him, and he was therefore entitled to possession of the cargo, although CD. had been the first to claim it.^ Bin OP LADIHO AFTEE LANDINQ OF OAKGO. FUKOTioN OF THE Sluce dclivcry of cargo at the port of destination may be indefinitely varied in the manner and time of it by the contract with the carrier, the usage of the port, or by the accidental necessities of the case, so the office and function of the bill of lading as a symbol of property among merchants may be in- definitely prolonged. " There can be no complete dehvery of goods," saysWiUes, J. ,^" until they are placed under the dominion and control of the person who is to receive them." Accordingly, where a cargo of cotton was delivered at a London sufferance wharf subject to the shipowner's hen for the freight on the 7th of February, and the consignee pledged the bUl of lading with A. for an advance of money on the 4th of March, and on the 1 Caldwell v. Ball, 1 T. E. 205. = Jieyerstein v. Barber, L. E, 2 C. P. 50. CHAP. VIII.] BILL OF LADING. i05 6th of the same month fraudulently obtained by means of a copy of the bill of lading, an advance of money from B. , who then hear- ing of the previous advance got the cotton into his possession and sold it. Held in an action against the seller by the first pledgee, that the biU of lading was on the 4th of March, of full force and effect, and consequently that there was a vahd pledge of the cotton then to A.'^ In so far as the rights and habihties of Eailway Companies when they become carriers by sea have been modified by statutes, these statutes wiU be found cited in the preceding Chapter.^ We have now ascertained the nature and effect of a bill of lading, and what parties under it are entitled to receive posses- sion, or, being deprived of that, what remedies are open to them at law. Questions of freight and demurrage, and ques- tions arising under the general exception of risk, both upon bills of lading and charter-parties, remain still to be considered, and will receive attention in the chapters that follow. i Meyerstein v. Barber, L. E. 2 C. P. ^ Ante, p. 339. 38, 661 ; 4 Ho. of Lds. (Eng.) 817. CHAPTER IX. PEEPOEMANCE TJNDEE APEEEIGHTMENT. Master and Owners . . 406 By Master and Owners — (contvtin ed). Preparing for the Voyage . 406 Care of Cargo . . . 430 Seawo];thiness . 407 Completing the Voyage 4.32 Berthing Ship . . 411 Berthing Ship 432 Receipt of Cargo . . 413 Delivery complete . . 433 Stowage of Cargo . . 414 Enforcing Lien . 435 Quantity of Cargo . 416 Delivery imperfect . . 438 Dangerous Goods . . 417 Eesponsibility for Goods Crew and Pilot . . 418 sold .... 439 Commencing the Voyage . 419 By Freighter 443 Time . 419 Place 443 Convoy . 420 Time 444 Pursuing the Voyage . 424 Cargo 444 Deviation 424 Qua,ntity . . . . 445 Repairs . 427 Kind .... 446 Transhipment . 428 Landing and Eelanding . . 448 Peeeoemance of the contract of affreightment involves the discharge of certain duties which are common to all contracts of that nature ; and we propose here to consider what duties are required, first, of the owners and master of the ship ; and, secondly, of the merchant who is the freighter. Performance The duties of the owners and master may be considered in AKD OwMEKs. Tespect of, first, the preparation for the voyage ; secondly, the commencement thereof; thirdly, the course of it; and, lastly, the completion. PREPJlRINQ foe, THE TOTASE. First. In making preparation for the voyage, their first duty is to provide a vessel tight and staunch and strong, furnished with all necessary tackle and apparel, and manned with a sufficient crew ; in one word, seaworthy for the iatended ad- venture, comprehending in that word both voyage and cargo. This duty rests upon a fundamental principle of all law.^ ' Coggs V. Bernard, 2 Lord Eaym. per Lord Bllenborough, Lyon v. Mells 909, 918 ; Dale v. Hall, 1 Wils. 281 ; 5 East, 428, 437 ; Laveroni -y. Druryi CHAP. IX.] PREPARING FOE THE VOYAGE. 407 It is stipulated for in the usual form of charter-partj'. It is an implied term of the ordinary bill of lading. It is by the Seaworthiness. common law implied in every contract to carry for hire, only not as a condition precedent.^ The law of France, although it requires the inspection of the ship by the proper authorities, before taking in cargo,^ provides, nevertheless, that upon proof of the vessel being at the time of sailing in an unfit condition to perform the voyage, the master loses his freight and is answerable in damages besides; and such proof of unseaworthiness is expressly declared admissible, notwithstanding certificates of survey to the contrary ; ^ for as the survey which then takes place cannot detect secret faults, " the owner or master continues responsible for the same notwithstanding ; and this the more justly, since he cannot be ignorant of the state of the ship ; but even if he be ignorant, he must still answer, being necessarily bound to furnish a ship that is sound and capable of the voyage." * Pothier,^ however, differing from the plain meaning of this 8 Exoli. 166 ; Thompson v. Gillespy, 5 E. & B. 209 ; Faweixs v. Sarsfield, 6 B. & B. 192 ; Stanton v. Eiohardson,' Eiohaidson v. Stanton, L. R. 7 C. P. 421 ; Blyth v. Smith, 5 M. & G. 405 ; Eoocus. Not. 19, 57, 69 ; Ord. Eotter- dam^art. 124—2 Magens, 101 ; Molloy, bk. 2, c. 2, § 10 ; AVellwood's Sea Laws, t. 7, p. 22. As a precaution against the ■ loss of life, every decked ship, except steam- tugs and whalers, proceeding to sea from the tinited Kingdom, is required to be provided with boats; to the num- ber and of the dimensions specified in table S. of the statute, and any ship caiTying more than ten passengers to have alif e-boat in addition, (unless one of her boats is rendered, buoyant in the manner of a life-boat), and also- two life-buoys, always in a condition and position ready for use ; [or by permis- sion of the Board of Trade, life-rafts, 36 & .S? Yict. c. 85, § 15 ;] and for de- fault in providing, maintaining, and keeping ready the same at all times, any owner, who is guilty, is liable to a penalty not exceeding lOOZ., and any master to a penalty not exceeding 50Z_ Any ship not so provided as herein re- quired, is not to receive a clearance or transire, and niay.be detained until so provided, 17 & is Vict. o. 104, §392- .294. These enactments do not inter- fere with the Passengers' Act. 1 KopitofE V. Wilson, 1 Q. B. Div. 377 ; Cohn v. Davidson, 2 id. 455. 2 Code de Com. art. 225. .' 3 Code de Com. art. 297 ; Ord.liv. 3, t. '3, art. 12—4 Pardess. 362. La preuve est admissible nonobstarit et Coiltre les certificats de visite au de- part. • Valin, Ord. liv. 3, t. 3, art. 12. * " Pothier, Charte-partie, no. 30, re- ferring to the principles established in his' Trait6 de Louage ; part 2, c. 1, § 4, par. 2. But it rather appears to me tliat the rules tliere laid down 'by him- self, warrant the conclusion that in- this instance the owner and master ought to be responsible for the loss. ' Lorsque le looateur devoit par sa pro- fession &tre inf orm6 du vice de la chose lou6e, il est tenu de dommage et in- t^rSts du conducteur, sans qu'il s.oit ■^08 PERPOEMANCE BY THE SHIPOWNER. ' [CHAP. IX. article, and the commentary of Valin upon it, is of opinion, that if the ship had been visited and reported sufficient, the master or owner should not be answerable for damages occa- sioned by a defect, of which they were and must be ignorant, although he thinks they should lose their freight. I/yon V. MeUs. It appeared in one case, 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 answer- able for loss or damage to any goods on board their vessels, unless it was occasioned by want of ordinarj' care and diligence in the master or crew ; and in that case would pay 10 per cent, upon the loss, provided such payment did not exceed the value and freight of the vessel on board of which it had happened ; and further, that any person desirous of having his goods carried free of risk from the act of God or otherwise, might have it by agreeing to pay an extra freight proportion- able to the accepted responsibility. It was there held, never- theless, that the owner was answerable to the full extent of the damage done to'goods by reason of the leakiness and insuffi- ciency of his lighter, although the merchant was acquainted with the notice before he sent the goods on board. In delivering the judgment of the Court on this occasion, Lord EUenborough 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 implied by law, that his vessel is tight and fit for the purpose or employment for which he offers besoia de chcrcher, si efiEectivement should supersede the rights and obli- il en a eu connoissauoe ou non.' "^ gations of the parties to a private con- Abiott. tract. In this country it has no such It is diflficult to understand why, if operation. So much for principle. As the law, for purposes of public policy, for the policy, if it is to become general, e.g., the Passengers' Act of this country of contriving by law and the executive (18 & 19 Vict. c. 119, ante, o. vii.), re- to supersede individual prudence and quires the vessel to be surveyed before care, it is much to be deprecated in clearing out, that circumstance, and a any country as the source of gross neg- certiflcate of survey, which only shows ligence and serious damage. that the law has been complied with. CHAP. IX.J PEEPABING FOE THE VOYAGE. 409 and holds it forth to the public ; it is the very foundation and immediate substratum of the contract that it is so ; the law presumes a promise to that effect on the part of the carrier without any actual proof j and every reason of sound policy and public convenience requires it should be so." And the Court considered the insufficiency of the lighter " as a personal neglect of the owner, or more properly as a non-performance on his part of what he had undertaken to do, viz. 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 answerable for the neglect of others, and for accidents, which might not be within the scope of ordinary care and caution to provide against." ^ It appears in a recent case that the vessel was chartered to load at Manilla a full and complete cargo of sugar in bags, &c., the rate of freight being d£4 2s. 6d. for dry sugar, and £4 5s. Od. for wet sugar, &c. Instead of the usual clause at the commence- ment of the charter-party that the ship should be tight, staunch, and strong, &c., it contained in the body of it that " the master engages that the vessel before and when receiving cargo shall be a good risk for insurance ; and he will when required, provide a survey report declaring her to be so ; and during the voyage the master shall take all proper means to keep the vessel tight, staunch, and strong, well manned and provided, and in every way fitted and provided for the voyage." It appeared that wet sugar as well as dry sugar is customarily at Manilla shipped in bags, so that the master by his charter- ' Lyon V. Mells, 5 East, 428. Where note. Secus, if the stipulation be, " not the master stipulated in the bill of to be accountable for any damage or lading " not to be accountable for leak- loss by any means whatever during the age or breakage,'' it was held, on the transit," although appearing in the authority of this case, that he was time bill only, which was given to the accountable nevertheless for loss by plaintifiE, and not contradicted by the these means through negligence, Phil- particular contract,Phillips ij.Edwards, lips «. Clark, 26 L. J. (C. P.) 168. So, 28 L. J. (Ex.) 52. See McManusu The Lloyd V. Gen. Iron Screw Collier Co., Lane. & Yorksh. Ey. Co. (in error), 28 33 L. J. (Ex.) 269 ; Grill v. id., L. J. (Ex.) 353 ; Coxon v. Gt. "West. L E. 1 C. P. 600 ; 3 id. 476 ; Czech Ey., 29 L. J. (Ex.) 165 ; The Duero, V. id., L. E. 3 Ex. 14 ; OhrloflE L. E. 2 Ad. 393 ; Peninsular & 0. Stm. V. Briscali, L. E. 1 P. C. 231 ; Navig. Co. v. Shand, 3 Moore, P. C. Leuw V. Dudgeon, L. E. 3 C. P. 17, 272. 410 PERFORMANCE BY THE SHIPOWNER. [cHAP. IX. party was forewarned as to the nature of the cargo he might be required to carry. At Manilla, before loading, the ship upon survey was reported a first-class risk, and fit to carry a dry and perishable cargo to any part of the world. She was laid on the berth and loaded with a cargo of wet sugar ia bags. A large quantity of moisture drained from the sugar into the hold which thereby came to have . a large accumulation of molasses in it. , The ship's pumps, of the usual kind for such a size of ship, and sufficient for ordinary purposes, were applied and found unable to deal with the drainage, owing to the depth of hold, and the nature of the material in it. The ship in this condition was quite unfit to proceed to sea. The cargo was necessarily put ashore. The charterer refused to reload her. The jury found that the ship was not reasonably fit for a cargo of Manilla sugar, and that the cargo put on board was a reasonable cargo. The shipowner therefore failed in his action against the charterer for not loading.^' In this case, Brett, J., in stating the general principle, ex- presses himself in the following terms. "It seems to me that the obligation of the. shipowner is to supply a ship that is seaworthy in relation to the cargoi which he has undertaken to carry. I do not think, however,, that this proposition completely expresses his liability, though the proposition I am about to state "with regard to such hability in many cases may amount to the same thing only in effect. I think the obligation of the shipowner is to supply a ship reasonably fit to carry the cargo stipulated for in the charter-party. This appears to be the measure of his ha- bihty as stated in the case of Lyon v. Mells,^ by Lord Ellen- borough, and by Lord Wensley dale in the case oi Gibsons. Small,^ and again by Lord EUenborough, in Havelbck v. Geddes.^ The same ride is adopted in the edition of Abbott on Shipping by Mr. Justice Shee, andby Blackburn, J., in the case ot Redhead y. Midland Railway Co} It is argued that the charterer is bound to ship a cargo that is suitable for the particular ship. That would be to destroy the option that is expressly reserved 1 Stanton v. Eioliardson, Eichardson ^ 5 East, 427. ■„. Stanton, L. B. 7 C. P. 421 \ 9 id. ^ i'R. of Lds. 353. 390 ; Ho. of Lds. 43 L. J. (C. P.) * 10 Bast, 536. 280. 5 L. E. 2 Q. B. 412. CHAP. IX. J PEEPAEING FOR THE VOYAGE. 4ll by the charter-party to him. With all the assistance rendered to me hy counsel, I find no more decisive mode of stating the General Kule. true proposition with regard to the duties of the charterer and shipowner, than that the one must offer a reasonable cargo of the kind specified in the charter, and the other must provide a ship reasonably fit to carry such reasonable cargo." ^ If the owner contracts to be ready with his vessel by a time Readiness to re- certain to receive cargo, this readiness involves the sea- worthiness of the hull, the state of the hold being proper, and a sufiiciency of officers and crew on board to receive the goods and guard them when received, and this within the specified time.^ As to the place where the ship must be for the purpose of Place and Notice initiating performance under a charter-party for a carrying ready. voyage so as to entitle the master to give effective notice to the charterer or his agent the law is thus stated by Brett, L. J. : ^ " The iirst right of the shipowner is the right of placing his ship at the disposition of the charterer, so as to initiate the liability of the latter, whatever it may be, to take his part as to loading. In every case it seems to me that it is a condition precedent to such right of the shipowner to place his ship at the disposition of the charterer for such purpose that the ship should be at the place named in the charter-party as the place whence the carrying voyage is to begin, and that the ship should be ready to load, so far as the ship's part of the operation of loading is concerned. The place so named may give a description of a larger space, in several parts of which a ship may load, as a port or dock ; or it may be the description of a limited space in which the ship must be in order to load, as a particular quay, or a particular quay berth, or a particular part of a port or dock. If when the charter is made the ship is already in the place named, the shipowner may place the ship at the disposition of the charterer as soon as the ship is ready, so far as she is concerned, to load, by giving notice thereof to the charterer. If the place named be of the larger description, as a port or dock, the notice may be given, though the ship is not then in the particular part of the port or dock ' Stanton v. Eiohardson, L. E. 7 0. P. ^ See Oliver v. Fielden, i Exch. 136. 435_ " Nelson v. Dahl, 12 Ch. Div, 581, 412 PEEFOEMANCE BY THE SHIPOWNEE. [CHAP. IX. in which the particular cargo is to be loaded ; but if the place named is of the more limited description, the notice cannot be given until the ship is at the named place, though the ship is in the port or dock in which the named place is situated ; if the ship is not, when the charter is made, at the port or place where she is to load, the form of the charter-party is, ' That the said ship, being at ' (the place where she then is), ' shall proceed, &c., to ' (the place named as the beginning of the carrying voyage), ' or so near thereunto as she can safely get, and shall there load, &c., and proceed thence, &c.' In this case also the named place whence the carrying voyage is to begin, though the carrying voyage is not the whole chartered voyage, may, as before, describe a larger or more limited space. If it describes a larger place, as a port or dock, the shipowner may place his ship at the disposition of the charterer when the ship arrives at that named place, and so far as she is concerned, is ready to load, though she is not then in the particular part of the port or dock in which the particular cargo is to be loaded ; but, in the absence of his right to place his ship only as near to the named place as she can safely get, which is a stipulation to be discussed hereafter, he cannot place his ship at the disposition of the charterer so as to initiate the liability of the latter as to the loading until the ship is at the named place, or the place which by custom is considered to be intended by the name ; as, if a larger port be named, the usual place in it in which loading ships lie. If it describes a more limited place, as a quay or a quay berth, or a particular part of a port or dock, the shipowner may place his ship at the disposition of the charterer when the ship is arrived at that place ready, so far as she is concerned, to load, but not until the ship is at that place. The further right of the shipowner as to the loading is, of course, his right to insist on the liability of the charterer whatever that may be, which attaches when and after the ship is duly placed at his disposition ; the liability of the shipowner as to the commencement of the loading depends on the particular form by which he has bound himself to place his ship at the disposition of the charterer for that purpose. He must do so 'with all convenient speed,' or 'with aU possible dispatch,' or 'immediately unless prevented by enumerated CI-IAP. IX.J' PREPARING FOR THE VOYAGE. 413 accidents,' or ' within a reasonable time ' according to his agreement in each case. If he fails to satisfy this liability an action may be maintained against him — as for instance, an action for a deviation in the preliminary voyage." The manner of taking goods on board, and the commence- Eeoeipt of Cargo. ment of the master's duty in this respect, depend on the custom of the particular place, unless that be excluded by express stipulations in the charter-party.^ More or less is to be done by wharfingers or lightermen according to the usage. If the master receive goods at the quay or beach or send 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 mate of the vessel upon the wharf.^ And as soon as any goods are put on board, the master must provide a sufficient number of persons to protect them ; * for, even if the crew be overpowered by a superior force, and the goods stolen, whilst the ship is in a port or river within the body of a county, the master and owners will be answerable for the loss, although they have been guilty of neither fraud nor fault ; ^ the law in this instance being 1 Fletcher v. Gillespie, 3 Blng. 635 ; but he is answerable, " si a furibus Cooke V. Wilson, 1 C. B. (N. S.) 153 ; subreptum sit." Upon which G-otho- 26 L. J. (C. P.) 15 ; Blakie «. Stem- fredobserves, "adversuslatronesparum bridge, 28 L. J. (C. P.) 329. prodest custodia ; — ad versus fures pro- ^ Fragano v. Long, 4 B. & C. 219 ; desse potest, si quis advigilet. Latro- Cooke V. Wilson, 1 C. B. (N. S.) 153 ; cinium fatale damnum, seu casus Molloy, bk. 2, c. 2, § 2 ; Eocous, not. fortuitus est ; at non furtum." And 88 ; Wellwood, tit. 9 ; Dig. i. 9. 3. the words of the Digest, title— Xiutce 3 Corban r. Downe, 5 Esp. 41. caupones stabularii, ko. 4. 9. 3. are, * Morse v. Slue, 1 Vent. 190, 238 ; " nisi si quid damno fatali contingat ; Sir T. Eaym. 220 ; Rich v. Kneeland, inde Labeo scribit, si quid naufragio. Hob. 17, 2 Cro. 330 ; Goggs v. Bernard, aut per vim piratarum perierit, non esse 2 Lord Eaym. 909, 918 ; Dig. 4. 9. 1, 1. iniquum exceptionem ei dari ; idem erit " Nisi hoc esset statntum, materia dicendum si in stabulo aut in caupona daretur cum furibus adversus eos, quos vis major contigerit." Our law, though recipiant, coeundi, quum ne nunc qui- at present stricter in the case of car- dem abstineant hujusmodi fraudibus." riers than the civU law, is said to have But the moid/ures here means thieves been the same formerly, and not to only, and not robbers, who come with a have charged a carrier in the case of superior and irresistible force; they are robbery, unless he traveUed by dan- called latrones. Thus by the Digest, 17. gerous ways, or at unseasonable hours. 2. 52, 3, a partner, who has the care of See Jones on Bailments, p. 103. the joint property, is not answerable, ^ Barclay v. Y'Gana, 3 Doug. 389. "si id, latroomio aut incendio perierit," The limitations placed on their respon- 414 PEEFOBMANCE BY THE SHIPOWNER. [CHAP. IX, founded on reasons of public policy, in order to prevent the combinations that might otherwise be made with thieves and robbers.-* It is in all cases the duty of the master to provide ropes, and other tackling proper for taking the goods on board.^ And if a cask be accidentally staved in letting it down into the hold of the ship,! the master must answer for the loss.^ The ship must also be furnished with proper dunnage, consisting of pieces of wood placed against the sides and bottom of the hold, and sometimes accompanied with' matting, or other means,* suitable to the nature and quality of the cargo, for the purpose of pre- serving it from the effects of leakage ; ^ and if the owners have merchandise to ship, that will occupy no more room than the dunnage, or dunnage and ballast together, which would other- wise have been requisite, they may use it instead, notwith- standing the whole ship is chartered to another.^ Stowage of the cargo is primarily a duty of the shipowner and the master, and nothing absolves them from this obligation short of express agreement on the part of the charterer or the unam- biguous usage of the port.''' In loading the cargo, therefore, care must be taken by the master, unless by usage or agree- ment this business is to be performed by persons hired by the merchant,^ so as to stow and arrange the different articles of which it consists, that they be not injured by each other, or sibUity by statute have already been telligemus, et si dolia vel tignum trans- considered, ante, i;. iii. portandum aliquis cpnduxit. 1 Per Lord Holt, Coggs v. Bernard, * The freighter frequently binds him- 2 Lord Eaym. 909, 918. self in the charter-party to supply the ' Laws of Oleron, art. 10 — 1 Pardess. ship with proper dunnage. 330; Laws of Wisby, art. 24— 1 Par- = Ord. Rotterdam, art. 125, 126— dess. 477 ; WeUwood, tit. 9. 2 Magens, 101. ^ GofE ■!]. Clinkard, cited, 1 WUs. " Towse v. Henderson, 4 Exch. 890 ; 282. Enter's case, Leon. 46. But by the civil law, if there was no '' Anglo-African Co. v. Lamzed, L. E. negligence there was no liability. Dig. 1 C. P. 226 ; Sack v. Ford, 13 C. B. 19. 2. ?5, 7. Qui columnam transpor- N. S. 90 ; 32 L. J. (C. P.) 12. tandam oonduxit, si ea, dum tollitur ^ See Blakie v. Stembridge, 28 L. J. aut portatur, aut reponitur, fracta sit, (C. P.) 329 ; and Gilkisou v. Middleton, ita id periculum prsstat, si qua ipsius, 26 L. J. (C. P.) 209 ; 2 C. B. (N. S.) eorumve, quorum opera uteretur, culpa 134, S. C. (the charter-party there); accident ; culpa autem abest, si omnia The Catharine Chalmers, 32 L. T. N. S. facta sunt, quse diUgentissimus quisque 847 ; Eastman v. Harry, 33 L. T. N. S. observaturus fuisset. Idem scilicet in- 800. CHAP. IX.J PREPARING FOE THE VOYAGE. 415 by the motion or leakage of the ship ; ^ for if damage accrue from one or other of such causes the master and owners are liahle without proof of personal negligence,^ unless it appear that the shipper assented to the manner in which his goods were stowed/ or that they were so stowed by his own steve- dore without express orders or interference on the part of the master.* It seems that for his own misconduct in causing the damage, the master is liable to the owners of the ship, but not for the misconduct or negligence of the mate or crew if there is no fault in himself.^ Where liability for leakage was expressly excepted in the bin of lading, and it became a question whether the leakage of oil in casks forming part of the cargo could be brought home to the negligence of the shipowner's servants, it was held that stowage of the oil in contact with rags and wool in ignorance that heat would thereby be generated and leakage be produced was not evidence of negligence.^ Not the shipowner but the 1 Wellwood, 29 ; Ord. Antwerp, art. 8—2 Magens,' 16 ; French Ord. Ut. 2, t. 1, art. 9—4 Pardess. 347 ; Laws of Oleron, art. 11—1 Pardess. 331 ; Ord. Wisby, art. 25—1 Pardess. 478. 2 Gillespy v. Thompson, 2 Jur. N. S. 712 n. ; Alston v. Herring, 11 Bxoh. 822 ; 25 L. J. (Ex.) 177 ; per cv/r. Blakie v. Stembridge, 28 L. J. (0. P.) 329 ; (in error) 29 L. J. (0. P.) 212 ; Hutchinson v. Guion, 28 L. J. (C. P.) 63. » Major V. White, 7 C. & P. 41 ; Hovill V. Stephenson, 4 C. & P. 469. * Blakie v. Stembridge, 28 L.J. (C. P.) 329 ; (in error) 29 L. J. (C. P.) 212 ; Swainston v. Garrick, 2 L. J. (Ex.) 255 ; Consolato, c. 192—2 Pardess. 220. Stevedore, a word in common use at all our great sliipping ports, to denominate a person whose business is tq undertake the stowage or discharge of oargos with a gang ,of workmen whom he hires and pays and is responsible for. Familiar mention of such a person, with the same functions exactly, is made in the Conso- lato del Mare, where his name in the original Catalan of that celebrated col- lection of maritime law is Stibador, the origirtdl, no doubt, of the word we use, and on that account remarkable as a proof of the great authority in Europe, which these laws, at a very early period, had attained to. When a steve- dore is appointed by the shipper, the master is not liable for injury done in stowing, not even to the owner, Swain- ston V. Garrick, 2 L. J. (Ex.) 255. But owing to a suggestion made in that case by Bayley, J., it appears that a clause is sometimes introduced into the char- ter-party providing that the stevedore, though appointed by the shipper, should act under the master's orders. Such a clause had been introduced into the charter-party executed in the case of Blakie v. Stembridge, supra, but it was held to have created no liability on the part of the master to the shipper for the acts of the stevedore, unless they were done in pursuance of his orders. See case, supra, note. ° Per Curiam, Blakie «. Stembridge, 28 L. J. (C. P.) 329, 331 ; citing Petries V. Aitcheson, 15 Fac. Coll. 493. " OhrloflE -!/-. Briscall, L. K. 1 P. G. 231. 416 PEEPOEMANCE BY THE SHIPOWNER. [CHAP. IX. charterer is liable in case of a general ship for bad stowage,^ unless it appear that the goods were shipped in ignorance of any charter-party.^ There is moreover a way of stowing cargo on board which is proper, and there is an improper way of stowage which having regard to the vessel will render her unseaworthy. There is therefore a power of detaining a vessel so stowed.^ Quantity of More cargo should not be taken on board than the ship can carry, after leaving room for her own furniture, for the provisions, and due accommodation of the crew, and for the proper working of the vessel.* At the same time a charterer who engages the whole ship to take a full and complete cargo is entitled to have the vessel so stowed as to economise cargo space to the best advantage.^ The manner of carrying any part of the cargo must not be such as is prohibited ; nor should any of the goods taken on board be prohibited, uncus- tomed, or contraband of war,^ whereby the ship and other parts of the cargo may be liable to forfeiture or detention.'^ Grain Cargo. A British ship laden with grain to the extent of more than one-third her registered tonnage must take aU necessary and reasonable precautions against the shifting of the grain, subject to a penalty of £300. Grain by this statute means corn, rice, paddy, pulse, seeds, nuts, or nut kernels.^ Deck Load. Deck loads of timber are prohibited under penalty on board any British or foreign ship bound for and arriving in the United Kingdom from any port not in the United Kingdom between 31st October and 16th April when such loads consist of — {a) Any square, round, waney, or other timber, or any 1 Per Parke, B., in Major v. White, ' Ritchie v. Atkinson, 10 East, 296. 7 C. & P. 41. « Havelock v. HanciU, 3 T. E. 227 2 Sandeman v. Seurr, L. E. 2 Q. B. Lookyer o. OfB.ej, 1 T. E. 252 86 ; The St. Cloud, B. & L. Ad. 4 ; The jonge Jan, Schnil, 1 Dod. 458 The FigUa Maggiore, L. E. 2 Ad. 106 ; The Haabet, Tett6, 2 C. Eoh. Ad. 182 ante, p. 352. The Sarah Christina, Gorgensen, 1 C •> 39 & 40 Viot. c. 80, § 6. Eob. Ad. 242 ; The Neptunus, Bach- 4 17 & 18 Vict. 0. 104, § 221 ; 30 & man, 6 C. Eob. Ad. 409 ; The Staadt 31 Vict. c. 124, § 4, 7, 9 ; 34 & 35 Vict. Embdeu, Jacobs, 1 C. Eob. Ad. 30. c. 110, § 7 ; see Couch v. Steel, 3 B. ? Molloy, bk. 2, c. 2, § 7 ; Eoccus, & B. 402 ; Eoccue, not. 30 ; Ord. not. 66 ; Wellwood, tit. 9. Eotterdam, art. 127—2 Magens, 102. s 43 & 44 Vict. c. 43, § 3, 10. See If overloaded she may be detained, 39 ante, p. 293. & 40 Vict. c. 80, § 6. CHAP. IX.] PREPARING FOR THE VOYAGE. 417 pitch pine, mahogany, oak, teak, or other heavy wood goods whatever ; (6.) Any more than five spare spars or store spars, whether or not made, dressed and finally prepared for use ; (c.) Any deals, battens, or other light wood goods of any description to a height exceediag three feet above the deck. There is a saving provision applicable to wood goods when kept on deck through springing a leak, and also as to the limits of time, when they are exceeded by reason of wind and weather.^ The carriage of dangerous goods on board, or even the Dangerous goods. attempt to carry them, unless the nature of them is distinctly marked outside the package, incurs a penalty not exceeding lOOZ. on the master or owner.^ Moreover, it is the master's duty not only to himself and his owner, but to freighters, passengers and crew, and others, to refuse to receive goods which he may suspect of being dangerous when he has not notice of their true nature ; he is therefore empowered^ in such a case to require the package to be opened in order to ascertain the nature of the goods contained, and in respect of all such goods not distinctly marked and not declared by notice as to their nature, if they are on board, and the opportunity of sending them ashore again is past, the master is empowered to throw them overboard without incurring any liability for himself or his owner, civil or criminal, in consequence.* If the master has not in the progress of the loading as Signing BUl of separate parcels of the cargo were completely shipped, signed, and exchanged bills of lading for the mate's receipts, he must do so before sailing, otherwise he may involve his owners in an action for conversion of the goods." It is the duty of the master to take on board no false or Ship's Papers colourable papers that might subject the ship to capture or detention by the government of his own or any foreign country ; at the same time that it is necessary he should 1 39 & 40 Vict. c. 80, § 24. as dangerous in the 36 & 37 Vict. c. 85, 2 36 & 37 Vict. 0. 85, § 23-28. are " aquafortis, vitriol, naphtha, ben- ^ Ibid. §25. zine, gunpowder, lucifer matches, nitro- ■" 36 & 37 Vict. c. 85, § 26-28. This glycerine, petroleum, or any other goods enactment is in addition to the general of a dangerous nature." statute as to explosive substances, .S8 ^ Ante, p. 390. & 39 Vict. c. 17. The articles named E K 418 PEEPARING FOR THE VOYAGE. [CHAP. IX. procure and keep on board all papers and documents for the manifestation and protection of the ship and cargo in accordance with the law of the countries from and to which he is hound, and in accordance with the law of nations in general, and with existing treaty stipulations between particular states. Crew aad PUot. It is the master's duty not to sail imderhanded. Perhaps his crew, though not sufficient for sea, will suffice, according to usage, for the canal or river voyage which he must accomplish before reaching the sea. At that port, if not before, where his sea voyage begias, he must be adequately manned with properly certificated officers and able seamen, to encounter the voyage, and this includes all that skill proper for the open sea navigation of the ship, and the pilotage of her on her river and coast passage. Moreover it is an implied term of the contract with the master and crew for service on board that the ship is seaworthy not only at starting, but shall be kept seaworthy during the voyage, unless opportunity is wanting.^ Thus far I have been dealing with the sufficiency of the ship for her adventure described in the charter-party and bill of lading, having regard only to the owner as a carrier, in which capacity he satisfies his contract with the freighter or shipper by a reasonable, substantial adequacy.^ Seawortty so as But it is the master's duty probably towards his owner, smance Policy without inquiring whether the ship be insured by a voyage owne^sSract. Vo^^^J) ^^^ certainly towards the shipper, to see that his vessel in the various aspects which have been considered in this section of the Treatise is seaworthy, so as to satisfy the con- dition implied in a voyage policy of insurance at and from, whether on goods or ship. In other words, she is to be fit to lie in port and to receive cargo ; and she is to be fit for sea at the moment of sailing ; or as it is sometimes expressed, she is to be severally portworthy, and seaworthy, at the respective times. As the strictness looked for in fulfilling a warranty is required here, his care should carry him as far as the carrier's contract requires him to go, and further than that, even to the letter of the law in its exactions under the insurer's contract.^ > 39 & 40 Vict. 0. 80, § 5. cited ante, p. 410, 2 See per Brett, J., in Stanton v. ^ See 2 Arnould Ins. 636. Biohardson, L. B. 7 0. P. 421, 435, CHAP. IX.] COMMENCING THE VOYAGE. 419 There is that peculiar to this condition in a policy that, if satisfied at the commencement of the risk, the contract in respect of seaworthiness on the part of the assured is per- formed. But in the contract of the shipowner as carrier is implied this stipulation, that should the vessel become unseaworthy in the course of the voyage, he must make her seaworthy if there be opportunity, or he must not proceed further.^ All other things being ready, his duty is lastly to obtain the necessary clearances or permission to sail from the officers of the customs or others appointed for that purpose, on payment of aU dues, port and other charges imrposed on shipping, and thereafter to commence the voyage without delay .^ Secondly. — The vessel, if she is not completely loaded, or ooMMEwoufa the wants something of the performance, requisite under the charter- party, at the port of loading, should not sail on her voyage before the expiration of the stipulated lie-days, or if so required, until the end of the days to be accounted for on demurrage.* Cases Time. frequently arise illustrative of this duty, out of stipulations to load a return cargo within a given time after arrival out, and for reasons which remain to be examined, the merchant fails of performance ; * it is nevertheless the master's duty to wait the 1 Worms V. Storey, 25 L. J. (Ex.) 1 ; By the Code de Com. art. 226, Le 11 Bxch. 427. capitadue est tenu d'avoir 4 bord, — ■ 2 Offences against the law of this L'acte de proprl6t6 du navire, — L'acte country, relating to the national charac- de franoisation, — Le r61e d' Equipage, — ter of the ship, and the distinctive flags Les connaissements, et chartres-parties, of the mercantile marine and the royal — Les proems verbaux de visits, — Les navy, have already been noticed, ante, acquits de paiement ou a caution des c. ii. ; see as to that, 17 & 18 Vict. o. douanes. 104, §102-106; as to necessity for certi- ' Smiths MoGuii-e, 27 L. J. (Ex.) ficate of registration at clearance, Hid. 465, 472 ; Soames v. Lonergan, 2 B. & § 17 ; except there be a special pass, C. 564 ; Harries v. Edmonds, 1 0. & p. § 98 ; certificates of master and other 686 ; Reid v. Hoskins, 6 E. & B. 953 ; officers, § 136 ; certificate of shipping (below) 5 E. & B. 720 ; if lie-days are master, § 161, 162. As to passengers not mentioned, he must wait a reason- and passenger ships, see a»fe, c. vii. As able time, Matthews v. Lowtlier, to the Content for foreign-going ship, Bxch. 574. 39 & 40 Vict. c. 36 (the Customs Con- * lUd. ; and see Wilson v. Hicks solidation Act), § 128 ; transire for 26 L. J. (Ex.) 242 ; and Staniforth v coasting vessel, § 145 ; and for other Lyall, 7 Bing. 169, as to the measure o such papers, see same statute ; Levy v. damages under these circumstances. Oosterton, 4 Camp. 389. 420 COMMENCING THE VOYAGE. [chap. IX. period absolutely stipulated, unless he is expressly discharged therefrom in unequivocal language by some person competent so to do.i Imminent risk to the vessel if she continues to wait, as in case of expected hostilities, will form no defence if she be sued, or ground of action if she sues for breach of contract.^ Weather. The time having expired, he should commence his voyage without delay, as soon as the weather is favourable,^ but on no account whilst it is tempestuous.* Upon this topic of wiad and weather he is even required by most of the ancient marine ordinances, before setting sail, to consult his mate, pilot, and others of the crew ; ^ but no such consultation is necessary by the law of England, the policy of which is to leave the entire management of the ship, and the sole respon- sibility for it, in the hands of the master. Convoy. During hostilities, if there is an undertaking or warranty to sail with convoy, the vessel must repair to the place of appointed rendezvous, and put herself under the protection and control of such ships of war as are ordered on this service for the place of her destination, to be conducted as near thereto as convoy sails. In such times a warranty to sail with convoy is common in policies of insurance. If it be not complied with, the insurance becomes absolutely void, and the insurers are then not answerable for loss, although such loss happen by tempest, or by any other cause otherwise within the intention of the policy and wholly independent of the subject of the warranty. But if the warranty be between the master or owner and the merchant, and be not complied with, they are answerable for the damage he sustains in con- sequence ; having trusted to their warrant}^, so far as to insure 1 Barriok v. Buba, 2 C. B. (N. S.) 563 I Ayery v. Bowden, 5 E. & B. 714 ; (in error) 7 B. & B. 953 ; Eeid v. Hos- kins, 5 B. & B. 729 ; (in error) 6 E. & B. 953 ; Barker v. Hodgson, 8 M. & Sal. 267 ; Hudson v. Ede, L. E. 2 Q. B. 566 ; 3 Q. B. 412. 2 See cases in preceding note. 3 Ord. Eotterdam. art. 128—2 Ma- gens, 102. * Heyman v. Parish, 2 Camp. 149 ; MoUoy, bk. 2, c. 2, § 4, Eoccus, not. 56. * Well wood, t. 8. p. 26 ; Ord. of Antwerp, art. 11 — 2 Magens, p. 17 ; Ord. Wisby, art. 16—1 Pardess. 471 ; 1 Emerigon, 376. This author also observes, that, although the master is bound on this and other occasions to ask the advice of his crew, yet he is not bound to submit blindly to it, if it is bad, or if under the circumstances it appears to be bad. CHAP. IX.] COMMENCING THE VOYAGE. 421 with a similar warrrantj', he has a claim to be recouped to the extent of the indemnity, which is lost to him by their misconduct.^ The convoy must be a ship or ships of war expressly ap- pointed for the purpose by the government, or by the officer in command on a particular station. The protection of a ship of war accidentally bound on the same voyage, although dis- charging the office of convoy, is not a convoy within the mean- ing of this warranty.^ A warranty to sail or depart with convoy means, not that the vessel shall depart with convoy immediately from the lading port, but 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 Downs ; ^ and even from Spithead, when there was no convoy appointed at the Downs.* Nor does it require the vessel to sail with convoy bound to the precise place of her destination ; it is enough if she pro- ceed with the only convoy appointed for vessels going to that place. In an action therefore on a policy on goods in the Little Betsey, at and from London to St. Sebastian in Spain, warranted to depart with convoy, it was held that she had satisfied the warranty by sailing under convoy of a squadron of frigates to Gibraltar, and thence with The Weazle under orders to see them safe to Bilboa, although, soon after. The Weazle parted with them in chase of a strange ship, and did not afterwards join them.^ It sometimes happens that the force first appointed is to accompany the ships only for a part of their voyage, and to be succeeded for the residue by another ; at other times a small force is detached from the main body to bring them up to a particular point : and if a vessel sail under the protection of 1 PhiUips V. Baillie, 3 Doug. 374 ; ^ Hibbert v. Pigou, 2 Park on In- Rinquist v. Ditchell, 3 Esp. 64, referred sua-anoe, c. 18, p. 694. to per Gibbs, C. J., in Sanderson -v. ^ Lethulier's case, 2 Salk. 443. Busher, 4 Camp. 54 n. ; Sanderson v. * Gordon v. Morley, 2 Slra. 1265. Bushev, ihid.; Magalliaens i;. Busher, ^ D'Eguino v. Bewioke, 2 H. Bl, 4 Camp. 54. 551- 422 COMMENCING THE VOYAGE. [CHAP. IX, the force thus appointed,! or detached/ the warranty is thereby satisfied. Moreover, this warranty is not only that the vessel shall commence, hut also shall continue the voyage under the pro- tection of convoy,^ unless prevented by tempest or other un- avoidable accident ; and in that case the master and owners are excused, if every endeavour is made to retaia the benefit of convoy.* It is not enough however to sail in company merely with the ships of war appointed as convoy ; the master must, before departure, obtain, or at least use all due diligence to obtain, the sailing instructions and orders delivered out by the commander of the convoy to the masters of the trading vessels that are to sail under his protection.^ In Anderson v. Pitcher, Lord Eldon observes, " It being once decided, that a convoy within the terms of 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 its 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 necessity 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 leam the place of 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 con- tended, that if she be under the protection of the guns, it is sufiSicient. But will it be contended that, provided she be 1 Smith V. Eeadshaw, 2 Park, c. 18, ' Lilly v. Ewer, 1 Doug. 72. p. 708 ; De Garay v. Clagget, ibid. * Jeffrey v. Legendra, Garth. 216 ; 3 2 Manning v. Gist, Marshall, Insur. Lev. 320. bk. 1, c. 8, § 4 ; Audley v. Duff, 2 B. & * Webb v. Thomson, 1 B. & P. 5 ; P. 111. Anderson v. Pitcher, 2 B. i: P. 164. CHAP, rx.] COMMENCING THE VOYAGE. 423 under the protection of the guns at her departure, though sailing instructions be never obtained during the voyage, or not till the last day of the voyage, the warranty is compHed with ? Either sailing instructions are not necessary, or, if they be necessary, they must be so at some given period, and can only be dispensed with in some particular cases. Then can any other period be assigned but the beginning of the voyage ? " Both of these cases arose out of the loss of The Golden Grove, which had been insured at and from London to the West Indies, with warranty to sail with convoy. It appeared that that vessel arrived at Spithead about nine o'clock on the morning of the 15th of November, sailing instructions having been delivered the preceding day at Portsmouth to all such ships, as applied regularly for them and were actually in sight ; and that by daylight of the 15th the commander of the convoy had got under weigh, but had not entirely quitted the roadstead until about four o'clock in the evening. About one o'clock of the same day, when The Golden Grove weighed anchor, both the admiral's ship and also The Trident frigate, which had been left behind to bring up those vessels that did not weigh with the admiral, had proceeded so far, that it was clear The Golden Grove could not overtake them soon enough for the captain to go on board the admiral's ship that night. But on the next day, between ten and twelve o'clock in the forenoon, The Golden Grove, being only a quarter of a mile off, the captain went on board and obtained sailing instructions ; and soon afterwards his vessel was lost, having been till then, from the time of her departure, under the protection of the convoy. Upon this state of facts, it was held, that the warranty was not compHed with ; for either the ship had not arrived in time to obtain sailing instructions, or, if she had, her captain had not used the necessary endeavours to obtain them before she sailed. If the master, however, do all in his power to obtain sailing instructions, but is prevented from obtaining them either by the badness of the weather,^ or because they are refused by the commander of the convoy,^ the warranty is complied with. 1 Victorin v. Cleeve, 2 Stra. 1250. ' Verdon v. "WUmot, coram Lee, The cause was tried before Chief Justice C. J., at Guildhall, 2 Park, c. 18, p. Lee at Guildhall. 696, notis. 424 PURSUING THE VOYAGE. [chap. IX. Under the pressure of war, the necessity for sailing with convoy has not always been the mere result of individual interest and private contract. It has often been deemed expe- dient in different States to make this duty compulsory by law, lest the misfortunes of their own merchantmen should furnish the means of prolonging the enemy's hostilities.^ The British Legislature, acting on that policy in 1798, and again in 1803, passed temporary measures of that kind, to be in force during the continuance of the war;^ but as both these statutes have expired, any reference to them here is unnecessary, further than to state that, with regard to the master's duty, and what would amount to performance of it, the construction put upon the public statute and upon the private contract, both having the same end in view, was identical.^ VCRSTIINQ THE TOTAGE. Deviation. Im- plied Contract. Thirdly. — When the master has commenced the voyage, his duty then is to proceed to the place of destination without delay or deviation not justifiable under his charter-party, by the shortest and most direct course usually taken by ships on the same voyage. This is a stipulation imphed in all contracts of affreightment and all policies of marine insurance ; * it is liable, however, to be modified in respect of particular voyages, by evidence of usage when that is common and established, or by express agreement when the language is clear and un- ambiguous ; but if the repair of the ship, from the effects of accident or tempest, requires it, or the avoidance of enemies or ' A very full account of the regula- tions made at difEerent times in France on the suhject of convoy, is given in Valin's Commentary on the French Ordinance, vol., 1, p. 691, by which it appears that at particular periods mer- chant ships have been absolutely for- bidden to sail without convoy, under very severe penalties on the master and owners ; and that, whenever convoy was required, the master was to bring his ship to the rendezvous, and receive sailing instructions (ordres pour la route) from the commandant, and obey his orders, and not separate from him. The Ordinance of Hamburgh, of the year 1731, tit. 4, art. i, requires the master to receive a letter of instruc- tions from the commander of the con- voy— 2 Magens, 214. 2 38 Geo. 3, c. 76 ; 43 Geo. 3, c. 57. » Per Lawrence, J. ; Cohen'!;. Hinck- ley, 1 Taunt. 249, 253 ; Hinckley v. Walton, 3 Taunt. 131 ; Ingham v. Agnew, 15 Bast, 517 ; Zaingv. Glover, 5 Taunt. 49 ; Williams?). Shee, 3 Camp. 469. * Per Tindal, C. J., MoAndrew .,. Adams, 1 Biog. N. C. 29, 38 ; Davis v. Garrett, 6 Eing. 716 ; Freeman v. Tay- lor, 8 Bing. 124 ; Mount v. Larkins, 8 id. 108 ; Palmer v. Marshall, 8 id. 317. CHAP. IX.] PURSUING THE VOYAGE. 425 pirates makes it advisable, these are grounds on which a breach of contract in this respect may be justified. Yet, whether it be stress of weather or reasons of necessity that compel him to go out of his course, the departure should be no greater, and continue no longer, than the exigency of the occasion demands. Where the plauitifi''s lime was in the defendant's barge, to be conveyed from the Medway to London, and the defendant deviated from the usual course, and was overtaken by a storm which wetted the lime, and destroyed both it and the barge, the plaintiff recovered in the action, although there appeared to be no necessary connection between the loss and the devi- ation. "No wrong-doer," said Tindal, C. J., " can be allowed to qualify or apportion his own wrong. 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." ^ Usage, to be of such effect as to modify this understood Deviation under term of the contract, must be customary and estabhshed ; ^ and ' anything short of this, such as evidence to show that stopping at the Isle of Man on the voyage from Liverpool to the West Indies was occasional, is of no avail as a defence.^ But usage, and the general principles of the contract, yield baiTed by Ex- to the express agreement of the parties, and that then becomes the strict rule of the master. This appears by the case of Elliott V. Wilson, founded on a policy of insurance on goods loaded on board one of the Carron and HuU traders. It was the customary usage of these vessels, on their way down the Forth, to call at the intermediate ports of Borrowstounness, Leith, and Morrison's Haven, and the shipper's instructions to his broker at Glasgow was for a poHcy with liberty " to call, as usual." But the policy effected was with liberty " to caU at Leith ; " and the vessel, after calling at Morrison's Haven also, was wrecked, and became a total loss, on the coast of Northumberland ; and in the House of Lords, reversing the 1 Davis V. Garrett, 6 Blng. 716 ; see Gregory v. Christie, 3 Doug. 419 ; Val- Parker'W. James, 4 Camp. 112, as to the lance v. Dewar, 1 Camp. 503 ; Ougier measure of damages. v. Jennings, 1 Camp. 505, note a. 2 Salvador v. Hopkins, 3 Burr. 1707 ; ^ Salisbury v. Townson, 1 Burr. 341. 426 PURSUING THE VOYAGE. [chap. IX. Several Ports. Order of Succes- sion. Naming a safe Port. Deviation justi- fied. decision of the Court of Session, it was held that the deviation was fatal to the policy.^ It has been determined in Marine Insurance law, with regard to these express agreements, that, where several ports are referred to without name, they are to he taken in their geographical order ; ^ but if named, then in the order in which they are specified;^ unless usage has fixed a different succes- sion,* or the objects of the charter-party and obvious intention of the parties to it justify another course.' It is implied by law in the contract with the shipowner that the port to be named for delivery of the cargo shall be such at the time of entry as the ship may enter without compromising her safety.^ Therefore if the port named be at the time under blockade, or the port of an enemy at war with the country of the shipowner, he is not obliged to go there ;'^ the freighter, by naming such a port, is guilty of a breach of his contract, and the contract is dissolved thereby, if no part of it has been performed and the shipowner elects to rescind itl^ Humanity and interest coincide with the policy of law in this, that a departure, for the purpose of succouring the dis- tressed, is no deviation.^ Deviation however merely for the purpose of saving property on board another ship, although life is therewith also saved, is not justifiable unless life could only be saved by saving property also.^" But if the safety of the adventure itself obviously requires it, for instance, if there be "an apprehension of capture founded on circumstances calculated to affect the mind of a master of ordinary courage. 1 Had no place been inserted, and even the liberty required been omitted, usage would have prevailed against the implied principle of the law, but expressio unius est excluslo alterius, Elliott V. Wilson, 7 Brown, P. C. 459. 2 Clason V. Simmonds, 6 T. E. 533. ' Beatson v. Haworth, 6 T. R. 531 ; Marsden v. Keid, 3 East, 572. " Beatson ■;;. Haworth, 6 T. E. 531 ; Gardner v. Senhouse, 3 Taunt. 16. * Bragg 1). Anderson, i Taunt. 229 ; Lambert v. Liddiard, 5 Taunt. 480 ; Ashley v. Pratt, 16 M. & W. 471. A minute discussion on this subiect is more appropriate to a work on Ma- rine Insurance, and may be found in 1 Amould, 467-473. ^ Ogden V. Graham, 1 B. & S. 773 ; 31 L. J. (Q. B.) 26 ; Geipel v. Smith, L. E. 7 Q. B. 404. ' The Teutonia, L. E. 4 P. C. 171. ^ Giepel v. Smith, snpra. ^ Per Lawrence, J., Lawrence u. Sydebotham, 5 East, 45, 54 ; The Beaver, Conner, 3 C. Bob. 292. 1° Scaramangai). Stamp, 4C. P. Div. 316 ; on appeal, 5 C. P. Div. 296. CHAP, rx.] PURSUING THE VOYAGE. 427 judgment, and experience, this would justify delay," ^ as against all interests, insurers, and others. A master who is required by charter-party to caU in the Call for orders. course of the voyage for orders, is bound to do so, and to put himself in communication with the referees at the port speci- fied ; but, in the absence of orders for him there, it is enough if he wait a reasonable time, without applying by letter to the charterers for instructions ; and he may then sail to any one of the several ports of discharge mentioned in the charter-party, if there be nothing therein to determine his preference.^ In case repaii's become necessary in the course of the voyage, Repairs in 1 1 J i , ... « course of the we have alreadj^ seen what resources, even m circumstances of voyage. extreme distress, the law maritime places within the power of the master, and what authority it entrusts him with to hypo- thecate the ship, and to hypothecate the cargo or sell part of it, in order to put his vessel in a condition to carry the remainder to the destined port. In the same place we also considered what acts of authority might be exercised by him in respect of the cargo, under circumstances of imperative necessity.^ If the master continue to pursue the voyage, after the vessel to his knowledge is become unseaworthy, without repairing her, although he has opportunity of doing so, this is a breach of his contract both with the charterer or shipper, and also with the crew, and he and the owners are liable for any loss or injury to the cargo or the crew consequent thereon.* Per Parke, B., " In such a case the shipowner is bound to repair if he has the opportunity, or at all events the vessel is not to sail in an unseaworthy state." ^ The English law at such a crisis in the course of the ad- venture, whilst it prohibits the master from sailing again with his ship unseaworthy, leaves him the option of several alter- natives.^ The ship may be so unrepairable, having regard to 1 The San Eoman, L. E. 5 P. C. 301, § 5. That it is necessary to allege the 305 ; The Teutonia, 4 P. C. 171 ; The master's knowledge of her condition, Heinrich, L. K. 3 Ad. 424. opportunity to repair, and neglect to 2 Sieveking v. Maas, 25 li. J. (Q. B.) do so, and loss' in consequence of such 275 ; (in error), 25 id. 358 ; 6B. & B. negligence, see HoUingworth v. Brod- 670. See The Teutonia, mpra. rick, 7 A, & B. 40. 3 j^^fg (.. iv. ^ Worms v. Storey, sitpra. See ■» Worms V. Storey, 25 L. J. [Ex.) 1 ; BlaSoo v. Fletcher, 32 L. J. (C. P.) 284. 11 Exch. 427, S. C. ; 39 & 40 Viot. c. 80, " Per Lord Stowell, The Gratitudine, 428 PURSUING THE VOYAGE. [chap. IX. ^anshipmeiit •whether ever compulaory. her condition, or to that and the lack of opportunity, or to the great expense of the repairs, far surpassing the value of the result when produced, that he may think proper to give up the cargo to the charterer, and close the expedition, thereby losing the whole of his freight. Or, intending to repair, he may retain the cargo, for a reasonable time, until the repairs are completed, and carry it on to the port of destination, so earning his fuU freight. The charterer, however, in that case may prefer receiving his cargo at the port of distress, and if the master consent to give it up, without more, it is not unreasonable from these facts to presume an agreement on the part of the charterer to pay pro rata freight. If the cargo be of a perishable nature, or so damaged as to become perishable, it cannot be retained for any length of time even at best, and he may be compelled to give it up to the charterer or his agent, or in the absence of both to sell it on the spot, or, if it be possible by reasonable means within a reasonable time, to restore at the expense of the freighter a damaged cargo to such a condition as that it may be reshipped and carried on as a valuable cargo to its destination, one or other of these courses he may be bound to take, as being charged with the care of the cargo and the interests of his owner. Instead of carrying on the cargo by his own vessel, he may tranship it, if the state of the cargo permit, and send it on to its destination, either in fulfilment of his own contract of afireightment, so entitling himself to the freight, or on behalf of the charterer, with such results as the law of the particular facts of each case may determine.^ It never has been decided in this country, whether under any circumstances he is bound to tranship. By the Ehodian law^ 3 C. Bob. Ad. 240 ; Shipton v. Thorn- ton, 9 A. & B. 314 ; Luke v. Lyde, 2 Burr. 883, 887 ; Lutwidge v. Grey, ibid. ; Matthews v. Gibba, 30 L. J. (Q. B.) 65 ; Blasoo v. Fletcher, 32 L. J. (C. P.) 284 ; The Hambuig, 33 L. J. (Ad.) 116 ; 2 Moo. P. C. N. S. 289 ; De Cuadra v. Swana, 16 C. B. N. S. 772 ; Cargo ex Galam, B. & L. Ad. 167 ; 2 Moo. P. C. N. S. 216. See the judg- ment in Kidston v. Empire Ins. Co., L. E. 1 0. P. 535 ; and Notara v. Hen- derson, L. E. 5 Q. B. 349, in error, 7 Q. B. 225. The Bahia, Br. & L. Ad. 292. ' ^sepost, c. X. ^ Eoy irXotov Tpmriirri ^opria Kofu^ov TO Se (foprio cioipeflj, em Tif vavKKi]fif eo-TO), eav eeXri tv r$ ir\ouf Ko/tifeii/ [^ ey T^ atiyKei/ienf eiiiropettf], eav wXoToi/ «{7jp- TTiiiiVov ?. El 8e /in f^prnnemv ?, oAAo 5e TtKoiby ejri^ep?) i vavK\iipos cit to CHAP. IX.] PURSUING THE VOYAGE. 429 it is left discretionary ; as it is by the laws of Oleron/ and would appear to be so left by the Ordinance of Wisby, did not a subsequent article, copied also into the Hanse Ordinance,^ bear evidence of a contrary disposition, thereby agreeing with the maritime law of Amsterdam.^ According to the interpreta- tion put by Vinnius upon the Roman law, the master is thereby under no obligation to procure another ship when that by which he contracted to carry the goods is disabled.* But the Antwerp^ and Rotterdam^ Ordinances, as translated by Magens, employ the strongest terms of obligation. The French law, though phrased in the clearest language on this point, is so framed as to leave the intention thereof in doubt, and the most distin- guished jurists of that country divided in opinion. Si le capi- taine est contraint de faire radouber le navire pendant le voyage, I'affireteur est tenu d'attendre, ou de payer le fret en entier. Dans le cas ou le navire ne pourrait etre radoube, le capitaine est tenu d'en louer un autre. Si le capitaine n'a pu louer un autre navire, le fret n'est du qu'a proportion de ce que le voy- age est avance.'' Looking at the first and third member of this provision, and the consequent effect upon freight which is operated by each; it is not unnatural to conclude that the second member is elliptically expressed, and should be construed as though followed by these words : — [ou de perdre le fret en entier]. Accordingly, it is the opinion of Valin ^ and Pothier ^ auyKeifiivov eiinropiiov, i vavKXr)pos SiSoTw de douanes, qui seront pour le compte TO vavXov airav. c. 42 — 1 Pardess. 256. du n^gociant." The Hans. Ord. 1614, 1 conjecture that the clause -which I t. 3, art. 17, is if possible more ex- have put in [ ] is a corruption, and plicit, " le patron est tenu de les con- should be — eij TO avyKeiiievov efiiropeiov, duire dans le lieu oii il s'est charge de omitting i). Pardessus does not notice les transporter ; le tout k see f rais, it, translating however as though this mais aux risques du n^gooiant, et a la were his text. charge par celui-ci de payer les droits ' Alt. i — 1 Pardess. 325 ; " il poet de douanes." — 2 Pardess. 536. allouyer une autre neef a faire le ^ Art. 17—1 Pardess. 413. vyage.'' * Vinnius in Peckium, 285, 295, 2 Ord. Wisby, art. 18—1 Pardess. " quia de certa nave actum est." 472 ; "il aura la faculty de louer un * Art. 3—2 Magens, 14. autre," is the translation of Pardessus. ^ Art. 148—2 Magens, 105. But axt. 54 of the same Ord. p. 498, is ' Code de Com. art. 296, 391 ; Ord. thus rendered in part : " S'il est impos- 1681, liv. 3, t. 3, art. 11 (copied ver- sible au patron de r^parer le navire batim into the Code)— 4 Pardess. 362. pour se rendre k sa destination, il devra ^ 1 Valin, 651. envoyer les marchandisea par les voies ' Pothier, Charte-partie, no. 68. de I'int^rieur, k ses frais, sauf le droits 430 PUBSUING THE VOYAGE. [CHAP. IX. that he is no further bound to procure another vessel,, than by losing his freight, if he omit to do so. Emerigon,^ however, followed by Pardessus^ and Boulay-Paty,^ maintains that, by the express language of the law, and the nature of the trust reposed in the master, it is his duty to hire another vessel, if it be possible, for the cargo, and that he is answerable in damages if he neglect it.* Chancellor Kent, stating the law of America, says : — " In this country we have followed the doctrine of Emerigon, and the spirit of the English cases, and hold it to be the duty of the master, from his character of agent of the owner of the cargo, which is cast upon him from the necessity of the case, to act in the port of necessity for the best interest of all concerned ; and he has powers and discretion adequate to the trust, and requi- site for the safe delivery of the cargo at the port of destination. If there be another vessel in the same, or in a contiguous port, which can be had, the duty is clear and imperative upon the master to hire it ; but stiU the master is to exercise a sound discretion adapted to the case." ^ ' The spirit of the English cases,' decided since that passage was written, is not favourable to a liberal construction of any implied authority of the master in respect of the cargo, as agent of the proprietor f and whether his obligation with regard to it extends to any other than his own ship, still remains to be determined by the courts of this country .'' How the title to freight is affected by circumstances of such emergent disability remains to be considered in a subsequent chapter.* Care of the The master is bound during the voyage to take all reasonable "^"^ care of the cargo.® He is not responsible for injury done to it ' 1 Emerigon, 422, 423 ; and per boom v. Chapman, 13 M. & W. 230 ; Boulay-Paty, the editor, 427. but especially Duncan v. Benson, 1 2 3 Pardessus, Droit Com. no. 715 Exch. 537 ; (in error) 3 Exch. 644 ; as and no. 644. compared with the language of Lord ' 2 Boulay-Paty, Droit Maritime, Stowell in The Gratitudine, Mazzola, 400-405. 8 C. Bob. 240, 257, et seg[. And see ■• See the interpretation put upon Hunter ■». Prinsep, 10 East, 378, 393. the French Law by the English Court ' Shipton c. Thornton. 9 A. & B. of Admiralty, The Bahia, Br. & L. Ad. 314. 292. 8 ^e post, ex. 5 3 Kent's Com. 212. 9 Emerigon, 1. 1, p. 377 ; Consolato, 6 See Cammell v. Sewell, 3 H. & N. art. 16 — 2 Paxdess. 69. 617 ; (in error) 6 H. & N. 728 ; Viler- CHAP. IX.] PUBSUING THE VOrYAGK. 431 in consequence of , any of the risks covered by the exception in the charter-party or bill of lading ; but damage by rats or mice is not included under any of the usual words, and he must answer for it, notwithstanding he maintains a cat on board,^ although in the opinion of foreign jurists the maintenance of a cat on board would be a good defence.^ Yet even damage by the excepted perils binds him to check the consequences of it in the cargo, so as to prevent further injury by all reasonable means according to his opportunity. He is not bound to make for a port expressly for that purpose ; yet, he is not to leave port with a cargo on board in such a condi- tion that further injury to it must certainly be the consequence. The condition of it may be such that he is bound to unship it ; he sells it at his peril if the condition of it is not so bad but that at a reasonable expense it may be restored and sent on, a stiU valuable cargo ; but he is not bound to delay the vessel an unreasonable time for its restoration. In that case he may provide for the transhipment of it for its destination.^ We have already seen that the master and owners being common carriers, or bound by the law of common carriers, their responsibity at common law is in the nature of insurers with regard to the cargo, against aU but the acts of God and the Queen's enemies.* What limitation of that responsibility is conceded to them by statute, we have also seen,^ and what risks are usually excepted out of it, we shall yet see.^ Upon the principles of the common law, they are responsible for goods stolen or embezzled on board the ship by the crew or other persons, or taken by pirates,^ or destroyed by fire,^ or lost or injured in consequence of the ship sailing in fair 1 Dale V. HaU, 1 Wils. 281 ; Lave- Dent, 8 Moore, P. C. 419 ; jier cm: roni V. Drury, 8 Exoh. 166, 22 L. J. Kidston v. Empire Ins. Co., L. E. 1 (Ex.) 2, S. C. ; Hunter v. Potts, 4 0. P. 535, and cases supra, p. 427, Camp. 203 ; Kay v. Wheeler, L. R. 2 note «. 0. P. 302. ^ Ante, p. 115. 2 Eoccus, not. 58, and see Jones on * Ante, p. 121. Bailments, p. 105. lliis rale is laid ^ Post, c. xi. down in the Consolato del Mare, c. 22, ^ 1 Co. Litt. 89 ; Eooous, not. 40 ; 23—2 PardeSB. 75, and adopted by all Wellwood, tit. 9, p. 30. foreign writers on this subject. Erne- « Hyde v. The Trent and Mersey rigon, 1. 1, p. 377, 378. Navigation Co., 5 T. E. 389 ; Forward 3 See Notara v. Henderson, L. E. 5 v. Pittard, 1 T. E. 27. Q. B. 346, 7 Q. B. 225 ; Tronson v. 432 ENDING THE VOYAGE. [CHAP. IX. weather against a rock or shallow known to expert mariners.^ In like manner, where on a voyage from Hull to Gainsborough, a vessel was sunk in the river Trent, by striking against an anchor, and some of the goods on board were injured, the owners were held responsible for the injury, although the anchor lay under water, and the position of it was not marked by a buoy.^ But even common carriers are not liable for damage which is the result of inherent vice, or of sweating in the hold, provided it can be shown that the cargo was properly stowed, or at all events, as such a cargo is usually stowed at the port of loading.^ TBUMiNATiNa Lastly. — He is bound to terminate the voyage by bringing Where to 1 ' ^^^ ^^^^ ^^^° ^^® place stipulated in the charter-party. If the the ship. charter-party be to proceed to such a port without more, then he is bound to lay his ship in the usual place of discharge for such a ship so laden ; if that be a dock, it suffices that he place her in the dock without laying her at a quay berth, unless a quay be expressly stipulated.* In other words, until his vessel is in a place at which having regard to the charter-party she can be deemed an arrived ship, his performance is defective, and gives a right of action against him, whilst at the same time no [.duty on the part of the charterer or consignee arises. If there be two such places as answer the contract of affreight- ment for discharge or loading, it is enough to have laid the vessel in one of them ; the master must have her moved into the other if required by the freighter,— with such rights and liabilities as may be just.* If the contract of affreightment be to proceed to such a place or as near thereto as the ship may safely get, the master is bound to take his vessel to the place in question, unless some legal or physical obstruction of a • Emerigon, torn. 1, p. 373; Eoccus, 348 ; and see Clarke v. BameweU, 12 not. 55. Howard, (U.S.) 272 ; Eich v. Lambert, 2 Proprietors of the Trent and Mersey 12 id. 347. Navigation v. "Wood, East. Ter. 1785 ; * Per Brett, L. J., Nelson v. Dahl in K. B. 8 Esp. 127. 12 Ch. Div. 583. See ante, -p. ill. 3 Blower v. Great Western Ey. Co., » The Felix, L. E. 2 Ad. 273. L. E. 7 C. P. 665 ; Kendall v. L. & S. See further as to oases and particu- Western Ey..Co., L. E. 7 Ex. 373; laxs, q, x., Freiffht m^ Demiirrage Baxter v. Leland, 1 Abbott's Ad. (U. S.) CHAP. IX.J ENDING THE VOYAGE. 433 permanent (i.e., enduring) character bar the way.^ Mere accidents of sea or river would not justify anything short of full performance.^ But in case of such permanent obstruction, the master is then bound to bring his ship to a place so near to the primarj^ place of destination as the ship can be brought with safety to the ship and cargo, and so as to be ready, so far as the ship is concerned, to deliver there. Till that is done, the voyage is not terminated. There is no duty on the master to give the freighter or Notice of arriTal. his consignee notice that the ship is placed and ready to dischaa-ge.^ The person entitled to receive it is the lawful holder of To whom the biU of lading, being the consignee named therein, or his " '™'^^' assignee under a proper indorsement of the bill of lading.^ But the master cannot be expected to determine such a difficult question as the legal title to a bill of lading as the representa- tive symbol of the cargo. If a biU of lading in proper form is presented to him at the port of discharge, he is justified in the absence of notice to the contrary in giving up the cargo to the holder ; ^ and if there be more than one such, the master having no reason to determine him against any of them, yet delivers to one, he is not therefore liable to an action by any of the other holders. But if he is in doubt what course to take, especially when there appear to be conflicting interests, he ought to take an indemnity from the holder to whom he means to deliver the cargo.^ Under ordinary circumstances, delivery is made only upon Lien for Pay- ment. payment of freight and other charges mcident to the conveyance of the cargo. If, however, the vessel is let to hire, so that possession is iu another, the Uen of the ownfers on the cargo for the hire of the ship is gone. Any lien is then in the owner 1 Nelson v. Dahl, 12 Oh. Div. 568. 28 L. J. (C. P.) 58. Fearon v. Bowers, ■ Sohjlizzi V. Derry, 4 E. & B. 873 ; 1 H. Blkst. 364, note. 2i L. J. (Q. B.) 193 ; Metcalfe v. * Gabarron v. Kreeft, Kreeft v. Britannia Ironworks Co., 2 Q. B. Div. Thompson, L. E. 10 Ex. 274. 423 (C. A.) ^ See The Tigi-ess, 32 L. J. (Ad.) 97 ; 3 Fast, p. 449. CaldweU v. Ball, 1 T. K. 205 ; per * Ante, u. viii. p. 373. Meyerstein Crompton, J., Eriohsen v. Barkworth, V. Barber, L. K. 2 C. P. 38 ; Sheridan 28 L. J. (E.x.) 95, 96. V. New Quay Co., 4 C. B. N. S. 618 ; 434 ENDING THE VOYAGE. [CHAP. IX. jpro hdc vice, and he only may enforce it. And even where the possession remains in the owners, they may yet have divfeSted themselves of this common law right by their express stipula- tions in the charter-party as to payment.^ The other charges, if any, besides freight, are primage, and petty average, at one time invariably expressed in the bill of lading. In case of a general average loss, the civU law imposed on the master the duty of adjusting and settling the average, and allowed him to detain the cargo tiU the contribu- tion in each case was paid.^ This power of detaining the cargo is also given by the laws of Oleron ^ and of France ; * and is recognised in this country as a common law lien which the master may enforce in that way.^ It is usual, however, in this country, for the master to take security from the merchants, before he delivers the goods, for payment of this contribution or their share of it when the average shall be adjusted.^ Detention of part In the case of a general ship, when the cargo belongs to for freight of the , pit -iii j. -wlitje. several persons, some oi whom have paid, and some nave not, it becomes necessary to discriminate and < retain only those goods that are subject to lien for the unpaid freight. Valin informs us, that the entire contents of a single bill of lading are to be considered as one part, although consisting of very different articles ; but that the contents of one bill of ladiiig are not bound to the payment due for the contents of another bill of lading, although consigned to the same person.'' 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 received on board under one contract, and consigned to the same person ; * which seems to be a more reasonable and con- 1 Post, c. X. ; and see Thompson i). . Tobin, 3 B. & Aid. 523, 528. Small, 1 C. B. 328 ; Lucas v. Nockells ^ So deposed by a gentleman very (in error), 4 Bing. 729 ; Alsager v. The conversant with the business, in the St. Catharine's Dock Co., 14 M. & W. cause of Myer and Others v. "Vander 794 ; Foster v. Colby,,, 28 L. J. (Ex.) Deyl, Guildhall, Sit; p. M. Tj 1803, be- 81. forsLord EUenborough, C. J.— Abbott. 2 Dig. 14. 2. 2. 7 I'Valin, 668. '. Laws of Oleron, art. 9 — 1 Pardess. ' Soldergreen v. Flight, Guildhall, 329. Sit. p. T. T. 1796, before Lord Kenyon, ♦ Co. de Com. art. 428 ; Ord. 1681, C. J., cited in Hanson v. Meyer, 6 liv. 3. t. 8. art. 11—4 Pardess. 384. East, 614, 622, 623. * Fei- Lord Tenderden, Scaife v. In MoUeri;,. Young, 5 E. & B. 71 ; CHAP, rx.] ENDING THE VOYAGE. 435 venient rule. And, therefore, if goods of the same owner are sent in the same ship under different contracts to convey, with a different terminus in each, no lien attaches for freight under the one contract, upon goods shipped under the other.^ What the amount may be for which his Ken exists wiU fall to be discussed in the next chapter. We shall there see ^ that whatever amount he may have signed for in the bill of lading by his owner's authority is binding on him and his owner towards one with whom there is no other contract of carriage. And we shall only add here, that whilst for freight properly so called there is a lien at common law, there is no lien, and con- sequently no right of detention, for dead freight or unliquidated damages under the name of freight, or for demurrage, or port charges,^ or for wharfage,* or for money in the name of freight, stipulated to be paid in advance ; ' and he cannot, therefore, justify the detention of the goods for the payment of any of these claims, except under express contract.^ The master may assert his lien for freight by detention of How enforce Hs the goods on board, keeping his ship on demurrage, at all events for a reasonable time. If the port be in a British pos- session where the common law prevails, he may discharge the cargo into a warehouse, subject to his lien, giving the freighters (in error) 5 iiid. 755, decided before Com. art. 307, 308. the 18 & 19 Vict. c. Ill, it was held ^ Mercantile & Exchange Bank v. that the contract which might he in- Gladstone, L. E. 3 Ex. 233 ; Foster v. ferred from acceptance of the cargo by Colby, 28 L. J. (Ex.) 81 ; Shand v. the indorsee of a bill of lading was not Sanderson, ii. 278. to pay freight for it, part by part, as ^ Phillips v. Eodie, 15 Bast, 547 ; it was delivered, but to pay the freight Birley v. Gladstone, 3 M. & Sel. 205 ; on complete deliTery, the consideration Faith v. The East India Company, 4 of the contract being, that the master B. & Aid. 630, 642. shonld give up his lien on the cargo. ' ^ Bishop v. Ware, 3 Gamp. 860. 1 Bemal v. Pim, 1 Gale, 17. By ^ How v. Kirchner, 11 Moore, P. C. the French Ordinance (liv. 3, tit. 3, 21 ; Kirchner ■;;. Venus, 5 Jur. N. S. I'ret, art. 24—4 Pardess. 363), the lien 395, coram P. C. ; Gray v. Carr, L. R. or ^j'wi%« continues while, the, goods 6 ,Q. B. 522 ; Kerford v. Mondel, 28 are en board the ship, in the lighters, L. J. (Ex.) 303. or on the quay, and even for a fort- ^ See cases, mpra, notes 3, 4, & 5 ; night after they have been delivered, and Gray v. Garr, svpra ; McLean v. provided they have not in the mean- Fleming, L. R. 2 Ho. of Lords (Scotch), time passed into the hands of a third 128. And the cases upon the exemp- person, and under the Code, this lien tive clauses in charter parties con- is not defeated by the bankruptcy of sidered, ante, p. 356. the debtor in the meantime ; Code de F P 2 436 ENDING THE VOYAGE. [CHAP. IK. notice thereof; but as he cannot hold it for the warehouse rent and other charges, he must give it up on payment of the freight, and rely on his action for his other demands, if not paid. He is, however, under the responsibihty, since he assumes the character and functions, of a warehouseman.^ Statutory mode If in a port of the United Kingdom he may avail himself. Lien. °"™^ whether foreign or British, of the advantages conferred by the 25 & 26 Vict. c. 63, § 66, et seq. By that statute,^ he may, if need be, enter and land the goods (a) at any time after the time for delivery expressed in the charter-party or bill of lading, (b) or if no such time be expressed, thf n at any time after the expiration of seventy-two hours, excluding Sunday or hohdays, after the ship is reported, (c) at the wharf or into the warehouse named in the charter- party or bill of lading, if they can conveniently be re- ceived there, (d) and in other cases, at or into the accustomed wharf or warehouse for such goods, the same being a custom- house wharf or warehouse,^ if the goods be dutiable ; (e) provided that, if before all * the goods are landed, the owner offers to land, he is to be allowed to do so, if without prejudice to the shipowner.^ But suppose the owner of the goods has entered them for landing and warehousing at another wharf than where the ship is discharging, and offers [being then ready with barges] to take delivery, the shipowner is then to deliver, or state at what time the goods can be delivered, or failing in both, must give twenty- four hours' notice in writing of his readiness to deliver, and if without such notice he lands them (unless by express stipulation in the bill of lading the case is taken out of the statute^), he does ' See the elaborate judgment of Stm. Navig. Co., L. E. 1 C. P. 61, Willes, J., in Meyerstein v. Barber, where the Court were of opinion that L. K. 2 C. P. 38 ; Mors-le- Blanch v. § 67, subs. 5 [25 & 26 V. c. 63], was to Wilson, L. E. 8 G. P. 227. be understood as if all were inserted ^ 25 Sc 26 Vict. u. 63, § 07, subs. 1, after the words, " If at any time 2, 3, 4, 5. iefore." ' The custom-house oilioer may de- * This qualification against loss to tain under lieu for freight, 22 & 23 the shipowner is suggested per Erie, Vict. c. 37, § 2. C. J., in the same case, supra, note '. * Wilson V. Lond. Italian & Adriatic ^ Oliver v. Colven, 27 W. E. 822. CHAP. IX.] ENDING THE VOYAGE. 437 SO at his own risk and expense.^ As to the landing and assort- ment of goods on land, see the 25 & 26 Vict. c. 63, § 67, subs. 6. Thereupon, by notice in writing from the ship to the ware- houseman, the goods, so landed, are subject to the shipowner's lien, and are not to be delivered up except on producticJn of a receipt for payment of the amount claimed or of a release of the freight, and lodging a copy of the same with the warehouse- man, or on deposit with the warehouseman of a sum equal to the amount claimed; otherwise such warehouseman is liable to the shipowner for his loss by such improper delivery.^ And if after this, the warehouseman deliver to a holder of a biU of lading who is not the true owner, he is liable to him who is.^ If the master wilfully insert in his notice to the warehouse- man a larger sum than the proper amount of his lien, so as to compel deposit of this larger sum by duress of the goods, this is an actionable wrong, for which the master is responsible.* In a case where there had been a dispute about the freight, between the owner and freighter, it was agreed to land the cargo by five tons at a time, the freight for each five tons to be paid as it came from the scales ; and it was held to be a conversion of the goods by a wharfinger, who, afterwards, at the request of the shipowner, received the cargo as it was landed, and conveyed it to his warehouse notwithstanding.^ The occasion of the shipowner's right to land and warehouse subject to his lien is described in the statute^ by " fails " to enter, or to land and take delivery, and does not require that there should be either blameable or wilful misconduct on the part of the cargo owner.'' Speaking of a delivery that would satisfy and exhaust the bill When delivery of lading, WiUes, J., says : " There can be no complete delivery '^ °™^ of goods until they are placed under the dominion and control of the person who is to receive them." ^ It is in this sense ' 25 & 26 Vict. 0. 63, § 67, subs. 7 ; 1198. So, by the shipowner where and Beresford v. Montgomerie, 34 L. J. he held the goods for more than the (C. P.) 41. amount of his lien, Kerford v. Mondel, 2 25 & 26 Vict. c. 63, § 68, 69, 70. 28 L. J. (Ex.) 303. 3 Glyn & Co. v. E. & W. India Dk. " 25 & 26 Vict. u. 63, § 67. Co., 5 Q. B. Div. 129. ' Mierbrodt v. Fitzsimmon, uH svp. ■* Mierbrodt v. Fitzsimmon, L. E. 6 p. 316. P. C. 306. ^ Meyerstein v. Barber, L, E. 2 C. P. » Hammond v. McCrie, 3 C. L. K. 50. 438 ENDING THE VOYAGE. [CHAP. IX. that delivery is used here. The manner of delivering the goods, and consequently the period at which the responsibility of the master and owners will cease, depends upon the custom of particular places, and the usage of particular trades.^ Thus a hoyman, who brings goods from an out-port 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 coiisignment.^ And if a consignee require the goods to he delivered to himself, and direct the master not to land them on a wharf at London, the master must obey the request; for the wharfinger has no legal right to insist upon the goods being landed at his wharf, although the vessel be moored against it.^ In the case of ships coming ffom a foreign coimtry, however, it was said by BuUer, J., that delivery at a wharf in London discharges the master.* If the consignee send a lighter to fetch the goods, it seems the master of the ship is obhged by the custom of the river Thames to watch them in the lighter, until it is fully laden ; and he cannot discharge himself from this obligation without the consent of the consignee : ' yet he is not bound to take care of the lighter, after it is fuUy laden, until it can be properly removed from the ship to the wharf. If the goods are not received as soon as the master is ready to deliver them, he is, nevertheless, bound to wait the stipu- lated number of lie-days and days under demurrage ; or, in the absence of stipulation, a reasonable time,^ which by statute is seventy-two hours,'' before he warehouse the goods for the benefit of those concerned, subject to the payment of freight and charges due to the owners of the ship. Imperfect De- The master and owners, in case the ship arrives at the port of discharge, being bound to make complete deHvery of the » Per Tindal, C. J. ; Gatliffie v. « Catley v. ■Wintrmgham, Peake, Bourne, i Bing. N. C. 314 ; Petro- 150. cochino v. Bott, L. E. 9 C. P. 355 ; and « Howard v. Shepherd, 9 C. B. 297 ; 1 Valin, 530. GatlifEe v. Bourne, 4 Bing. N. C. 314 ; 2 Warden v. Mourillyau, 2 Bsp. (in error) 7 M. & G. 850 ; 11 01. & F. 603. 45, and if they be landed without 3 Syeds v. 'Ray, 4 T. E. 260 ; The notice, and there destroyed by fire, the Felix, L. E. 2 Ad. 273. owners are liable, ihid. * Hyde v. Trent & Mersey Navig. i Ante, p. 436. Comp., 5 T. E. 389, 397. livery. CHAP. IX.] ENDING THE VOYAGE. 439 cargo, are liable, when there is a deficiency. Consequently, where two parcels of meal in bags that differed in size were shipped promiscuously, but signed for severally in two bills of lading, and the contents of the one bill of lading showed by a simple calculation that all the large bags must go to the holder of that bill of lading, yet a number of small for large were delivered to him from the ship, the shipowner was held liable, although the bill of lading had been signed " contents and weight unknown." ^ The action may be for breach of. contract in not delivering, or for conversion of the goods which are wanting; but the same measure of damages is not applicable to all cases of short delivery. Wherever the deficiency has arisen from the negligence of the captain, or owners — e.g., when goods have been damaged, and necessarily sold in that condition in con- sequence of the unseaworthiness of the ship, the measure of their liability seems to be the sound value of the goods at the time and port of delivery.^ But if the damage and necessary disposal occur through perils of the sea, without fault .in the captain or owners, the proprietor of the goods (without re- ference to freight) is entitled to what they sold for and no more.^ Cases of jettison and ,the like, falling under the principle of general average, must be reserved for future dis- cussion under that head.* If the captain for the purposes of the ship, under justifiable Value of Goods circumstances, either hypothecate the whole cargo, or sell a part, the merchant, in, case the ship arrives at her port of dis- charge, is entitled to be ihdemnified by the owners,^ and has the option, it seems, of recovering for goods sold at an inter- mediate port the sum they fetched at the place of sale, or their value at the time and place of delivery.® • Bradley ■!;. Dunipace, 32 L. J. (Ex.) ' Duncan v. Benson, 1 Exch. 537 ; 3 in error, 22. Bxoli. 644. It seems to have been held 2 Blythe v. Smith, 5 M. & G. 405 ; to be a question Of general average in Worms V. Storey, 11 Bxch. 427 ; 25 the United States, The Packet, 3 Ma- L. J. (Ex.) 1, S. C. ; Hallett v. Wig- son, 255 ; Abbott, Ship. 487, Am. ed. ram, 19 L. J. (C. F.) 281 ; Atkinson v. The contrary was expressly held in this Stephens, 7 Exch; 567. country in Hallett v. Wigram, 19 L. J. 3 The Gratitudine, Mazzola, 3 0. (C. P.) 281 ; 9 C. B. 580, S. C. Rob. Ad. 240. " -P**^ Pollock, C. B., and Parke, B., 4 pggf; c_ xiv. in Atkinson v. Stephens, 7 Exch. 567, 440 ENDING THE VOYAGE. [chap. IX. Whether to be paid for. But if the vessel afterwards perish before reaching the destined port, the Ordinance of Wisby expressly declares that the money raised by this sale shall be paid to the merchant by the master ;i and Cleirac^ Kuricke, Valin/ and Pothier,* are of opinion that this money is due to the merchant, not only from the master, but from the owners also, because it was expended for a purpose of which they were, at all events, liable to sustain the charge. None of the other ordinances contain any similar provision ; and Emerigon^ contends, on the authority of the Consolato,^ and the Ordinances of Oleron'' and Antwerp,^ that the money is only payable in case of the safe arrival of the ship; an opinion which was entertained also by several persons consulted by M. Pothier.' To Mr. Abbottji" " the doctrine of Emerigon seemed the most reasonable as the merchant was not thereby placed in a worse situation than if his goods had not been sold, but 573, 575 ; ajid per Parke, B., "if they sell for less than their value at the in- termediate port, the plaintiBE, declaring in trover, must also allege special damage, to recover the difEerence of value at the place of delivery," Hid. 573. See Hallett v. Wigram, 19 L. J. (C. P.) 281. In Richardson w. Nourse, 3 B. & Aid. 237, the goods had actually fetched a higher price than they would have sold for at the place of discharge, and the mercantile arbitrators, having reckoned the general average loss at the higher price, the Court refused to set aside the award, as the law was too doubtful on this point. In Campbell V. Thompson, 1 Stark. 490, Lord EUen- borough held the merchant entitled to deduct from the freight payable the amount for which the goods sold. See Brandt v. Bowlby, 2 B. & Ad. 932, 937, 938. In Alers v. Tobin, coram Lord Bllenborough, and a special jury at Guildhall, Oct. 30, 1802, the damages recovered were the value of the goods at the port of delivery. In Hopper v. Bumess, 1 C. P. Div. 137, the defen- dant owner of cargo had obtained by the average statement the price at which the goods were sold, being more than their value at the port of destina- tion. The shipowner sued for freight of these goods pro rata, but did not recover. But per Brett, J., if the cargo owner had sued for their value at the port of destination, he must have paid freight on them to the same port. So, by the Laws of Oleron, art. 23 — 1 Par- dess. 339 ; Ord. Wisby, art. 38, U—1 Pardess. 487, 493. ' Ord. Wisby, art. 68, which is not published by M. Pardessus, unless it be one of the articles in the original Dutch, left untranslated, and belong- ing to a different recension of MSS. See 2 Emerigon, 474. - Cleirac, Us. et Cout. p. 88, n. 2, 4. 3 1 Valin, 655, 656. ■• Pothier, Charte-partie, no. 34, 72. ' 2 Emerigon, Prlt & la Grosse, 474, 475, 476. * Consolato, (c. 105) i;. 60—2 Par- dess. 109. ? Oleron, art. 23—1 Pardess. 339. 8 Ord. Antwerp, art 19, cited 2 Emerigon, 475. ' Pothier, uii swpra. w Abbott on Shipping, 4th ed. 257 ; 10th ed. 279. CHAP. IX.] ENDING THE VOYAGE. 441 had remained on board the ship." If this is not a mere topic of philosophical consolation, it is based, as matter of right, either on the event of the voyage or the application of the money. If upon the event of the voyage, then, because the shipowner is unfortunate, the merchant ceases to be a creditor; a warehouseman sells the goods of another without his con- sent, and immediately after the warehouse and all its contents, are destroyed by an accidental fire ; the bailor of the goods sold cannot sue the warehouseman sincfe the fire, because he is in no worse situation than if they had remained in the ware- house. Such a proposition is monstrous ; and to make even a show of reason for it, the sale must somehow be regarded as a general average loss. But Emerigon bases his doctrine on the supposition, that the money applied to the vessel is in the nature of a forced loan on the security of the ship — -pret force a grosse aventure. Is this a figure of speech or a fact ? M. Emerigon assumes that since it may be expended on the ship with the sanction of law, it therefore becomes dependent on the event of the voyage. There is then by supposition a maritime risk ; but where is the compensation to the lender ? As a fact compen- sation is denied him, and this by the same law that forces him to lend and, according to M. Emerigon, exposes him to the chance of absolute loss. From the mere statement of so unreasonable a proposition, it may be safely inferred, that such compulsory loan is not contingent upon maritime risk ; and, of course, it remains yet to be decided in this country that the merchant is not entitled in such a case to recover.^ In France, this controversy is now determined, contrary to the opinion of Emerigon, by an express provision in the Code, fixing as the value of the goods, in case the vessel survives to complete the voyage, the market-price at the port of discharge when she arrives ; but in case the vessel is lost, the amount they fetched at the place of sale. The shipowners, however, have the right, when it is possible, of abandoning ship and freight for the claim ; and the freighter's loss, if any ulti- mately result to him from this appropriation of his goods, is 1 As far as I have been able to con- is without any authority for the doc- sult the references of M. Emerigon, he trine which he espouses. 442 ENDING THE VOYAte. [CHAP. IX. distributed among the other articles of the cargo that have survived the subsequent voyage. The provision in question is this : '^ Le fret est du pour les marchandises que le capitaine a ete contraint de vendre pour subvenir aux victuailles, radoub et autres necessites pressantes du navire, en tenant par lui compte de leur valeur, au prix que le reste, ou autre pareiUe marchandise de meme qualite, sera vendu au lieu de la decharge^ si le navire arrive a bon port. Si le navire se perd, le capitaine tiendra compte des mar- chandises sur le pied qu'il les aura vendues, en retenant egale- ment le fret porte au connaisemeints. Here ended the article in the Code de Commerce as it was adopted in 1807 ; but by a law of the 14th of June, 1841, it received the following addi- tion : — Sauf dans ces deux cas, le droit reserve aux proprietaires du navire par le § 2 de I'article 216.^ Ldrsque de I'exercise de ce droit riesultera une perte pour ceux dont les marchandises auront ete vendues ou mises en gage, elle sera repartie au marc le franc sur le valeur de ces marchandises et de toutes celles qui sont arrivees a leur 1 Co. de Com. 298. tTpon this second ■ charg&depouvoir4ses'besoiQS,aTaient clause of the article, the Expose des contracts une dette individuelle en ap- Motifs, presented au nom du gouveme- pliquant ces marchandises k I'accom- ment, to the corps Ugislatif, on' the 8th plissement de leur devoir personnel ; Sept. 1807, contained the following ob- qu'en pareille ciroonstance, un contrat servations : — L'ordonnance n'ayait rien 4 la grosse ne saurait, par sa sp6cialit6, status ^ oet 6gard, dans le cas de la Stre pr6sum6 ou suppose ; qu'il serait perte du navire. Les Commentateurs 6trange de vonloir' consid^rer comme professaient une doctrine contradic- perdueslesmarchandisesvenduesavant toire ; les uns consid^raient les mar- la perte du navire, tandis qu'elles au- chandises vendues avant la perte et raierit pu Itre sauv^es dans la circon- pour suhvenir aux; besotas du navire, stance , mgme du naufrage ; qu'enfin, comme le Bujet forcfi d'nn contrat a la le propri^taire des marchandises ven- grosse, et en rgfusaient le paiemeut ; les dues, si elles ne lui 6taient point payees autres aocordaient ce paiement, en les par le capitaine, se trbiiverait d6pomll6 regardant comme sauvfes, puisqu^on sans pouvoir exercer auoun recours en avait dispos§ avant que le navire ellt centre ees assureurs qui ne seraient 6prouv6 aucun 6vtoement sinistre. II pas tenus au remboursement, puisqu'il a faUu se fibser sur ce point. Ilaparu n'y aurait psts eu d'objet de risque k Equitable de penser que les marchan- bord lors du naufrage. Ces reflexions dises vendues pour subvenir aux be- ont conduit k la disposition exprim6e soins du navire eonstitnaient un titre au second paragraphe de I'art. 298. decr^anoe en faveur de leur propria- -2 " II pent s'aflEranchir des obliga- taire, que dka lors elles avaient cess6 tions ci-dessus par I'abandon du navire d'gtre en risque ; que le capitaine et lea et du fret." Code de Com. art. 216. proprietaires du navire, qui etaient allowed' to land. CHAP. IX.] PERFORMANCE BY FREIGHTER. 443 destination on qui ont et^ sauvees du naufrage posterieure- ment aux evenements de mer qui ont necessite la vente ou la mise en gage. It may be that circumstances may impose a duty on the Whatifuot master with regard to the cargo after and beyond the natural termination of the voyage. For if he is not allowed to land the cargo at the place of destination, or, if having landed it there, he is obliged by the authorities'there to reship it, he cannot throw it into the sea ; he is obliged to do the best for it with a view to the freighter's interest, even to the bringing of it back to the port of loading ; but the law will in such circumstances take care that he is rewarded for this additional trouble.^ In performing his contract, the freighter, who has taken a Pbrformance by ship to hire, so as to be owner pro hdc vice, is bound by the law to use it in a lawful manner and according to the purpose for which it was let,^ taking such diligent care of it as a prudent Diligent care. man exercises with regard to his own property.^ More usually, the contract is one of affreightment properly Place of loading so called, leaving possession of the vessel still m the hands of the owners and their servants. When the ship is at the stipu- lated place of loading, be that described as in port or in dock, or at such a quay, and when by her position she has satisfied this stipulation, she is also ready to receive cargo, the char- terer is entitled to notice of both these facts.* If for the purpose of unloading, the place of destination is not specifically ascertained by name, or agreed to be ascertained by specified means, he is bound to supply the want, within a reasonable time, and is not entitled to put a supercargo on board to fix the terminus in the course of the voyage.^ ' The cargo ex Argos, Brown v. BuUer's N. P. 72, that the utmost Gaudet, L. E. 5 P. C. 135 ; 4 Ad. 13. diligence is required. (So the civil 2 See Edwin r. The East India Com- law, Inst. lib. 3, t. 25, § 5, diligentis- pany, 2 Vern. 210 ; Lewin v. East simus.) It seems to be now settled in India Company, Peake, 241 ; Dobree accordance with what is expressed in V. The East India Company, 13 East, the text, Story, Bailm. no. 398 ; Jones, 290. Bailm. 86, 87, 120; Pothier, Louage, 3 Contrary to the opinion of Lord no. 190, 192. Holt, in Coggs V. Bernard, 2 Ld. Eaym. ' Nelson v. Dahl, 12 Ch. Div. 568. 909, 916, and that which appears in * Rae v. Hackett, 12 M. & W. 724 ; 444 PERFOEMANCE BY FEEIGHTEK. [chap. IX. When a particular time nanied is of the essence of the contract, it is binding upon the parties ; if no time is men- tioned, the law implies that a reasonable time is meant, and the parties are severally bound accordingly, the master to have his vessel in a condition to receive, and the merchant to be ready vrith a cargo to be loaded.^ If there is a known custom of the port, or a statutory regulation, as in the river Tyne about the succession of turns for loading, and nothing appears in the contract at variance therewith, the merchant is not to blame for delay, provided the vessel is loaded according to the custom or regulation of the port.^ If, in addition to such custom or regulation, another impediment to the loading is known to both parties to exist, e.g., the colliery engine out of repair, or a strike among the colliers, they are presumed by the law to contract with reference to the circumstances within their knowledge at the time, and allowance for delay is made accord- ingly ; ^ but if the impediment to performance is subsequent to the contract, unless provided for by it expressly,* the parties are bound notwithstanding to performance within the time fixed, or in the absence of a set time, within a reasonable time, and the freighter to supply a cargo as if the impediment did not exist.^ At the same time, if the performance be such that both parties must concur in it, no time being fixed, and an un- foreseen cause above the control of either prevents the perform- ance, the law in that case does not lay the blame on either.^ , scrppLT OF oAKGo. His contract to supply a cargo imposes on the merchant the Woolley V. Reddelien, 5 M. & Gr. 316. See Stewart v. Rogerson, L. E. 6 C. P. 424, where this became the form of action, though the gravamen of the cause was non-acceptance of the cargo. ' Per Lord Deuman, Taylor •;;. Clay, 9 Q. B. 713 ; Kearon v. Pearson, 7 H. & N. 386 ; 31 L. J. (Ex.) 1. 2 Taylor v. Clay, 9 Q. B. 713 ; Leidemann v. Schultz, 14 C. B. 38 ; Hudson V. Ede, L. E. 2 Q. B. 566 ; 3 id. 412 ; Sorutton v. Childs, 36 L. T. N. S. 212 ; ISTorden Steamship Co. v. Dempsey, 1 C. P. Div. 6.54. 3 Harris v. Dreesman, 23 L. J. (Ex.) 210. * Hudson 11. Ede, L. R. 2 Q. B. 566 ; 3 id. 412 ; and ze^post, c. xi. * Adams v. Eoyal Mail Steam Packet Company, 28 L. J. (C. P.) 33 ; Paradiue v. Jane, Alleyn, 27 ; Hills V. Sughrue, 15 M. & W. 253. S. P. Blight V. Page, 3 B. & P. 295 n. ; Had- ley V. Claike, 8 T. E. 259 ; Barker v. Hodgson, 3 M. & Sel. 267. " Ford V. Cotesworth, L. E. 4 Q. B. 127 ; Cunningham u. Dunn, 3 C. P. Div. 443. CHAP. IX.] PEEFOEMANCE BY FEEIGHTER. 445 duty of procuring any licence or authority which is in the nature of a condition precedent to the cargo being obtained ;^ and unless he has provided for the event in the charter-party, any impossibiUty subsequently arising is no excuse for non- performance of his agreement.^ The law presumes that he No uncustomed will observe the common obligation to ship no uncustomed or prohibited goods, the consequence of which might be the detention or forfeiture of the ship ; ' or embark the vessel in any trade contrary to the law of nations, which might be attended with similar consequences.* A contract on the part of the shipowner to receive a full and Quantity of complete cargo does not entitle the freighter to fiU the cabin,' or to load the deck,^ unless in either case there is a usage or stipulation to the contrary ; '^ but, certainly, not in those cases where at certain seasons of the year deck-lading is illegal ; ^ and if he fill the cabin notwithstanding, the rate of freight is then a question for the jury, and not necessarily the sum mentioned in the charter-party.' When he charters the whole ship under contract to provide a full and complete cargo, he is bound to load a fuU cargo,^" although the vessel is larger than the representations made of her capacity in the charter-party ; provided such excess is not unreasonable.^^ But such obligation cannot be supposed to 1 Johnson v. Greaves, 2 Taunt. Ui ; « Cunaid v. Hyde, 29 L. J. (Q. B.) Kirk V. Gibbs, 1 H. & N. 810. 6. 2 Hills V. Sugbrue, 15 M. & W. 253. ' Mitcheson v. Nicol, 7 Exob. 929. See post, c. xi. — Non-performance. '" Jones v. Holm, L. E. 2 Exch. 335 ; 3 The Adams, Edw. Ad. 289 jEoccus, Cole d. Meek, 33 L. J. (C. P.) 183; not. 85 ; Dig. 19. 2. 61, 1 ; French Carr v. Wallaobian Petroleum Co., Ord. 1681, liv. 3, t. 3, art. 9—4 Par- L. E. 1 C. P. 636 ; 2 id. 468. dess. 364 ; Code de Com. art. 294 ; " Per Lord Tenterden, Thomas v. Consolato, c. 147—2 Pardess. 161. Clarke, 2 Stark. 450, 452 ; Hunter v. * The Fortuna, Verissimo, 1 Dods. Fry, 2 B. & Aid. 421 ; Wiadle o. Bar- Ad. 81. It lies on the defendant to ker, 25 L. J. (Q. B.) 349 (in error) ; show in such a case that bis own Morris v. Levison, 1 C. P. Div. 155. country views it differently ; The As to the meaning and effect of the Donna Marianna, 1 id. 91 ; The Diana, word about, see Windle v. Barker, 1 id. 95. mpra; Morris ■«. Levison, «(j?ra; Cross 5 Mitcheson v. Nicol, 7 Exch. 929. c Eglin, 2 B. & Ad. 106 ; M'Connell « See Gould v. Oliver, 4 Bing. N. C. v. Murphy, L. E. 5 P. C. 203. Seem, 134 ; 2 M. & Gr. 208 ; 2 Scott, N. E. if the covenant is not to load a com- 241 ; Neill v. Eidley, 9 Exch. 677. plete cargo, but to pay so much per '! Ihid. See post, c. siTr.— Dealt ton for the goods loaded, Lady James u. Lading. East India Company ; eoram Kenyon, 446 PEEFOEMANCE BY FEEIGHTEE. [CHAP. IX. extend to a transhipment of the cargo under casual necessity in the course of the voyage.^ Kind of Cargo. He is bound to give the master notice of the destructive character of any goods of that nature which he intends to ship ; unless they are open to inspection, and also consist of an article which, to persons of the class of the master and mate of the ship, is commonly known to have destructive qualities ; ^ otherwise, besides the statutory penalty,^ he is liable for any injury to the goods of other shippers, or to the ship occasioned by his negligence herein,* and to forfeit the goods themselves.^ And siace at common law a common carrier is not entitled, as a condition of his receiving any parcel for conveyance to be informed of the contents of it, or to open it for the purpose of ascertaining,® it is enacted that the master or owner of any ship may refuse to take on board any parcel that he suspects of containing goods of a dangerous nature, and may require them to be opened to ascertain the fact, and may even throw the goods overboard, if of a dangerous nature, and not other- wise to be got rid of.'' The description of the cargo stipulated for in the charter? party is often so loose as to leave the shipper his choice of goods in the whole range of lawful merchandise ; but it is also occasionally so connected with the rates of freight and the whole earnings of the ship by the adventure, as to bind the merchant in the strictest manner, if not to ship accordingly,, at aU events to pay as though he had. Thus where it was agreed respecting a shipment of cotton from Charlestown, or New Orleans, that certain rates of freight should be paid for "round bales," and certain rates for "square bales," and it turned out to be the custom at New Orleans, where the cotton was shipped, not only that all the bales were C. J., at Gmldhall, post, M. T. 1789.— , 3 38 & 39 Vict. c. 17, § 33, 34, 39, Ahiott. 40. ' Gibbs V. Gray, 2 H. & N. 22. * Gillespy v. Thompson, 2 Jur. N. S. 2 Brass v. Maitland, 6 E. & B. 471 26 L. J. (Q. B.) 49, S. C. ; Farraut * 36 & 37 Vict. c. 85, § 27, V. Barnes, 31 L. J. (C. P.) 192 Williams v. East India Co., 3 East, 192. See Alston v. Herring, 11 Exch, 712 n. 5 ^ Crouch V. The London, and North Western EaUway Co., 14 C. B. 255 ; 23 L. J. (C. P.) 73, B. C. 822, ? 36 & 37 Vict. o. 85, § 25, 26. CHAP. IX.] PERFOEMANCE BY FEEIGHTEE. 447 square, that is, better packed, but were again compressed by machiaery immediately before shipment, and as the custom was not excluded by the terms of the contract, the master recovered freight for 170 bales more than he had actually carried, but which she could have conveyed, had he been allowed to have them compressed.^ But where it was agreed to provide a cargo of copper, tallow, and hides, or other goods, and a tariff of rates of freight was given, it was held that the merchant who supplied as much taUow and hides as the ship could carry, was not bound to supply copper; and the master who was, therefore, obliged to keep his ballast on board, did not recover for the loss he sustained thereby, not having provided for it by a binding stipulation.^ Under a charter-party to load at Port Phillip, " a full and complete cargo of wool, taUow, bark, and other legal mer- chandise," the bark not to exceed 100 tons and the tallow and hides not to exceed 80 tons, "paying freight as follows : — for wool, Ijd. per lb. pressed, and l^d. unpressed, gross weight; tallow, 3Z. per ton; bark, 4L per ton; and hides, 21. per ton, the latter not to exceed 20 tons without consent of the captain ; it was held that the freighter was entitled to load an assorted cargo of any " legal merchandise," but that freight was payable on the supposition that the cargo consisted of 100 tons of bark, 60 tons of tallow, 20 tons of hides, and the residue of wool, pressed or unpressed.* Where it had been agreed that a ship should load at Baltimore, " a full cargo of produce " on freight " at and after the rate of 5s. 6d. per barrel of flour, meal, and naval stores ; and lis. per quarter of 480 lbs. for Indian com or other grain ; " and that the cargo should not consist of less than 1 Benson v. Schneider, 1 Moore, 21 ; same principle, Irving v. Clegg, 1 Bing. the case is very imperfectly reported N. C. 53. in 7 Taunt. 572. As to the admission ' Cockbum v. Alexander, 6 C. P. of evidence of custom, see Cuthbert v. 791 ; recognising the authority of Camming, 11 Bxch. 405 ; Norden Thomas i). Clarke, 2 Stark. 450 ; Steamship Co. v. Dempsey, 1 C. P. Capper v. Forster, 3 Bing. N. C. 938 ; Div. 654 ; and cases, ante, p. 385, et see these cases considered, post, c. x. seg/. — Pi-eiglit. 2 Moorsom v. Page, 4 Camp. 103 ; 448 PERFORMANCE BY FREIGHTER. [chap. IX. Undue advan- tage of interme- diate Voyage. 3000 barrels of flour, meal, or naval stores, the flour or meal not to be less in quantity than the naval stores. The cargo actually shipped, however, consisted of 769 cwt. of tobacco, 6047 bushels of bran, 2000 bushels of oats, 5000 oak staves, and three barrels of flour ; and it appeared upon evidence, that vrhUst a quarter of Indian corn or wheat weighing 480 lbs. would occupy only lOJ cubic feet of space, a quarter of American oats, weighing upon an average 272 lbs., would require 16 cubic feet ; and that oats were not a usual shipment from America. Under these circumstances it was held that " other grain" in the charter-party must mean such as would average 480 lbs. a quarter, to the exclusion therefore of oats ; and that the merchant had bound himself, if not to load, at least to pay, as though he had loaded, 3000 barrels of flour, meal, or naval stores, and Indian corn, or other grain averaging 480 lbs. at lis. per quarter for the rest of the space.^ It was agreed with a shipbroker to send a vessel on a certain voyage in consideration of the freights averaging 40s. per ton and of there being nine cabin passengers, their passage money to average 751. each ; and in fact the contract was performed in aU except this, that the freight averaged only 32s. per ton ; but the money realised from the conveyance of steerage passengers if added to the 32s., would bring it up to the stipulated sum, and it was contended that this was a performance of the con- tract. The Court however thought otherwise, refusing to admit evidence to show that by the usage of the trade, cargo and freight comprised steerage passengers and their passage money, and the master recovered the difference.^ A stipulation for power to send the vessel from the port of discharge round to another port, on payment for the extra time, does not entitle the charterer to put a cargo on board for such intermediate voyage.^ LANDiNo AND If oucc the cargo be on board, the charterer cannot have the 1 Warren v. Peabody, 8 C. B. 800. 2 Lewis V. Marshall, 7 M. & Gr. 729. According to Kent (3 Com. 219), there is an American use of the term freight, which includes passage money ; such a use of the term is not English, and I do not think it enters even into the jargon of trade in this country. ^ Cookbum v. Wright, 6 Bing. N. C. 323. Cargo. CHAP. IX.J PERFORMANCE BY FREIGHTER. 449 goods relanded without paying the freight for them ; or have MiANDwa new hills of lading signed for a different destination, without °^'^'^'^' giving up the bills of lading already signed, or at least tender- ing an indemnity against all the consequences of not perform- ing the contract therein contained.^ Unless the cargo was loaded under a deception practised by the shipowner, or con- ditions not stipulated before are afterwards insisted on by him.^ On the contrary, if a cargo has been loaded on board, and the ship for reasons affecting the vessel unload them again, so as that they get into the hands of the freighter, the latter is not bound to reload them, having once performed his con- tract,^ unless indeed the cause of the relanding have been one of the excepted perils.* The freighter is bound to watch for the arrival of the ship. Duty to receiTo not being entitled to notice thereof from the master,^ and to be ready to receive the cargo within a reasonable time afterwards, or within the stipulated lie-days, at the peril of damages for further delay.^ But if his agent abroad, without any authority, substitute and perform a diiferent contract from that in the charter-party, the freighter may repudiate the transaction and refuse to receive the goods.'' This, however, he is not warranted in doing, merely on the ground of some doubtful dispute between himself and the factors of the shippei', although it be about the quality of the cargo ; ^ he is certainly not entitled to abandon the cargo because damaged and to refuse to pay freight;^ but, in any case, his refusal in order to avail the shipper or the master as a dispensation from their contract to deliver, must be clear and decisive, and given at a time when the master is ready to discharge.^" ' Davidson v. Gwyrme, 12 Bast, 381 ; " Eodgers v. Forresters, 2 Camp. Tindall v. Taylor, i E. & B. 219. As 483 ; Randall v. Lynch, 12 East, 179, to the shipowners' right to freight, in 182. case the goods are relanded, see post, '< Sickens v. Irving, 29 L. J. (C. P.) c. X. 25. 2 Peek V. Larsen, L. R. 12 Eq. 378. * Erichsen v. Barkworth, (in error), ' General Stm. Navig. Co. v. Slipper, 28 L. J. (Ex.) 95 ; below, 3 H. & I^. 31 L. J. (C. P.) 185 ; Stanton v. 894. Richardson, Richardson v. Stanton, " Dakin v. Oxley, 33 L. J. (C. P.) L. R. 7 (C. P.) 421. 115. * Jones V. Holm, L. R. 2 Ex. 335. "> See Ripley v. McClure, 4 Exoh. * Hai-man v. Clarke, 4 Camp. 159 ; 345 ; Esposito v. Bowden (in eiTor), 7 Harmanii. Mant, 4«Z, 161. B. & B. 703; Reid v. Hoskins (in G ff 450 PERFORMANCE BY FREIGHTER. [chap. IX. Non-perform- ance. Primage and Average. Some of the ancient maritime codes and more modern foreign ordinances/ have fixed the payment to be made by the merchant, who, after taking a ship to freight, declines to lade her in pursuance of his agreement ; or before the commence- ment, 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, whereby the ship is forced to return empty ; the money to be paid as compensation to the owners being in some instances the whole, in others a moiety of the sum, that would have become due as freight. But in all these cases the law of England leaves the amount of the compensation to be ascer- tained by a jury, if the parties cannot agree about it : and a jury will form their estimate upon a consideration of aU the circumstances of the case, and of the real injury sustained by the owners, which cannot be properly settled by positive rules.^ We have seen by a copy of the bill of lading,^ that the master undertakes to deliver the goods upon the payment of freight; with primage and average accustomed, used to be invariably added. 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 regu- lated in different voyages and trades. In the " Guidon "it is called, "la contribution des chausses ou pot de vin du maitre." It is sometimes called the master's hat money. The word average in this place denotes several petty charges, which are to be borne partly by the ship and partly by the cargo, such as the expense of trimming, 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 error), 6 E. & B. 953 ; Avery v. Bow- den (in error), Hid. ; Barriok v. Buba, 2 C. B. N. S. 56.3 ; 26 L. J. (C. P.) 280 ; Hoohster v. De Latour, 22 L. J, (Q. B.) 455. 1 Consolato, o. .S6, 39, 40, compared with c. .")8, 59—2 Pardess. 81, 83, 107, 108 ; French Ord. liv. 3, tit. 3, Fret, art. 8 & 6, and 8 & 9—4 Pardess. 361 ; and Valiu, in loco ; Code de Com. art. 288, 291, 293, 294. Guidon, c. 9, art. 11—2 Pardess. 408. 2 See Smith v. McGuire, 3 H. & N. 554 ; nadpost, c. xi. — Non-performance. ^ Ante, c. viii. " French Ord. liv. 3, t. 7, art. S-9— CHAP. IX.] PEEFOEMANCE BY FEEIGHTEE. 451 they depend entirely upon usage, and an attempt to enumerate them would afford neither instruction nor entertainment. This and primage are often omitted from the contract, or are sometimes commuted for a specific sum or a certain per- centage on the freight. Two acts essential to complete performance of the contract of affreightment, the payment of freight, and of demurrage, are, in consequence of their great importance, reserved for consideration in a separate chapter. 4 Pardess. 381 ; Ord. Stookliolm, t. 19—2 Pardess. 391-392 ; Commentary Average, art. 1 — 2 Magens, 277 ; Ord. of Cleirao on art. 24 of the Laws of Wisby, art. 48, 60, 66—1 Pardess. Oleron. 495, 500, 502 ; Guidon, c. 5, art. 12- O G 2 CHAPTER X. PAYMENTS UNDER AFFREIGHTMENT. Freight 452 What it is . . . . 452 How calculated . . . 453 rule as to Eate . . . 455 as to Weight and Bulk . . .461 When due at Common Law 465 Delivery perfect . . 466 imperfect . . 467 ill-conditioned . 469 Voyage complete . . 475 incomplete . 478 When, by the Maritime Law 488 principles thereof . . 488 in the Prize Court . 490 as to full Freight . . 491 divisibility of Freight 494 By whom payable . . 498 primarily . . . . 498 under BOl of Lading . 499 in case of Transhipment 500 To whom payable . . 503 under Mortgage or Transfer of Ship . . 504 under assignment of Freight . . .508 when General Ship is under Charter . . 509 Fekight — {continued). Lien for freight . . . for what freight . by Contract . . . 509 509 512 by Usage on what . . . . 513 513 for what amount . 514 Payment of freight , . . effect of 518 518 what amounts to . . 518 payments in advance . 519 lUEEAGE 521 What it is . . . . 521 How it arises . . . . 522 by Contract, express or implied under Bill of Lading . 522 524 How computed . . . from when, at Common 526 Law .... 526 from when, by Contract 528 in case of a General Ship .... 531 Primage and Average . 532 Fbeiqht. WHAT IT IS. Freight is the reward payable for the safe conveyance and delivery of goods entrusted for that purpose to a carrier by sea ; the title thereto is conditional on performance ; and pay- ment thereof is secured to him by a lien at common law on the goods carried. Other sums payable in advance, and not dependent on per- formance of the carrier's contract, are not of the nature of freight, though often called by that name; the incidents of freight do not attach thereto, and the master cannot detain the goods for non-payment thereof unless there is a lien for CHAP. X.] HOW CJALCULATKD. 453 the same by usage, or by express contract of the parties.^ Such sums as these, being in effect pa3-able in consideration of the carriers taking the goods on board his ship and undertaking to carry them, are recoverable when the action is so laid, but the claim ought not to be as for freight.^ This being the nature, and these the incidents, of freight, how oalou- the mode of ascertaining the amount of it is as various as the contracts on which it depends. "When goods are sent in a general ship, in pursuance of the Varieties of Contract. species of contract usual m such cases, 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-partj^, if the stipulated payment is a gross sum for an entire ship, or an entu-e part of a ship for the whole voyage, the gross sum Avill be payable although the merchant have not laden or not fully laden the ship. And if a certain sum be stipulated for every ton, or other portion of the ship's capacitj^, 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.^ If the shipowner undertake that his ship's capacity is so many tons or thereabout, but is found to be greater, it is held that after the service is performed, he is not entitled to freight for the ship's fuU capacity, whether filled up or not, but only to 3 per cent, more than the exact figure named in the charter- party.* Whether that may not also be the measure of the allowed difference over or under the figm-e given, which the 1 How V. Kirchner, 11 Moore, P. C. (in error). But evidence is admissible 2 1 ; Kirchner v. Venus, 5 Jur. N. S. to show that the cargo supplied is a full 39.5 (in the Privy CouncU), overruling and complete cargo, according to the iu effect Gilkison v. Middleton, 2 C. B. custom of the port of loading ; Cuth- (X. S.) 134, and Neish v. Graham, 8 bert v. Gumming, 2i L. J. (Ex.) 310 ; E. & B. 505. 11 Exch. 405, S. G. ; Eoccus, not. 72, 2 Blakey v. Dixon, 2 B. & P. 321 ; 75. See Pust v. Dowie, ante, p. 367. Andrew v. Moorhouse, 5 Taunt. 435. * Morris v. Levison, 1 C. P. Div. Per Ld. Tenterden, Winter v. Haldi- 153. mand, 2 B. & Ad. 649. See Curling v. See Windle v. Barker, 25 L. J. (Q. B.) Long, 1 B. & P. 634, 636. 349 ; 6 E. & B. 675 ; Hunter v. Fry, 2 3 Benson v. Schneider, 1 Moore, 21 ; B. & Aid. 42 ; Corkling v. Massey, L. Hunter v. Fry, 4 B. & Aid. 421 ; K. 8 C. P. 395. Windle v. Barker, 25 L. J. (Q. B.) 319 454 FEEIGHT. [chap. X. shipowner can compel the freighter to accept, is not unlikely to be ruled. On the other hand, if the merchant has stipulated to pay a certain sum per cask or hale of goods, the payment must be in the first place according to the number of casks or bales shipped and delivered;^ and if he has further 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 consideration. 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 that he shall put on board, but do liot covenant to furnish a complete lading, the owners cannot demand payment for more than the quantity of goods actually shipped.^ In aU the instances before mentioned the owners take upon themselves 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 period of the voyage, the risk of the duration falls upon the merchant : and the computation begins either from the day stipulated in the instrument of contract,^ or in the absence of any such stipulation, from the day on which the ship in readiness is placed at the service of the freighter, and continues during the course of it inclusive of 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 particular period. Thus freight in such a case is 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.* So where a ship, chartered at a monthly freight for a voyage to any port or ports in St. Domingo and back to London, was, after having discharged part of her cargo at one port in that 1 Eocous, not. 73, 75. ' Fenwick v. Boyd, 15 M. & W. 2 Lady James v. East India Com- 632. pany, coram Kenyon, C. J., at Guild- ^ Eipley v. Scaife, 5 B. & C. 167 ; hail,posf, M. T. 1789 ; Eoccus, not. 75. HaTelock v. Geddes, 10 East, 555. CHAP. X.'l HOW CALCULATED. 455 island, peremptorily ordered by the supercargo to proceed to another, then under blockade, and being taken on the way by one of the blockading cruisers, did not regain her liberty till after the lapse of several weeks, and then she took on board a homeward cargo and arrived in this country, Lord EHen- borough thought, " that as the ship was taken in proceeding to a port by order of the supercargo, the voyage was never dis- continued, and the freighters were answerable for the subse- quent detention in the same manner as if it had arisen from contrary winds or from an embargo." The owners accord- ingly recovered freight for the period of detention at the rate stipulated per month,^ that division of time being in this, as in other mercantile contracts, to be understood of a calendar, and not a lunar month.^ When the parties have stipulated for a full and complete Application of J. ,• ^ i-i'c liT -1 ,• ^ fixed Eafces to a cargo 01 particular kmds oi goods, to be carried respectively various Cargo. at specified rates of freight, and, as the event may be, the ship is sent home empty, or only part-loaded, or is loaded in whole or in part with goods to which the rates are not ap- plicable, the following rules appear to form the basis of the decisions ah-eady pronounced by the courts in such cases. First. — It is obviously the intention of both parties to the Kules. contract that freight should be earned, and if that is rendered altogether impossible or partially nugatory through fault of the freighter, damages to compensate the loss are recoverable by the shipowner.^ Secondly. — The measure of damages is determined not by what is reasonable, but by what is stipulated specifically between the parties who thereby evince an intention to ascer- tain their rights and obligations, even in those cases in which they contract for power, in addition, to load " other lawful merchandise," or " other goods," without appending thereto any particular or general rate of freight.* Thirdly. — Generally speaking, where there are several ways in which the contract might be performed, that mode is as- ' Moorsom v. Greaves, 2 Camp. 627. " In addition to the cases cited be- See Beale v. Thompson, S B. & P. 405. low, see the judgment of Maule, J., in ' JoUy V. Toung, 1 Esp. 186. Gether v. Capper, 24 L. J. (C. P.) 69, 3 See the case of Gumm v. Tyrie, 33 71 ; Southampton Steam Collieiy Co. L. J. (Q. B.) 97 ; in error, .S4 id. 124. v. Clarke, L. B. 4 Kx 73 ; 6 id. .53. 456 FREIGHT. [chap. X. sumed as the measure of clkmages, which is least burthensome to the defendant, and least profitable to the plaintiff, subject however to any exception expressly provided for by the parties in their contract. " It may be," says Maule, J., " that in cases of this sort, different amounts might under different circumstances be the proper measure of damages for the breach of the contract. Suppose there were goods which the charterer might have put on board if he had chosen to do so and did not, it may be that he had the option of shipping any one of the enumerated articles ; there may have been goods at the port of loading which he might have shipped, but none of the enumerated goods ; there may have been goods, the loading of which would have been the most profitable to the owner and the most onerous to the charterer, or the converse might have been the case. Again, suppose there were no goods at all at the place ready for shipment, that would present a totally different state of things; there the non-shipment of a cargo would result from the charterer's inability to ship a cargo. "If you could show that there were goods which the charterer might have obtained, then the proper measure of damages would be the non-shipment of that cargo. But if there were none, it may be that in ascertaining the damages, an average is to be taken of aU the possible kinds of goods. It is in that way I think that Lord Tenterden arrived at the opinion he expressed in Thomas v. Clarke,^ viz., that where there is no cargo at all to be had, the average is to be taken of all the possible kinds of cargo ; that is, that you are to assume, contrary to the fact, that there are goods of each of the kinds enumerated ; because the obtaining goods of any one kind, where none are in truth obtained,cannot a priori be considered as more probable than the obtaining of any of the others ; and taking an average, and assuming that to be the way in which the contract, if performed at all, would probably have been performed, you are to make that the basis of the calculation of freight. That certainly is not a very usual mode of dealing with a contract."^ ' Thomas v. Clarke, 2 Stark. 450. Alexander, 6 C. B. 791, 814, 815. • Per Maule, J., in Cockburn v. CHAP. X.] HOW CALCULATED. 457 The subject of that animadversion was a decision of Lord Tenterden upon a charter-party in which it was agreed that a vessel should bring home from Eio Janeiro, a cargo consisting of certain enumerated articles at various specified rates of freight, but the ship returned empty because there was no cargo for her, and the Lord Chief Justice intimated that the proper course in calculating the damages would be to estimate the freight by means of an average so as to take neither the greatest possible freight, nor the least.^ This rule, deemed at once just and reasonable by Tindal, C. J., was afterwards applied by him and the Court of Common Pleas to the case of a vessel which under a similar charter-party returned home only part-loaded with the enumerated articles. The charter-party was to proceed with a cargo to Eio Nunez, and there having discharged the same, to reload a full and complete cargo for London, and deliver it there on being paid freight in fuU for the voj^age as follows :— for gum, bees'-wax, ivory, and palm oil, 41. jper 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, SI. per ton nett weight ; bullion, 11. per cent. ; all or either at the option of the charterer. Should the quantity of paddy exceed 80 tons, 20s. per ton extra freight was to be paid on the surplus, and the quantity of hides was not to ex- ceed 50 tons. The charterer having shipped a small quantity of the enumerated articles to the extent of one-seventh of the whole cargo, fiUed up the ship with teak timber at 41. a load, the master receiving it under protest in favour of the owners' claims under the charter-party. A special jury of merchants having found that the teak timber was not lawful merchandise according to the true intent of the charter-party, estimated the freight due upon a cargo of average quantities of the enumerated articles, and found the difference for the plaintiff; and this finding, and the principles on which it proceeded, were expressly approved of by the Court of Common Pleas on the authority of Thomas v. Clarke.^ Assigning this rule of average quantities to the somewhat exceptional circumstances pointed out in the observations of 1 Thomas v. Clarke, 2 Starkie, 450. 938, 949. - Capper r. Forster, 3 Bing. N. C. 458 . PEEIGHT. [chap. X. Mauie, J., already cited, the same court afterwards elicited from both these cases the general principle, now an established rule -of law, that by all such contracts the parties clearly evince an intention that, for other, goods, ■ besides the enumerated First and Second articles, the shipowner is entitled to freight, the amount of which is to be determined, not upon a quantum meruit, but in accordance with the rates specifically mentioned, in their contract.^ • Where, therefore, a vessel was chartered to proceed to Port Phillip, and there load from: the freighter's factors " a full and complete cargo of wood, tallow, bark, and other legal merchant dise," the quantity of . bark not to exceed . 100 tons, and the quantity of tallow and hides not to exceed 80 tons, andto deliver the same at London, "on being paid freight as follows: — for wool,'i| Giraldes ■«. Donison, Holt, 346 ; and 538. ^W7' Pollock, C. B. ; "I agree that the 462 FREIGHT. [chap. X. Express Con- tract. Bulk accident- ally Increased. Gibbs, C. J., before whom the action was tried, being pressed with the fact that the payment was according to the quantities expressed in the bill of lading, pointed out that the master had signed it, adding " weight unknown," a circumstance, he said, which opened it to the effect of usage ; and the jury, in finding for the plaintiff, informed the Court, that the usage was to check the foreign weights by the King's landing scales, and to pay freight according to the nett weight ascertained there. If parties bind themselves by the express language of a written contract, the common law rule is superseded, and the function of the Court is to determine the effect of the language they have used. A cargo shipped at Dantzic was, by the bill of lading, deliverable in this country, on paying freight at 141. per last, and in the margin was written " 100 lasts in 2092 bags ; " but the freighter who appeared to have paid the purchase money on the quantity so named, objected that though the cargo consisted of 100 lasts English measure, freight was not payable except by Dantzic measure, according to which there was a considerable deficiency. The Court, however, said the written contract of the parties was express, and freight must be paid on 100 lasts.® An accidental increase of bulk, after the cargo was shipped, gave rise in recent times to a novel question, and seemed primd facie to entitle the master, in accordance with the rule at com- mon law, to a proportionate increase of freight. It was a cargo of wheat, shipped at Odessa, for which the master signed bills of lading " quantity and quality unknown ; " but it was proved at the trial to have consisted, as was expressed in the bills of lading, of 3700 chetworts, equivalent to 2664 quarters. In the course of the voyage, however, the wheat, from some cause unknown, had become heated and damaged, and when bulk or -weight as appearing at the port of destination, may he prima facie the criterion of freight to be paid ; " Gibson ,;. Sturge, 10 Exch. 622 ; Martin, B., had grounded his judgment in that case upon the assumption that this was the common law rule, and although the rest of the Court dissented from him in hia application of this rule to the case then before the Court, the authority of the rule itself appears not to be there- by afEected. ° MoUer ■!!. Living, 4 Taunt. 102. This case appears to leave undecided another question, viz., where there is identity of name applied to a difference of quantity by each of two countries, and a bill of lading signed in one is received in the other, — ^which is the quantity that governs the freight ? , CHAP. X.] HOW GALCULATrJlJ. 463 measured by the custom-house officers at the port of delivery, the cargo consisted of 2785^ quarters. Martin, B., at the trial, and afterwards in banc, was in favour of the master's right to recover freight according to the measure at the port of delivery but the rest of the Court held that the freighter, whilst receiv- ing the larger bulk, was not liable to pay for more than the smaller quantity, such as it was shipped.^ "I agree," said Pollock, C. B., "that the bulk or weight, as appearing at the port of destination, may be the criterion of the freight to be paid ; but when it is proved that that test is fallacious and untrue, and the real quantity shipped was a different and smaller quantity, then I think that the freight ought to be calculated upon the true quantity shipped ; and, in my judgment, the captain's ignorance, as expressed in the bill of lading, of the true quantity, cannot entitle him to charge according to a false estimate. . . . Here the measure of the wheat shipped was known, and has been proved, — all beyond that is water; and though the water cannot be separated, the amount of freight charged for the water can be ascertained, and, I think, ought to be deducted from the claim founded on the mere measurement at the port of discharge or delivery; and I think it is no answer to this to say, that in many cases the quantity shipped would be unknown, or would be ascertained with difficulty. If the experience of commerce had discovered that the measurement at the port of destination was the most convenient, and had established it by usage and custom, the parties would have been bound by it ; but from the absence of any evidence to that effect, I infer there is no such custom^ and no such convenience as ought to be the foundation of a custom, or ought to influence our decision in establishing a rule for the first time. But it is manifest, that a cargo of wheat may be increased in bulk, to the great injury of the cargo, by the fraud or negligence of the captain and crew ; and I think that laws ought to be framed, and the decisions of courts of law, as far as possible,, ought to be founded on the same principles, as we have no doubt prevail in the moral government of the universe, that as far as possible, duty and interest should not be opposed to each other." ^ 1 Gibson v. Sturge, 10 Exoh. 622. , = Gibson v. Sturge, 10 Exch. 622, 641,..fi42. 464 FREIGHT. [chap. X. A custom in the grain trade, which would bind the merchant, against his better knowledge, to pay higher freight whenever his corn was delivered to him in a worse condition, may well be supposed not to exist ; and as the Lord Chief Baron's obsei'vations must be understood of such a custom in that particular trade, or a general custom so rigid as to admit of no exception, the common law rule, as already stated, remains in all its integrity and authority unquestioned. Even exceptional cases, as thej' may be called, may be said to be within the equity of the rule, the object of which, being as a check to ascertain the true weight and measurement, may be attainable, under peculiar circumstances, only by striking the mean of two different results, or as may yet happen with the growth of traffic in chemical compounds shipped in bulk and liable to vary in volume with the variations of temperature, by foimding upon the calculations of science at a given degree of heat. In the case of a cargo of bark shipped green which would dry and become lighter in the course of the voyage, Willes, J., said that the provision in the bill of lading for payment of freight " according to the nett weight deHvered," was introduced for the purpose of excluding the difficulty arising from the de- cision in Gibson v. Sturge} This opinion was cited in Buckle V. Knoop, where freight for a cargo of compressed bales of cotton was to be paid at the rate of " 75s. per ton of 50 cubic feet delivered," and was held to be inapplicable to the case as the word delivered referred not to measure but to cotton. It is well known that compressed bales of cotton when unloaded expand to a very much increased bulk.^ In that case it was held that the rate of freight applied to the measured quantity when shipped, and not to the increased expansion when dehvered. Sii^ce the decision in Gibson v. Sturge it has become a custom jimong merchants and shipowners to insert into charter- parties for grain or seed cargoes a stipulation that in the event of the cargo or any part being delivered in a damaged or heated condition, the freight should be payable on the invoice 1 Coulthurst V. Sweet, L. E. 1 C. P. ^ Buckle v. Knoop, L. E. 2 Exoh. 653. 125 ; on appeal, ibid. 333. CHAP. X.] WHEN DUE. 465 quantity taken on board, as per bill of lading, or half freight upon the damaged or heated portion, at the captain's option. In a case of this kind, the master on signing the bill of lading added the words " quantity and quality unknown ; " and on his arrival in port with the cargo, having occasion to exercise his option, he elected to be paid freight on the bill of lading quantity. This the Court held he might do, notwithstanding the addition under his own hand to the biU of lading, since the object of that memorandum was merely to protect the captain against any mistake that might occur in the invoice quantity in the bill of lading, in case of alleged short delivery or deterioration not due to his default.^ The rate at which freight is payable, being fixed, the title to peeiqht, when freight at common law remains to be considered. Freight, at common law, is not due until it is earned ; and as the carrier's At Common Law. contract is in its nature entire, nothing short of complete performance satisfies the common law, unless the freighter himself interferes to prevent it.^ No freight, then, is due prima facie, unless the whole is earned.^ By consent of the freighter, however, the shipowner not insisting on completing his contract, imperfect performance may be a good title, under a new contract, to remuneration in the nature of freight "pro rata itineris peracti* If there is no performance whatever, there may yet be a valid claim for damages, although there be no title to freight. These questions, involving considerable variety of facts, remain to be considered ; and perhaps it will contribute to perspicuity of arrangement, to reserve for separate consideration those rules of the law maritime which govern the title to freight under the interference of princes during the existence of hostilities. Freight, being the price of safe carriage and delivery of the subject of bailment at the destined port, performance Bf the contract is a condition precedent to any right of the 8»irrier to recover the reward.^ 1 TuUy v. Terry, L. E. 8 C. P. 679. ' Blasoo v. Fletcher, 32 L. J, (0. P.) 2 See the law on this point stated by 284 ; Metcalfe v. Britannia Ironworks Lord EUenborough, Hunter I). Prinsep, Co., 1 Q. B. Div. 613 ; 2 id. 423. 10 East, 394 ; and aXiO per Eyre, 0. J., ■* Seepost, p. 478. in Curling v. Long, 1 B. & P. 632. * Per Lord EUenborough, Osgood v. H H 466 FREIGHT. [chap. X. Delivery of the Cargo at the destined Port. To begin with: tlie delivery of the goods.ithotigh it be in- verting the hatur-al order, may facilitate the clear discussion of the other part of the service, which is much more compEcated in point of law. Delivery is an implied term of the carrier's contract' at common law; it is expressly- Stipulated in. all charter-parties and bills of lading in the common form ; ^ and under aU con- tracts express or implied, by which the amount of freight is dependent on the quantity of the goods, it is the tale delivered which governs the result.^ A cargo of cement was brought intopdrt unde*' a bill of lading stipulating payment of freight within, three days after arrival and before delivery of any portion of the goods. Within the three days the ship, with all her cargo on board, was Scuttled, in consequence of an accidental fire, and when got lip agaiii the cement had ceased to exist. Held that aS the shipowner was not after this ready to deliver, he could hot recover his freight.* If the master upon finding that his cargo is damaged by Sea perils, sells it at an intermediMe J>ort, being the best course for the cargo-owner, he is not entitled tO freight; iior to freight pro ratd'^ ' If he seU part of the cargo to raise supplies for the ship at an intermediate port, Etlthdugh he' thef ei bbtains a better price than it would have realised at the port of destinatioti,' he is not entitled to freight in case the freighter accept the sum realised ; but, per Brett, J., in case the freighter had sued him for the amount it would have fetched at the port of destination, he must have paid freight on the same assumption, viz., its arrival home.^ Groning, 2 Gamp. 466 ; per id. De Silvale v. Kendall, 4 M. & Sel. 37, 42 ; How V. Kirchner, 11 Moore, P. C. 21 ; Kiichner v. Venus, coram P. C. 5 Jur. N. S. 395. ' Delivery forms part of the voyage, which is not ended till this be com- pleted ; and therefore if a mortgagee take possession before the whole of the cargo is delivered, although great part is delivered, he is in time to entitle himself to the wholQ of the freight. Brown v. Tanner, L. K. 3 Oh. 697. 2 See Christy v. Row, 1 Taunt. 300 j Mitchell V. Darthez, 2 Bing. N, C. 655 ; Davidson v. Gwynne, 12 East, 381 ; Vlierboom v. Chapman, 13 M. & W. 230 ; Mashiter v. BuUer, 1 Camp. 84. Mode of estimating freight of cargo lost, for the purpose of deduc- tions from freight, where fi'eight was payable on intake measurements, Spaight 11. Farnworth, 5 Q. B. Div. 115. » Dathie v. Hilton, L. R. 4 C. P. 138. * Vlierboom iD.; Chapman, 13 M. & W, 230. , ., ' Bumess v. Hopper, 1 C. P. Div. CHAP. X.J WHEN DUE. 467 A ship was chartered to take a full cargo of coals from Shields to Hamburg, and deliver the same at such place or places where she might safely come, on being paid freight at 20Z. a keel, the rate of delivery to be a keel a day. With seventeen keels on board, the vessel set sail, and arrived at Cuxhaven, a place so near Hamburg that she might have reached the latter port the same day, had she not been pre- vented by the British ships of war on the station, on account of the French forces being then on their way to Hamburg. The consignees, however, consenting to take the coals at Gluckstadt, the vessel sailed thither, and delivered into hghters sent for the purpose seven keels and a chaldron, being one keel per working day ; but on the ninth day, she was obliged, by the British ships of war, to return to Cuxhaven, and after having been altogether fifteen days at these ports, but without delivering any more of the coals, she was obhged, by the same cause to leave ; and she returned to Shields with the residue of the cargo, the master recovering freight according to the quantity of coals delivered, and no more.^ Contracts to carry for a gross sum in the name of freight Imperfect deli very* do not naturally fall into this division of the subject. We shall see that some of these are so framed that freight is not due except on complete performance ; and that under others the full sum is recoverable notwithstanding imperfect delivery, the defect being covered by the excepted perils,^ or by the act of the freighter or the vice of the cargo. It may be laid down as the general rule, without alluding to Exceptions to the the special cause, that where there is no delivery made, tnere is yery, no Freight. no freight due,^ whatever claim there may be for damages. In two cases, however, the law allows the practice to swerve from the rule. The first arises under circumstances in which the value of the goods, and the amount of the freight must be 137. See discussion and cases, ante, but an express contract to that effect p_ 439_ will entitle the freighter to deduct the 1 Christy v. Row,l Taunt. 300. value of missing goods from the freight 2 Eobinson v. Enights, L. E. 8 C. P. payable for the cargo assumed to be 465 ; Merchant Shipping Co. v. Armi- complete, Meyer v. Dresser, 33 L. J. tage, 1 md. 469, note r The Korway, (C. P.) 289. Br. & Lush. Ad. 226; 3 Moore, P. C. =" Per Lord Mansfield, Baillie i'. Mou- N. S. 245. At the same time nothing digliani, 1 Park, Insur. 116. H H 2 468 PEEIttHT. [CHAP. X. determined upon the principle of general average, still remain- ing to be considered ; ^ and the second, under an emergency already adverted to,^ when goods have been necessarily sold to bring the vessel home, for as the master may be made to pay for their value at the port of destination as if they had arrived there, he is entitled to his full freight for them to that port on the same assumption. Rule as to living But although the delivery of the goods at the place of destination is in general necessary to entitle the owner to the freight, yet with respect to hving animals, whether men or cattle, which may frequently die during the voyage without fault or neglect on the part of the persons belonging to the ship, it is said that if there be no express agreement whether the reward is to be paid for lading, or for transporting them, freight shall be paid as well for the dead as for the living ; if the agreement be to pay for the lading and undertaking to carry them, their death certainly caunot deprive the owners of the reward ; but if the agreement be to pay freight for transporting them, then no freight is due for those that die on the voyage, 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.** Right and true A right and true delivery of goods, according to bills of satisfies' ^ lading in the common form, means, in law, a delivery of the entire number of chests or packages, without reference to the condition of their contents at the time of their being landed ; damage thereto, although occasioned by the default and negli- gence of the master and crew, being no answer to a demand for freight, but only subject of a cross action or counter claim for damages.' The ship York, which had been chartered by the East India Company, was overtaken, on her return home, by a violent storm off Margate, where she was stranded and sunk under water, so that a great part of her cargo (being saltpetre) was 1 Post, c. xiv. Passengers, ante, c. vii., aiid MofEatt «. 2 Ante, c. iv. p. 155 ; c. ix. p. 439. East India Co., 10 East, 468. " Dig. 14. 2. 10 ; Eoccus, not. 76, 77, * Davidson v. Gwynne, 12 East, 381, 78 ; Molloy, bk. 2, c. 4, § 8 ; Blakey 393 ; Shields u. Davis, 6 Taunt. 65 ; V. Dixon, 2 B. & P. 321 ; Andrew v. per Lord Mansfield, Luke v. Lyde, 2 Moorhouse, 5 Taunt. 435. As to Burr. 882-888. CHAP. X.] WHEN DUE. 469 lost ; the principal part of the remainder, consisting chiefly of pepper, was greatly damaged by the sea-water, but was got out of the ship by persons sent down by the company, and brought to London in vessels, where a particular process was employed at a great expense to the company, to restore it in some degree and render it marketable. The ship, after being nearly un- loaded, and with much difficulty raised, arrived in the port of London, with a small part of the cargo still remaining on boards and the company, notwithstanding the injury done to the goods, and certain very favourable clauses in the charter-party, were held liable for the freight of the goods delivered, and demurrage as specified in the charter-party.^ It may happen, however, that goods existing in species, when Delivery iii-con- brought to the place of destination, are so deteriorated in con- dition, as not to be worth the freight; and then arises the question, whether the merchant is bound to pay freight, or is at liberty to abandon the goods to the shipowner for his claim. In considering it, the causes from which the deterioration in Deterioration the merchandise may proceed, must be distinguished. If it in its causes. proceeds from the fault of the master or mariners, the merchant is entitled to a compensation, and may recover it against the owners or master. But he cannot cede the cargo to the ship- owner in lieu of his freight. This question was duly raised on the record, and determined in respect of a cargo of coals which had been damaged in the course of the voyage through the fault and negligence of the master and crew. They were in species still coals, but so deteriorated as not to be worth the freight. In an action for freight the charterer set up the fact of deterioration and his cession of the cargo ; but on demurrer the plea was held bad, and the shipowner recovered his fuU freight.^ One, who was a part-owner and also one of the ship's husbands, shipped in this country for Sydney in Australia 33,000 bricks, which, upon arrival, were found to have been crushed to dust. The agent of the ship's husband there, instead of taking them out, left them on board as ballast for a 1 Hotham v. East India Company, 1 ^ Dakin ■;;. Oxley, 33 L. J. (C. P.) Doug. 272. See also Lutwidge ■«. Grey, 115. post, p. 479. 470 FREIGHT. [chap. X. Authorities Ancient and Modern. Le Guidon, voyage from Sydney to Calcutta, where the brickdust was sold for an inconsiderable amount. The freight for these bricks did not appear in the ship's accounts, nor, on the other hand, was any action brought to recover their value ; but upon a bill in Chancery by the other part-owners for an account from the ship's husbands, and argument for the defendant that freight was not payable as the goods were rendered unfit for use through the default or neghgence of the shipowner, it was, nevertheless, held that they must account for the freight, the bricks having been, in effect, delivered to the defendant's agent at Sydney, and their condition at the time of delivery being no answer, although it might be subject of an action at common law for damages.^ On the other hand, if the deterioration proceeds from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation, or only in the confine- ment and closeness of the hold of a ship, the merchant must bear the loss and pay the freight; the master and owners are in no fault, nor does their contract, though taken as the contract of common carriers, contain any insurance or warranty against such an event.^ " The Continental authorities," says Willes, J., " are not altogether consistent with one another ; and in so far. as they tend to sanction a plea of this kind, [viz., abandonment of the cargo as being of less value than the freight], they seem to have been founded upon two notions : — first, that the cargo is the sole and exclusive security for the freight, to which the ship- owner ought to be contented to look, and by abandoning which the merchant ought to be allowed to free himself from any responsibihty : — and, secondly, that in the case of culpable damage, the freight is forfeited."* Upon this question of inherent vice, the opinion of the 1 Garrett v. Melhuisli, 4 Jur. N. S. 943, cora/m Stuart, V. C. If the bricks in this case were not deliTerable as bricks, whioh seems to have been the fact, it conflicts with the decision in Duthie 1). Hilton, L. K. 4 C. P. 138. Ante, p. 406. 2 Blower v. Gt, "West. Ry. Co., L. E. 7 C. P. 655 ; Kendall v. Lend. & S. West. Ey. Co., L. E. 7 Ex. 373. 3 Per Willes, J., in Dakin v. Oxley, 33 L. J. (C. P.) 115, where thelearned judge supports these propositions by references to Continental Codes and jurists of repute. CHAP. X.j WHEN DUE. 471 author of Le Guidon is this: "In like manner the merchant cannot abandon the goods hereinbefore mentioned (viz., fruits, salt, corn, victuals, &c.) to the master of the ship for his freight, if the deterioration has proceeded from natural decay ; or from the great diminution of 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 prevailed, which is contrary to reason, if the option has not been reserved by an express clause in the charter-party." ^ In the very next article, however, of the treatise we find this doctrine: — "If goods contained in casks, as wine, oU, 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 when 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 thrown 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." ^ 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. By the Consolato, after some minute provisions for the case Consolato. where the master furnishes the merchant with casks, it is declared, with an undiscriminating brevity, that when the merchant furnishes the casks, the master is entitled to freight for all that is put on board, notwithstanding part or the whole of the wine leaks out.^ In respect of pottery, it is provided in a subsequent chapter, that when it is stowed by the merchant's servants, whether well or Hl-stowed, the master is not answerable for damage done, without fault in him, and is entitled to his ' Le Guidon, c. 7, art. 10—2 Par- = Consolato, c. 160—2 Pardess. 181, dess, 403. 182. 2 Guidon, c. 7, art. 11. 472 FEEIGHT. [chap. X. full freight ; ^ but when stowed by men employed by the master, and well stowed, and if, without fault in them, the cargo is damaged, the master ought not to pay for the damage, and ought not to claim the freight. If the merchant or his agent had been present at the stowage, he could not withhold the freight ; if the breakage were done in taking on board, or in stowing, freight was not due ; but if it happened in discharg- ing, freight was nevertheless payable.^ Frencli Law. The French law, on this question, following Le Guidon, is that, " The freighter cannot abandon for the freight mer- chandise diminished in price, or deteriorated by inherent fault, or by accident." " Yet, if some of the casks containing wine, oil, honey, and other liquids, have so leaked that they are empty, or nearly empty, the said casks may be abandoned for the freight." « With regard to the second of these rules, in respect of leakage, Valin* was of opinion that it gave th« right of aban- donment as well when the leakage happened through fault of the casks, as when it occurred by perils of the sea ; but he is opposed in this by Pothier, who distinguishes the two cases, holding the merchant liable for the freight, although the liquor be spilt through his own bad casks.^ In our own West India trade, the freight of sugar and 1 " Provided the master produce 2 Boulay-Paty, Droit Maritime, 488- the potsherds, as evidence that the 498. pots were broken without his fault I " '' Valin on the Ord., liv. 3, t. 3, art. 26. —a provision that might have been " Pothier, de Charte-partie, no. 60. concocted and enacted by Jack Cade's This great jurist treats this provision parliament :— of the French law as founded on the assumption of loss, and, therefore, non- " CoM/e. Edmund Mortimer's elder son, .q„T_ „ j: ^t„ i ,,, ,, V 4. V delivery of the merchandise. He was Was by a beggar-woman stoln away ; '^ . iwot.. jj.^ vi<»o And, ignorant of his birth and parentage, ^°^°- ^P°'^ mquiry at one of the B'rench Became a bricldayer when he came of age : sea-ports, that formerly the rule of the His son am I; deny it, if you can. Admiralty Court would not allow of JicJ;. Nay, 'tis too true ; therefore he shall abandonment of part, but the doctrine ^^Smui Sir, he made a chimney in my father's °^ . *^^ '^°'"}- ^^'^ changed, and in his house, and the brides are alive at this day to opinion, with good reason ; for even testify it ; therefore, deny it not." where the stipulated freight was a gross Henry YL, part ii. act iv. se. 2. sum for the voyage, he saw nothing in the way of taking an aliquot part, and 2 Consolato, o. 192—2 Pardess. 220. so determining the amount of freight 3 Codede Com. art. 310 ; Ord. 1681, for which abandonment was made ; liv. 3, t. 3, art, 25-26—4 Pardess. 364 ; Charte-partie, no. 59, 60. CHAP. X.J WHEN DUE. 473 molasses is regulated hj the weight of the casks at the port of delivery, which as a fact is always less than at the place of shipment, so that a loss falls upon the shipowner. In respect of the first of the French rules of law on this point, VaUn argues that it is inequitable, contrary to this fundamental idea that the goods are a pledge for the freight, and places the merchant in a worse condition than if his goods were absolutely lost by shipwreck, an event in which he is not liable for freight.^ But Pothier, again opposing him, says, although cargo is pledged for freight, the merchant is also personally bound for it, and he ought to pay when the service for which he hired the vessel is performed, which is always the case when the goods, however damaged in con- dition, are transported to their place of destination. Very different is the case of shipwreck and a total loss, for then the contract is not performed — munere vehendi functus non est — and for that reason the freight is not due.^ On both rules the opinion of Pothier seems to be the received doctrine among French jurists at the present day.^ The Ordinance of Rotterdam also declares the liability of the Kotterdam Ord. merchant for freight whenever his goods are carried to the port of delivery, and the damage they have suffered is not due to the fault of the master or seamen.* To the same effect. Lord Mansfield, in Luke v. Lyde, is English Jurists. reported to have said, that "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 which is not damaged, and leaving that which is spoiled or damaged." His lordship added : — " If he abandons he is excused freight, and he may abandon all, though they are not all lost." " This is 1 Valin on the Ord. liv. 3, t. 3, not. ^ 2 Boulay-Paty, Droit Maritime, 25, referring to Casaregis, Disc. 22, no. 484-498; 3 Pardess. Droit Com. no. 46 ; Disc. 23, no. 86 & 87, in support 718. of his opinion. ■* Ord. Kotterdam, art. 155 — 2 2 Pothier de Charte-partie, no. 59. Magens, 105. 474 FREIGHT.' [chap. X. correct," says Willes, J., after citing these wprds, — "this is correct if instead of abandon be read ' decline to accept,! — because it is clear that where the goods have not been carried all the way, the inerchant need not in order to prevent a liability of freight pro rata, give up the property to the ship- owner."^ In fact, the goods in that case had not been carried to the place of destination, but the vessel, which' was bound for Lisbon, having been captured and recaptured, was carried with the goods into a port in Devonshire, and there the mer- chant received them. Such also was the fact in. Lutwidg-e v. Qrey,' -where the same word abandon is made use of by the counsel, and' justifies, certainly requires, the interpretation thus imposed on it by the. learned judge., American Law. In the United States the general question has been raised, and has been determined against the fclaim of the merchant to abandon.^ That was in an action against the insurers of freight upon a voyage from New York to Barcelona with a cargo of flour, in which the ship being stranded in the course of, the voyage, most of the cargo was so wetted, that to have carried it to Barcelona, both the damaged portion and the sound, would have been in a condition not worth the freight, and the owners, therefore, brought back the vessel and abandoned the voyage. J'he Court being obliged by the natm'e of the action to consider whether, in case the cargo had arrived in species, at the port of delivery, although in a worthless condition,, the merchant could abandon it for the frteight, and taking into account the non-responsibility of the shipowners for the con- dition of the cargo when they have faithfully discharged their other dutiesi in regard to it, and also delivered it at the destined port, and that for their reward, although they have a lien on the cargo, they have also a personal remedy against the mer- chant, finally decided that the merchant was not entitled to abandon for freight, and that the shipowners, under the cir- cumstances, as they had not performed the voyage, nor offered to do so, had no claim on the insurers.^ 1 Dakin v. Oxley, 33 L. J. (0. P.) ^ Griswold i>. New Tork Insurance 115, 119. Accord. The Bahia, Br. & Company, 3 Johns. 321. L. Ad. 292. ' Griswold u-New York Insurance CHAP. X.] WHEN DUE. 475 The delivery heretofore spoken of being delivery at the port The Voyage to „,,.,. n • iT i T 1 te complete, at of destination, presupposes sale carriage thereto as already common Law. performed. This is that other portion of the service stipulated for in a contract which is regarded by the common law as one and indivisible. Freight, as being the reward agreed in such a contract to be paid for the service, is, therefore, dependent on complete performance of the whole, as a condition pre- cedent to any claim for it that can be enforced by action.^ Where, therefore, the ship and cargo were lost in the course of the voyage, and the owner nevertheless sued the freighter as for money payable on the shipment of the goods, founding his claim on the words in the biU of lading, " the shippers paying freight in London," the port of shipment; Lord EUenborough held that the contract declared on was not proved, and that the ordinary contract of affreightment was not performed, and therefore on neither ground could the plaintiff recover; and under these circumstances that the defendant, if he had paid freight upon the shipment of the goods, might have recovered every penny of it back again.^ During the French war at the beginning of the century, the master of a ship freighted from Charlestown in North America, to the port of Eotterdam, hearing in the Channel of the British Order in Council, sailed up to Sheerness to obtain a British licence to go to Eotterdam ; but when he had obtained the licence, hearing then of the French emperor's decree against all vessels sailing from an English port, and dreading capture if he now attempted to reach Eotterdam, he brought up his ship to London, and discharged the cargo into a warehouse, subject to the claims of his owners thereon. The freighters, refusing to accept this as performance of his contract and to pay freight, obtained an injunction in Chancery to prevent him selling the cargo; and upon an issue out of Chancery, Lord EUenborough held that the master had no claim to Company, 3 Johns. 321 (S. C. 1 Johns. pany, 18 Johns. 208 ; 3 Kent's Com. 200, 205), has ever since been recog- 225 ; Abbott, Ship. (Amer. ed.) 434. nised in the United States as establish- ' Curling ?;. Long, 1 B. & P. 634, ing the true doctrine of law upon this 636 : Miller v. Woodfall, 8 E. & B. point. See McGawu. Ocean Insurance 493 ; Hunter v. Prinsep, 10 Bast, 378, Company, 23 Pick. 412 ; Whitney v. 394. - New York Firemen Insurance Com- ^ Mashiter v. BuUer, 1 Camp. 84. 476 FREIGHT. [CHAP. X. freight, as that could only be earned by performance in the terms of the charter-party, and none to other compensation in the absence of any contract express or implied to sup- port it.i Abandonment of the shi^j at sea by the crew in consequence of injuries sustained by her, has the effect of dissolving the contract of affreightment, so that the shipowner, afterwards upon the derelict being picked up and brought into port, cannot insist on being allowed against the will of the cargo- owner to carry on the cargo to its destination, or vindicate any title to freight on the ground of such an offer.^ But if the contract be such as to admit of performance by delivery at another port than the one named by the freighters, war existing at the port so named and affecting the safety of the ship should she enter, the shipowner wiU. be entitled to freight by delivery there,^ and the freighters will have been guilty of a breach of their contract by naming such a port.* It is a question not free from difficulty arising upon the circumstances of each case, as to what performance will satisfy when the stipulation in the charter-party is "to such a port or place or as near thereto as the ship can safely get." It was said in Nelson v. Dalil,^ that safety here is intended to point out what the alternative place should be, not when the alter- native should arise. It was also held that the occasion of such alternative arising must be a physical or legal obstruc- tion of a permanent (i.e. enduring) character, as distinguished from accidents of the seas or rivers which the shipowner in his contract expressly provides against.® When perform- The title to freight resting at common law on such a con- anoe is prerented ... by the Freighter, dition, as we nave seen, becomes absolute, notwithstanding there is no performance, if that is either prevented or dis- pensed with by the charterer,''' provided the owner and his ship 1 Osgood V. Groning, 2 Camp. 466 ; 773 ; Geipel v. Smith, L. E. 7 Q. B. Liddard v. Lopes, 10 East, 526. See iOi. per Lord EUefiborough, De Silvale v. ' Nelson v. Dahl, 12 Ch. Div. 568. Kendall, i M. & Sel. 37, 42. « IMd. ; Metcalfe v. Britannia Iron- 2 The Kathleen, L. B. 4 Ad. 269. works Co., 2 Q. B. Div. 423 (C. A.) ; 3 The Teutonia, L. E. 4 P. C. 171 ; Capper v. Wallace, 5 Q. B. Div. 163 ; Wangh 1). Morris, L. E. 8 Q. B. 202. Schilizzi v. Derry, 4 B. & B. 873. ^ Hid. ; Ogden v. Graham, 1 B. & S. '2 Co. Litt. 206 h \per Lord Ellen- CHAP. X.] WHEN DUE. 477 are in a position at the time to earn freight ; for, if no goods are on board through default of the merchant, although the ship was always ready to receive them and perform the voyage, the owner acquires thereby no title to freight, but only a claim to damages for breach of the contract.^ But because the contract is entire and the freight indivisible, if once the goods are on board, the merchant cannot have them relanded except upon payment of the full amount stipulated for complete performance ; ^ and this, notwithstanding the ship has not broken ground, the common law differing from the law mari- time in that particular.^ But this assumes that the shipper was not misled into putting his goods on board by any conduct or concealment of the owner.* Where, however, the charterer's agent abroad without authority substitutes a new contract or a different cargo for that stipulated by his principal ; the latter is not bound thereby, or liable for freight or damages, if he repudiate the transaction, there being nothing on his part to induce the master to believe that the agent had any such power.^ " It ought to be borne in mind," says Willes, J., " when Euie. deahng with such cases, that the true test to the right to freight is the question — whether the service in respect of which the freight was contracted to be paid has been substantially performed ; and according to the law of England, as a rule freight is earned by the carriage and arrival of the goods ready to be deHvered to the merchant, though they be in a damaged state when they arrive. If the shipowner fails to carry the goods for the merchant to tKe destined port, the freight is not earned. If he carry part but not the whole, no freight is pay- able in respect of the part not carried, and freight is payable in respect of the part carried, unless the charter-party make the ■borough, Mashiter v. BuUer, 1 Camp. (Q. B.) 17. See Smith v. Wilson, 8 84. See the case of the insurers in Bast, 437. Lutwidge v. GTej,post. ^ Tindall u Taylor, 4 E. & B. 219. 1 Staniforth v. Lyall, 7 Bing. 169 ; » Per Eyre, C. J., Curling v. Long, Smith V. Wilson, 8 Bast, 437 ; Storer 1 B. & P. 634-636. V. Gordon, 3 M. & Sel. 308 ; Barker v. * Peek v. Larsen, L. E. 12 Bq. 378. Hodgson, 3 id. 267 ; Eeid v. Hoskins, ' Sickens v. Irving, 29 L. J. (0. P.) 6 E. & B. 953 (in error) ; Avery v. 25 : Secns, where there is authority for Bowden (in error), 6 E. & B. 953 ; the change, Fenwiok v. Boyd, 15 M. & Esposito -!). Bowden (in error), 27 L. J, W. 632. 478 FREIGHT. LCHAP. X. Apportionment of Freight not a Common Law Doctrine. Freight for in- complete Yoyago requires new Contract. carriage of the whole a condition precedent to the earning of any freight, — a case which has not within our experience arisen in practice. " Little dif&culty exists in applying the above test where the cargo upon arrival is deficient in quantity. Where the cargo, without loss or destruction of any part has become accidentally swelled {Gibson v. Sturge'^), or perhaps diminished, as by drying (Jacobsen's Sea Laws, vol. 3, c. ii. p. 220), freight (usage of trade apart) is payable upon the quantity shipped, because that is what the contract refers to." ^ Apportionment of the freight pro rata itineris peracti, though a doctrine familiar to the law maritime, is, prbperly speaking, quite unknown to the common law.^ The compensation that sometimes goes by this name is awarded, not for partial per- formance of the old charter-pairty, but for complete performance of a new contract ; and, therefore, in the absence of any such new contract, express or implied, no compensation whatever can be recovered.* So at -least, it is construed and held by judges at the common law ; but in the Admiralty Court where as a practice this always prevailed, it proceeded, I have no doubt, not upon contract, for which under circumstances of war and belligerent capture there was seldom room, but upon the view of meritorious service on the part of the ship. The occasion for applying this doctrine arises under ordi- nary circumstances from the disability of the ship at an inter- mediate port in the course Of her voyage. Upon the occurrence of such an event, the master may retain the cargo for a reasona:ble time till the ship is sufficiently repaired to complete the voyage, or he may send it on by another vessel. If' his own vessel cannot be repaired, or is not worth the expense,' and he abandons the voyage, he loses all right to freight. If the proprietors, of the cargo refuse to allow him either to bring it by his own ship, or send it on by another, he is entitled to full freight under the original contract, as if delivery had been 1 10 Exch. 622 ; 24 L. J. (Ex.) Chapman, 13 M. & W. 230.' 121. . * Osgood V. Groning,. 2 Camp. 466 ; 2 Per WiUes, J., Dakin ■!!. Oxley, 33 Vlierboom v. Chapman, supra; The L. 3. (C. P.) 115, 119. • Soblomstein, L. R. 1 Ad. 293 ; The ■ ' Mitchell V. Dartheiz, 2 Bing. N. C. Newport, Swabey, 335 ; Hill v. Wilson, 555 ; per Parke, B., Vlierboom v, i 0. P. Div. 329. CHAP. X.] WHEN DUE. 479 made at the port of destination. But if there is a voluntary acceptance of the goods at the intermediate port, attended with such circumstances as, in view of the law, raise a fair inference that the further carriage of the goods was intention- ally dispensed with, the law assumes that the proprietors have heen benefited hy the carriage of the goods thus far, and holds them liahle on an implied promise to remunerate the owners accordingly. In the case of Osgood v. Groning, already stated,^ the master unwilling to expose his ship to confiscation, refused to carry the cargo to Rotterdam, the port of delivery, but tendered it at London to the merchant's agents on payment of freight and charges ; they, however, insisted on his performing his contract to deliver at Rotterdam, and as he persisted in landing the goods, nevertheless, at London, Lord EUenborough held that there was no acceptance short of the port of destination from which the law could imply a promise to pay pro rata itineris ; and the Lord Chancellor approving of the verdict) the master recovered nothing at law or in equity. The early case of Lutwidge v. Grey ^ shows under what circumstances, full freight, and freight pro rata, itineris, is re- coverable for cargo delivered short of the port of destination: Lutwidge, the owner of a ship called The Wharton of White- haven, 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 to Glasgow, and was to receive freight from them for the homeward cargo only, at the rate of 81. 12s. per- ton of tobacco, computing four 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, and there delivered her outward cargo, and took on board from the merchant's factor a cargo of tobacco consisting of 199 hogsheads, part of 1 Osgood V. Groning, 2 ^ Camp. 4:66, House of Lords. The judgment of the ante, p. 475; House of Lords will be found in the 2 Lutwidge and'AnotheriJ. Grey and printed jourflalS'Of the year, p. 356. Others, determined in the House of The case is cited in the case of Lake Lords,,23 February, 1733. The account v. Lyde, both at the bar and by Lord here given is taken from the printed Mansfield, who -was one of the counsel cases delivered by both parties to the for the appellant.— yl J Joif^. 480 FREIGHT. [chap. X. which was charterer's property ; the residue which belonged to other persons, being put on board by the factor to complete the lading, in pursuance of directions from his principals, in case the outward cargo should not enable him to purchase a full lading on their account. Grey and Co. insured their part of the cargo with persons living at Bristol ; the other part was not insured. On the homeward voyage, the ship was unfortunately cast away near Youghal in Ireland, and part of the cargo to the amount of 163 hogsheads was saved by the assistance of the of&cers of the customs, and deposited in the custom-house there. Lutwidge, as soon as he knew of the misfortune, in- formed Grey and Co. of it, and told them he should provide another ship for such of the tobacco as was saved. Grey and Co. abandoned their part of the cargo to their insurers, and indorsed over the bills of lading to them. Lutwidge 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 was willing to have laded it on board the ship thus provided, if the master thereof would sign bills of lading to deliver it at 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 suspecting that he meant to take it to Whitehaven, and not to Glasgow, 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. Lutwidge brought an action against Grey and others, for his freight according to the charter-party, in the Court of Admiralty in Scotland. On the i^art of the defendants it was insisted, that the contract of affreightment was dissolved by the loss of the ship, leaving only an equitable title to freight ; that this could not be enforced against them, who had not taken the goods into their possession, but against the insurers at Bristol for part, and for the residue against the proprietors thereof; that this right, such as it was, could only be in CHAP. X.] WHEN DUE. 481 proportion to the value of the goods saved, after deduction of salvage and charges ; and at all events that it could only be for the proportion of the voyage to Youghal, because the master of the ship refused to sign bills of lading, 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 carried to Glasgow, because Lutwidge had another ship ready to transport them thither, there being no occasion for any new biUs of lading, while the former bills of lading subsisted. From this judgment. Grey and Co. appealed to the Court of Session in Scotland, and the Lord Ordinary by his interlocutor decreed, " That the contract of affreightment was dissolved by the total loss of the ship, albeit some of the shipwreck goods were saved out of the ship- wreck; and found that the freighters indorsing the bills of lading to the insurers did not subject the freighters to any freight for the goods recovered by the insurers, but found the merchants liable to the freight pro rata itineris of such of the goods as were brought to Glasgow, notwithstanding some of the tobacco was found damnified, and burned there." This decree was, on the petition of Lutwidge, reviewed by the Lords of Session, but affirmed by them. Thereupon he appealed to the House of Lords, who " reversed the decree of the Lords of Session, complaiaed of by the appellant, 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, notwithstanding the damaged state of some of the tobacco." In Mitchell v. Darthez,^ the ship Jane had been chartered for a voyage from London to Buenos Ayres and back to Gibraltar, a port in Spain, London, or Liverpool, freight in full for the voyage out and home being agreed at 1300L The vessel ac- complished the outward voyage, and was on her way homeward to Gibraltar, when she encountered a storm at Fayal and » Mitchell V. Dai-thez, 2 Bing. N. C. 555. I I 482 FREIGHT. [CHAP. X. perished with one-third of the cargo. The master, after re- commending the English vice-consul at Fayal to send on what of the cargo had heen saved, sailed himself for England on the 24th of July. "No authority," said Tindal, C. J., " 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 personally make provision for the conveyance of the remainder of the cargo to its destination, much less superintend its transhipment, or accompany it to the port of discharge. Before his departure, no vessel of sufficient capacity to convey it had arrived at Fayal ; but on the 29th of July such a vessel arrived, and the vice-consul chartered her on behalf of the owners of the cargo." The residue of the cargo by this vessel reached Gibraltar, where it was accepted on behalf of the freighters, and freight was paid for the conveyance of it from Fayal. Under these circumstances it was held that as the vice- consul could not be regarded as the agent of the ship-owners, in what he did, they were not entitled to the freight stipulated in the charter-party, the voyage not being performed by them ; but the defendants having ratified the acts of the vice-consul as their agent, must be taken to have accepted delivery at Fayal, rendering themselves thereby liable on an implied promise to pay a reasonable freight for the carriage of such of the goods as were saved, from Buenos Ayres to Fayal. When new Con- But the law can imply no such promise from circumstances impiied."'^'^ that come short of a voluntary acceptance, and still less when they amount to a compulsory receipt of the goods at an inter- mediate port. And therefore where the master sells the cargo in the course of the voyage, although properly, and to prevent its entire loss in consequence of damage by perils of the sea, he is not entitledto freight for carriage to the port of sale.-^ In ^ Vlierboomi). Chapman, 13 M. SW. Armroyd v. The Union Ins. Co., 3 2B0 ; a fortiori, he is not entitled to Binn. 437 ; Hurtiu v. The Union Ins. freight if he improperly sells, Hunter Co., 1 Wash. C. C. 530 ; and see the V. Prinsep, 10 East, 378. The same cases collected in Story's note to Ab- applioation of the rule to these cases bott (Amer. ed.), 455, gf sale is made in the United States ; CHAP. X.J WHEN DUE. 483 contrast with this case, as though it were opposed to it, is sometimes cited the case of Baillie v. Moiidigliani,^ where a vessel and her cargo being taken by a French privateer were sold imder sentence of a foreign prize court, and as the proceeds were afterwards returned to the original owners by a Court of appeal reversing the sentence of the Court below, the ship- owners received freight in consequence ; but it can hardly be doubted, although it is sometimes otherwise represented in this country and the United States,^ that the real foundation of the decision in that case, and the case of Luke v. Lyde, is in the priaciples of the law maritime, which is by no means identical in its rules respecting freight with the common law of this country. In the case of Cook v. Jennings,^ there appears to have been none of those favourable circumstances between the parties attending the interruption of the voyage from which a jury could have inferred a new agreement to pay proportionably for part performance. But laying the action as the plaintiff did on a contract under seal which made delivery of the cargo at the port of destination a condition precedent to the right to freight, and averring that the shij) was wrecked before her arrival there, it was impossible for him to recover either the whole or a part. Although the charter-party may fix the rate of freight by Special Contracta as to Tims, the week or the month, as a means of ascertaining the amount ultimately payable, it is still open to the parties by the same contract to stipulate that the voyage shall be performed before freight is due. Mackrell, the owner of a ship called The Richard,* lying in the river Thames, let his ship to freight 1 See, post, p. 493. ■• Mackrell v. Simond and Hankey, = See for insf-anoe Story's note aboye in K. B. Trin. T. 16 Geo. 3. It was referred to, Abbott (Amer. ed.), 455. an action of covenant on the charter- So in a work on Shipping and Ingu- party, in the first count of which the ranee by Mr. Parsons, Boston, 1859 plaintiff claimed freight for the period (vol. i. 128), the rule in Curling v. of the voyage to Grenada ; in the Long, 1 B. & P. 634 ; that the incep- second up to the day of the loss of the tioQ of freight is the ship's breaking ship. The defendants demurred to ground, is referred to as being in con- both counts. Judgment was given for tradiction with Tindall v. Taylor, 4 the plaintiff on the first count, and E. & B. 219. for the defendants on the second. — s Cook V. Jennings, 7 T. E. 381. Aiiott. I I 2 484 FREIGHT. [chap. X. by a charter-party dated 9th of March 1744, to Simond and another, " 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," the plaintiff covenanting " to perform the voyage above- mentioned, and in such outward and homeward voyage to load and unload all lawful goods ; " and the defendants that they " would load and unload the ship, and give the master proper orders in respect thereof; that the ship should be discharged out of her said monthly employ on the delivery of her home- ward cargo in London ; and that they would pay in full for the freight and hire of the said ship at the rate of llOL sterling per calendar month, for aU such time as the said ship should be taken up in performing the voyage aforesaid, to commence and be accounted from the day of the date of the charter-party, and to end and determine on the day of the discharge of the homeward cargo at London, one-third part thereof to be paid on her report inwards at the Custom House, London, and the remaining two-third parts in two calendar months then next following." In pursuance of this charter-party the ship took in goods belonging to the merchants Simond and. Hankey at London, saUed with them to Plymouth, and took in other goods belong- ing to them, and proceeded to Grenada, landing the cargo and receiving another from the merchant's factor there, with which she set sail for London, but perished by perils of the sea on her homeward voyage. The voyage to Grenada occupied three months ; and five months had elapsed in the whole before the loss of the ship : the owner therefore brought an action against the merchants, for freight either for three, or for five months, and recovered for the lesser period, being the time occupied by the outward voyage. Lord Mansfield delivering judgment in the case said, " 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 will arrive safe and report her cargo ; no provision is made for CHAP. X.] WHEN DUE. 485 any other case. If the ship be cast away on the coast of England, and never arrive at the port of London, yet if the goods are saved, freight shall he paid, because the merchant receives advantage from the voj'age. This is not expressed by the charter-party, but arises out of the equity of the case. Freight is the mother^ of wages, 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 wages are due, because the whole profit is lost ; and by express agree- ment the parties may make the outward and homeward voyage one. Nothing is more common than two voyages ; wherever there are two voyages, and one is performed, and the ship is lost in the homeward voyage, freight is due for the first. Here the outward and homeward voyage are so called in the charter- party. The cargo is loaded outwards, and the owner covenants to paj'' port-charges on the outward voyage. The whole of that voyage was completed: port duties are incurred and paid. Nothing, however, is due on the homeward voyage, though the ship might be out a month." In the following case,^ the words of the charter-party being different, a different construction prevailed. One Pattinson, master and part-owner of the ship William and Mary, lying at Liverpool, by a charter-party, dated 28th July, 1794, let the ship to freight to Byrne and others, for a voyage from Liverpool to Madeira and Barbadoes, and back to Liverpool, Greenock, or Bristol, but with liberty for the freighters to order the said vessel from Barbadoes to any one other island in the West Indies (Jamaica excepted) they paying all pilotage and port- charges incurred thereby. It was stipulated that the vessel should discharge and reload cargo at the several intermediate ' Not now, as we have seen, ante, from Liverpool to Madeira, and from p. 228. thence to Barbadoes, and for the dis- 2 Byrne and Others v. Pattinson, in bursements and port charges of the K. B. Trin. T. 37 Geo. 3. The question ship at Madeira, and on the voyage ; arose on a set-ofE pleaded by the de- and for work and labour generally, and fendant, the master of the ship, to an money paid ; so that the decision did action brought against him on another not turn upon the form of the pro- account by the merchant. The plea ceedings in the cause. The question did not refer to the charter-party, but came before the Court by a special case was for the freight and hire of the ship reserved from the assizes.— Aiiott. 4^6 FREIGHT. [chap. X. places named, and finally being laded with cargo atBarbadoes, 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; the freighters agreeing to pay in full for the freight and hire of the ship for the said voyage the sum of 136L 10s. 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., 136Z. 10s. to be advanced before sailing from Liverpool by a good biU at three months, and what cash might be required for the said vessel's disbursements and port charges at Madeira, and Barbadoes, to be paid in part of the said freight, and the remainder of the said freight to 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. The period of computation commenced on the 7th of August, 1794 ; on the 19th of that month the ship sailed from Liver- pool for Madeira, and arrived there on the 19th of September, discharging by the 4th of October, as many of the goods as were to be delivered there ; having then taken on board on account of the merchants ninety pipes of wine, she sailed thence on the 9th of October for Barbadoes, and on the 10th of November was captured on the way thither. The merchants had paid IBSL, part of the freight for the first month, and also the port charges and disbursements for the ship at Madeira ; but Pattinson sued for further freight from the 7th of 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 usual rate of con- veyance, allowing the 135L But the Court held, that he had no claim whatever, as by the terms of the contract, " the freight was to become due on the first discharge of the vessel at Liverpool, and therefore could not be claimed before." ^ 1 See Smith v. Wilson, 8 East, 437 ; Gibbons v. TVtendez, 2 B. & Aid. 17. CHAP. X.] • WHEN DUB. 487 If the conti-act for the service of the ship fixes a certain amount of freight for a certain period of time, without more, a debt to the shipowner accrues with the expiration of the time whilst the ship is in the service of the freighter, and his ulti- mate right thereto is not affected by postponement of the day of payment. The ship Lord Duncan,^ was let to freight for twelve calendar months certain, from the 24th September, 1806, and for such longer period as the freighters should detain her, they paying freight at the rate of 24s. per ton per calendar month, being 1,119L 12s. per month until the ship was dis- charged by the freighters in the river Thames, the payment to be in the proportions and at the periods following, viz. ; two months at the execution of the charter-party; two months more at the end of six months from the said 24th September ; two months more at the end of ten calendar months, two months more at the end of fourteen calendar months, should the ship be so long employed ; and in like manner two months more at the end of every succeeding two calendar months until the ship should be discharged, and immediately upon such discharge, the balance to be paid. The ship having been taken into the employ of the mer- chants, and between ten and twelve months from the 24th of September destroyed at St. Domingo by an accidental fire, the freighters maintained that the right to freight depending on the safety of the ship at the periods of payment was confined, as events had happened, to the period of six months. But the Court held that the postponement of payment did not make the claim contingent during the intermediate time, but that i each month's freight was earned and became completely due at the end of each month. Although the voyage be performed and the cargo landed, Illegal Voya32. freight cannot be recovered where the voyage is illegal. One of the cases referred to on this subject was an importation of merchandise in a foreign bottom contrary to a prohibition under the repealed navigation laws;^ the other case was that of a cargo of prohibited goods introduced into this country during hostilities without a licence under the well- ' Havelook v. Geddes, 10 East, 555. 2 Blanok v. Solly, 1 B. Moore, 531. 488 - FREIGHT.' [chap. X. known Orders in Council ; ^ the cargo, in both instances, was by the Crown allowed to be exported, but the master recovered no freight in either. FREiaHT WHEN DOE BY LAW MARITIME. Law Maritime. The common law of this country founding entirely upon contract, knows nothing of the apportionment of freight. Principles of the properly SO called. The law maritime on the other hand, whilst acknowledging the contract of hiring as that which gives birth to the legal relation between the shipowner and the merchant, founds upon the service of the ship under the con- tract with the merchant, as the meritorious cause of freight being due to the shipowner. In view of this law therefore the inception of freight is the ship's breaking ground ; and the inchoate right which then attaches is consummated upon her arrival at the port of destination. If the voyage is interrupted and the obligation on the shipowner dissolved, through no fault in him, he is entitled to freight ; but if he is merely delayed, although it be by a hostile proceeding, he is bound to complete his services before in law he has any title to the reward. With regard to this doctrine of the divisibility of freight, there is a remarkable concurrence among the most generally received of the ancient maritime Ordinances of Europe, accompanied at the same time with much difference in the positive application of it to hj'pothetical cases. It is a doctrine however which receives no countenance in the Eoman law,^ the opinion of some writers to the contrary notwith- standing;^ nor, with deference to Mr. Abbott's authority,* in the later compilation called the Ehodian laws,^ although Doctrine as to apportionment of Freight. 1 Muller u. Gernon, 3 Taunt. 394. Seem, where the landing only was declared illegal, and the cargo being allowed to he exported, it was put over the side into another vessel, which amounted by the terms of the charter-party to a performance of the voyage, Waugh v. Morris, L. R. 8 Q. B. 202. 2 Dig. 19. 2. 15, 6. ' Eoccus, not. 81, cited by Lord Mansfield in Luke ii. Lyde, 2 Burr. 882, 889. * Abbott, Shipping, 4 ed. 311 ; 10th ed. 330, relying, I am afraid, entirely on the passage attributed to Lord Mansfield by Burrow, nH su^ira. ^ The only passages on which Mr. Abbott's opinion could have been founded are to be met with in chapters 27 and 32. The passage from c. 27 is given thus in the Latin (the original Greek may be consulted in a parallel column, uH infra). Si vero testibus probatum fuerit eam tempestate coortS, periisse, quse supersunt tarn de nave quam de mercibus, in contributionem veniant, et dimidiiom naulum maffister CHAP. X.l WHEN DUE. 489 these are certainly sedulous in requiring whatever is saved of ship or cargo to be brought into contribution to the actual loss sustained in respect of the corpus of either .^ In the Laws of Oleron, however, there is an explicit applica- tion of the principle to a case of sea damage, where the ship and cargo survive. " If the merchants demand to have their goods of the master, they may well have them on payment of freight for so much as the ship has accomplished of the voyage, if the master chooses ; but if the master prefers, he may refit his ship in case that can be done readily ; and if not, he may hire another ship, and the master shall have his freight accord- ing to the quantity of goods saved in any manner."^ The Consolato, with regard to a similar case, plainly says, the merchant must pay the master freight for the goods that are saved according to the distance they have been carried.^ By the Hanse Ordinance of 1614, in case the ship were driven into a port short of her destination, the merchant could not have his goods there except on payment of the whole sibi retiTieat. The retention here spoken of is not out of the proceeds of the cargo saved as might be supposed, but of freight paid in advance. This is obvious from the passage in c. 32 ; — Si navis a mercatore onerata, vel pro naulo con- stituto, vel inita societate, discesserit, et marinuB ei casus acciderit, dimidium quidem naulum a mercatore non exi- gatur — ra fiey 7]fiivav\a fj.7i airairetv Toy e/iiropov. Although this phrase, of which the Greek is given, admits in that language of a double interpreta- tion — either that the master may not demand of the merchant half the freight, nothing being paid in advance, or, that the merchant shall not demand back from the master the half of the freight paid in advance, which vrould be the eSect of c. 27 ; still this inten- tion of the law is obvious, viz., that there is to be no payment of freight after the happening of the casualty. The circumstance of half the freight being mentioned in these passages ap- pears to be natural enough to any one who consults cc. 19 & 20 of the same compilation. In c. 19 there is notice of a customary practice for the hirer of a ship to give earnest money, and it is enacted that he shall lose his deposit if he afterwards throw up the bargain. The very next chapter In providing for the case of a hiring by parol, and sub- sequent breach of the agreement, fixes the penalty, in case none had been previously fixed by the parties them- selves, at half the freight, as that which should satisfy the other ; whence I infer that the customary earnest money was half the freight. As for c. 42, which has been cited, ante, p. 428, n. ^, in the original, the only mention there of freight is in the clause imposing on the captain the liability for the whole freight of the vessel into which he has transhipped the cargo and sent it on — 1 Pardess. 248-250, 252, 256. 1 Ehodian Laws, o. 27, 30, 31, &c. 2 Laws of Oleron, art. 4—1 Pardess. 325. 3 Consolato, c. 151—2 Pardess. 168, 169. 490 FEEIGHT. [CHAP. X. freight ;i but if the vessel was so damaged as to be incapable of completing the voyage, the freighters were not bound to give more than half the freight for the goods that were saved.^ This provision for payment of half the freight probably rests upon a custom which is explained and sanctioned by a much earlier law. The Ordinance of 1447, provides that if a ship perish and all or part of the cargo be saved, the merchant must pay half the freight of the goods recovered in case the casualty occur during the first half of the voyage ; but in case it happen during the second half, then so much more in pro- portion to the distance beyond the half.^ The Ordinance of Wisby, unless it be eUiptically expressed, must be thought somewhat singular on this point ; for after requiring the master in case of damage to the. vessel to repair her if a majority of the crew think he should, it adds, — and if it is impossible to repair the ship, the master shall receive the whole of the freight for all that is saved of the cargo.* , The French law, following the article in the Laws of Oleron, respecting shipwreck,^ and Le Guidon with regard to ransom,® provides that " if the ship and goods are ransomed, or if the goods are saved from shipwreck, the captain is paid freight on to the place of capture or of shipwreck."'' Again, "If the captain is compelled to repair the ship in the course of the voyage, the freighter is bound to wait or to pay the whole freight ; in case the vessel cannot be repaired, the captain is bound to hire another ; and if another vessel cannot be hired, freight is due only in proportion to what of the voyage is performed." ^ Application of In the appKcation of these general principles of the law tbTprize Court.^ maritime by the Prize Court during the existence of hostilities, it observes this other rule, necessarily involved in the fact of ' Hans. Ord. 1614, t. 3, art. 17 ; ^ Laws of Oleron, art. 4, liii s^ipra. t. 9, art. 2—2 Pardess. 536, 550. " Le Guidon, c. 6, art. 7—2 Pardess. 2 Hans. Ord. 1614, t. 9, art. 1—2 399. Pardess. 549. ' Co. de Com. art. 308 ; Ord. 3 Hans. Ord. 1447, art. 23, 24— 1681, liv. 3, t. 3, art. 21, 22—4 Par 2 Pardess. 485. The phrase in the dess. 363. translation is, la premi&re moiti6 de la ' Co. de Com. art. 296 ; Ord. traverste, ou du voyage — la seconde 1681, liv. 3, t. 3, art. 11 — 4 Pardess, moiti6 de la travers6e. 362. As, to transhipment, see ante * Wisby Ord. art. 40—1 Pardess. 489. p. 428. CHAP. X.] WHEN DUE, 491 capture, that the captor from the moment he is possessed of Rule as to the prize succeeds to the rights and some of the liabilities of ^^ °^' both the shipowner and the freighter. Therefore, if the ship is condemned as prize, but not the cargo, the captor, if he would entitle himself to freight, must carry the cargo to its port of destination. If the cargo, on the other hand, is prize and not the ship, the master's meritorious service is complete, capture being in the eye of the law equivalent to delivery, and, therefore, the captor is liable to the master for the full freight of the original voyage. When both the ship and cargo are restored, if there has been no authoritative separation of the one from the other, the original contract is not dissolved, the captor's rights till condemnation being but inchoate, and the parties to that con- tract are again at large, after a temporary inability, to fulfil their obligations and secure and enforce their rights. The commencement of the voyage and the inception of inception of freight being by this law coeval, the shipowners did not succeed Maritime^ *^ in their claim for freight under the following circumstances : A vessel while lying at anchor in Salt River, Jamaica, where she had shipped her cargo, was cut out by two French privateers, and recaptui'ed at sea the same day by a British schooner. The salvors carried her nato Port Royal, Jamaica, and the ship and cargo were sold by order of the Vice-Admiralty Court for the benefit of the salvors and all concerned. Under these cir- cumstances the Court held that no freight could be recovered, and -that the plaintiffs could not succeed on the count for the expense of shipment, as that, if not expressly undertaken by the shipper himself, is invariablj'' an item included in freight.-^ But although there is a commencement of the voyage, and Complete benefit, immediately an inchoate right to freight attaches, that right is not consummated in law, except with the consummation of the benefit, which was in the contemplation of both parties to be derived from the service of the ship, by delivery of her cargo at the port of destination. A Hamburg ship on a voyage from Spain to London under a licence, with a cargo for English merchants on board, was Curling v. Long, 1 B. & P. 634. 492 FREIGHT. [chap. X. carried into Plymoutli by a British cruiser, and afterwards restored with her cargo under a decree for freight and expenses on condition of completing her voyage to London.^ The Louisa was captured by the French when on her voyage from Quebec to Madeira, and recaptured by the British, but in so disabled a state that she was necessarily carried into Corilnna, and there sold with her cargo ; and upon motion in the Court of Admiralty, freight was refused to the master on the ground that the voyage had been totally defeated by the sale at an intermediate port.^ Demerara cases. A remarkable illustration of the rule occurred in the British Prize Court at the commencement of the present century, under the following circumstances. The British government having acquired the Dutch colony of Demerara by force of arms, in 1796, a few years afterwards restored it to its former masters, in accordance with an article to that effect in the treaty of Amiens'; but many British settlers had, in the mean- time, located themselves with much property in the colony, and being now anxious to quit the territory, found that the only means they had of doing so were Dutch vessels trading between Holland and the colony, and obHged by Dutch policy to land their cargoes, or at least touch primarily at a Dutch port. Before these vessels thus engaged by the British emigrants could reach Holland, hostilities between that country and Great Britain had recommenced, and they were overtaken on the voyage by British cruisers, and brought into an English port. When the goods of these emigrants had been ordered to be restored to them, the captor put in a claim for freight ; and as it had already appeared on the affidavits of the freighters, in support of their claim for restitution of the cargo, that their real intention had been substantially fulfilled by the capture and subsequent restoration of their goods in their own country, the Court made a decree for full freight,^ and this, although 1 The Wilelmina Eleonora, Mohr, Vlierboom v. Chapman, 13 M. & W. 3 C. Eob. Ad. 234. 230. 2 The Louisa, Higginbotham, 1 Dod. ' The Diana, Runke, 5 C. Eob. Ad. 317 ; ruled upon the authority of 67. Hunter ■». Prinsep, 10 East, 378 ; see CHAP. X.] WHEN DUE. 493, the port of actual discharge was not the port of residence of the parties.^ But in respect of goods carried in these same vessels, belonging to foreign merchants and restored ui this country, freight was refused as the voyage had not been completed ; ^ and upon a similar claim for freight being made, and argued on the ground that the goods had found a better market in this country in consequence, Lord Stowell resisted the claim, referring to the case of the Dutch vessels and British emigrants as altogether an exceptional case, and the only exception to the rule ever admitted in that Court.^ Subject, then, to the rights of the captor, and so long as Original Contract these rights remain unestablished by a sentence of condemna- demnation. tion as to ship or cargo, or both, the original contract of affreightment is binding on both parties ; * but if the cargo is separated from the ship under commission or decree of unlivery, although it is before sentence, the contract is thereby dis- solved ; and notwithstanding restitution of both ship and cargo afterwards, the master is entitled to full freight on the original voyage, although he refuse to reload the cargo in order to take it to the port of delivery.^ The case of The Copenhagen,^ though falling within the general principle, was too peculiar to admit of the application of the rule to it without modification. This vessel had been obliged by stress of weather to seek refuge and repairs in an English port ; the cargo was unloaded for the purpose of the repairs, and the ship was then made prize of war. During the delay of the subsequent investigation, the cargo which passed quarantine in three other vessels, was forwarded to its desti- 1 The Vrouw Henrietta, 5 C. Bob. of a quantum meruit for carriage of the Ad. 75, n. cargo after recapture. The opposite doc- 2 The Hoop, Hid. 75, n. trine is invariably maintained and acted 3 The Vrouw Anna Catharina, Mahts, upon by Lord StoweU, see cases infra. 6 C. Bob. Ad. 269, 271. See the law ' The HofEniing, Kask, 6 C. Rob. very fuUy stated by Lord Stowell in Ad. 231 ; The Martha, Martin, 3 C. the case of The Fortuna, Koedt, Edw. Bob. Ad. 106, n. ; The Hamilton, Eod- ^^ 56. man, Hid. ; The Eacehorse, White, * Byre, C. J., in Curling v. Long, 3 C. Bob. Ad. 101 ; Baillie -o. Moudi- 1 B. & P. 634, 637, asserts the con- gliani, 1 Park, Ins. c. 2, p. 116. trary, and is therefore obliged to set up » The Copenhagen, Mening, 1 C. a new implied contract in the nature Bob. Ad. 289. 494 FKEIGHT. [chap. X. nation, and the master of The Copenhagen, when his vessel was restored by decree of the Court, claimed full freight ; but it was held, that as the ship had failed in her contract of freight, not owing in any manner to the cargo, but to her own state of distress originally, and afterwards to her dubious character, she was entitled to freight pro rata, itineris, and no more. A more remarkable case falling within the same general rule is that of The Friends.'^ She had been chartered at Campeachy to deliver a cargo at Lisbon, and had successfully prosecuted her voyage to the very entrance of the Tagus, when she was warned off by the British squadron at that time blockading the port. After continuing some days there with the fleet, she was driven out to sea by a gale of wind, and being captured in that situation by a Spaniard, and afterwards retaken by a British cruiser, she was carried to Madeira, and there sold with her cargo by the salvors. The ship and cargo were subse- quently restored upon appeal, and the question of freight was brought before the Court. Upon a view of the whole case, considering that loss was unavoidable and the calamity com- mon to both ship and cargo, the Court directed a moiety of the freight to be paid, thereby dividing the loss as the most equitable course under the circumstances. Luke V. Lyde. Here, as a sequel to both the foregoing cases, arises the proper opportunity for noticing the facts of the familiar case of Luke V. Lyde? The plaintiff's vessel, with a cargo of fish bound for Lisbon, had been seventeen days on het voyage from St. John's, Newfoundland, and within four days' sail of the port of delivery, when she was picked up by a French' ship of war. Three days after, she was retaken by an English privateer and brought into the port of Bideford, in Devonshire ; and there, as she was totally disabled, the plaintiff abandoned her to the insurers. The cargo was given up by the salvors to the pro- prietors, who forwarded it by another ship to Bilboa, in Spain, and, sold it there, contrary to expectation, at a gerious loss. The case was that of a calamitous adventure for both parties, and judgment was pronounced for freight yro^ rata itineris in respect of half the goods. ' The Friends, Oreighton, Edw, Ad, ^ Luke v. Lydg, 2 Burr, 882.^ 246. CHAP. X.] WHEN DUE. 495' That judgment is still usually regarded as proceeding upon the rule of the common law, which implies a new contract to pay for . part performance where there has heen such an acceptance of the goods at an intermediate port as amounts to evidence of an intention to dispense with the rest of the voyage. Eecently, however, there has been a growing dis- satisfaction with the decision, and a disposition, especially in the United States, to dispute its authority; not, certainly, without reason, assuming that to be the principle on which it is founded. "We have the authority of the Court of King's Bench,^ for disputingthe correctness of that assumption ; and, apart from such authority, this assumption is not supported' by a comprehensive view of the judgment of the Court, regard being had to the authorities and principles cited in it, and the facts on which it proceeded. ' ■ The following passage is the most favourable of any portion of the judgment to the view of those who base it on- the common law ; but considered in that light, it is unsatisfactory, incorrect, and inconsistent. "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 would not desire to find another, because the freight was higher from Bideford to Lisbon, than from Newfound- land to Lisbon. There can be no doubt but that some freight is due, for the gOods were not abandoned by the freighter, but recovered by him of the recaptor." - This language, considered as an interpretation of the common law, is liable to the charge of extravagance. As a passage in a judgment proceeding lipon the equity of the law maritime it is moderate, judicious, and appropriate. The c&se in poiat of facts, is hot dissimilar to that oiThe Copenhagen.^ The result was the same with that of Th6 Friends,* a moiety 1 MuUoyy. Backer, 5 ^aqt, 316,322, ^ The Copenhagen, Mening, 1 C. 324. ■ " Eob. Ad. 289, ante, p. 493. 2 Per Lord Mansfield^ Lake'-y. Lyde, * ihe jriends, Creighton, Edw. Ad. 2 Burr. 882, 888. ' U6,mte, p. 494. ^96 FEEIGHT. [chap. X. of the freight for part of the voyage, and thereby a division of the loss between plaintiff and defendant. So viewed, the case oiLuke v. Lyde may have been well decided ; but upon common law principles, although long followed as an authority, it seerhs incapable of being sustained.^ Performance pre- As an interruption of the voyage in consequence of hostilities , vented under , i • i Maritime Law. ™ay be due whoUy to the ship, or only to the cargo, the title to freight is dependent on this alternative ; national incapacity being a bar to freight when it attaches to the ship, and none when it belongs only to the cargo. A Swedish vessel, under charter-party, proceeded from Plymouth, and took in a cargo at Eadstow for Venice, but after being several days on her voyage, she was driven back by stress of weather into Falmouth, and there detained under the Swedish embargo ; the goods were restored to the British merchants, and upon a claim of freight after the embargo was taken off, it was held that none was due, it being the fault of the ship that the voyage had not been performed.^ The same principle was applied under the Danish embargo, when several vessels belonging to Denmark were detained, and finally made prize of war ; but the cargoes, being the property of neutral powers, were restored to the proprietors.^ In such cases, the captor succeeding to the rights of the ship, is of course not entitled to freight, unless he carry the cargo to its destination, or the proprietors thereof refuse to allow him. When the cargo is the sole cause of capture and detention, the ship is dismissed with her full freight, which is made a charge upon the cargo in the hands of the captor. This hap- pened in the case of some Danish vessels loaded with goods for Portugal, which were brought into an English port by a British ship of war shortly before the breaking out of hostilities with Denmark. The vessels were restored by consent, the question of freight and expenses being reserved with the cargoes for adjudication ; and afterwards the cargoes were restored, subject 1 See Vlierboom v. Chapman, 13 Lagerholm, i ibid. 17, S. P. M. & "W. 230. 3 Tiie Fortuna, Koedt, Edw. 56 ; 2 The Isabella Jacobina, Sovergren, The Prosper, Classen, ibid. 72 ; The 4 C, Rob. Ad. 77 ; The "Werldsborgaren, Holstein, Jobs, iM4. CHAP. X.] WHEN DUE. 497 to the payment of full freight, for it was no fault of the ship- owners that the voyage was not completed ; ^ but hostilities with Denmark ensuing before the freight was paid over, it was adjudged on the Order in Council, to be the property of the captor, the British Crown." An American vessel with a British licence entered the port of Amsterdam whilst it was under blockade by a British squadron, and the master having discharged his cargo, was so indiscreet as to load another, and to bring it away improperly documented ; the vessel was stopped and carried into an Enghsh port, and ultimately restored without her cargo. Lord Stowell, believing that the master might have been misled in loading a new cargo by the language of the licence, held him entitled to his full freight and expenses, on two grounds : — first, if he had taken no cargo, he would not have been liable to be stopped ; and, secondly, having received that cargo so improperly documented on board, he would have been liable to be stopped, although he had not come from a blockaded port. The cargo, therefore, being the sole occasion of the inter- ruption, was liable to freight and expenses.^ But the master of a neutral ship, with enemy cargo on board, forfeits his freight and expenses by conduct which is not purely neutral, such as carrying contraband of war, engaging in the coasting or colonial trade of the enemy, when such trade is not open to all the world in times of peace, — by trading between the ports of allied enemies with false papers, by spoliation of papers, and by prevarication, falsehood, and other acts oi mala fides.'*' How far another maritime war, if it should unfortunately ' See the law so stated in a note to 288, n. ; The Emanuel, Soderstrom, The Atlas, Kimbell, 3 C. Rob. 304, as 1 C. Eob. Ad. 290 ; The Eebecoa, known and practised by the English Moore, 2 C. Kob. Ad. 101 ; The Wilel- Court of Admiralty, at least since mina, Carlson, ihid. note ; The Rising 1640. _ ' Sun, Willcie, 2 C. Rob. Ad. 108 ; The 2 The" Prosper, Classen, Edw. 72 ; Anna Christiana, Hay & Marriott, Ad. The Holstein, Jobs. iUd. 163. 3 The Juno, Beaid, 2 C. Rob. Ad. A master will not be aUowed to aver Ug 124. ignorance of the contents of his cargo * See the note to the Atlas, Kimbell, in a time of war on a charge of carry- 3 C. Rob. Ad. 804 ; The Jonge Mar- ing contraband. The Oster Risoer, garetha, Klausen, 1 C. Rob. Ad. 193 : Jurgenson, 4 C. Rob. Ad. 199. The Mercurius, Meincke, 1 C. Rob. Ad. 498 FREIGHT. [chap. X. arise, may be conducted with regard to the mercantile marine upon a different rule, such as would make the law of the ship the law of the cargo, remains to be seen; but the general principles of the law maritime, such as they have been here stated, and were formerly applied by one of the greatest jurists of this or any age or country, must, nevertheless, comprehend all the various cases likely, on such a hypothesis, to arise and govern the judicial result.^ FREIGHT, BY WHOM PAYABLE.' Primarilv. The person primarily liable for freight is the freighter or shipper, either upon his express contract by charter-party, or upon that which is implied from his bailment of the goods to be carried;^ the opinion of Bay ley, J.,* repeated afterwards by Lord Tenterden,^ that in the absence of an express contract, when the goods are, by the bill of lading, deliverable on pay- ment of freight, there is no recourse against the freighter in law, being clearly now of no authority.^ It is true, the master, in virtue of his lien on the cargo at common law, may retain it for payment of the freight, and so enforce it of the consignee as the condition of delivery, and this right of the master is also expressly recognised by the words, "he or they paying freight," usually inserted' in the bill of lading ; but it is now settled, after many cases on the question, that these words, introduced for the benefit of the owner or master,''' impose no ' The Treaty of Paris, 1856, is con- sidered in its .bearing upon the laws of maritime war and prize in the next chapter. 2 It is a good answer to an action for freight, that after freight earned and action commenced, the defendant was required by monition from the Admi- ralty Court, in a bottomry suit there, to pay the money into that court, and did so, Place v. Pott«, 5 House of Lords Cases, 383 ; 10 Exch. 370 ; 8 Exch. 705. The stipulation that freight is to be paid subject to insurance, casts on the shipowner no duty to insure, the neglect of which might be pleaded as a bar by way of condition precedent in an action for freight, Jackson i>. Isaacson, 27 L. J. (Ex.) 392 ; 3 H. & N. 405. a Domett V. Eeckford, 5 B. & Ad. 521. * Per Bayley, J., in Moorsom v. Kymer, 2 M. & S. 303, 318. * Drew V. Bird, M. & M. 156. 5 Per Tlndal, C. J., in Sanders v. Vanzeller, 4 Q. B. 260, 284. ' Shepardo. De Bemales, 13 East, 565 ; Domett v. Beckford, 5 B. & Ad. 521, 525. H the words are, " paying freight as per charter-party," such refe- rence to the charter-party can only be to ascertain the rate of freight ; per Lord Campbell, Smith v. Sieveking, 24 L. J. (Q. B.) 257, 259 ; The Norway, Br. & L. Ad. 226 ; Fry v. The Chartered Bank of India, London, and China, L. R. 1 C. P. 689. CHAP. X.] BY WHOM PAYABLE. 499 obligation on him to enforce, at his peril, payment of freight from the consignee or his assigns ; and that after delivery, ■without demand of the freight, his right to recover it of the shipper still remains,^ although there is no express contract to that effect between them, nothing in fact but the bailment of the goods by him.^ This liability of the original shijjper is expressly saved under the Bills of Lading Act, from being in anj' way affected by the operation of that statute.^ In all this, however, it is assumed that the shipper has not Under Bill of by any exemptive clause in the affreightment contract stipu- lated a complete immunity from liability more or less extensive. It is sufficient here to refer to a previous page where those clauses have been considered.* In case delivery of the goods under the bill of lading is made by the master to the consignee or his assigns, the common law does not upon that imply a contract on their part to pay the freight ; ^ but such delivery to them, at their request, might be the consideration for a new contract to that effect, whereof their conduct in and about the acceptance, would be evidence to be presented to a jury.^ When the assignee of the bill of lading is a mere agent for the purpose of receiving the cargo, and known to the master as such, he is not liable for freight upon his acceptance of the goods.''' Nor in such a case would his principal, the consignee, ' Shepard v. De Bernales, sii^/ra ; (in error), 25 L. J. (Q. B.) 94, 96. Christy v. Row, 1 Taunt. 300 ; Tapley " Sanders v. Vanzeller, i Q. B. 260, V. Martens, 8 T. E. 451 ; Penrose v. 296, 297 ; Kemp v. Clark, 12 Q. B. 647 ; Wilks, stated per Lord Bllenborough, Zwilchenbart v. Henderson, 23 L. J. in Shepard v. De Bernales, 13 Bast, (Ex.) 234 ; 9 Exch. 722, S. C. ; MoUer 565, 570. V. Young, 5 B. & B. 7 ; (in error) 755. 2 Domett r. Beckford, 5 B. & Ad. 521. By the iirst of these oases the law on ' 18 & 19 Vict. 0. Ill, § 2. this question was definitely ascertained, ■* Ante, p. 356. and in tlie arguments addressed to the 5 Per Parke, B., " No obligation to court of error will be found all the pay the freight arises in point of law cases that had gone before on the same from the receipt of the goods under question, some of them not easily the bill of lading, but such receipt by reconcileable with the. rest. See also the indorsee of the biU of lading is the arguments in Moorsom v. Kymer, reasonable evidence from which a jury 2 M. & Bel. 303. may infer a contract by him to pay it, ^ Amos v. Temperly, 8 M. & W. 798 ; the consideration for the contract be- Ward -u. Felton, 1 Bast, 507. See ing that the captain has giyen up his Tobin v. Crawford, 5 M. & W. 235 ; lien on the cargo ; " MoUer v. Young, 9 M. & "W. 716. K K 2 500 PEEIGHT. [CHAP. X, be discharged by an indorsement on the bill of lading intended to have that effect, unless the master on presentment of such bill of lading read the indorsement and assented to it.^ But if hability once attaches to the agent, it continues, notwithstand- ing he has paid over the proceeds of the cargo to his principal ■without deducting the freight.'' The master's right to recover freight under the bill of lading is, prima facie, against the holder who receives the cargo by means of it ; ^ no promise to pay in futuro can be implied in the indorsement of one who is himself a mere indorsee, especially where the express condition of delivery is the payment of freight at the time ; * such was the law, and it has not been altered by the statute about to be mentioned, so as to make each indorser a surety for the pay- ment of the freight.^ Bill of Lading This being the state of the law in respect of liability for freight under the bill of lading, it was enacted,^ that " every consignee of goods named in a bill of lading, and every indorsee of a biU of lading, to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabihties in respect of such goods, as if the contract contained in the bill of lading had been made with himself. " Nothing herein contained shall prejudice or affect any right of stoppage in transitu or any right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee, by reason, or in consequence, of his being such consignee or indorsee, or of his receipt of the goods by reason, or in consequence, of such consignment or indorsement." In case of Tran- In case of a variation from the stipulated freight, owing to s, ipmen . ^-^^ necessary transhipment of the cargo during the voyage, ' Lewis V. MoEee, L. E. i Ex. 58. ' Bell v. Kymer, 3 Camp. 545. The indorsement was, " Deliver to W. " Weguelin v. Cellier, L. E. 6 Ho. of & M. or order, looking to them for all Lords (Eng. & Ir.) 286. freight, dead freight and demurrage, < Tobin v. Crawford, 5 M. & W. without recourse to us." The con- 235 ; (in error) 9 M. & W. 716. signee was so much principal that if '' Smurthwaite v. WUkius, 11 C. B. freight had been paid by the indorsees, N. S. 842 ; 31 L. J. (C. P.) 214. the latter must have charged it in ^ 18 & 19 Vict. o. Ill, § 1, 2. account against him. CHAP. X.] BY WHOM PAYABLE. 501 neither legislators nor jurists are agreed as to the amount which the merchant should pay for the delivery of his goods at the port of destination. The question is, perhaps, already anti- cipated in what has been said before of the authority and duty of the master under such circumstances.^ Valin and Pothier, Frenc'n Law. though differing in the practical result, agree in point of prin- ciple, that if it be the master's duty to tranship the cargo, any increase of freight in consequence, is a burthen that should fall upon the merchant. Valin, however, thinking that the French Ordinance ^ gave the master the right, without making it his duty, to hire another ship to take the cargo on, was of opinion that as this was done in any case for his own benefit, it should in every case be at his own expense.^ In support of this view the learned commentator refers to a decision of the Admiralty Court of Marseilles, of the 30th of July, 1748, which we find given at length by Emerigon* to the following effect : — The Dutch ship Adam Vanstock being chartered by a French subject, to bring a cargo from Damietta at a gross freight of 18,000 livres, sailed from that port with her cargo on board, and on the voyage, when near Majorca, encountered a storm, which disabled the ship from proceeding. She would have entered some port of the island for repairs, if dread of the plague on the part of the inhabitants had not prevented ; but the Spanish governor, under these circumstances, sent out five small vessels to her assistance, into which, under a freight of 15,000 livres, the residue of the cargo, for some of it had been thrown overboard in the storm, was transferred. These five vessels, with the master and crew of The Adam reached Mar- seilles, the port of destination, and a claim of full freight for The Adam being entered in the Court of Admiralty there, the claimant was declared entitled to the full freight of 18,000 livres, subject to a proportionate deduction for the freight of so much of the cargo as was thrown overboard, and to the deduction also of the freight of the five vessels in which the cargo completed the voyage. Emerigon,^ dissatisfied with this decision, is certain that it » A7ite, p. 428. '' 1 Emerigon, 421. 2 Ord. 1681, liv. 3, t. 3, art. 11. ' 1 Emerigon, 426. » 1 Valin, 651, C53. 502 FREIGHT. [chap. X. would have been reversed upon appeal, and states, in accord- ance with the declaration of 1779, what seems now to be the received law of France on this question,^ that it is the duty of the master to hire another vessel, and that any excess over the original freight is a burthen to be borne by the merchant and the assurers. American law. In the United States this doctrine of Emerigon has been adopted as the law of the master and the merchant in such a Laws of Oleron. case.^ The laws of Oleron are silent about the excess of freight, and impose no duty on the master to find another ship ;^ Ord. of Wisby. whereas the Ordinance of Wisby,* and that of the Hanse Hanse Towns. Towns of 1614,^ obHge the master to send the cargo on at his Rhodian Law. own expense. Differing from all these, the Ehodian laws give the master the right to employ another ship, but bind him, in case he do so, to pay the whole freight.^ English dicta. In this country it has not been determined whether, in any case, it be the duty of the master to employ another vessel. It is his right to do this if he wiU, and if he thereby land the cargo at the destined port, he is entitled to the full stipulated freight, notwithstanding he has accomplished it at a smaller rate for the substituted vessel." But whether he or the merchant is the person liable in such a case for any excess over the freight in the charter-party, has not yet been decided. It is assumed by Lord Mansfield to be the master and not the freighter,^ and it is said by Bramwell, B., to be the master and 1 Code de Com. art. 296, 391—3 Pa,rdess. Droit Com. no. 715. 2 3 Kent. Com. 212 ; Mumford v. Commercial Insurance Company, 5 Johns. 262. " Laws, of Oleron, art. i — 1 Pardess. 325. ' Cleirac, in his Commentary on this article, lays it down that the freight of the new ship is a subject of general average, which must be borne by ship and merchandise. Yet upon art. 85 the same author says, that if the ship can- not complete the voyage undertaken, the master is bound to have the mer- chandise carried, at his own cost, in another vessel to' the place of destina- tion, entitling himself thereby to no more than the freight in the charter- paity. And he cites the 54th art. of the Ord. of Wisby, the contrariety be- tween which and the 18th art. of the same Ord. ha.s already been refeiTed to, ante, p. 429. Emerigon is clear that the proposition to make this a matter of general average cannot be sustained ; 1 Emerigon, 424-426. * Ord. Wisby, art. 54—1 Pardess. 472. Compare, however, art. 18, which is not so expUcit. » Ord. Hans. 1614, t. 3, art. 17—2 Pardess. 536. ^ Ehodian laws, u. 42, i vavK\npos S180TW TO vavKoi' awav — 1 Pardess. 250. ? Shipton D.Thornton, 9 A. &E. 314; Matthews v. Gibbs, 30 L. J. (Q. B.) 55. 8 " The master would not desire to CHAP. X.] TO WHOM PAYABLE. 503 not the underwriters on ship.^ The question is glanced at by Jervis, C. J.,^ and Pollock, C. B.,^ without any expression of opinion. Lord Denman says, it may well be that the master's right to tranship is limited to the amount of the original freight ; and yet in virtue of an agency impliedly vested in him for the merchant, it may be that he may bind the latter to an increased freight when that is for his benefit.* It is clearly beyond the master's authority, in hiring another As to dead ship, to bind the merchant to pay for dead freight. The master of a disabled ship chartered another at Valparaiso to proceed to England with a cargo of guano, of ^70 tons, more or less, at 51. 2s. 6d. a ton ; but as there were no more than 344 tons in fact, ah.d the inaster of the second ship insisted on obtaining the difference, it was agreed between them that freight should be charged on 470 tons, and bills of lading to that effect were signed and accepted accordingly. The merchant in Eng- land, however, refused to pay except for the quantity actually delivered, and the Court held, that in contracting to pay for more, the original master had acted without authority.^ Freight, being a benefit accruing froin the use of the ship, is i-RBisHT, to •1 1 1 ■ n 1 -It 11 WHOM PAYABLE.* primarily mcident to the ownership of the vessel ; ' and, there- fore, under a former state of the law, in case of a ship being find another vessel, because the freight To plea of discharge it is a good ■was higher from Bideford to Lisbon equitable replication, that before dis- than from Newfoimdland to Lisbon." charge plaintiif had assigned his inte- Per Lord Mansfield, in Luke v. Lyde, , rest in it to A., of -which defendant 3 Burr. 882-888. had notice, and that the discharge ' Per Bramwell, B., Hickie v. Bodo- was in fraud of A., by whom and for canachi, 28 L. J. (Ex.) 273-277. whose benefit the action had been 2 Far Jervis, C. J., Bosetto v. Gurney, brought in the name of the plaintiff ; 11 C. B. 176-188. De Pothonier -u. De Mattos, 27 L. J. 3 Per Pollock, C. B., Gibbs v. Gray, (Q. B.) 260. This case still applies, 26 L. J. (Ex.) 286, 292 ; 2 H. & N. 22, whensoever the assignee of an interest S. C. sues in the name of the assignor. But * Per Lord , Denman, , Shipton v. that is unnecessary in the case of Thornton, 9 A. & E. 314, 337. every assignee of a chose in action * Gibbs V. (Jray,, 26 L. J. (Kx.) 286 ; who has completed his title by proper 2 H. & N. 22 ; see Matthews v. Gibbs, notice, Judic. Act, 1873, § 25. 30 L. J. (Q. B.)'55. , , ' Walshe v. Provan, 8 Exch. 813 ; « A declaration on a charter-party Atkinson v. Cotesworth, 3 B. & C. 647 ; was bad f pr omitting to shojv plaintiff's Hickie v. Kodocanachi, 28 L. J. (Ex.) right to sue thereon ; Galloway v. Jack- 273. son (in error), 3 M. & G. 960. 504 FREIGHT. tCHAP. X. partnership property, a new partner, to whom no transfer had heen made, had no insurable interest in the freight.^ And, still, if the owner part with his property in the vessel during the voyage, the freight is payable to him who is owner when it is earned ; ^ hut the right of action under a charter-party may remain in the vendor.^ Under Mortgage It is on this ground that accruing freight passes to a mort- gagee of a ship who takes possession before the conclusion of the voyage,* or does what is equivalent thereto,^ the Act of Parhament merely for registry purposes providing that he shall not be deemed owner. Accordingly a court will interfere to prevent this right of the mortgagee to the freight as incidental to his security when he has taken possession, being impaired by claims of the charterers for disbursements which they insist on satisfying out of freight before paying it over to the mort- gagee in possession." A person registered as owner of forty-eight shares, gave the master, under the former statute, a power of attorney to sell them abroad ; after the vessel sailed the owner mortgaged the same shares, and when she arrived at Sydney, the master sold them there ; on her arrival in this country she was taken possession of by both claimants, neither knowing till then of the transaction with the other, and it was held that the mort- gagee was entitled to the freight, subject to an account for the outfit of the ship for the homeward voyage, which had been advanced by the purchaser.^ It is not unusual, it seems, for a mortgage to be effected and registered as an absolute sale and transfer, but a court will look into the real nature of the transaction, and such a transferee cannot recover, if nothing to entitle him to freight has been done, tantamount to taking possession.^ 1 Camden v. Anderson, 5 T. K. 709. « Tanner v. Phillips, 42 L. J. (Ch.) 2 Ma parte Hill, 2 Kose, 448 ; Green 125 ; Beynon v. Godden, sitpra. V. Briggs, 6 Hare, 395, 404 ; Morrison ' Cato v. Irving, 5 De G. & S. 210. V. Parsons, 2 Taunt. 407. » Gardner v. CazenoTe, 1 H. & If. 3 Splidt V. Bowles, 10 East, 279. 423 ; Chinnery v. Blackburue, 1 H. Bl. 4 Dean v. McGhie, 4 Bing. 45 ; Kers- 117, note ; Willis v. Palmer, 29 L. J. well V. Bishop, 2 Or. & J. 529. See (C. P.) 194 ; Hutchinson v. "Wright, 27 "Willis V. Palmer, 29 L. J. (C. P.) 194. L. J. (Oh.) 834 ; "Ward v. Beck,' 13 5 Kusden v. Pope, L. E. 3 Ex. 269 ; C. B. N. S. 668 ; 32 L. J. (C.' P.) Beynon v. Godden, 3 Bxch. Div. 263. 113. CHAP. X.] TO WHOM PAYABLE. 505 Since freight is not a subject dealt with by the Shipping Competing Acts, competing chiims thereupon are liable to be aifected by freight."" the doctrines of equity ; and when the competition in respect of it is between mortgagees of the ship, their priority in respect of the ship being ascertained by the Shipping Act, the right of tacking comes into operation in respect of freight, and is liable to be affected by the doctrine of notice. James, L. J. , having occasion to consider the competing rights In Equity, of parties so situated, stated the governing principles and rules of the Court in relation to them as follows : — " The right of the mortgagee in respect of freight is well established and clear, but somewhat peculiar. He has no absolute right to the freight as an incident to his mortgage ; he cannot intercept the freight by giving notice to the charterer before payment ; but if he take actual possession, or, according to a recent decision in the Court of Exchequer, if he take constructive possession of the ship, before the freight was actually earned, he thus becomes entitled to the freight as an incident of his legal possessory right, just as a mortgagee of land taking actual possession of the land before severance of the growing crops, would have the right to sever and to take the crops. " What is the position of a second mortgagee of a ship with respect to the freight ? He has no legal right to take actual possession, and cannot therefore by his own act, give himself that which is equivalent to possession. But as between him- self and the mortgagor the equitable right of the second mort- gagee is the same as the legal right of the first mortgagee, just as in the case of land, if the first mortgagee declines to take possession, the second mortgagee may obtain a receiver, and so have the possession and the benefits of the possessory right. But this is to be understood only as between the second mort- gagee and the mortgagor. As regards the intervening incum- brances, interests, and titles of every kind not requiring registration, the respective positions of the first and second mortgagees are essentially different, arising from the essential difference between a legal and an equitable title. The legal owner's right is paramount to every equitable charge not affect- ing his own conscience ; the equitable owner, in the absence of special circumstances, takes subject to all equities prior in date 506 FREIGHT. [chap. X. to his own estate or charge. The Courts of Equity, in appoint- ing a receiver at the instance of an equitable incumbrancer, take possession, in fact, on behalf of all, and so as not to disturb any legal right or interfere with equitable priorities. " If there be a legal mortgage of a ship, then a charge on the freight, then a second mortgage of the ship, the second mortgagee of the ship cannot by any act of his oust the incum- brance on the freight. And if the first mortgagee of the ship takes, under these circumstances, possession of the ship, his possession cannot be allowed to alter the equities of the parties. He takes both ship and freight by the same title ; and there being one equitable owner of the ship, and another equitable ownei" of the freight, as between those equitable owners, his charge must be considered as satisfied pro rata, just as if there was a first mortgage on Wliiteacre and Blackacre belonging, subject to that mortgage, to several owners." in the case in which these observations were made, the plaintiffs were the first registered mortgagees of the ship, their mortgage being for a sum specified. The principal defendants were the second registered mortgagees of the ship, also for a sum specified. The second mortgagees afterwards advanced a sum of money on the security of an express charge on the freight then in course of earning, and completed their title by giving to the charterers notice in writing of this charge. The first mortgagees after this obtained a further express charge on both ship and freight, they having no notice, actual or constructive, of the charge on the freight obtained by the second mortgagees, and no actual notice of the second mortgage itself. In this state of things the first mortgagees took possession of the ship, and thereby became undoubtedly entitled at law as well as in equity to receive the freight. The ship was sold, and the produce was not sufficient to discharge the first mortgage. Under these circumstances it was contended on behalf of the second mortgagees that the produce of the ship and the freight should be considered and applied as one fund, first in dis- charge of the first mortgage, and then in discharge of the second mortgage. But the Court considering that they had to deal with the first mortgagees in possession, who were at the same time CHAP. X.] TO WHOM PAYABLE. 507 puisne incumbrancers without notice on the freight, held that the first mortgagees were entitled to priority in respect of the whole of their charge on the freight, adding thereto their costs of suit, including those of the appeal, the surplus, if any, to go to the second mortgagees. If there was not enough to pay the first incumbrancers and their costs of suit, the deficiency to answer the costs was to be borne by the second mortgagees, whose contention had led to the litigation.^ It is upon the principles abeady stated that aU freight pend- Upon Abandon- ing at the time of a casualty, which becomes the occasion of abandoning the ship to the underwriters thereon, passes to them, in case it is ultimately earned by the same vessel. It was said by Lord EUenborough, C. J., that, " Abandon- ment to the underwriter on ship, transfers to him, not merely the hull, but the use of the ship, and the advantages resulting from a completion of the voyage. If, upon the completion of a voyage, the abandonee may withhold the goods until the freight is paid, he must have acqiiired an indefeasible title to it. I consider his title derived out of the use of the sliip. It it true that by the usage of this country, the shipowner may insure his freight, but that is not to interfere with his insurance on ship ; the underwriter on ship is to have his rights entire, which are not to be afi'ected by other contracts that the ship- owner may think proper to engage in ; and after abandonment, the underwriter on ship is the person to be considered in possession." ^ It was, therefore, fmally determined, in that case, after the question had been frequently before the courts m the cases arising out of the Eussian embargo,^ that where ship and freight are insured separately, the freight earned passes to the under- writers on ship ;* and this judgment has been followed since by the House of Lords to the full extent.^ ' Liverpool Marine Credit Co. v. borne, 9 East, 378. Wilson, L. E. 7 Ch. 507. ^ Davidson v. Case, 5 M. & Sel. 97 ; 2 Per Lord EUenborough, Davidson (in error) 2 B. & B. 379 ; Miller v. V. Case, 5 M. & Sel. 79, 82. WoodfaU, 8 E. & B. 493. 3 Thompson v. Eowcroft, i East, 34 ; ° Stewart v. Greenock Marine Ins. Leatham v. Terry, 3 B. & P. 479 ; Company, 2 H. of Lds. Cas. 159. In McCarthy v. Abel, 5 Bast, 388 ; Sharp America it seems that a different rule V. Gladstone, 7 East, 24 ; Ker v. Os- is followed, and that the freight earned '50§ FREIGHT. [chap. X. It is a consequence of the same doctrine, that although the freight is earned, if it he not by the abandoned ship, or a ship engaged by the abandonees, they are not entitled to it. The ship Sarah Sands, -when on her voyage with troops for India, and about 700 miles to the north-east of the Mauritius, caught fire, and was with difficulty brought back to that island ; she was then unfit to proceed on the voyage, and, upon the receipt of this intelligence, the owners in this country abandoned ship and freight to their respective insurers ; but the master, in the meantime, at the Mauritius, had engaged another vessel with which he earned the freight, and it was held that the under- writers, though entitled to any advantages that attach to the abandoned ship, had no right to those arising from the fulfil- ment of a contract made in this case by the master acting as the agent, of the owners only.' Under Assign- It is but another illustration of the same doctrine, when the ment of Freight. transfer, instead of being by abandonment under the law merchant, is by mortgage of the ship to one and assignment of the freight to another; the registered mortgagee who takes possession cannot be ousted by the assignee of freight, although the latter before him completed his title by notice in writing to the charterers.^ But when the competing claims to freight are both equitable, e.g., the claim of a second mortgagee of ship, and the assignee of freight, his title prevails which was first perfected.® Consequently, as against a mortgagee not in possession, the title of the assignee of freight will prevail.* The sole owner of a ship having chartered her to freight sold twenty-four shares to A., and the remaining forty shares after- wards to B., and subsequently assigned the freight to C. ; A. registered before, and B. after the assignment to C. was made ; but C. first of the three gave notice to the charterers ; it was held that C.'s right to the freight had priority over B., but not over A.' On the other hand, the assignee of freight was held is apportioned between the under- ^ Brown v. Tanner, L. E. 3 Ch. 597 ; writers on ship and the owner or his Morrison v. Parsons, 2 Taunt. 407. representatives the underwriters on ^ Lindsay v. Gibfes, infra, tveight, pro rata Uineris. See 3 Kent, < Willis i;. Palmer, 29 L. J. (C. P.) 333 ; 2 Amould Ins. 1042. 194 ; The Edmond, Lush. Ad. 58. ' Hickie v. Eodocanaohi, 28 L. J. ' Lindsay v. Gibbs, 22 Beav. 522 ; (Ex.) 273. 2 Jur. N. S. 1039, S. C. See the con- CHAP. X.] LIEN FOE FREIGHT. 509 entitled to recover so much of it as had been paid to his assignor, the owner of the ship, notwithstanding the deed of assignment recited a mortgage of the ship, for the mortgagee had not taken possession.^ If the owner charter his vessel to another who puts her up in case the ShiiJ as a general ship, the freight afterwards earned by her in that a„(j ^at^lt as capacitj' is payable to the charterer, subject however to the ^'*"«i''>'i Ship, owner's right of lien, if not expresslj^ parted with, on the goods for the freight due to him.^ But for goods loaded oh deck, in Deck Freight. the absence of usage or stipulation in respect of the use of that ]Dart of the ship, the freight is payable to the owner.^ The carrier's lien at common law on the goods for the hen tor reward of his labour in and about the carriage thereof extends to freight properly so called ; but for money payable in ad- vance, though often designated by that name, as it is not freight, there is no such lien. Certain goods were shipped at Liverpool for Sydnej^, New For what Freight South "Wales, deliverable under the bill of lading, to order or assigns, he or they paying freight for the same as per margin ; and in the margin appeared the sums due for freight, but the following words were added, " Freight payable in Liverpool to ^neas Macdonnell, one month after sailing, vessel lost or not lost." This biU of lading had passed into the hands of the appellants, merchants in Sydney, as indorsees for value, and when the ship arrived they demanded delivery of the goods, but the master refused this except on jjayment of the freight ra the biU of lading, which had not been paid in Liverpool. Upon these facts, the Judicial Committee of the Privy Council held, that as it was money to be paid in advance and therefore not freight, no lien existed under the circum- stances of the case before them; adhering to their opinion in How V. Kirchner,'^ and expressly dissenting from the verse of this case, Wilson v. Wilson, v. Eailston, 2 id. 294 ; Yates v. Men- L. K. 14 Eq. 32. nell, 2 id. 297. 1 Willis V. Palmer, supra. " Neill v. Kidley, 9 Exch. 677. ' Marquand v. Banner, 6 E. & B. " How v. Kirchner, 11 Moore, P. C. 232 ; Small v. Moates, 9 Bing. 579 ; 21. Tate V. Meek, 2 B. Moore, 298 ; Yates 510 FREIGHT, [CHAP, X, decision in Gilkison v. Middleton,'^ and Neish v. Graham,^ on this question.^ This decision of the Privy Council is now received as laying down the true rule in respect of payments stipulated to be paid in advance in the name of freight.* In Gilkison v. Middleton ^ the plaintiffs had chartered their vessel to Syers a,nd Co. for a voyage to Singapore out and home, the freight for the round to be 3375L in full. The outward cargo Avas to be freight free, but 900L was to be paid by the charterers' acceptance at three months, on the sailing of the ship ; the master however to sign bills of lading at such rates of freight as might be required by the agents of the charterers, without prejudice to the charter-party ; and the shipowners to have an absolute lien on the cargo for the recovery of all freight, dead freight, demurrage, &c., due to the ship under the charter- party. Goods were shipped by the charterers for the outward voyage, and at their request the master signed three biUs of lading at rates of freight thereon which made a sum of 196Z. 12s, in the aggregate, but in the margin were these words, " Freight payable in Liverpool, one month 'after sailing of the vessel, lost or not lost." These bills of lading were indorsed over to Middleton and Son, Liverpool, for an advance of money, the consignees being Middleton and Co. at Singapore, in fact the same house. On the arrival of the vessel at Singapore, the master hearing that the bills given for the 900J. had been dishonoured, claimed a lien on the goods for that amount. The Court said that the shipowners must have had a lien for the 900Z., the cargo being liable for all freight under the charter-party, if they had not been parties to a bill of lading which made the goods deliverable on payment of a smaller ' Gilkison v. Middleton, 2 C. B. N. S. Andrew v. Moorhouse, 5 Taunt. 435 ; 134. per Lord EUenboroiigh, Osgood v. Gro- 2 Neish V. Graham, 8 E. & B. 505, ning, 2 Camp. 466 iper Id., De Silvale decided on the authority of Gilkison I!. v. Kendall, 4 M. & Sel. 87, i2;per Middleton, supra. Lord Tenterden, Winter v. Haldimand, 3 Kirchner v. Venus, 5 Jur. N. S. 2 B. & Ad. 649. 895, affirming the judgment, on this * Gilkison v. Middleton, 2 C. B. point, of the Court in Sydney. N. S. 134. * See Blakey 1). Dixon, 2 B. & P. 321 ; CHAP. X.J LIEN FOR FREIGHT. 5H> amount, on the faith of which the defendants had advanced their money; and the plaintiffs had judgment for 196L 12s. It is ohvious, if this 900L was not freight, that there was no lien for it at common law, and that it was not within the description of an}'^ of those claims for which lien was given by the contract ; and as the smaller sum in the hill of lading was therein declared to be payable in advance, for the same reasons there was no lien for it ; the plaintiffs in that view of the case therefore were not entitled to judgment, and the decision in Neish V. Graham, proceeding upon this authority, stands or falls with it. The case of Thompson v. Small,^ involving veiy similar con- Thompson v. siderations, was this : — A person who had by charter engaged "'^ the use of an entire ship for a voyage to Sydney, stipulating to pay for it 1600J. in London, two months after the vessel should have cleared out from the Custom House, and had filled her up with goods purchased of the plaintiff, discovered that he was unable to pay for them, and rescinded the contract of purchase, giving the plaintiff an order on the master for the re-delivery of the goods. The ship had- already cleared out from the Custom House, but the two months agreed on had not expired ; the master, however, although an offer of all reasonable charges was made to him, refused to give up the goods ; and the Court decided that the plaintiff having acquired a right to demand them, the master's refusal was a conversion of the goods, as the stipulated hire of the vessel had not then become due. , On the authority of the cases already cited, this was not freight ; and for aught that appears in the contract, retention of the goods bj^ the master was not necessaiy to the earning of his reward ; there never therefore could have been a lien on the goods for 1600L, or any time when the master's refusal to deliver them except on payment of that sum would not have been a conversion. On the other hand, if goods are delivered on board to be TindalH-. Taylor. carried for freight, the master may detain them in order to earn his stipulated reward by performance of his contract; unless the party claiming re-delivery agree to pay it without.^ 1 Thompson v. Small, 1 C. B. 328. 24 L. J. (Q. B.) 12, S. C. 2 Tindall v. Taylor, 4 E. & B. 219, 612 FEEIGHT. [chap. X. But this is no case of lien, but only a right to retain for the purpose of performing the contract and thereby earning the freight. Moreover, in Tindall v. Taylor the shipowner had abandoned his lien by stipulating for payment of the considera- tion two months after the vessel sailed. In that, it resembles the case of Thompson v. Small, but differs from it in this, that whereas the master in Tindall v. Taylor could not have j)er- formed his contract, if he had given up the goods, it does not appear but that in Thompson v. Small he might have sailed out and home in ballast, the freighter making no other use of his vessel, and so have earned the stipulated reward. Lien does not As it is with money payable in advance, so with regard to ' " dead freight, or demurrage,^ port charges,^ or wharfage,^ there is no lien at common law ; such implied indemnity is by the very reason of the lien strictly confined to freight. But even for freight, or for hire in the nature of freight, there can be no such Jien where there is no possession of the goods, and this the shipowner cannot have who has passed the possession of the vessel to another.* That is a result of his contract by way of lease, which we have already considered in connection with the contract of affreightment.^ And if he bind himself by the charter-party to give up possession of the goods before the freight is payable, though earned, the result is the same, he loses his lien, and is left to his remedy at law on the personal contract.^ Lien by Con- A lien may be created by contract between the parties, not only for freight, but for dead freight, demurrage, and as many more of the usual claims of the shipowner as they choose to name;^ and the courts will give effect to it, without in- quiring whether the shipowner is or is not in possession of the vessel.^ But dead freight when made the object of lien by 1 Phillips V. Eodie, 15 East, 547 ; Company, 14 M. & W. 794 ; Foster v. Birley v. Gladstone, 3 M. & Sel. 205. Colby, 3 H. & N. 705 ; 28 L. J. (Ex.) 2 Faitb V. The Bast India Company, 81, S. C. ; 18 & 19 Vict. o. 111. 4 0. & Aid. 630, 642. 7 Foster v. Colby, 28 L. J. (Ex.) 81 ; ^ Bishop V. Ware, 3 Camp. 360. Gilkison v. Middleton, 2 C. B. N. S. * Per Gibb, C. J., in Hutton v. 134 ;^e?'cwiaOT, in Kirchneru. Venus, Bragg, 7 Taunt. 14. P. C. 5 Jur. N. S. 395 ; MeLean v. » Ante, c. viii. p. 343. Fleming, L. E. 2 Ho. of Lds. (Scot.) ^ Lucasu. Nockells (inerror),4Bing. 128. 729 ; Alsager v. St. Katharine's Dock « Small ■;;. Moates, 9 Bing. 574. tract. CHAP. X.] LIEN FOR FEEIGHT. 513 contract does not include unliquidated damages, e.g., for short loading.^ It suffices in respect of freight, if the parties agree, the one As to freight to deliver the goods, the other to pay the freight, without ^™^^''" more; these are then concomitant acts, and the shipowner is thereby entitled to a lien, any terms in the charter-party which may seem to pass possession of the ship to another notwithstanding.^ In Kirchner v. Venus the plaintiffs alleged a usage in the Lieu by Usage. port of Liverpool whereby a liei> attaches on the goods for freight notwithstanding a stipulation that the same should be payable in advance ; but the defendants, on the ground of ignorance, were held not to be bound by it. " When evidence of the usage of a particular place is admitted to add to or in any manner affect the construction of a written con- tract, it is admitted only on the ground that the parties who made the contract are both cognisant of the usage, and must be presumed to have made their agreement with reference to it. But no such presumption can arise when one of the parties is ignorant of it."^ This must be understood with a difference as to such cases as are mentioned on page 385. It has been held that the master in virtue of his common Lien attaches law lien may detain any part of the goods for the freight of all that is consigned to the same person ; * but if goods of the same owner are sent in the same ship under different contracts to convey, with a different terminus in each, no lien 1 Pearson v. Goschen, 17 C. B. N. S. appears to have satisfied the colonial 352 ; 33 L. J. (C. P.) 265 ; Carr^;. Gray, tribunal of the existence of such a L. K. 6 Q, B. 522. These cases are said usage at Liverpool, not to be conflicting with McLean v. * Soldergreen v. Flight, cited in Han- Fleming, L. B. 2 Ho. of Lds. (Scot.) son u. Meyer, 6 Bast, 6U, 622. See 128, because in this the damages for Black v. Rose, 2 Moore, P. G. N. S. 277. not loading a full cargo were in effect This rule was followed in Moller v. aacerlaiiied, as they would be the spe- Young, 5 E. & B. 71 ; (in error) 5 ibid. cified amount per ton on the ascer- 755, by the master under circumstances tained quantity. See the result of the to which it was not applicable ; he had cases on the exemptive clauses, so far impliedly given up his lien in consi- as affects this question, ante, p. 356. deration of the indorsee of the bill of 2 Tate V. Meek, 2 B. Moore, 378 ; lading agreeing to pay fi-eight, and yet Yates 1). Railston, 2 id. 294 ; Yates v. he detained part for the purpose of Mennell, 2 id. 297. exacting freight for what had been » Kirchner v. Venus, 5 Jur. N. S. delivered. 395, coram Privy Council ; the evidence 514 FEEIGHT. [chap. X. attaches for freight under the one contract upon goods shipped under the other.^ For what amount The amount for which a lien may he enforced is, prima facie. the freight in the hill of lading, supposing there is not a different contract behind. If the charter-party differs in this from the hill of lading, the extent of the lien depends on the evidence of notice traceable to the proprietor of the goods. The charterer, therefore, or his agent, is not entitled to have his goods except upon payment of the stipulated freight in the charter-party, whatever may be the contents of the bill of lading. A vessel let to freight by charter-party for a voyage out and home, at a gross sum for the whole, was put up for the voyage home as a general ship, and bills of lading were signed by the master at the request of the charterer for a smaller rate of freight than was equivalent to the charter-freight ; the owner nevertheless was held to be entitled by his lien to detain the charterer's own goods as against his assignees in bankruptcy for the unpaid residue.^ If the consignment is to third parties, but still on the charterer's behalf, the shipowner's Ken is not altered.^ And this is so where the biU of lading is indorsed by way of security to one who is under advances to the charterer, and, in effect, takes as factor or consignee for sale.* In Faith v. The East India Company ^ the master had express instructions to sign all bills of lading "on payment of freight as per charter- party," yet, in collusion with the foreign consignees of the outward freight, he procured his substitute to sign bills of lading for the homeward cargo specifying a smaller rate of freight, but both the consignees abroad and those at home were aware of the contents of the charter-party before making any advances on the cargo, and the shipowner's lien therefore on the charterer's goods was held binding for the freight in the charter-party. A bill of lading with the clause "on payment of freight as per charter-party," or " they paying for the said goods as per 1 Bernal v. Pim, 1 Gale, 17. < Gledstanes v. Allen, 12 C. B. 202 ; ^ Tate V. Meek, 2 B. Moore, 278 ; Small v. Moates, 9 Bing. 57i. Yates V. Eailston, 2 id. 294 ; Yates v. * Faith v. The East India Co., i B. Mennell, 2 id. 297. & Aid. 630. , - ■ ' 3 GampioniJ.ColYin,3Bing.N. C.17. CHAP. X.] LIEN FOR FREIGHT. 515 charter-party," gives a lien for freight at the rate named in the charter-party as against the indorsee.^ But a bond fide indorsee of a hill of lading who takes it, in the absence of fraud, without notice of other freight to be paid upon it, is entitled to the goods on payment of the freight expressed in the bill of lading.^ To this extent Gilkison v. Middleton is a valid authority. The shipowners there being entitled to 900L, in the name of freight, by the charter-party became parties to a bill of lading expressing the freight to be no more than 196L, and to that, therefore, their Hen was con- fined.' And, therefore, where the freight appeared by the bill of ladiag to have been paid, it was not open to the shipowners as against a bond fide indorsee for value to show that in fact it had not been paid.* A vessel belonging to a person at Liverpool was, in 1851, loaded with cotton for owner's account at New Orleans, and a bill of lading was taken from the master "to be delivered unto order or to assigns, he or they paying freight for the said cotton, Is. per bale, being owner's property when draft against same is paid, say 3590Z. with primage and average accustomed." The bill of exchange named in it was sold to the plaintiff, to whom also the bill of lading was indorsed. In May, of the same year, the owner of the ship mortgaged her with all her freight and earnings to the defendant, who, on her arrival at Liverpool, took possession and claimed of the plaintiff the current rate of freight. The plaintiff paid it under protest, in order to get the cotton, but recovered of the defendant afterwards all that he had paid in excess of the Is. per bale mentioned in the bill of lading.^ The lien which attaches on goods in a general ship for the bin. of lading freight remains the same, whether the bill of 1 Smith V. Sieveking, 24 L. J. (Q. B.) v. Cellier, L. R. 6 Ho. of Lds. (Eng. & 257 ; (in error), 5 B. & B. 589. Fast, Ir.) 286. p. 525.- * Howard v. Tucker, 1 B. & Ad. ' Foster v. Colby, 28 L. J. (Ex.) 81, 712. 3 H. &lSr. 705, S. C. ; Mitchell -ii. Scaife, * Brown v. North, 8 Exoh. 1. So, i Camp. 298. Mercantile & Exchange Bank v. Glad- 3 Gilkison v. Middleton, 2 C, B. stone, supra ; Keith v. Burrows, 2 C. N. S. 134 ; Neish u. Graham, 8 E. & P. Div. 163 (reversing decision below, B. 505 ; Mercantile & Exch. Bank v. 1 C P. Div. 722) ; affinned, 2 App. Gladstone, L. R. 3 Ex. 233 ; Weguelin Cas. 636. L L 2 516 FEEIGHT. [CI-IAP. X. lading is subsequently endorsed to a third person for valuable consideration, or the goods are in fact delivered to the original consignee.'^ Foster v. Colby. Several points to be found separately in other cases upon this question are presented together in the charter-party in Foster v. Colby, ^ which on that account is deserving of con- sideration. A vessel lying at Liverpool was chartered for a voyage to Calcutta with cargo out and home, the return cargo to be delivered " on being paid freight in fuU, all port charges, pilotage, and primage, at and after the rate of 7000?. lump sum. The freight to be paid as follows : — 1250?. in cash on vessels clearing from Liverpool; lOOOL on right delivery of the outward cargo at Calcutta in rupees at the exchange of the day, for the bills in London at three months' sight ; and the remainder in cash two months from the vessel's report inwards, at London or Liverpool, and after right delivery of the cargo, or under discount at 5 per cent, per annum at freighter's option . . . The master to sign bills of lading at any rate of freight required without prejudice to the charter-party . . . The owners of the ship to have an absolute lien on the cargo for all freight, dead freight, and demurrage." The stipulated advances of money were paid at Liverpool and Calcutta, and at the latter port, after being partly loaded as a general ship for London, she received on board 1652 bags of linseed, pm-chased with the money of the consignees of the outward cargo, Stewart & Calrow, for account of Syers, Walker, & Co., the freighters, but without orders from them. By the biU of ladiag for this linseed, it appeared to be shipped by Stewart & Calrow, fdehvei'able to their order on payment of freight at the rate of 5s. per ton, the current rate at the time being 51. or 51. 10s. per ton. Stewart & Calrow having drawn on Syers, Walker, & Co., for the value of the linseed, sold the bill of exchange and indorsed the bill of lading also to the purchasers, who afterwards indorsed both over to the 1 Per Tindal, C. J., Small v. Moates, Colby, 28 L. J. (Ex.) 81. 9 Bing. 574 ; and acted on in Tate v. ' Foster v. Colby, 28 L. J. (Ex.) 81 ; Meek, 2 B. Moore, 278 ; Yates v. Bail- the same points were raised, and de- ston, 2 id. 294 ; Yates v. Mennell, 2 id. ded upon the authority of this case 297 ; Small o. Moates, gupra. ; Gled- n Shand v. Sanderson, 28 L. J. (Ex.) stanes v. Allen, 12 C. B. 202 ; Foster v. 278. CHAP. X.] LIEN rOE FREIGHT. 517 plaintiffs, their creditors at the time for a large amount. The freighters became bankrupt, the bill of exchange was dis- honoured, and the linseed was delivered into the London Docks, subject to the master's claim for freight according to charter-party, and any right of the plaintiffs to have the goods on payment of the bill of lading freight merely. Upon this charter-party and bill of lading, the Court were of opinion, first, that the shipowner had no lien for the freight, having stipulated that it should not be paid until two months after being reported and until after delivery of the cargo, the merchant, however, having the option of paying within the two months and thereby entitling himself to a proportionate discount ; secondly, that the parties intended to stipulate for a lien so far as a lien was possible for the different matters men- tioned, leaving, therefore, freight as at common law, and pro- viding by contract for dead freight and demurrage whenever it could take effect ; and thirdly, that a ionafide indorsee of the bin of lading in the absence of fraud, and without notice of other freight to be paid, was entitled to have the goods on pay- ment of the freight expressed in the biU of lading, irrespective of the statute,^ and equally so, when considered in relation to it, the bill of lading having thereby become a written contract with the indorsee, binding in all its terms upon the shipowner.^ The effect of the clause "without prejudice to the charter- " Without pre- n ■ ; ji i ;i 111 !■ 1 n -11 c 1 T • judice to Char- party, is not that the holder oi the bill oi lading is to pay ter-party." freight according to the charter-party, but that the fact of the master signing bills of lading at a less freight than is stipulated in their contract, shall not prejudice the shipowner's right to recover the charter-party freight from the charterer.^ But where the biU of lading was "paying freight for the goods as usual," and the indorsee had notice of the charter-party, it was held that the shipowner could hold the goods under lien for the full chartered freight.^ 1 The BUls of Lading Act, 18 & 19 Loud. & CMna, L. E. 1 C. P. 689 ; Vict. c. 111. Keith v. Burrows, ante, p. 515, note *. 2 So put,^er Bramwell, B., Foster v. ^ Per Pollock, C. B., Shand v. San- Colby, s'wpra. Accord. Mercantile & derson, 28 L. J. (Ex.) 278, 282. Exchange Bank v. Gladstone, L. K. 3 "• Kern v. Deslandes, 10 0. B. N. S. Ex. 233 ; Brown v. North, 8 Bxch. 1 ; 205 ; 30 L. J. (0. P.) 297. Pry V. Chartered Merc. Bank of India, 518 FREIGHT. [chap. X. Where, as at common law, deli-very of the goods and pay- ment of freight are concurrent acts, the Hen may be enforced until payment is made ; ^ by delivery of the goods, however, without payment, the lien is gone ; but if the contract be for payment at a time certain which must fall before or after delivery, the right of lien never arises.^ The master may stipulate for payment of freight on the quantity of cargo delivered each day, if by the charter-party payment of freight be stipulated on the quantity of cargo safely delivered.^ PAYMENT OB' TREIGHT. Effect of. What amounts to payment. Payment determines the lien, and anything accepted as payment, although in its nature conditional,* such as a bill of exchange, has the same effect ; ^ unless there is an agreement to the contrary. But there may be doubt about the intention of the party in whose hand lie the bill and the lien, until he negotiates the one, and thereby determines the other. Thus where a charter-party stipulated for delivery of the cargo on payment of the freight in good and approved bills, but the owner took objections to one of the biUs that were given him, and yet negotiated it, the Court held this to be an approval of the bill and a relinquishment of his lien on the goods.^ But although a bill of exchange when taken for freight, determines the lien, and suspends also the right to sue whilst the bill is running, it is only conditional payment''' imless accepted as complete satisfaction.^ Yet, if the master, acting within his .authority, or the owner, prefer a bill of exchange when he might have had cash, delivery of the bill to him is payment notwithstanding it is afterwards dishonoured.' ,}, Paynfer v. James, L. E. 2 C. P. 348. ' "Walker v. Kirchner, 11 Moore, P. C. 21 ; Tamvaoo v. Simpson, L. E. 1 C. P. 363 ; Lucas i;. Nookells, i Bing. 729 ; and oases, ante, p. 510. 3 Black V. Eose; 2 Moore, P. C. N. S. 277. * Belshaw v. Bush, 11 C. B. 191. * Tainvaoo v. Simpson-, L. E. 1 G. P. 363 ; Horncastle v. Farran, 3 B. & Aid. 497 ; Bunney v. Poyntz, 4 B. & Ad. 568 ; Hewison v. Guthrie, 2 Bing. Ijf. C. 755. ■ ' Horncastle v. Farran, 3 B. & Aid. 497. ' Tapley v. Martens, 8 T. E. 451 ; Belshaw v. Bush, 11 C. B. 191 ; Marsh V. Pedder, 4 Camp. 257 ; Kearslake v. Morgan, 5 T. ,E. 513 ; MaUard v. Duke of Argyll, 6 M. & Gr. 40. » Brown v. Kewley, 2 B. & P. 518. ', Anderson v. Hillies, 12 C. B. 499 ; Strong V. Hart,, 6 B. & C. 160 ; Marsh CHAP. X.J PAYIVIENT OF FREIGHT. 619 When the mode of payment is by bill of exchange, it is the master's duty to draw and present the bill for acceptance, and in that case if he refuse to draw, notwithstanding an offer to accept, this is evidence for the defendant of a good tender of the freight.^ A tender of payment refused where payment is stipulated makes the holder of the bill of lading a wrongdoer who after that refuses to give it up.^ Money advanced by way of freight, under a contract to that Freight paid in effect, between the parties, cannot be recovered back, although be recovered the ship be afterwards lost on the voyage,^ such paj^ment being ^''"'^" by intention of the parties exempt as between themselves from the risk and contingency incident to freight at common law.* But a mere loan, though stipulated in the charter-party, is not such an advance ; it is therefore not insurable,^ and it may be Secus, when a recovered back. And whether it be the one or the other is a question of construction on the instrument of contract. There- fore Lord Ellenborough finding that the stipulation was for an advance " to be free from interest and commission, and the residue of such freight to be paid on dehvery of the cargo," held it to be an advance by way of freight, and the rest of the Court agreed with him.^ This was also the opinion of the Court in a subsequent case, where " cash for ship's disburse- Loan not insnr- ments was to be advanced to the extent of 300L free of interest, but subject to insurance, "^ and 2J per cent, commission," since it was not an insurable interest if it was not freight.^ But where the parties had insured an advance of money made V. Pedder, 4 Camp. 257 ; per Lord Ken- paid and received for the whole route yon, Tapleyv. Martens, 8 T. E. 451, as for one voyage ; Greaves ■!). West In- 453. dia and Pacific Steamship Co., 22 L. T. 1 Luard v. Butcher, 2 C. & K. 29. N. S. 615. See Watson v. Shankland, 2 Mirabita-D. Imperial Ottoman Bank, 2 Ho. of Lds. (Sc.) 304. 3 Exoh. Div. 164 (C. A.). * Per Lord Ellenborough, C. J., De 3 Per Saunders, C. J., Anon. 2 Show. Silvale v. Kendall, 4 M. & Sel. 37, 43. 283 ; De Silvale v. Kendall, 4 M. & Sel. * Manfield o. Maitland, 4 B. & Aid. 37 ; Saunders v. Drew, 8 B. & Ad. 44,5 ; 582. Hicks V. Shield, 7 E. & B. 633 ; 26 " De Silvale v. Kendall, 4 M, & Sel. L. J. (Q. B.) 205 ; Byrne v. SchUler, 37. L. E. 6 Ex. 20, 319. It matters not ' Such a stipulation, it seems, does that the whole voyage is divisible into not bind the shipowner to insure, but several parts, each part to be performed only to allow for the premium of insu- by a different company, and that the ranee, Jackson v. Isaacson, 27 L. J. loss was in the course of the first divi- (Ex.) 392 ; 3 H. & N. 405. sion of the route, if the money was ^ Hicks v. Shield, 7 E. & B. 633. 520 FREIGHT. [chap. X. Foreign Law as to Advances on Freight, American Law. under a clause at the end of the memorandum of charter- party in these words, " The captain to be supplied with cash for the ship's use," and there was nothing more in the charter- party relating to it, they did not recover it from the under- writers, as it was a mere loan and no insurable interest.'^ As between the charterer and the shipowner, these stipulated advances are properly not freight, — the one party having no lien for them, though freight be earned, and the other having no protection from loss, if it is not;^ the case is obviously different between the charterer and underwriter, as to whom any advance by way of freight to the shipowner retains the incidents of freight-risk and contingency.^ Such an advance, provided it appear to be of freight, without other stipulation annexed, is viewed by the law of England as an absolute pay- ment, exempt from all risk and contingency.* Foreign jurists have laid down a different rule,^ and the French law also expressly provides* that when freight is advanced, but for reasons not imputable to the shipper is not earned, it shall be recovered back, unless there is an agreement to the contrary. The courts of the United States have in several cases avowedly followed the foreign rule ; "^ Chancellor Kent,^ Parker, C. J.,' and Story, J.,^" giving it the sanction of their authority, and adding in so many words, that it is the rule of the English law also, frittered away however in this country by refinements which they appear to think untenable. The refinements have been stated. The view of the American 1 Manfield v. Maitland, 4 B. & Aid. 582. 2 Ante, p. 452. ^ Hicks V. Shield, stipra. * See the judgment of Lord Ellen - borough, De SilTale v. Kendall, 4 M. & Sel. 37, 42. * Pothier, Charte-partie, no. 63 ; 1 VaUn, 661 ; Gleirac, Us et Gout. 42, note 9 ; Straccha de Nav. 3 n. 24 ; Locoenins, de Jure Marit. lib. 3, c. 6, § 11. Kooous, not. 80 ; see Dig. 19. 2. 15, 6. See the discussion in Byrne v. Schiller, L. E. 6 Ex. 319. 6 Ord. 1681, liv. 3, t. 3, art. 18—4 Pardess. 363 ; Co. de Com. art. 302. " Griggs V. Austin, 3 Pick. 20 ; Wat- son V. Duykinck, 3 Johns. 335 ; Pit- man v. Hooper, 3 Sumner, 50, 66 ; 1 Parsons, Shipping, 222, note. 8 3 Kent. Com. 266 ; and per Kent, G. J., in Watson v. Duykinck, 3 Johns. 335. ' In Griggs v. Austin, 3 Pick. 20. '" See Story's note to Abbott, Ship- ping (Amer. ed.), 408. " I am aware," says Story, J., after stating the foreign rule, — " I am aware that some of the English cases look the other way, and while they seem to admit the doctrine, fritter it away by very nice distinc- tions ; " per Story, J., in Pitman v. Hooper, 3 Sumn. 50, 66. CHAP. X.] DEMURRAGE. 521 jurists rests on this, that the advance, after being stipulated and paid, still retains the character and incidents of freight ; and if they are right in making this assumption. Lord Ellenborough justifies their inference from it, that " every penny of the advance may be recovered back."^ But the English law, contrary to this assumption on their part, is that such payment of freight in advance, whether an accomplished fact, or still no more than a claim under contract, equally loses the peculiar character and incidents of freight, without acquiring the legal properties of a mere loan.^ It seems that by a custom of the port of Liverpool, the Liverpool usage person paying freight from the ports of New Orleans, Mobile, Charleston, or Savannah, whether he be the shipper, consignee, or assignee of the bill of lading, is entitled to a deduction of three months' discount from the amount, but not to credit for that or any period ; and it has been held that such custom is good, and not inconsistent with a bill of lading by which the goods are deliverable on payment of a specified amount of freight.^ Non-performance of a stipulation in the charter-party that does not go to the whole of the consideration, we shall see is no bar to the recovery of freight, though it may give damages by way of cross action or counter-claim.* Loss of goods acknowledged by the bill of lading to have been received, or such damage to goods as is not covered by the excepted perils, may now form the subject of a set-off and counter-claim in an action for freight.^ In respect of a ship let to freight for a voyage, considered Demuerage. as a matter of strict construction, the freighter's right to use what it is. it would begin with the moment in which the ship breaks ' Per Lord Ellenborough, C. J., in 2 B. & P. 321 ; Andrew v. Moorliouse, Mashiter v. Buller, 1 Camp. 84. 5 Taunt. 439. 2 How v. Kirchner, 11 Moore, P. C. ^ Brown v. Byrne, 3 E. & B. 703 ; 21 ; Kirchner v. Venus, coram P. C. 23 L. J. (Q. B.) 313, S. C. 5 Jut. N. S. 39.5 ; Hicks v. Shield, ■* Seeger v. Duthie, 29 L. J. (C. P.) 7 E. & B. 633 ; De Silvale ii. Kendall, 253. Ante, p. 363, note '. 4 M. & Sel. 37 ; Manfield v. Maitland, ° Judic. Acts, Ord. xix. r. 3. 4 Bar. & Aid. 582 ; Blakey v. Dixon, 522 DEMURRAGE. [chap, X. ground, and the owner's right to repossession would accrue with her arrival at the port of final destination, if nothing more appeared or were implied in the contract of affreightment. There is always in it, therefore, a stipulation, express or implied, for a fixed or reasonable time to load and to discharge in ; the detention of the ship for any time beyond this, being a delay of the shipowner's subsequent traffic, is consequently a loss for which he is entitled to compensation ; and such com- pensation, when fixed and liquidated by express contract, is called demurrage.^ HOW IT ABISB3. By Contract, ex- press or implied, Usually the contract of affreightment fixes in express terms the number of lie-days, and the number of days for the ship on demurrage ; or it does the same thing indirectly, e.g., by stipulating to load or discharge so many tons a day, or with the usual dispatch of the port, and the Hke. But if it omit to ascertain the lie-days, the law implies a stipulation for reason- able time considered with reference to the trade and the port the vessel is in;^ and this will include such increased delay as is consequent, e.g., upon discharging a cargo into a bonded warehouse at a port like London.^ The law will then imply, if need be, a contract or covenant not to detain the ship longer than such reasonable or fixed time for loading or discharging, or longer than the time fixed for demurrage, entitling the owner to reasonable damages for such detention,* notwithstanding it ' Per curiam, Burmester i>, Hodgson, 2 Camp. 488 \per cw. HaBdalli). Lynch, 2 id. 352 ; Kodgers v. Forresters, 2 id. 483 ; Bleoh v. BaUeras, 29 L. J. (Q. B.) 261. , . 2 Wright v. New Zealand Shipping Co., i. Exch. Div. 165 (C.A.) ; Fowler xt. Knopp, 4 Q. B. Div. 299 (C. A.) ; Crow V. Falk, 8 Q. B. 467 ; Burmester V. Hodgson, 2 Camp. 488 ; Bodgers v. Forresters, 2 id. 483 ; Hill u. John, 4 Camp. 327. Secus, where the parties intended to contract in writing, but one of them invalidated the instru- ment by alterations without the know- ledge of the other, Horn v. Bensusan, 2 M. & Rob. 326. 3 Rodgers'!). Forresters, 2 Camp. 483 ; the words in the charter-party were, "that the freighter be allowed the usual and customary time to unload at her port of discharge." "That," said (Jibbs, C. J., "is what the .law would imply," Burmester v. Hodgson, 2 Camp. 488. " Randall -o. Lynch, 12 Bast, 179, 182 ; 2 Camp. 352, S. C. not S. P. ; Moorsom v. Bell, 2 Camp. 616 ; Tem- perley v. Brown, 1 Dowl. N. S. 310 ; see Stevenson v. York, 2 Chitty, 870. Primd facie the measure of damages for detention beyond the fixed days on demurrage is the rate of demurrage agreed on by the parties, Randall v. Lynch, 12 Bast, 179, 182. CHAP. X.] HDW IT' AiUBES. 52^ be occasioned lay the crowded state of the docks/ the state of the weather,^ the non -production by the defendant of landing papers,* or the non-arrival of the bill of lading,* or the non- production of a Treasury licence ; ^ — in fact whenever the detention is not attributable to the ship-owner or his agents.^ " I am of opinion," said Ldrd Ellenborough, " that the person who- hires a vessel detains her, if at the end of the stipulated time he does not restore her to the owner." '^ And if the time has been lost through ignorance of the ship's arrival, yet that is no excuse for the defendant, who is bound to watch for it, and is not entitled to notice.^ On the other hand the shipowner cannot claim demurrage Freighter for any detention which is purely attributable to himself, ^^'^"^®'^- whether it be his neglect or inability to get clearance papers ; ^ or the state of the weather, or damaged condition of his vessel that prevents him sailing.^" In :Ford v. Cotesivorth^^ the charter was that the ship shall proceed to Lima and there or so near thereto as she may safety get -deliver the cargo in the usual and customary nianner, and so end the voyage. No lie-days or days on demurrage Were named. The ship arrived at Callao, the port of Lima, and ' Eandall v. Lynch, 2 Gamp., ■ 352 ; reversing the judgment of the Court Leer v. Yates, 3 Taunt. 387 ; Brown v. below, 3 H. & N. 601 ; 27 L. J. (Ex.) Johnson, 10 M. & W. 331 ; Struck v. 472. Tenant, coram Mansfield, C. J., at " Jones v. Adamson, 1 Exch. Div. Gmldha,]!, post, T.T.1S06. 60. 2 Thiis V. Byers, 1 Q. B. Div. 244 ; ' Per Lord Ellenborough, C. J., in Barrett v. Button, 4 Camp. 333 ; Fen- Eandall v. Lynch, 2 Camp. 352. In an wick V. Schmalz, L. B. 3 C. P. 313 ; action for detention beyond the time unless there be an express stipulation stipulated, the plaintifi must declare against it, Hudson v. Ede, L. E. 2 Q. B. on the charter-party itself, and not for 566 ; 3 id. 412. demurrage, Cropton v. Pickernell, 16 3 HiU V. John, 4 Camp. 357 ; the de- ' M. & W. 829. fendant in this case had not obtained ^ Harman v. Clarke, 4 Camp. 159 ; the necessary order from the Treasury ; Harman v. Mant, 4 id. 161 ; Erichsen but it was the same thing when the v. Barkworth, 3 H. & N. 894, 28 L. J. plaintiff, at the defendant's request, (Ex.) 95, S. C. (in error), abstained from getting the papers at " Barrett v. Button, 4 Camp. 333. the custom-house, which it was the See Bailey v. B'Arroyave, 7 A. & E. plaintiff's duty to obtain, Fumell v. 919. Thomas, 5 Bing. 188. '" Jamieson v. Laurie, 6 Bro. C. P. 4 Hill V. Idle, 4 Camp. 327. 474 ; Pringle v. Mollett, 6 M. & W. 6 Erichsen v. Barkworth, 3 H. & N. 80. 894, 28 L. J. (Ex.) 95 ; S. 0. (in error) " L. E. 4 Q. B. 127 ; 5 id. 544. 524 DEMURRAGE. [CHAP. X. was ready to discharge. The authorities refused to allow the cargo to be unloaded for seven days. The shipowner sued the charterer for demurrage, but judgment went for the defendant. In the course of the judgment in that case, Blackburn, J., said: — " Whenever a party to a contract undertakes to do some particular act, the performance of which depends entirely upon himself, so that he may choose his own mode of fulfilling his undertaking, and the contract is silent as to time, the law implies a contract to do it within a reasonable time under the circumstances. And if some unforeseen cause over which he has no control prevents him from performing what he has undertaken within that time, he is responsible for the damage. But where the act to be done is one in which both parties to the contract are to concur, and both bind themselves to the performance of it, there is no principle on which, in the absence of a stipulation to that effect either expressed by the parties or to be collected from what they have expressed, the damage arising from an unforeseen impediment is to be cast by law on the one party more than on the other ; and conse- quently we think that what is implied by law in such a case is, not that either party contracts that it shall be done within either a fixed or a reasonable time, but that each contracts that he shall use reasonable diligence in performing his part." ^ * * * " Whenever in the charter-party it is agreed that a specified number of days shall be allowed for unloading, and that it shall be lawful for the freighter to detain the vessel for that purpose, a further specified time, on payment of a daily sum, this constitutes a stipulation on the part of the freighter that he will not detain her beyond those two specified periods." Under Bill of Under the bill of lading alone, if it expressly make the goods deliverable on payment of demurrage, receipt of them by an assignee is, at common law, evidence of a promise to pay such demurrage as accrued due at the port of delivery by his fault,^ and this notwithstanding any denial of his liability made 1 Accord. Cunningham v. Dunn, 48 17 L. J. (Q. B.) 166 ; Wegener v. L. J. (C. P.) 62 (C. A.). Smith, 15 0. B. 729. See the prin- 2 Stindt V. Roberts, 5 D. & L, 460 ; ciple on which this liability rests Lading. CHAP. X.J HOW IT ARISES. ' 525 at the time he accepted the goods.^ But he is not, therefore, answerable for demurrage incurred at the port of lading, at all events not unless there was something very express to that effect in the bill of lading.^ It is, however, good evidence of his liabilitj' for demurrage incurred through his fault, if the bill of lading make the goods deliverable on payment — of de- murrage as per charter-party — or, of so much per day beyond a certain time,^ — or, of the agreed freight and other conditions as per charter-party;* but not if it be "paying for the said goods as per charter-party with primage and average accustomed," for that is held to refer only to freight, the rate of which is to be ascertained from the charter-party.^ The 18 & 19 Vict. c. Ill, affirming any liability of the con- Under Statute. signee or indorsee in consequence of his receipt of the goods, transfers the rights and liabilities of the contract contained in the bill of lading to the consignee or indorsee, and vests the same in him as if the contract had been made ,with himself.^ But if there is nothing whatever in the bill of lading with regard to demurrage which would amount to evidence of a contract, there is nothing for the statute to operate on, and no right of action in the master against the consignee or indorsee for demurrage in consequence of his receipt of the goods thereunder.^ discussed with regard to freight, San- payable by the charter-party. Afor- ders V. Vanzeller (in error), 4 Q. B. tiori, if all that appears on the bill of 260 ; Kemp ti. Clark, 12 Q. B. 647. lading be that there are so many days ^ Wegener v. Smith, supra. for unloading, Chappel v. Comfort, 31 2 Smith v. Sieveking, 24 L. J. (Q. B.) L. J. (C. P.) 58. See the discussion of 257 ; (in error) 5 E. & B. 589. this and the other cognate cases per 3 Stindt -B. Eoberts, 17 L. J. (Q. B.) Brett, J., in Gray v. Carr, L. K. 5 Q. B. 166 ; Jesson v. Solly, 4 Taunt. 52. 522, 549, et seq. Seciis,ot a ij^m paper, which contained « 18 & 19 Vict. o. Ill, §§ 1 and 2. no contract, Shadf orth v. Cory, 32 L. J. So recognised per cvriam, Foster v. (Q. B.) 78. Colby, 28 L. J. (Ex.) 81, 88 ; see de- ■' Wegener v. Smith, 15 C. B. 729. claration thereon, Shand v. Sanderson, 6 Smith V. Sieveking, 24 L. J. (Q. B.) 28 L. J. (Ex.) 278. 257, the only demurrage due in the ' Brounoker v. Scott, 4 Taunt. 1 ; case had been incui-red at the port of Evans v. Forster, 1 B. & Ad. 118 ; lading ; but even for demurrage at the Smith ■«. Sieveking, 24 L. J. (Q. B.) port of deHvery under such a bill of 257, 259. Unless the ship be in effect lading the Court held there was no let to him as in Cawthorn v. Trickett, evidence of a contract on the part of 15 C. B. N. S. 754. the assignee although demurrage was 526 DEMURRAGE. [chap. X. HOW COMPUTED. Time from ■which, at Com- mon Lav. In reckoning time under a stipulation for demurrage and running days raean the same thing, in the absence of any peculiar custom to the contrary, i.e., without excepting holi- days ; ^ . but a special jury, so instructed as to the law by Lord Eldon, found that "days" at the port of London meant working days only.^ A stipulation to load and discharge so many tons a day, or so fast as the ship can work, or the' like, indicates that the fixed period of the days which follows, con- sists of working days only.^ A fraction of a day counts for a day.* Estimated by the hour without other modification, time runs on without regard to day or night, and demurrage or dispatch money accumulates accordingly.^ The computation of time begins, there being nothing to the contrary in the contract, with the arrival of the ship at the usual place of loading or discharge in the port,^ which of course is a question of fact ; "^ and if such usual place be a dock, it is enough if she enter the dock, although she does not then get into a discharging berth ; ^ but it is not enough if she enter the port merely ^ and even unload a reasonable part of her cargo to lessen the draught of water in order to reach the usual place of discharge.^" If such lightening require the- out- put of an unreasonable portion of the cargo, the same being justified by usage, or permitted by stipulation, a jury may find that the lie-days begin at the place of lightening : ^^ especially 1 Per Lord Eldon, 0. J., in Cochran «. Refberg, 3 Esp. 121 ; per Lord Abinger, C. B. ; Brown v. Johnson, 10 M. & W. 331 ; Niemann v. Moss, 29 L. J. (Q. B.) 206. 2 Cochran v. Eetherg, 3 Esp. 121. 3 The Comnleroial Steamship Co. v. Boulton, L. E. 10 Q. B. 346. * Ibid. * Laing v. HoUoway, 3 Q. B. Div. 437 (C. A.). 6 Kell V. Anderson, 10 M. & W. 498 ; Brown v. Johnson, 10 M. & W. 331 ; Leer v. Yates, 3 Taunt. 387 ; Parker v. Winlo, 7 E. & B. 942 ; 27 L. J. (Q. B.) 49, S. C. ; Bastifall v. Lloyd, 1 H. & C. 388 ; 31 L. J. (Ex.) 413. ' Per Parke, B.,in Kell v. Anderson, 10 M. & W. 498, " Brown v. Johnson,' 10 M, & 'W. 331 ; Tapsoott v. Balfour, L. li. 8 C. P. 46. ' Ihid. ; Brereton v. Chapman, 7 Bing. 559. '" Brereton o. Chapmafl, 7 Bihg. 559. " McIntoBh V. Sinclair, 1 1 Ir. E. C. L. 456 ; CafEariniw. "Walker, 10 ibid. 250 ; Hillstrom v. Gibson, 8 Sessions Oases (1870), 463. See Norden Steamship Co. i;. Dempsey, 1 C. P. Div. 654. CHAP. X.] HOW COMPUTED. 627 if at such place there have been default in the merchant to perform his reciprocal duties.^ In Ashcroft v. Croiv Colliery Go? the stipulations appear to have been to load a cargo of coal at the port of Liverpool with the usual dispatch of the port ; and there, although a dock for loading was mentioned in a memorandum, it was held that the stipulation covered the whole period from the time when the ship was placed at the disposal of the charterers ready to load, although not at that time in a dock. In Strahan v. GabrieP a particular quay was named in the charter-party as the place of discharge, and although there was but one berth at such quay and a vessel actually occupied it at the time, the lie-days were held not to begin until the vessel reached that berth. But if a dock is named and she get into a side basin known by repute as part of the dock the days begin to count.* If the stipulation be that the ship shall proceed to such a place or as near thereto as she can safely get and there load or discharge as the case may be, and she is prevented by a per- manent {i.e., enduring) legal or physical obstacle from reaching that place, the lie-days begin when the shipowner has brought his ship to a place so near to the primary place of destination as the ship can be brought with safety to ship and cargo, and so as to be ready, so far as the ship is concerned, to dehver there.' In Postlethwaite v. Freeland^ the charter-party was for a voyage to East London in Africa, the vessel to be there dis- charged with all dispatch according to the custom of the port. There were seven ships already there on her arrival out, waiting to be discharged, and the means of doing so were limited to four lighters, which had to be warped into the harbour from outside the bar. This vessel lay twenty-four 1 Capper v. WaUace, 5 Q. B. Div. Nelson v. Dahl, 12 Ch. Dir. 590. 163. See Hayton v. Irwin, 5 C. P. Div. ^ Davies v. McVeagh, 4 Exch. Div. 130 (C. A.). 265 (G. A.). 2 Ashcroft V. Crow Orchard Colliery ° Nelson v. Dahl, 12 Ch. Dir. 568. Co., L. E. 9 Q. B. 540. See the obser- The judgments in this case deserve the vations on this case,^;cr Brett, L. J., most patient study. 12 Ch. Div. 588. " Postlethwaite v. Freeland, 4 Exch. •■> Beferred to by Brett, L. J., in Div. 155 (C. A.). 528 DEMURRAGE. [CHAP. X. working days before lighters could be supplied to her. It was held that this satisfied the stipulation and the ship did not recover. On the contrary, at this same port, under similar circum- stances of delay, the ship recovered, because in the absence of any stipulation in the charter-party as to the time for dis- charging, the measure of what was a reasonable time for that purpose must be taken without reference to other ships being at the time at the same port.^ Where a vessel was chartered for a voyage with a cargo of coals from Newcastle to Plymouth and " not higher than Tor- point or New Passage or so near thereto as she may safely get," a keel a day to be allowed the merchant for delivery, demurrage over and above such lie-days at 31. a-day ; and she arrived in the Tamar, and was ordered by the freighter's agent up to Brunswick wharf, Stonehouse, a usual place of discharge for coals, and lower down than the points named in the charter- party; but it was the time of neap-tides, and she therefore grounded on her way up, and lay on a mud-bank for several days. The master applied for lighters in the meantime, but none were supplied. In the absence of any custom authorising the demand of lighters, and considering that the delay was occasioned by the circumstance of the harbour being a tidal harbour, which both parties must have known, it was held that the computation, of lie-days did not begin until her arrival at Brunswick wharf, to which the freighter had an option to order her to go, and therefore no claim for demurrage had accrued.^ By Contract. The parties, however, will be bound by their contract, if by that they have fixed a different starting-point for the computa- tion of time.' Whilst Portugal was partially in the occupation of the Miguelites, a vessel was chartered with a cargo for Oporto, to be discharged there, or in case of risk from the batteries at the entrance of the river, then off the Castle of Foz, or some place near it ; twenty-five working days to be allowed for delivery ; 1 Wriglit V. New Zealand Shipping 27 L. J. (Q. B.) 49, S. C. Co., 4 Exoh. Div. 165 (C. A.). ^ Seeger v. Duthie, 30 L. J. (C. P.) 2 Parker v. Winlo, 7 B. & E. 942 : 65. CHAP. X.] DEMUEEAGE. 529 the lie-days to commence when the ship was off the Castle of Foz, or other point where she was to be discharged, to continue whilst there, cease if blown off the coast, and recommence when again anchored at her station. The batteries at the mouth of the river being in the hands of the enemy when she arrived there, she anchored off the Castle of Foz, and discharged seven- eighths of her cargo. Twice she was obliged, by stress of weather, to stand out to sea in the course of the time, but on her return the second time she was allowed to go up to Oporto, and discharge the remainder of the cargo. Under these circumstances, although the defendants contended that it was a ease subject to the ordinary rule of law, and that time did not count till she reached the usual place of discharge at Oporto, the Court ruled, in accordance with the express terms of the contract, that time commenced at the Castle of Foz, subject to intermissions through stress of weather.-' Where the voyage was from London to Barcelona, with con- voy, forty-one days to be allowed for waiting convoy at Ports- mouth, and discharging at Barcelona, beginning to count the time twenty-fom* hours after the shij^'s arrival at Portsmouth, and from the day she was ready to deliver her cargo at Barce- lona ; and the vessel, in order that she might proceed with convoy, was detained twelve days at Portsmouth, fifty days at Falmouth, twelve days at Gibraltar, and then was kept forty- four days at Barcelona ; it was held, however, in an action of covenant on the charter-party, that demurrage was not recoverable, except for the time spent at Portsmouth and Barcelona exceeding forty-one days." In a charter-party for a voyage from England to Pernambuco, when reloading and thence to several other ports, discharging and reloading at ^I'scharging. each, as there was occasion, and finally to a port in this country, it was stipulated that " seventy running days were to be allowed for loading, discharging, and reloading the ship at the several ports, the periods to or for that purpose to commence and be computed from the several periods of the vessel being clear and ready for these purposes ; " and it was held that the seventy lie-days applied to places only where the vessel would 1 Gibbons v. De Buisson, 1 Bing. ^ Marshall v. De La Torre, 1 Epp. N C. 283. 3'''^ ' Connor v. Smytlie, 5 Taunt. C54. M M 530 DEMUEEAGE. [chap. X. In case another place is Siibstitiited, Impediments known at the time of making charter-party. Plaintiff's fault a good defence. in the course of the voyage load, discharge, and reload ; the Avord reloading being a limitation upon the word discharging ; and the shipowner therefore did not recover demurrage for the surplus time of detention at London, her final port of discharge. If the stipulation had been loading and discharging only, the result might have been different.^ If the parties stipulate that the time shall count from a cer- tain day, at a certain place, and another jalace is afterwards substituted, the term as to time appKes to the substituted place, there being nothing inconsistent or unreasonable in such a construction of the altered contract.^ It was held that the stipulation to " allow at New York, for taking on board the cargo, and at London for delivering the same, seventy running days in whole, if not sooner discharged," meant seventy days at each place. ^ A charter-party, signed with knowledge that the colliery engine, by which the vessel must be supplied with her cargo, was at the time under repair, is satisfied, in the absence of stipulation as to time, if the colliery begin to work again within a reasonable time after the execution of the charter- party, and the vessel be loaded within a reasonable time after such commencement to work.* If the parties contract without notice of existing impediments, and do not stipulate against them, the freighter is liable for unreasonable delay.' If the delay in loading or discharging is occasioned by the fault or negligence of the plaintiffs, this is a good defence to the action, if it be well pleaded.® But an action for demurrage under a charter-party, when the whole voyage has been a failure, though it be in consequence of the defendant's default, is not maintainable ; it is then a claim of damages for non- performance of the contract by charter-party.''' 1 Sweeting v. Darthez, 14 C. B. 538 ; 23 L. J. (C. P.) 131 , S. C. See Valente ■0. Gibbs, 28 L. J. (C. P.) 229. 2 Galloway v. Jackson, 3 M. & Gr. 960 (in error) ; below, 5 Eing. N. C. 71. 3 Stevenson v. York, 2 Chit. K. .570, .578. The report of this case is imper- fect. ■• Harris v. Dreesman, 23 L, J. (Ex.) 210. s Adams v. Royal Mail 8t. Pkt. Co., 28 L. J. (C. P.) 33 ; Ashcroft v. Crow Orchard Colliery Co. L. E. 9 Q. B. 540. Compare Wright v. New Zealand Ship. Co. 4 Exch. Div; 165, and Postle- thwaite v. Freeland, ibid, 155. « Taylor v. Clay, 9 Q. B. 713 ; plead- ing, Benson v. Blunt, 1 Q. B. 870. 7 Smiths. McGuire, 27 L. J^ (Ex.) 465, 472 ; Liddard v. Lopes, 10 East, 526 ; Bai'ker v. Hodgson, 3 M. & Sel. 207. See next chapter. CHAP. X.] DEMURRAGE. 531 When phrases appear in a charter-party with a pecuHar sense derived from the custom of merchants, or the usage of a par- ticular port, or the special trade, referred to in the instrument, evidence is admissible to explain them.^ Hitherto, we have proceeded on the assumption that the ship In the case of a is filled with the goods of a single freighter. But in the case '^"^^ "^'' of a general ship, with the goods of several persons on board, each liable to demurrage as though he were sole freighter, each liliely to stand in the other's way in respect of the delivery, there is such a conflict of these contract rights and liabilities, with the natural equities of the parties arising upon the actual facts, as it is difiicult to reconcile by any rule of law, however great the importance of such a rule to the commerce of the country. The rule which was adopted in the earliest case upon this point and is adhered to in the latest, rests upon a strict legal interpretation of the terms of the agreement, A vessel laden with brandy belonging to different persons arrived in the London Docks to discharge, having twenty days according to the biUs of lading to do so ; but as all the shippers chose to discharge into a bonded warehouse, and the number of ships before her for that purpose was great, she was detained forty-six days after the stipulated twenty. With regard to most of this time, all were equally the occasion of the delay ; the conflict of rights among the freighters began with the delivery of the cargo, when the undermost, who was least accommodated in point of delivery, paid most in point of demurrage. For, Mansfield, C. J., and the rest of the Court felt themselves bound by the express contract in the bill of lading to give judg- ment against each for 4Z. a day, every day beyond the twenty that his goods were on board .^ Lord Tenterden, however, being " of opinion that if a con- signee cannot get his goods, because some other person's goods prevent him, he is not liable for the delay of the vessel," dis- sented from the rule in the then previous cases, and substituted another, which he followed in two cases that came before him, within a short period, at Nisi Prius. ^ Leidemann v. Sohultz, 14 C. B. co7'd. Harman v. Gandolph, Holt, 35 ; 38 ; Eobertson v. Jackson, 2 C. B. 412. Porteus v. Watney, 3 Q. B. Div. 534 2 Leer v. Yates, 3 Taunt. 387. Ac- (C. A.) ; Straker v. Kidd, 3 id. 223. M M 2 532 DEMURRAGE. [cHAP. X. " The true principle," he said, " seems to he this : — If the goods of the particular consignee are not ready for discharge at the time of the ship's arrival, he must have a reasonable time for removing them after they are so ; if in such a case, using reasonable despatch, he cannot clear them within the stipulated period, from the ship's being ready to discharge her cargo generally, he will not be liable for demurrage till the expiration of such a reasonable time ; but when it is expired, he will be liable, though the stipulated period, if computed from the time when the discharge of his own goods could have commenced, is not at an end." ^ Mansfield, C. J., was struck with the enormous gain made by the shipowner in virtue of the rule adopted by the Court, in Leer v. Yates ; Lord Tenterden appears not to have noticed the dead loss that might be inflicted on the shipowner by the rule he adopted in Rogers v. Hunter, and Dobson v. Droop. Under the former, the demmTage payable by a sole charterer is multiplied by the number of shippers for the same period of time ; but under the latter, the vessel may be detained long beyond the stipulated period, without remedy for the owner against those who have violated their express agreement. The learned lord contrived a rule for the mutual benefit of the con- signees of the cargo, forgetting that they had also bound them- selves, each by the strictest engagement to the master of the ship. And the only consolation offered to freighters in such a case by the Court of Appeal, following the ruling of Mansfield, C. J., in Leer v. Yates, is that if they will bind themselves by such contracts, they must take the consequences.^ Pkimagb and Primage is a payment in the nature of a gratuity made by AvKKAOB. ^jjg freighter to the master of the ship upon delivery of the cargo. In virtue of long usage, it maintains its place, notwith- standing the jealousy of the common law, which allows no man to have an interest against his duty.^ It used to be invariably 1 Per Lord Tenterden, in Rogers v. ^ Per Lord EUenborough, in Thomp- Hunter, M. & M. 63 ; Dobson v. Droop, son v. Havelock, 1 Camp. 527 ; Dip- M. & M. HI. look V. Blackburn, 3 Camp. 43 ; 2 Porteus V. Watney, 8 Q. B. Div. Gardner v. McCutcheon, 4 Beav. 544. 534 (C. A.) CHAP. X.] DEMURRAGE. 533 stipulated in the charter-party and bill of lading of the common form, and though it be omitted from the former, it is yet recoverable if it appear in the latter.^ But even in such a case, the master by his contract with his owners may disable himself in law from recovering.^ The early origin of this gratuity, and the master's right to it, have been touched on in a previous page.^ Average, usually named with primage, is scarcely now a reality, but it denominates what has heretofore been an insig- nificant per-centage due from the freighter, on receipt of his goods, and was supposed to cover some trivial expenses of the shipowner incurred in the navigation.^ ' Best V. Saunders, M. & M. 208. ^ j^^fg^ p. 450. 2 Caughey v. Gordon, 3 C. P. Div. * Ante, p. 450. 419. CHAPTEE XL NON-PEEFOEMANCE UNDEB AEFEEIGHTMENT. Under Okdi- NAIIT ClUOUM- STANCES. Under Ordinary Circumstances . By tlie Shipowner in consequence of Act of God . . . Queen's Enemies Fire . . Dangers of the Sea . Confiscation of Cargo Non-performance of part when it gives Dam- ages . . . . when a Defence By the Freighter . . . Non-performance of part when a Defence when it gives Dam- ages . . . . in consequence of subsequent impossi- bility subsequent illegality 53i 534 635 537 538 538 540 541 542 542 542 543 543 544 During War .... Law of Nations as to Prize of War How subsequently modi- fied .. . Non-performance in con sequence of Embargo Declaration of War Law of Convoy . Capture . Blockade . Dissolution of Con- tract . Measure of Damages 547 547 552 553 555 561 502 569 581 583 Nox-PEEFORMANCE of the Contract of affreightment by either ■ of the parties to it, is not necessarily a reason for giYing damages to the other. Human laws, more consonant with the feebleness of man, tacitly acknowledge the evidences of a power superior to the force of his will, and beyond the reach of his under- standing. It is only when men are so inconsiderate as to un- dertake, at all hazards, for fature results, that law, under the sanction of their own authority, binds them so far to impossi- bilities, as to visit them with damages for non-performance.^ BY THE SHIP- OWNE'.i. A carrier at common law is exempt from liability for non- performance, when that is occasioned by the act of God or the Queen's enemies, although there is no express stipulation to 1 Paradine v. Jane, Aleyn, 26 ; 2 Co. Litt. 201 a ; Blight v. Page, 3 B. & P. 295, note ; Hadley v. Clarke, 8 T. E, 259 ; Barker v. Hodgson, 3 M. & Sel. 267 ; and see Hall v. Wright, 29 L. J. (Q. B.) 43, in error. CHAP. XI.j BY THE SHIPOWNER. 535 that effect. Whether the shipowner is a common carrier, or is subjected by the law of England to the liability of a common carrier, is still a question in doubt upon which I refer to what appears on a former page.^ The contract of the shipowner, both in the charter-party and the bill of lading, when in the common form, is subject to an exception in the following terms : — " The act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever excepted." The first words of this exception designate the immediate In consequence operation of purely natural agents, such as lightning, earth- (jod. quake, and tempest, exclusive altogether of human interven- tion.^ Natural objects, as distinguished from agents, may undoubtedly become the occasion of damage, but only in com- bination with the agency of man, or with the spontaneous forces of natm'e. By natural agents, however, the law evidently intends the spontaneous forces of nature, when they are not collected and directed by man to the production of their proper effects.^ Moreover, if the operation of such forces on natural objects has disposed them so that damage some time afterwards is occasioned thereby, yet such damage is too remote to be excused by law, as within the meaning of the first phrase of this exception. Thus in an action * brought against the master of a vessel 1 Ante, p. 115. count in the text is of the evidence 2 The Trent and Mersey Navigation given at the second trial, which dif- Co. V. Wood, 4 Doug. 287 ; Forward v. fered in some particulars from that Pittard 1 T. E. 27. given at the first trial. In Easter term 3 Siordet v. Hall, 4 Bing. 607 ; Tlot- following, a new trial was moved for, cher V. Kylands, L. E. 1 Ex. 265, in but a rule to show cause refused, error ; and L. E. 3 Ho. of Lds. (Eng- Several shipowners, being greatly & It.), 330 ; Nitrophosphate Co. -u. St. alarmed at the decision of this cause, Katharine Docks Co., 9 Ch. Div. 503. petitioned Parliament for an alteration * Smith i\ Shepherd. This cause of the law on this subject : and a bill was first tried at the summer assizes for passed the House of Commons, enaot- Yorkshii-e, 1795, and the plaintiff non- ing that no owner or master of any ships suited ; the judge being of opinion that or vessels, employed in the navigation no case of negligence was proved. The of the high seas, should be liable to non-suit was set aside by the Court of answer for any loss or damage, that King's Bench, and a new trial granted, should happen to any goods on board that the facts might be more fully in- by any accident whatever, unless the quired into. It was tried a second time same should happen or arise " by or at the Lent assizes following. The ac- through the robbery, :embezzlement, 536 NON-PERFORMANCE [CHAP. XI. navigating the rivers Ouse and Humber from Selby to Hull, by a person whose goods had been wetted and spoiled, it ap- peared in evidence, that at the entrance of the harbour at HuU there was a bank, on which vessels used to lie in safety, but of which a part had been swept away by a great flood some short time before the misfortune in question, so that it had become perfectly steep instead of shelving towards the river ; that a few days after this flood a vessel sunk by getting on this bank, and her mast, which was carried away, was sufl'ered 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 forced his vessel towards the bank where she struck and would have remained safe, had the bank been in its former situation, but on the tide ebbing her stern sunk into the water and the goods were spoiled. The defendant upon this tendered evidence to show that there had been no actual negligence ; Mr. Justice Heath rejected the evidence, and further ruled that the act of God, which could excuse the defendant, must be immediate, whereas this was too remote ; and he directed a verdict for the plaintiff. The Court of King's Bench afterwards approved of this direction, and the plaintiff had judgment. Still the question remains, — does this phrase designate in the law of England that only which is irresistible, or does it include also that which may not be resisted by ordinary dili- gence and reasonable care. Twice recently has this question come under jiidicial review, and a different opinion on each occasion has been adopted. By Brett and Denman, J. J., it secreting, or making away with, or by where ships or vessels employed in the or through the actual default, of the coasting trade, do or shall load or dis- said owner or owners, master, mari- charge by entry or sufferance," to any ners, or other person or persons em- goods on board, unless such loss or ployed in and on board of such ships damage should happen or arise in the or vessels ; any law, usage, or custom ways before-mentioned with respect to to the contrary thereof in anywise not- ships navigating the high seas, withstanding." And that no owner or But this bill was rejected by the master of any ship or vessel employed House of Lords. in the navigation of the tideway of any This led to the alteration of the bill river, and not employed in the naviga- of lading, which theretofore had ex- tion of the high seas, should be liable oepted only " dangers of the sea," by to answer for any loss or damage that the introduction of the exception now should " happen or arise at or below commonly in use. Abbott. any port or place in such tideway, CHAP. XI.J BY THE SHIPOWNER. 537 is defined as designating such a direct and violent and sudden and irresistible act of nature as could not bj' any amount of ability have been foreseen, or if foreseen could not by any amount of human care and skill have been resisted.^ By Cockbui'n, C. J., and Mellish, L. J., as being such an act of natiu-e as could not have been foreseen by ordinarj' exertion of human skill and prudence, and if foreseen could not be avoided by the exercise of reasonable sldll and diligence.^ It is probable that, were the law of the common carrier to be framed for the first time in these days, this latter is the form that it would assume, supposing always that the admissible exception to his habihty were twofold and twofold only, viz., the act of God and the Queen's enemies. But it may be doubted whether the enumeration, as in the charter-party and bill of lading, of the minor operations of natural forces such as dangers and accidents of the seas, in addition to the act of God, does not compel the assumption that by the name of the Omnipotent something difi'erent in degree of force and mani- festation is intended. And if in this case it be so where the exceptions are more numerous, it can hardly be that the same phrase could be received by the law of England in a diiferent sense where it stands all but alone ; for it is a phrase of that excellent and solitary nature, that does not admit of modifica- tion or colour, as other phrases may be interpreted, a sociis.^ The stipulation against all acts of the Queen's enemies,* in- The Queen's volving not only the municipal law of contract, but the principles of the law of nations in relation to the commercial marine as affected by the existence of hostilities, may be more conve- niently reserved for concise notice at the close of this chapter. Suffice it here to state that in case of war with the sovereign of ' Smith V. Nugent, 1 C. P. Div. 19. of God. But the converse cannot be 2 Ibid, on appeal, p. 423. inferred therefrom, that this latter 3 The Lord Chief Justice refers to phrase conveys an exemption of equal the opinion of Story, J., in his work extent in point of law with the on Bailments, and adopts it as the former. reasonable view of the law ; at the ■* Includes the enemies of the sove- same time noting that this opinion of reign of the carrier, Eussell v. Nie- Story is given as a commentary on the mann, 34 L. J. (C. P.) 10 ; The Teutonia, phrase jferils of the seas. Now it is L. E. 4 P. C. 171 ; Pole v. Cetcovieh, 9 true what the Chief Justice says, that C. B. N. S. 430 ; ZO L. J. (C, P.) 102. this phrase would include also the aet 538 NON-PERFOEMANCE [CHAP. XI. the country to which the ship belongs, an apprehension of cap- ture founded on circumstances calculated to affect the mind of a master of ordinary courage, judgment, and experience, would justify delay in prosecuting the voyage.^ Fire. The exception of "fire" is important in relation to the liability of the common carrier for goods destroyed by that means, though accidentally;^ and, as it is no protection where there is actual fault or privity on the part of the owner, it coincides in effect with the statutory limitation already mentioned,^ and beyond that extends, of course, to every owner of a ship, whether sea-going or not, who makes the stipulation. Dangers of the The dangers of the sea, rivers, and navigation, include loss by pirates,* by collision when it is without fault or negligence,^ and, of course, the common risks of navigation from rocks, sands, rapids, and the like, when the loss occasioned thereby happens without negligence or default in the master or crew." But if a vessel under charter to proceed to Galatz, on the Danube, and load a cargo there, is prevented from crossing the bar at the motith of that river on her way to the port of loading, non-performance in consequence is not within this exception.''' Additional Ex- When ships homeward-bound from the West Indies are re- quired to bring off the cargo from the shore to the ship in their boats, an addition is made to the usual exception, which then terminates thus : — " dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, save risk of boats, so far as ships are liable thereto, excepted." 1 The San Eoman, L. E. 5 0. P. 305 ; v. Gen. Iron Screw Collier Co., .^3 The Heinrich, L. B. 3 Ad. 424. L. J. Ex. 269 ; Grill v. id., L. E. 1 2 Forward v. Pittajd, 1 T. E. 27 ; C. P. 600 ; Czech v. Gen. Steam Navig. Trent Navigation Co. v. Wood, 4 Doug. Co., L. E. 3 C. P. 14. 28.7. 1 ^ Eocous, not. 55 ; Straccha de Na- 3 Ante, c. iii. p. 121. vibus, pt. 3, no. 32 ; Fletcher v. Inglis, * Pickering v. Barclay, Style, 132 ; 2 B. & Aid. 315 ; and see Smith v. 2 EoU. Ab. 248. So the Civil Law, Shepherd, ante, p. 535, n. Inde Labeo soribit, si quid naufragio, ? Schilizzi i: Derry, 4 E. & B. 873 ; aut per vim piratarum perierit, non 24 L. J. (Q. B.) 193. S. P. Metcalfe f. esse inlquum exceptionem ei dari. Dig. Britannia Iron Works Co., 1 Q. B. Div. 4. 9. 3, 1. 613 ; 2 id. 501. 6 Buller V. Fisher, 8 Esp. 67 ; Lloyd ception. CHAP. XI.] BY THE SHIPOWNER. 639 Whatever be the meanuig of these English words m this con- nection, the Courts perceiving the purpose for which they were added, have held that they were unnecessary, and that, with or without them, the shipowner, in such a trade as the West Indian, incurs no greater or other liability with regard to the goods in the boats than exists in respect of those in the ship.^ 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 a stouter ship would have outlived the peril; this was decided in the case of a hoy driven by a sudden gust of wind against the pier of a bridge, under which it was about to pass, and was sunk, in consequence of a shock that a stronger vessel might have sustained without sinking.^ Eleven boxes of gold dust being shipped at Panama for Special excep- London, and one of them lost by theft from a railway truck between Southampton and London, it became a question whether the Shipping Company were protected by the following exception in the bill of lading given for the gold-dust, viz. : — " the act of Grod, the Queen's enemies, pirates, robbers, fire, accidents from machinery, boilers, and steam, the dangers of the seas, roads, and rivers, of whatever nature and kind soever, excepted ; " but it was held to be no protection in the event that had happened, as the word " robbers " contemplated a taking with violence, and did not include, therefore, loss by theft, and the phrase "dangers of the roads," if apphed to land, must be construed of dangers of the kind that are properly caused by roads, such as the overturning of carriages.^ A box of diamonds was loaded on board ship under a bill of lading, excepting " pirates, robbers, thieves, vermin, barratry of master and mariners, &c.," and containing the following clause : — " The shipowner is not to be liable for any damage to any goods which is capable of being covered by insm-ance." The box was stolen either on the voyage or after the ship's arrival in port, but before the time for delivery ; there was no 1 Johnston v. Benson, 4 B. Moore, Bull. Ni. Prius, 69. gQ_ 3 DeEothsohildi'.Eoyal Mail Steam 2 Amies v. Stevens, 1 Stra. 128 ; Packet Co., 7 Exch. 734. 540 NON-PEEFORMANCE [chap. XI. Injury by Rats not within the usual exception. Confiscation of Cargo no answer. evidence, however, to shov/ by whom it was stolen. There were passengers on board. Held that' the word thieves being ambiguous must be taken most strongly against the shipowner for whose protection it was introduced, and therefore as mean- ing persons outside the ship and not belonging to her ; that it was unnecessary to consider whether theft was included under barratry since evidence failed to bring it home to the crew, and there were passengers on board ; and that the word damage in the clause respecting insurance could not cover the abstraction of the article.^ "Not accountable for rust, leakage, or breakage," was held not to cover damage by oil that had leaked, or breakage caused by the use of the goods as broken stowage.^ " Or from any act, neglect or default whatsoever of the pilot, master, or mariners in navigating the ship," does not cover damage by bad stowage.^ " No damage that can be insured against will be paid for, nor will any claim whatever be admitted unless made before the goods are removed," covers not merely in- surable damage, but by virtue of the second member of the clause all damage apparent or latent which examination of the packages at the place of removal with reasonable care and skill could have discovered.* Injury to the cargo by rats is not within the terms of the usual exception, and the owner, notwithstanding he keep cats on board, is Kable by the law of this country,^ which is not in accord with the doctrine maintained by the majority of Con- tinental jurists.^ To an action by the shipper for the loss of his goods, it is not enough to plead that they were seized and confiscated in virtue of the law of the country, by the government officers at the port of destination, unless it also appear that the plaintiff shipped them, knowing that they were contraband.''' For a ' Taylor I'. Liverpool & Great Western Steam Co., L. E. 9 Q. B. 546. 2 Thrift V. Youle, 2 C. P. Div. 432. 3 Hayn v. Culliford, 3 C. P. Div. 410 ; 4 id. 182. As to the meaning of the word navigating in such a connec- tion, see per Willes, J., in Good v. London Steamship Owners Protection Assoc, L. E. 6 C, P. 563, 569. ■* Moore v. Harris, 1 App. Cas. 318. * Laveroni v. Drui-y, 8 Exch. 166 ; Dale V. HaU, 1 Wils. 281 ; Kay v. Wheeler, L. E. 2 C. P. 302. ' « Consolato, c. 22, 23—2 Pardess. 75 ; Eoccus de N"av. not. 58 ; 1 Emerig. 375 ; Jones on Bailm. 105 ; Story on Bailm. no. 513. ' Spence v. Chodwiok, 10 Q. B. 517. CHAP. XI.] BY THE SHIPOWNER. 541 similar reason, he was held answerable for loss occasioned under seizure of the ship and cargo by the revenue officers at Jamaica, although, upon appeal to this country, it appeared there was no ground for the condemnation.^ And to an action by the shipper for non-performance of the contract to deliver the goods at Canton, a plea is insufficient if it merely set out that certain British officers there, appointed under a certain statute, and acting in this particular under Orders in Council, prevented the landing of the cargo, without also setting out the Orders in Council, or averring the acknowledged prerogative of the Crown as their authority for so acting.^ To an action by the shipowner for freight, it is no answer on Non-performance the part of the merchant to plead non-performance of one of Damages. ° the stipulations or covenants in the charter-party, if it go not to the whole of the consideration, in the nature of a condition precedent. " The rule was well laid down by Lord Mansfield, in Boone v. JEyre,^ that where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one 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 prece- dent." * Therefore, a stipulation to sail with the first fair wind,' or on a particular day,^ or with the first convoy,''' or with the first fair wind, and come direct to the port of destination,^ or to sail without unreasonable delay,^ or to bring home a complete cargo,^" was in each case held to be an independent covenant, non-performance of which might be ground for an action for damages, but could not be pleaded to the whole of the consideration, and that by one who had benefited by the general performance of the charter-party.'^ 1 Gosling V. Higgins, 1 Camp. 451. ^ Bornmann v. Tooke, 1 Comp. 377. 2 Evans v. Hutton, 4 M. & Gr. 954. ^ McAndrewi/. Adams, 1 Bing.N. C. 3 Boone v. Byre, 1 H. Bl. 273, cited 29 ; Tarrabochia v. Hiokie, 1 H. & N". 6 T. E. 573. 183. ■* Per Lord Bllenborough, Eitohie v. '" Eitohie i). Atkinson, 10 East, 295. Atkinson, 10 East, 295, 306 ; Seeger v. " See^CT- curiam, Glaholm v. Hays, Duthie, 29 L. J. (C. P.) 253. 2 M. & Gr. 257 ; and per our. Tarra- 5 Constable v. Cloberie, Palmer, 397. bochia v. Hiokie, supra ; Seeger v. ■' Hall V. Cazenove, 4 Bast, 477. Duthie, 29 L. J. (C. P.) 253 ; Clipsham <■ Davidson v. Gwynne, 12. East, d. Vertue, 5 Q. B. 205 ; Wheeler v. 381. Bavidge, 9 Exch. 668 ; Meyer v. Dres- 542 . NON-PISRFORMANCE [CHAp. XI. Non-p3rformance — when a De- fence to Ihe ■wliole. But where freight is made payable upon an indivisible condition, such as the ajrrival of the ship at her port of, final destination, this is necessarily a condition precedent, and non- performance of it a good defence to an action on the charter- party for freight, although calculated by time, and earned upon a series of voyages.^ If a contract which would be illegal, performed in one way, admits of being performed in a way which is not illegal, and the shipowner does it in the latter way, a plea of the statute maldng it illegal in one way is no bar to the freight or demurrage.^ BY TUB VREISHTEE. Usual exception for tlie Ship- owner only. Whemion-per- formance is a comijlete De- fence. The usual exception as to risks which, in purport and extent, has now been considered, having been introduced into the charter-party and the bill of lading for the protection of the shipowner only,^ the freighter is liable to damages for non-performance of his contract, unless it appear from express stipulation that performance by him was contingent upon an event that has not happened, or from the purpose of the con- tract that the benefit of the voyage is lost by the conduct of the shipowner. If both parties mutually frame their contract with an obvious regard to the happening of an event ante- cedent to full and complete performance, and in the control of one of them, such event a priori may be expected to stand to the subsequent performance in the relation of a condition pre- cedent.* To determine whether it is so or not, is a question of construction, often of great difficulty, and depending some- times entirely on the effect of a parenthetical phrase. As, for instance, in a charter-party for a ship, "now at sea, having sailed three weeks ago or thereabouts;"^ in another, "thfe ser, 33 L. J. (C. P.) 289; Dakin v. Oxley, ibid. 115. See the observations of Williams, J., Behn u, Burness, 32 L. J. (Q. B.) 204, cited ante, p. 863. 1 Smith V. Wilson, 8 Bast, 437 ; Cook V. Jennings, 7 T. E. 381 ; Bright V. Cowper, 1 Brownl. 21 ; per Lord EUenborough, in Eitohie v. Atkinson, 10 East, 295, 308 ; Behn v. Burness, 32 L. J. (Q. B.) 204. 2 Waugh V. Morris, L. R. 8 Q. B. 202 ; , and , see the Teutonia, L. E. 4 P. C, 171. 3 Blight V. Page, 3 B. & P. 295, note ; Touteug V. Hubbard, 3 id. 295, 298 ; Storeri). Gordon, 3 M. & Sel. 308, 321, 322. Secus, where the exception was expressly " mutual," Bruce v. Nicolo- pulo, 24 L. J. (Ex.) 321. * Glaholm v. Hays, 5 M. & Gr. 257 ; Shadforth v. Higgiu, 3 Camp. 385 ; OUive v. Booker, 1 Exch. 416 ; Oliver V. Fieldeu, 4 Exch. 135 ; Soames v. Lonergan, 2 B. & C. 564 ; Davidson v. Mure, 3 Doug. 28. ^ OUive V. Booker, 1 Exch. 416. CHAP. XI.J BY THE FREIGHTER. 543 vessel to sail from England on oi" before the 4th of February then next ; " ^ and in a third, "now in the port of Amsterdam ; " ^ the Court in each case held the stipulation contained in the words cited to be a condition precedent, confirming their opinion at the same time by reference to the mercantile aims of the adventure.** But, in the absence of express contract mutually concluded When it on]\' to that effect between the parties, if the freighter relies upon a stipulation which the law will imply, e.g., as to reasonable time, by way of plea to an action for non-performance, he must also allege loss of all the benefits of the voyage by the plain- tiff's delay,* the frustration, i. e. of the purposes of the voyage, such implied stipulation by itself going only to damages, that may in the result be merely nominal.^ For the same reason, it is no answer to such an action, that some one independent stipulation in the charter-party has not been performed by the plaintiff; e.g., to an action for not loading a homeward cargo, that the outward cargo never was deKvered to the defendant, the government authorities at the port of destination having, in fact, taken it ; ® or to a declaration for not loading a return cargo, that freight was payable on condition of the vessel's arrival home, and that she was lost on her way.'' It is not enough to aver an illegal act on the part of the master in prosecuting the voyage, if, in undertaking it, such act was not in contemplation of both parties, so as to render the adventure itself illegal.^ A subsequent event, though it renders performance impos- Subsequent im- .... possibility no sible, is no answer to an action on a contract, that still remains excuse. 1 Glaholm v. Hays, 2 M. & Gr. 257. boehia v. Hiokie, 1 H. & N. 183 ; 2 Behn v. Bm-ness, supra. Wheeler v. Bavidge, 9 Exch. 668. 3 See especiaUy per Tindal, C. J., ^ MoAndrewy. Adams, 1 Bing. N. C. in Glaholm v. Hays, mjjra ; McAndrew 29. V. Adams, 1 Bing. N. C. 29. Secvs, " Storer v. Gordon, 3 M. & Sel. 308. McAndrew v. Chappie, L. E. 1 C. P. '' Stephens v. Price, 3 Doug. 853 ; g43_ Carr v. Wallachian Petroleum Co. L. E. " Jackson V. Union Marine Ins. Co., 1 C. P. 636 ; 2 id. 468 ; and see other L. E. 8 C. P. 572 ; 10 id. 125 ; Tully cases of partial non-performance on V. Howling, 2 Q. B. Div. 182 (C. A.) ; the part of the shipowner, ante, p. 541. Freeman D. Taylor, 8 Bing. 124 ; Clips- " Wilson v. Foderingham, 1 M. & ham V. Vertue, 5 Q. B. 265 ; Tarra- Sel. 468. ^■14 Non-performance [chap. xi. obligatory notwithstanding. " Where the law creates a duty, or charge, and the party is disabled to perform it without any act in him, and hath no remedy over, there the law will excuse him; but 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 his contract."^ There- fore, to an action on a charter-party for not loading a cargo of guano at Ichaboe, it is no answer that in fact there was no guano there to load ; " or a cargo of barley at Liebau, that exportation of such grain having been prohibited by the Eussian government, it was no longer in the defendant's power.^ " The reason of this," said Lord Ken3'on, citing from Co. Litt. 209 a an illustration of the principle, " the reason of this is clear. If a man undertakes what he cannot perform, he shall answer for it to the person with whom he undertakes."* In an action upon a covenant for not providing a return cargo at Gibraltar, and sending it alongside the plaintiff's ship, it was pleaded that in consequence of a pestilence prevailing there at the time, all intercourse with the shipping was pro- hibited by the public authorities, so that the defendant was prevented from supplying a cargo ; but as the contract was neither dissolved, nor the defendant excused from performing it by the events that took place, he was held answerable in damages to the plaintiff. ^ In like manner if the authorities at the port of destination refuse to allow delivery of the cargo, and the master thereupon sails to places near with no better success, and he then returns to this country with the cargo onboard, he is entitled to his freight, the freight back and his expenses." Non-performance But where the deHvery of cargo was in progress, and was parties must t^i^n stopped by the authorities under stress of war, it was j^ommthesame j^gj^ tj^^t neither party to the contract could sue the other, 1 Paradine v. Jane, Aleyn, 26. See 132 ; 2 Mag. 102 ; Cleii-ao, Laws of Hall v, Wright, 29 L. J. (Q. B.) 43, in Oleron, art. 19, note i. error. * Blight v. Page, 3 B. & P. 295, note, 2 Hillai). Sughrue, 15 M. & W.253. citing Co. Litt. 209 a; Hadley v. a Blight 0. Page, 2 B. & P. 295, Clarke, 8 T. E. 259. note : Sjoerds v. Luscombe, 16 East, •- Barker v. Hodgson, 3 M. & Sel. 201. Seealso, 2Vern. 212 ; Dig. 19. 2. 267. 61. 1 ; Ord. Eotterdiim, art. 130, 131, « Cargo ex Argos, L. B. 5 P. C. 134. CHAP, xr.] BY THE FEEIGHTEE. S45 each having a contributory duty to perform in the discharge, ^^ilich neither was allowed to perform.^ It is otherwise, however, if the obligation of the contract is Subsequent ii!c- deslroyed by the event which renders performance of it impos- fl';!!/'''^"^''*' -'- 6XCUSG. sible. This happens by matter dehors the contract, when, in consequence of a declaration of war, or a legislative enactment, performance is not only impossible but illegal, the contract being dissolved ipso facto? But this effect is not operated by a war, to which both the contracting parties are in the relation , of neutrals, although it may prevent performance, unless there is an express exception providing for such an event in the charter-party. "When, therefore, a charter-party bound the freighter to load the plaintiff's ship with a cargo of grain at Ibraila (restraints of princes and rulers, the dangers of the seas, navigation, fire, pirates, and enemies during the said voyage, always mutually excepted), and at the time of the ship's arrival out, the Russians had invaded Wallachia, and the Russian general in command at Ibraila, with sufficient authority for that purpose, had prohibited all exportation of grain from the port; the Court held this to be one of the events upon which the obligation of the contract was to cease.^ For the same reason the rights growing out of a contract to run a blockade, may be enforced between neutrals, the consequences attending such a contract in its performance, not being synony- mous with illegality as known to the law of the courts where the suit is prosecuted.* The freighter is bound once to perform his part of the Freighter to contract, notwithstanding the occurrence of a fire on board ^™ °™ °°°^" which interrupts the loading and makes repair of the vessel requisite;' but once suffices;" and if he perform it according to the proper sense of it,'' that is enough, although it be not performed in the way most profitable for the shipowner.^ ' Ford V. Cotesworth, L. R. 5 Q. B. * Ex iiarte Ch.s.YS.ss&, re GrMzehiodk, 544; Cunningham v. Dunn, 3 C. P. 34 L. J. (bkpcy.) 17. Dir. 443 (0. A.). ' Jones v. Holm, L. E. 2 Ex. 335. 2 The Hoop, Cornells, 1 C. Eob. Ad. ^ Gen. Steam Navig. Co. v. Slipper, 196 ; Potts V. Bell, 8 T. E. 648 ; Bsposito 31 L. J. (C. P.) 185. V. Bowden, in error, 27 L. J. (Q. B.) ? Duckett v. Satterfield, L. R. 3 C. P. 17 ; Furtado v. Eogers, 2 B. & P. 191. 227. 3 Bruce v. Nioolopulo, 24 L. J. (Ex. ) ^ Southampton Steam Colliery Co. v, 321. Clarke, L. E. 4 Exoh. 73. X N 546 NON-PERPOEMANCK [chap. XI. What discharges him from performance. ' Accident. ' "Voyage" — meaning of. The freighter has the whole of the lie-days during which he may neglect to load, and the shipowner before the end thereof cannot leave unloaded, nor, if required, until the end of the demurrage days, without a breach of his contract,i unless the freighter definitely refuse at all to perform his contract, so as to discharge the shipowner from his, and then the shipowner if he pleases may sue immediately.^ It has been held that a refusal to name a wharf where to deliver the cargo, is tanta- mount to a refusal to receive it, and that the damages recover- able are the amount of the freight,^ and to name a port which it is unsafe for the ship to enter is a breach of the freighter's contract.* " Accident" in a charter-party, by which the freighter under- took to load a ship with coal in regular turn, " except in cases of riots, strikes, or any other accident beyond his control," was held not to include a snow storm, for although that was beyond his control, it was one of the ordinary operations of nature, being an incident rather than an accident.^ It was objected, however, in this case, that the event in question occurring at Ibraila had not happened " during the voyage," within the meaning of the exception. The case of Croiv V. Falk,^ cited on that point, was an action by the ship- owner against the charterer, for not supplying a cargo within a reasonable time after the ship was ready at Liverpool, where she lay at the time of making the charter-party, and upon demurrer for want of an averment negativing the usual exception of " the restraint of princes, &c., during the said voyage," it was held that as the voyage had not commenced, the exception was not applicable. Pollock, C. B., dissented from the authority of that case, but the rest of the Court, dis- tinguishiiig the case before them, held that as the vessel, after discharging her outward cargo, was to proceed to Galatz or Ibraila, the voyage commenced at that time, and at Ibraila 1 .Hudson 1). Ede, ,L. R. 2 Q. B. 566 ; 3 id. 412 ; and see cases post, p. 558, note ". 2 Hochster v. De La Tonr, 22 L. J. (Q. B.) 455 ; 2 E. & B. 678 ; Frost v. Knight, L. E. 5 Ex. 322 ; 7 id. lU. 3 Stowait V. Kogerson, L. E. G. P. 424. . " The Teutonia, L. E. 4 P. C. 171 ; Pole V. Cetoovich, 9 C. B. N. S. 430 ; 30 L. J. (C. P.) 102. , ^ Fcnwick i;. Schmalz,. L. R. 8 C. P. 313. " Crow V. Falk, 8 Q. B. 467. CHAP. XI.] DURING WAR. 547 the exception was therefore in force .^ In a subsequent case , where the charter-party, after providing for He-days, and days in the nature of demurrage at the out-port of loading, stipu- lated a penalty of 71. a day against the party causing delay " at any other period of the voyage;" it was held that this was not applicable to a delay occurring at the port where the vessel was at the time of the charter-party being entered into, as the voyage had not then commenced.^ The interference of war with the pursuits of commerce on Dumnq Wae. the high seas, the principles which, the nations have agreed, shall confine and govern that interference, and the effect thereof on the contract of affreightment in view of the muni- cipal law of this country, are questions reserved for considera- tion here, and which we will endeavour to dispose of with all possible conciseness. ■ The following authoritative statement of the principles of law or nations the Law of Nations on this subject was drawn up by command ^^^^^ ^''"^ ° of the sovereign of this country, in 1753, by Sir George Lee, judge of the Prerogative Court, Dr. Paul, the advocate-general. Sir Dudley Eyder, the attorney-general (afterwards Lord Chief Justice of the King's Bench), and Mr. Murray, the solicitor- general (afterwards Lord Mansfield and Lord Chief Justice of the King's Bench), and formed part of the answer made by the British Grovernment to a threat of reprisals on the part of the King of Prussia in 1752, for alleged illegal capture of the iproperty of Prussian subjects on the high seas by British privateers.^ These principles as here stated, though liable to ^ Bruce v. Mcolopulo, 24 L. J. (Ex.) attachment upon the capital funds 321. which his Majesty had promised to 2 Valenteu. Gibbs,28L. J. (C.P.)229. reimburse to the subjects of Great See, SeegerEast, 546, 560, 561; P. 291 ; , Bergstrom: i;.. Mills,' 3 Bsp., H^dley i).,Glaj:ke, ,8 T. E., 259 ; Pri^tt 36. , ', ■t), CufE, coram Lord Kenyon, at Guild- ^ Touteng v. Hubbard, 3 B. & P. hall, post, H. T. 1798, cited in Thomp- 291. son,'!). Eoworoft, 4 Bast, 43; Berg- ^ The Werldsborgaren, Lagerholm, Strom i>. Mills, 3 Esp. 36 ; Bright v- 4 C. Bob. Ad. 17 ; The IsabeUa Jaco- Page, 3 B. & P. 295, note. bina, Sovergrcn, 4 C. Eob. Ad. 77. CHAP. XI.J WAS DECLARED, 555 23rd of August another Order in Council issued, allowing vessels in the situation of The Pomona to return to their ports of lading, and land and warehouse their cargoes there under certain regulations. In the month of August, 1798, and not sooner, The Pomona left Falmouth without the consent of the plaintiff and returned to Liverpool, where, after some dispute, the plaintiff 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 October, 1798, the embargo was taken off. At the trial of the cause the plaintiff obtained the verdict of a jury for the amount of the charges of insurance ; and afterwards, upon the right of the plaintiff to recover, the full Court were of opinion, that the embargo did not dissolve the contract, being only a temporary restraint, and that the plaintiff was entitled to recover.^ The sanje effect, and no greater, is tacitly attributed to embargo by the French law,^ which expressly authorises the m^erchant to unlade the goods at his own expense, if he thinks fit, but upon condition of his relading them, or indemnifying the master. Valin^ and Pothi^r,* however, are of opinion, that if the goods are of a perishable nature, and cannot be readily replaced by others of the like kind, the embargo will put an end to the contract. In such a case, whatever the rule of law may be, the interest of all parties wiU, in general, induce them to annul the contract upon reasonable terms. A declaration of war,^ according to, universal practice and deolarahoh of opinion, imports a prohibition, by the sovereign to his subjects, of all commercial intercourse and correspondence with the inhabitants of the enemy's country ; ^ and a neutral friend, ' Hadley v. Clarke, 8 T. R. 259. judicial notice of a war when this See Laws of Oleron, art. 28—1 Par- country is engaged in it ; per Lord dess. 342. Bldon, Colder v. Lord Huntingfield, 2 Ord. liv. 3, t. 1, art. 9—4 Pardess. 11 Ves. 292 ; Eex v. De Berenger, 3 359 ; Code de Com. art. 278. M. & Sel. 67. 3 1 Valin 628. ° The Hoop, Cornelis, 1 C. Eob. * Pothier, Charte-Partie, no. 102. Ad. 196 ; Potts v. Bell, 8 T. B. 548 ; * A war between foreign cotintries Esposito v. Bowden (in error), 7 E. & B. must be proved, but the courts take 763. 556 NON-PERFOllMANCE. [CHAP. XI. or a natural-born British subject, who remains afterwards in that country, has impressed upon him so much of the character of an enemy, that trading with him is then become illegal and all property so acquired is liable to confiscation.^ Lord Stowell, in 1799, reviewing the decisions of his pre- decessors under this rule, sums up the effect of them in these words : — " The cases which I have produced prove that the rule has been rigidly enforced where Acts of Parhament have on different occasions been made to relax the navigation law. Effect of. and other revenue acts ; where the government has authorised, under the sanction of an Act of Parliament, a homeward trade from the enemy's possessions, but has not specifically permitted an outward trade to the same, though intimately connected with that homeward trade, and almost necessary to its existence ; that it has been enforced where strong claims, not merely of convenience, but almost of necessity, excused it on behalf of the individual ; that it has been enforced where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage after the first notice of hostilities ; and that it has been enforced not only against the subjects of the Crown, but likewise against those of its allies in the war, upon the supposition that the rule was founded on a strong and universal principle which allied states in war have a right to notice and apply mutually to each other's subjects."^ In the case of The St. Philip, in 1747, at the Cockpit, Lord C. J. Willes present, the Lords refused to give the claimants liberty to prove that goods, which had been captured and con- demned as prize, were bought before the war, the Chief Justice being clearly of opinion that the effects of British subjects taken trading with the enemy are good prize.^ The Court of Queen's Bench, however, were of opinion that a 1 Willison V. Patteson, 7 Taunt. ^ j>g,, ^qj.^ Stowell, The Hoop, Cor- 439 ; The Bernon, Dunn, 1 C. Rob. nells, 1 0. Kob. Ad. 196. Ad. 101, 104; The Indian Chief, ^ The St. Philip, 1747, cited in Potts Skynner, 3 C. Bob. Ad. 12, 22 ; v. Bell, 8 T. E. 548, 556. See also The O'Mealey v. Wilson, 1 Camp. 482 ; JuflErouw Louisa Mai-garetha, 1 B. & P. The Hoop, Cornells, mjira. The Jonge 349, note, cited by Lord Stowell in Pieter, Musterdt, 4 C. Eob. Ad. 83 ; The Hoop, 1 C. Bob. Ad. 203. The Diana, Eunke, 5 C. Eob. 60. CHAP. XI.l WAR DECLARED. 557 neutral "ship, freiglited by an English merchant before the war, might have been lawfully supplied after the declaration of hostilities with a cargo at the enemy's port by factors on the spot from corn either purchased before from any one, or acquu'ed afterwards from British subjects there, or from allies of the British Crown about to leave the countr3^^ But assuming that such a cargo could be shipped without payment of customs- dues to the enemy, it is yet very doubtful whether, upon principle, this opinion can be sustained. The case of The St. Philip, or of The Juffrouw Louisa Margaretha, does not favour it ; and these cases appear to have been followed in at least two others before the Supreme Court of the United States.^ To this extent certainly the decisions both in this countrj'' and America are clear, that the removal of a subject and his effects from the enemy's country must be set about without delay, and accomplished with expedition.^ All contracts made thereafter by a British subject with an inhabitant of the enemy's country, notwithstanding he is a natural-born British subject, are illegal;* all claims accrued- due before, and not paid to such inhabitants, are suspended ' Esposito V. Bowden, 24 L. J. these words : " Whether, in the break- (Q. B.) 210 ; 4 E. & B. 963, S. C. ; ing out of war, a citizen has a right to the point is noticed in the judgment remove to his own country, with his of the Ex. Ch., but the decision, revers- property or not, the claimant certainly ing the judgment below, proceeded on had not a right to leave his own coun- anotherground.whioh is noticed below, try for the purpose of bringing home 7 E. & B. 763 ; 27 L. J. (Q. B.) 17, his property from an enemy's coun- S. C. in error. try ; " The Eapid, 8 Cranch's Eep. 155 ; 2 The St. Lawrence, 8 Cranoh, 434 ; Wheaton, International Law, 387. 9 id. 120, S. C. ; 1 Gall, 467, S. 0. ^ See The Ocean, Harmsen, 5 C. Bob. The following case is cited by Mr. 91 ; The Dree Gebroeders, Vandyk, 4 Wheaton with approval. A citizen of C. Rob. 234 ; The Vrow Anna Catha- the United States had purchased a rina, Mahts, 5 C. Bob. Ad. 161 ; The quantity of goods within the British Venus, 8 Cranch, Eep. 277 ; The territory, a long time previous to the Mary and Susan, 1 Wheaton, Eep. 54. declaration of hostilities, and had de- It appears to have been held in the posited them on an island near the United States, in a case arising out of frontier ; upon the breaking out of the Mexican war, that a neutral, pre- hostilities, his agents had hired a ves- viously domiciled in a, belligerent sel to proceed to the place of deposit country, might carry his property with and bring away the goods ; on her re- him on quitting at the commencement turn she was captured, and, with the of the war ; U. S. v. Guillem, 11 cargo, condemned as prize of war. The Howard, 60. Supreme Court conclude an elaborate * Willison v. Patteson, 7 Taunt. 439. judgment respecting the cargo with ^^8 NON'-PERFOEMANCE. [CHAP. XI. till the cessation of hostilities ; ^ and all executory contracts with such alien enemy, or with a neutral, if they cannot be per- formed by a British subject except in the way of commercial intercourse with the enemy, are dissolved ipso facto, by the declaration of war, operating to that purpose with a force equivalent to that of an Act of Parliament.^ Therefore, a contract by charter-party, on the part of a British merchant with a Neapolitan shipowner, to load his vessel with a cargo of grain at Odessa, being a Eussian port, was dissolved by the decla,ration of war against Russia by Great Britain before the ship arrived at the port of loading ; and to an action for non- performance, this was held a good defence for the merchant.^ For this reason partnership with a foreigner is dissolved by the same event that makes him an alien enemy.* If all the lie-days are not expired when the declaration of war becomes known at the port of loading, although the freighter, or his factor, may have refused till then to supply a cargo, this is no ground of action by the shipowner for non-performance, unless before dissolution of the contract, the conduct of the other amounted to a dispensing with all farther attendance of the ship, and an intimation on his own part that he would not perform his promise.^ These effects, however, are not operated by the mere ' Brandon i;. Nesbitt, ' 6 ' T. E. 23 ; 763 ; 27 L. J. (Q. B.) 17, S. C. in error, Alcehius v. Nygren, 4 B. & B. 217 ; reversing the judgment below, 4 B. & but this- plea of alien enemy is not B. 963, 24 L. J. (Q. B.) 210, S. C. favoured by our courts, Shepeler v. Du- * Griswold v. Waddington,- 15 Jdhns. rant, 23 L. J. (0. P.) 140. See Fur- (Amer.) Eep. S7 ; 16 Johns. 438, S. C. ; tado V. Eodgers, 3 B. & P. 191 ; & Schole^eld v. Bichelberger, 7 Peter's jiarte Boussmaker, 13 Ves. 71 ; The (U. S.) Eep. 586. ; Neustra Senora de los ' Dolores, Bdw. ^ Avery v. Bowden, in the case' of 60. The Lebanon, 5 E. & B. 714 ; (in error) 2 EspositoD.Bo-wden (in error), 7 B. 7 E. & B. 953 ; Barrick y. Buba, 2 0. & B. 763 ; Furtado v. Edgers, 8 B. & B. (N. S.) 563 ; Eeid v. Hoskins, 5 E. P. 191, 198 ; per Lord EUenborough, & B. 729 ; 6 E. & B. 95a (in error) Barker 4).' Hodgson, 3 M. & Sel. 267, S. C. ; Secus, if there had hefiu a con- 270. Therefore a British underwriter tinning refusal to load up to the end is not liable on a policy upon enemy's of the lie-days, the contract meanwhile goods, Furtado v. Eodgers, supra. But subsisting, Eipley v. Mc01ure,'4 Exch. see the judgment of Martin, B., Cle- 345. See Hoohster v. De Latour, 2 E. montson v. Bleissigj 11 Exch. 135, 141 ; & B. 678 ; Cort v. The Ambergate, &;c., and see a learned note by the ;r'eporters Eailway Co., 14 Q. B. 127; Laird i;. appended to that case, 11 Exch. 141. Pirn, .7 M. & W. 484. 3 Esposito 11. Bowden, 7 E. & B. CHAP. XI.] WAR DECLAEEP. existence of a war in the country where the contract is to be performed, if the parties to the contract are neutrals to the war ; nor would it be a defence for either of them to an action for non-performance, that he expected daily a declaration of hostilities against his own country by the sovereign power of that country where he was to perform his contract. A British merchant bound himself to load a British ship at Odessa, or else to supply a cargo at Constantinople, in case of the existence of war at the time of the ship's arrival there ; and a war did exist when she reached Constantinople, but the merchant supphed no cargo there, yet the shipowner did not succeed in his action for non-performance at this port ; for the war existing was between Russia and Turkey; whereas, the Court held, that the parties had in contemplation such a war as would render it unlawful for a British ship to proceed to Odessa.^ And where a British shipowner at St. Petersburg left the port without a full cargo, although there was mer- chandise enough to fill the ship, because he expected an embargo to be laid on British shipping by the Russian govern- ment, that would have been no defence had the merchant proceeded for damages in consequence;^ but the merchant set up complete performance of the stipulation as a condition precedent to freight, and failed.^ Declaration of war being a prerogative of the Crown, any relaxation of the legal consequences attendant thereon must needs be derived from-the same source ; * but it comes too late to be of use where the contract is already dissolved by the antecedent declaration of war.^ These rules of the law of nations respecting commercial intercourse between the subjects of adverse belligerent powers, are necessarily binding upon allies in the war, subject of course to any modification mutually • agreed on by the sovereign authorities, and are properly vindicated by the sovereign power of the one agaiast any acts in violation of them done by the subjects of the other." 1 Avery v. Bowden, in the case of ^ Ritchie v. Atkinson, 10 East, 295. The Eolla, 5 E. & B. 714 ; (in error) * Clemontson v. Blessig, 11 Exch. 7 E. & B. 953. 135 > Ruoker v. Anstey, 5 M. & Sel. 25. 2 Per Lord Ellenborough, Ritchie v. ^ Bsposito v. Bowden, 7 B. & B. 763. Attmson, 10 East, 295, 305, 308. « The Nayadc, Mertz, 4 C. Rob. Ad. 560 NON-PEEFOEMANCE. [CHAP. XI. Effect of, on As a necessary consequence of the administration of these transfer of pro- i <■ i i • i -j. ■ ^ertjintranntu. I'ules ol law, and m the nature of a corollary to them, it is an established principle, that the national character of pro- perty cannot be altered in transitu. In the ordinary course of affairs, valid sales of ships and cargoes at sea are of familar occurrence.^ In times of war, however, all property at sea liable to confiscation, owing to hostilities either continued or broken out since the time of its dispatch, would be covered by colourable transfers in fraud of the belligerent's right ; ^ and therefore it is a general rule, that transfer of the property without actual delivery of the subject shall be insufficient under these circumstances to change the rights and liabilities attaching thereto.^ It follows from this, that if the subject of sale and transfer actually reach the hand of the purchaser anywhere, the t^'ansitus for this purpose is thereby determined, and the ownership effectually changed.* But courts of prize investigate claims founded upon title of that description with a wakeful jealousy, and even the transhipment of enemy's cargo at a neutral port in the course of the voyage, being but an additional disguise, will not protect it from condemnation.^ In view of War. The general rule is, that personal property follows the rights of the person. So that if at the time of the seizure the owner is entitled to restitution, and if at the time of adjudication he is in a capacity to claim, restitution to him must be awarded.^ Or if, at the time of the ship sailing, the two countries were in a state of decided amity, a bond fide transfer in transitu not made in contemplation of war, will be sustained, notwithstand- ing the outbreak of hostilities immediately after.''' But when the relations of the two countries are unsettled and ambiguous, a declaration of hostilities following directly thereon as a con- sequence, is held to be retroactive in its effect, and property 251 ; The Staadt Embden, Jacobs, 1 v. The Queen, 11 Moore, P. C 119 C. Eob. Ad. 29 ; The Santa Anna, 146. ' • • > Larrinago, Bdw. Ad. 180. * Sorensen v. The Queen, supra. 1 Acraman v. Bates, 29 L. J. (Q. B.) s The Carl Walter, Schmidt, 4 C. Eob. 'i'S. Ad. 201; per Lord Stowell, The Vrow 2 The Danckebar Africaan, Smit, 1 Margaretha, Crigsmau, 1 C. Eob. 336. C. Eob. Ad. 107 ; The Negotie en Zee- « Per Lord Stowell, The Herstelder, vaart, cited ibid. 112 ; The Herstelder, De Koe, 1 C. Eob. Ad. 114 115. De Koe, 1 C. Eob. Ad. 114. ? The Vrow Margaretha,' Crigsman, 3 Judgment of the P. C. in Sorensen 1 C. Eo}3. Ad. 336. OHAP. XI.] IN VIEW OP WAR. 561 seized during the previous period, deriving national character from the country to wliich it belongs, and being susceptible of all the incidents of such character becomes, by the hostilities which follow, liable to condemnation as lawful prize of war.^ For the same reason, if war be manifestly imminent, and the contemplation thereof lead immediately, although before the war, to a transfer of property in transitu, becoming thus the foundation of a contract that would not otherwise be entered into by the vendor, and this be so to the knowledge of the pur- chaser, his acquired title will not prevail against the rights of the captor ; ^ although, on the part of the purchaser, there may also have been other concurrent motives to the transaction.^ Transfer of ships during war, or whilst it is imminent, from the enemy to a neutral, is a ti'ansaction narrowly scrutinised by . a court of prize, and the onus of proving the sale to be bond Jlde and absolute lies on the claimant ; * but if bond fide title be satisfactorily shown, although it is acquired by gift from an enemy father to a neutral son, the absence of pecuniary con- sideration,^ or in case of a sale, the fact of part of the money being still unpaid is not a valid objection." Convoy, when the British Govei-nment is engaged in hosti- the law op lities, becomes a private necessity, and a State policy. The government, in order to prevent the enemy from recruit- ing his means by the capture of our merchantmen at sea, jn'ovides an anned convoy from time to time, to start from a specified rendezvous for a particular voyage with all vessels read}' by the time named, and intended for the final destina- tion, or for certain intermediate ports, or for appointed half- way rendezvous of other convoys. Under a statute passed for a temporary purpose, neglect to sail with convoy, disobedience ' The Herstelder, De Koe, siqira ; * The Christine, Schwartz, Spinks, The Prosper, Classen, Edw. Ad. 72 ; Prize Cases, 82 : The Ernst Merck, The Holstein, Jobs, ih-id. Kruger, id. 98 ; The Johann Chrisiopli, 2 The Jan Frederick, Bloedorne, 5 C. Bohss, id. GO; The Rapid, Hansen, Rob. Ad. 128, 132 ; The Eendsborg, id. 80 ; The Soglasie, Fischer, id. 104. Kyberg, 4 G. Eob. Ad. 121 ; pei' Lord ^ The Benedict, Spinks, Prize Cases, Stovvell, The Vrow Margaretha, Grigs- 314. man, 1 C. Eob. Ad. 114. " Sorenseu v. The Queen, 11 Monre, =' The Eendsborg, Nyberg, 4 C. Eob. P. C. 119, reversing The Baltica, Ad. 121. Pygelstrom, Spinks, Prize Cases, 2(il. o 562 NON-PERFOEMANCE . [chap. XI. to sailing instructions, and such other default as would tend to frustrate the assistance of government and further the aims of the enemy, are punished with penalties and imprisonment.^ The obligation of the shipowner under a warranty to sail with convoy binds him to avoid all negligence that would vitiate the polic)'- and expose the vessel and her cargo to capture. For if he do not sail with convoy, and the vessel is lost, although by tempest, the insurance is thereby become void, and the shipowner liable for what the freighter would otherwise have obtained from the imderwriter.^ And he does not sail with convoy, in view of the law, by merely proceeding in company ; he must obtain sailing instructions from the officer in command," or at least show that he failed through no negligence in him.* We have already seen what is such a starting and arriving with convoy as will satisfy the warranty.' He must also continue with it, if tempest or other reasonable excuse prevent not ; for it would seem that negligence in this, ending in loss to the enemy, will subject him to an action for the damage occasioned thereby to the shipper.^ OAPTDBE AS PRIZE OP WAR. Free Ships, free Woods. In addition to what has already been said of capture in this and previous chapters, a few things remain which it is proper to mention here as being likely to produce hostile interference with the du^ performance of the contract of affreightment. Enemy's ships, we have seen, continue to be lawful prize ; but by the concession of 1856, enemy's goods in neutral bottoms are not. A very large amount of property is thereby withdrawn from liability to confiscation ; and investigations and legal questions often of a nice and difficult nature before the prize tribunals have thus been obviated. But as neutral 1 See the expired statutes, .S8 Geo. 3, c. 76 ; 43 Geo. 8, c. 57. 2 Phillips V. Baillie, 3 Doug. 374 ; Einquist v. Ditchell, 3 Esp. 64 ; San- derson V. Busher, 4 Camp. 64 n., where Gibbs, C. J., gives an account of Ein- quist V. Ditchell ; Magalhaens v. Busher, 4 id. 54. 3 Webb V. Thompson, 1 B. & P. 5 ; Anderson v. Pitcher, 2 B. & P. 164 ; Hibbert ii. Pigou, 2 Park, Ins. 694. < Vlctorin v. Cleeve, 2 Stra. 12.'5(i ; Verdon v. Wilmot, 2 Park, Ins. 090. ^ Ante, a. ix. p. 421 . '= Lilly V. Ewer, 1 Doug. 72 ; JeSTej V. Legendra, Carth. 216 ; 8 Lev. 32U. Even if recaptured, there is the burden of salvage, The Wight, Forde, 5 C. Rob. Ad. 315. CIIAr. XI.] PRIZE OF WAR. 5C3 goods on board of enemy's ships are not prize, questions and investigations of a similar description, occasioned by the desire of the enemy to escape condemnation, -vvill still arise. As a general rule, personal property follows the rights of the Personal Charac- person. The law of domicil on which these rights may be tkVpropTity. "" dependent, is liable to be complicated, if not altogether super- seded by the presumption of the law of nations against one who lingers in an enemy's country, that he is remorant and an enemy. Therefore, a ship purchased from an enemy by such a person, though claiming to be a neutral, is liable to condem- nation, unless his presence in the enemy's country be satis- factorily explained.^ But altogether irrespective of the rights of the person who Charactev of the is owner, property which is the produce of the hostile soil takes pr^^eYorthe character from the country, and becomes liable to confiscation ^™'-'"<'<= "^ ''• notwithstanding it was cropped from the plantation of a neutral, and shipped before the outbreak of hostilities.^ As to the person who is the owner, that is a question on the Who is Owno-, threshold of the inquh-y as to ship or cargo. si^nee!"^' "' With regard to the ship, the colours and pass that she sails under are conclusive against her,'' but not for her.* And if she is not properly documented, exhibiting no bill of sale, although a. pretended purchase, but originally an enemy's ship,^ or if there has been a spoliation of papers, and other signs of bad faith ; ® these are grounds of unfavourable presumption, the effect of which is not to be avoided, except by clear and satis- factory evidence to the contrarjr. As to the cargo, even before the civil tribunals, it is often a question, whether the goods after shipment, are at the risk of 1 The Bemon, Dunn, 1 C. Rob. Ad. S7 ; The Success, Smith, 1 id. 1.S0. 2 04. * Fe?- Lord Stowell, The Copenhagen, 2 The Vrow Anna Catharina, Mahts, Mening, 1 C. Eob. Ad. 289 ; The Sis- .fj C. Eob. Ad. 167 ; The Phoenix, Wilde- ters, 5 -id. 165; The America, Slier- boer, 5 C. Eob. Ad. 21 ; The Dree borne, 3 C. Eob. Ad. 36. Gebroeders, Vandyk, 4 C. Eob. Ad. " The Eising Sun, Wilkie, 2 C. Eob. 235. Ad. 108 ; The America, Sherborne, 3 The Vrow Elisabeth, Probst, 5 C. supra; The Atlas, Kimbell, 3 C. Eob. Eob. Ad. 2 note ; The Vigilantia, Ger- 304 and note ; The Margaret, Heard, 1 ritz, 1 C. Eob. Ad. 13 ; The Goede Acton, Ad. 333 ; The Santissima Cora- Hoop, Van Thuysen, 2 Acton, 32. cao De Maria, Carneira, 2 Acton, Ad. ■» The Fortima, Verissimo, 1 Dods. 91. 2 564 NON-PERPOEMANCE. [CHAP. XI. the consignor or the consignee. In the prize courts it is a general rule, that capture of goods shipped to an enemy, being equivalent in view of the law of nations to delivery, vests the property in the captors,^ unless it ajppear that by an established custom of the trade,^ or by a bond fide contract not made in contemplation of war,^ the goods remain at the risk of the shipper. On the contrary, when the shipment is by an enemy, it is a settled principle of prize law, that in order to constitute an effectual transfer of the property, there must be either an order for the goods, or an acceptance of them by the consignee, prior to the capture.* Condemnation, therefore, followed the capture of specie consigned by an enemy shipper for the purpose of answering the drafts of his correspondent in a neutral country, there being no document to show that the money was out of the consignor's control.^ So under a similar absence of docu- ments with regard to goods shipped "for neutral account; "^ a fortiori, where the shipper's letter directed his agent to retain the goods till paid for, or security given by the consignee, or where the bill of lading before sailing was altered and made " to the order of the shippers. "'^ Even the delivery of the bills of lading has been held not to be sufficient of itself to prove an effectual transfer of the property.^ Eight of Search. From all this it is obvious that notwithstanding the conces- sion of 1856 in favour of the neutral flag as a protection to the goods of an enemy, the ship is still liable to the belligerent right of visitation and search; for non constat but she is sailing under false colours, or carries contraband of war, or intends committing a breach of blockade.^ Eesistance, there- 1 Per Lord Stowell, The Packet De ^ T]je Jonge Pieter, Musterdt, i C. Bilboa, Depucheta, 2 C. Eob. Ad. 133 ; Eob. Ad. 79. The Neptunus, Baohman, 6 G. Eob. ' The Aurora, Lindberg, 4 C. Eob. Ad. 403, 409 ; The Anna Catharina, Ad. 219. Wupper, iid.lU. s The Marianna, Posadilla, 6 C, Eob. 2 Per Lord Stowell, The Packet De Ad. 24. Bilboa, Depucheta, supra. 9 Per Lord Stowell, The Maria, Paul- 3 The Anna Catharina, siop^-a. sen, 1 C. Eob. Ad. 340 ; Le Louis, ■• The Cousine Marianne, Deboer, Forest, 2 Dods, Ad. 244 ; Bynkershoek, Edw. Ad. 346, 347. Quaest. Jur. Pub. lib. 1, c. 14 ; Vattel, 5 The Josephine, Pish, 4 C. Rob. Ad. Law of Nations, bk. 3, c. 7, § 114 ; 25. Wheaton, International Law, 588. CHAP. XI.] PRIZE OF WAE. 565 fore, to the exercise of that right by any lawfully authorised ship of the belligerent power, entails condemnation on the neutral vessel if it be shown that she had reasonable grounds to be satisfied of the existence of a war.^ And although an evasion of the right,^ or a slight hesitation about resisting it,^ has not, in practice, been held so penal ; yet a clear intention on the part of a neutral to resist, evinced bj'' sailing under- positive instructions from his own government, dehvered to and accepted hj him, to prevent by force if necessary aU inquiry and search, amounts, in view of the law of nations, to a complete act of hostihty ; and abandonment of the intention after that is a defence that cannot be set up.* The carrying of goods which are contraband of war to an Contraband of War enemy s port is a deviation from neutral conduct, and an oifence which is visited by the law of nations with consequences that vary according to the circumstances of the case. This offence is consummated the moment that the vessel offence, how con- quits the port of loading.^ Usually it is purged with the p^ged. deposit of the goods, although that be in the enemy's port.^ It is, therefore, only during the prosecution of the voyage with contraband on board that the vessel and her cargo are amenable to the law of nations.'^ The consequences of her capture under these circumstances would be, in an ordinary case, the confisca- tion of the contraband articles, and of aU property on board belonging to the same person, even to the share that he might have in the ship herself.^ The vessel, so far as she does not belong to the owner of the contraband cargo, suffers the loss of freight for the confiscated property and her expenses ; but 1 The St. Juan Baptista, and La senberg, 2 C. Bob. Ad. 186, 196 ; but Purissima Conoepcion, 5 C. Eob. Ad. it is a circumstance to affect ber credit 33 ; The Maria, Paulsen, 1 C. Eob. Ad. on the return voyage even, ^er Lord 360 ; The Topaz, NicoU, 2 Acton, 20. Stowell, The Margaretha Magdalena, 2 Per Lord Stowell, The Mentor, Predborn, 2 C. Eob. Ad. 138, 140. Williams, Bdw. 207, 209. ' The Imina Bauman, Vroom, 3 C. 3 Per Lord StoweU, The Maria, Eob. Ad. 167, 168. Paulsen, 1 C. Eob. Ad. 360, 375. ^ The Sarah Christina, Gorgensen, 1 * Ibid.; The Elsabe, Maas, 4 C. Eob. C. Eob. Ad. 237, 242 ; The Neptunus, Ad. 408. Bachman, 6 0. Eob. Ad. 403,409 ; The 5 The Imina Bauman, Vroom, 3 C. Staadt Embden, Jacobs, 1 0. Eob. Ad. Eob. Ad. 167, 168. 29, 30 ; The Jonge Tobias, Hilken, 1 6 The Frederick Molke, Boysen, 1 C. 0, Eob. Ad. 329. Eob. Ad. 85, 87 ; The Immanuel, By- ^"" NON-PEEFORMANCE. [CHAP. XI. beyond that, the ship and rest of the cargo are not liable to loss.^ When this misconduct of the neutral is connected with malignant and aggravating circumstances, as where the cargo is shipped with a false destination, and the vessel proceeds with false papers on board, both ship and cargo are liable to confiscation on the homeward as well as the outward voyage, notwithstanding she may have discharged and loaded again several times in the interval at intermediate ports, and be at the time of capture clear of contraband on board.^ Articles contra- The list of articles which are contraband of war is by no buna ot War. . . "' means fixed or definite ; considerable changes have been made in it during the last hundred years, and it is always liable to be modified by treaty stipulations.^ Generally, it may be said to comprise aU warlike and all naval stores,* including hemp,^ pitch and tar,'' timber,'' and cordage, sail-cloth, resin and tallow,^ and perhaps brimstone,^ especially when these are suitable to the purposes of naval or martial armaments, and destined for ports of naval equipment. Provisions that are fit for ship's use and so destined that the purpose is clear, may be deemed to be contraband ; for in judging of these and other articles ancipitis lisus, regard is had to the destination as an indication of the purpose to which they are to be applied ; ^° 1 The Eingende Jacob, Krephen, 1 354 ; unless it be of an Inferior quality, C. Hob. Ad. 90 ; The Sarah Christina, The Gute Gessellsohaft Michael, Holt- Gorgensen, supra ; The Neutralitet, zenberg, 4 id. 94 ; but see The Apollo Burning, 3 C. Eob. Ad. 295 ; The Mer- Bottcher, 4 id. 158. curius, Meincke, 1 G. Eob. Ad. 288; " The Eichmond, Brattel, 5 C. Eob. The Emanuel, Soderstrom, 1 id. 2;)',; ; Ad. 336 ; The Jonge Tobias, Hilken, 1 The Staadt Embden, Jacobs,, 1 C. Ejb. C. Eob. Ad. 329 ; The Twee Juffrowen, Ad. 30. Etjes, 4 C. Eob. Ad. 248. 2 The Margaret, Heard, 1 Acton, ' The Endraught, Bonkins, 1 C. Eob. 833 ; The Santissima Coracao De Maria, Ad. 25 ; The Staadt Embden, Jacobs, Carneiro, 2 Acton, 91 ; The Nancy, 1 id. 29 ; The Charlotte, Koltzenberg, Knndsen, 3 C. Eob. Ad. 122 ; The 5 C. Eob. Ad. 305. Charlotte, 6 C. Eob. Ad. 386, note. « Tjig Neptunus, Lampe, 3 G. Eob. 3 See Lord Stowell's judgment in Ad. 108 ; The Nostra Senhora De Be- The Jonge Mai'garetha, Klausen, 1 G. gona, Ybriuiga, 5 G. Eob. Ad. 97. Eob. Ad. 189. » The Ship Carpenter, Meyer, 2 ■• The Sarah and Bernhardus, Hay Acton, 11. & Mar. 175 ; The Margaretha Magda- " Per Lord Stowell, The Jongp Mar- lena, Predborn, 2 C. Eob. Ad. 141. garetha, Klausen, 1 C. Eob. Ad. 189, 193; 6 Tire Evert, EYerts, 4 C. Eob. Ad. The Zelden Bust, Eozonna, 1 C. Eob.' CHAP. Xr.j PRIZE OF WAE. 567 but it is not improbable that some of the distinctions formerly- made upon this subject between purely commercial ports of the enemy and ports of warlike equipment, are of little service now since the introduction of railway communication.^ Courts of prize are disposed to take a distinction in favour of the neutral with regard to many of these articles when they are the native produce of his own country, especially if they are stni in an unmanufactured state, and to subject them not to condemnation, but the right of pre-emption at the option of the government of the captors.® This right of pre-emption has been exercised with regard to naval stores shipjaed before the notification of hostilities, but taken after.^ If the port of destination, however, has changed character before the capture, the contraband articles are thereby discharged of the penalty ; * or if the master on hearing of the blockade of the port changed his destination, the cargo there- with changing character, the question of contraband under subsequent caj)ture does not arise. ^ The conveyance of military forces, or of public despatches Conveyance of _ . ,„ . J • 1 , 1 Military Forces, to the enemy, is an oiience so noxious, as to mvolve the con- demnation of the ship." It matters not whether the forces be few or many.'' The importance of the particular papers is immaterial, provided they be official communications from official persons on the public affairs of the hostile government.^ Despatches, however, between such a government and their minister or consul in a neutral countrj^ for the purposes of amity and peace, are protected by the law of nations ; ^ but if they are really of a hostile and illegal nature, it is not in the Ad. 9.S ; The Frau Margaretha, Struer, Rob. Ad. 167. 6 id. 92. Tlie Edward, Bartlett, 4 id. C8. " The Friendship, Collard, 6 C. Rob. ' See Tlie Nostra SenhoraDeBegona, Ad. 420; The Caroline, Doah, 6 0. s(7;7'a; The Neptunns, Lampe, «KjJ7'a/ Rob. Ad. 461, 465; The Atalanta, The Ship Carpenter, Meyer, supra. Klein, 6 id. 440, 454, 455. 2 The Maria, Paulsen, 1 C. Rob. Ad. ' The Orozembo, Brewster, 6 C. Rob. 340, 372; The Sarah Christina, Gor- Ad. 430 ; The Hope, Jones, 6 i<^. 463, n. gensen, 1 id. 237, 241 ; The Christina * So defined by Lord Stowell in The Maria, Kehnrock, 4 0. Rob. Ad. 166. Caroline, Doah, 6 0. Rob. Ad. 461, = The Maria Magdalena, Hay & 465 ; The Atalanta, Klein, 6 id. 440, Mar. 247 250. 4^° > The Sally, cited ibid. 456 ; The ■• "The Trende Sostre, Missen, C C. Susan, 6 id. 462, note. Rob. Ad. 390, note. ' The Caroline, 6 C. Rob. Ad. 461 ; 5 The Imina' Bauman, Vroom, 3 C. The Madison, Frost, lidw, 224. 5fi8 XON-PERFOEMANCE [CHAP, XI. power of their own or any neutral minister to sanction them or protect their conveyance.^ Both ship and cargo are involved in the consequences, if they belong to the same owner and he be privy to the carriage of such despatches ; but if the cargo belongs to a different person, and he is ignorant of the offence, it is not liable to be condemned.^ Conveyance of As a general rule in cases of capture for conveying contra- band cargo or enemy's despatches, it is not open to the master to aver ignorance by way of defence. Thus, where sail-cloth described as linen, which the master was not to open, was condemned as contraband, the master lost his freight notwith- standing, and incurred delay and expenses besides.^ And if it be enemy's despatches that are found on board, confiscation of the ship at least follows, although imposition has been j)ractised on the master,* unless it appear that there was no want of vigilant caution on his own part, or that of his owners.^ "It must be understood," said Lord Stowell, " that where a party from want of proper caution, suffers despatches to be conveyed on board his vessel, the plea of ignorance will not avail him. His caution must be proportioned to the circum- stances under which such papers are received. If he is taking his departure from a hostile port in a hostile country, and still more, if the letters, which are brought to him are addressed to persons resident in a hostile country, he is called upon to exercise the utmost jealousy with regard to what papers he takes on board. " On the other hand it is to be observed, that where the commencement of the voyage is in a neutral countrj'^, and it is to terminate at a neutral port, or, as in this instance, at a port to which, though not neutral, an open trade is allowed, in such a case there is less to excite his vigilance, and therefore it may be proper to make some allowance for any imposition which may be practised upon him. But when a neutral master receives papers on board in a hostile port, he receives them at 1 Per Lord Stowell, The Madison, ^ The Oster Eisoer, Jurgensen, 4 C. Frost, Edw. 224, 226. Eob. Ad. 199. 2 The Atalanta, Klein, 6 C. Rob. Ad. « The Susan, C. Eob. Ad. 4G2 n. ; 440 ; The Constantia, Holbeck, 6 id. The Hope, Jones, 6 id. 463 n. 461 ju. ; The Susan, ibid. 462 n. ; The * The Eapid, Fleming, Edw. 228. Hope, Jones, ihid. 463 n. CHAP, xr.] UNDER BLOCKADE. 56 his own hazard, and cannot be heard to aver his ignorance of a fact which, by due inquiry, he might have made himself acquainted with. " The party in the present case has the benefit of the favour- able distinction ; these papers, with some others, were put on board in an envelope, addressed to a person at Tonningen, who was instructed to forward them to Holland, but of this the master swears he knew nothing . . . Though mischievous in their own nature, they proceed from a person who is not clothed with any public official character. They came to the hands of this American master among a variety of other letters from private persons ; they were concealed in an envelope, addressed to a private person, and were taken on board in a neutral country ... It is not, therefore, a case in which the property is to be confiscated, although in this, as in every other instance in which the enemy's despatches are found on board a vessel, he has justly subjected himself to all the incon- veniences of seizure and detention, and to all the expenses of those judicial inquiries which they have occasioned." ^ Blockade being a hostile operation, established for the by blockade. purpose of preventing commercial intercourse by sea with such ports or coasts of the enemy as are comprehended thereby, must be maintained by an eifective force, indifferently, in respect of all, in order to be binding on any.^ It is a principle of the law of nations, that there is no Conditions of blockade where there is not a sufficient force to j)revent access to the enemy's coast, any decree or notification of the belligerent power to the contrary notwithstanding ; ^ but if once legally 1 Per Lord Stowell, in The Eapid, Wheaton's Intern. Law, 577. Tliis Fleming, Edw. 228, 229, 231. always has been the well-established 2 The Vrouw Judith, Volkerts, 1 C. principle of the law of nations, but Na- Kob. 151. poleon I,, by his Berlin decree of 21st 3 The Frederick Molke, Boysen, 1 C. Nov. 1806, and his Milan decree of Eob. Ad. 8o, 86 ; The Mercurius, Gerdes, 17 Deo. 1807, declaring the British 1 id. 81, 82 : The Arthur, Rathbone, 1 islands and the British colonies in a, Dods. Ad. 423 ; the Declaration of state of blockade, provoked retaliatory the Powers assembled in Congress at measures of a similar nature against Paris, in 1856, ante, p. 552 ; the con- France in the British Orders in Council, vention between Groat Britain and and occasioned Lord Stowell infinite Bussia, of 1801, art.. 3, sec. 4 ; cited difficulty in reconciling the enforce- 570 NON-PEEFOEMANCK [CHAP. XI. constituted, it is not ended by a merely accidental interruption, such as might occur under a change of wind ; ^ and neutrals in that case are bound in law to presume that there is no discon- tinuance, at the peril of being regarded as violators of the blockade for any attempt to take advantage of the occurrence.^ But if the absence of the blockading force is due to the presence of a superior force of the enemy, that is a total defeasance of the blockade and its operations.''' Strict impartiality in the enforcement of the blockade against the merchantmen of all nations is a condition of its legal validity.''' And this may be successfully impeached, if either through the remiss conduct of the blockading force neutral vessels have been admitted to the advantages of commercial intercourse,'' or these advantages have been secured for its own subjects by the blockading power with the design thereby of acquiriag a commercial monopoly .* For this reason a relaxation in favour of the enemy up to a later day than that on which the blockade was constituted, is held to extend to neutrals also, though not mentioned in the pro- clamation ; because the subjects of the belhgerent power might lawfully themselves have used it.'^ Lord Stowell, however, held that a blockade is not vitiated by the granting of licences, to individual ships, notwithstanding these were then known to have become numerous ; ^ and on the grounds of humanity and over-ruling necessity, where human life is in danger, or loss of the ship by perils of the sea is imminent, there always has been in such cases a relaxation of the strict law of blockade.^ ment of the Ordei's in Council with but see The JuSrow Maria Schroeder, the familiar principles of the court in Greenwold, 3 C. Bob. Ad. 147. respect of blockade. See the Fox, and « The Pox, Edw. 311, 320. others, Edw. Ad. 311. ^ Northcote v. Douglas, in the case 1 The Columbia, "Weeks, 1 C. Bob. of The Franoiska, 10 Moore, P. C. 37 ; Ad. 156 ; The Frederick Molke, Boy- below, 1 Spinks, 111 ; S. P. in The Steen sen, 1 id. 85, 87. BUle, 1 Sp. 161 ; The Union, ib. 164 ; 2 The Hoffnung, Schmidt, 6 C. Rob. The Jeanne Marie, it. 167 ; The Nor- Ad. 112, 116 ; The Triheten, Wallen, 6 nen, %b. 171. 0. Rob. Ad. 65. s The Fox, Edw. Ad. 311, 320. 3 lUd. " The RoUa, Coffin, 6 C. Rob. Ad. ■> The RoUa, Coffin, 6 C. Rob. Ad. 372, 374 ; The Rose in Bloom, Olcott, 372. See the judgment in The Ostsee, 1 Dods. Ad. 57 ; The Charlotta, Elliott, Voss, Spinks, 174. Edw. Ad. 252 ; The Fortuna, Rhode, 6 The RoUa, Coffin, 6 C.Rob. Ad. 374; 6 C. Rob. Ad. 27. CHAP. Xr.] UNDER BLOCKADE. 571 Notification of the fact to neutral governments is not neces- Effect of Notifi- sarj' to the legal constitution of a blockade ; ^ but when that accompanies the fact, it is attended with consequences of great importance to the shipping of these governments, both as concerns the institution and the raising of the blockade. In the absence of notification of the commencement, there is an end of the blockade immediately that the fact ceases other- wise than by accident or shifting of the wind ; but a blockade which is accompanied with public notification to neutral governments, is -prima facie presumed to exist until it is repealed by similar means." Such notification to a government is, in law, notice to every subject thereof in a condition to profit by it, and conclusive against him notwithstanding his personal ignorance ; ^ the effect of which is, that the offence of violating the blockade is committed the moment that he begins his voyage with the intention of entering the blockaded port.* With respect to a charge of violating blockade, three things. Breach o£ _^. . p Blockade. Lord Stowell said, must be proved : — Fu'st, the existence oi an actual blockade; second!}', the knov/ledge of the party; and thirdly, some act of violation by the captured vessel.^ Already we have seen what things are requisite to the validity Evidence of the of a legally constituted blockade ; and as to the proof to be adduced of the fact, " it is necessary," says Lord Stowell, " that the evidence should be clear and decisive." ^ The noti- fication to a neutral government, by the belligerent power, seems to he prima facie evidence of the fact in question; but as the alleged offender is bound only by the fact, if he can show that the particular port was not under blockade, although mentioned in the notification, he is not bound by the notice, and there is no offence in law.'^ 1 The Mercnrius, Gerdes, 1 C. Kob. Ad. 110, 113 ; The Columbia, Weeks, Ad. 82 ; The Keptunus, Kuyp, 1 id. 1 C. Eob. Ad. 156. 171. 5 The Betsey, Murphy, 1 0. Eob. Ad. " The Neptunus, Kuyp, 1 C. Eob. 93. Ad. 171 ; The Vrow Johanna, Okhen, " Hid. ; where no blockade existed 2 C. Eob. 109. ^^ ^^°^j °^ s^ST^ in proclamation, the 3 The Neptunus, Hempel, 2 C. Eob. captor was condemned in damages and Ad. 110 ; The Welvaart vnn Pillau, costs. The Ostsee, Voss, Spinks, 171. Bolter, 2 iJ. 130. ' The lictsey. Murphy, 1 C. Eob. Ad. 4 The Neptunus, Hempel, 2 C. Eob. 93 ; The Ostseo, Voss, Spinks, 174 ; it 572 NON-PEEl'OEMANCE [CHAP. XI. Knowledge of the This is an offence which is founded on the knowledge of a fact; and as it is a presumption that the partj^ knows the law, and is ignorant of the fact whence come the applicability and force of the law, the onus of proof is, in the first instance, upon the plaintiff.^ Personal notice is the highest kind of evidence upon which the Court can have occasion to proceed.^ The public notification already referred to, is, in law, after a suificient interval, and under proper circumstances, notice to aU. the subjects of the government to whom it is made ; the personal ignorance of the individual with regard to whom both conditions have been satisfied, cannot then be averred as a defence to a suit of this nature.^ It is necessarily open, how- ever, to any one to show that one or both of the conditions, upon which this presumption of law proceeds, are unsatisfied.* And, therefore, Lord Tenterden, in the case of a master who sailed for a blockaded port several days before the notification of it appeared in the London Gazette, but subsequently to that was forced back to a port of the United Kingdom, and sailed again for his former destination, left it to the jury to say whether he sailed the second time with the knowledge of the blockade ; and this was held to be no misdirection in the learned judge. ^ It is not indispensable, however, that such a master should have seen the Gazette ; for knowledge of the fact, howsoever acquired, makes him answerable to the law for his further proceedings.^ The burthen of Yet although the law will not be unreasonable in presuming by°the publicity knowledge of the fact where there is personal ignorance, it of the Fact. recognises in the publicity of the fact a reason for changing was held that notice of a general block- ^ IMd. The Neptunns, Hempel, 2 adeof the coast of Holland, which Avas C. Eob. Ad. 110 ; The Welvaart van. untrue iu fact, was not a good notice Pillau, Bolter, 2 id. 130. in law of the blockade of Amsterdam, " The Bingende Jacob, Krephen, 1 though actually existing at the time, C. I!ob Ad. 91 ; The Adelaide, Bose, The Henrick and Maria, 1 C. Rob. Ad. 3 C. Hob. Ad. 284 ; The Jonge Petro- 148. nella, Kens, 2 G. Eob. Ad. 131 ; The > The Betsey, Murphy, supra. The Calypso, Schultz, 2 id. 298. Kingende Jacob, Krephen, 1 G. Eob. ^ Harratt v. Wise, 9 B. & Gr. 712. Ad. 91 ; The Gomet, Mix, Edw. Ad. " Winder v. Wise, Dane. & Lloyd, 32, 34, 35. 238 ; The Golumbia, AYeeks, 1 C. Kob'. 2 The Mercurius, Gerdes, 1 C. Eob. Ad. i:,C, ; The Tutcla, Eeintrock, 6 C. Ad. 82. Eob. Ad. 177. CHAP. XI.] UNDER BLOCKADE. 573 the presumption, and thereby shiftmg the burthen of proof, if there has been an interval of time proportionate to the im- portance of the blockaded port, and to the distance from it of the offender's port of loading.^ In the case of a cargo, shipped at Saffee in Barbary, for Amsterdam, then being blockaded, under a false destination to Hamburg, Lord Stowell, on the question of knowledge of the fact in the parties, thus expressed himself: " After a limited time, it lies prima facie on the party to show that he was not apprised of the fact of the blockade. Amsterdam is a great object in the commercial world ; it fills a very large space in the eye and in the conversation of the world ; and it is hardly to be supposed, without adverting to the particular intercourse subsisting between these persons, that such a port should be blockaded almost twelve months, and that these persons should not be acquainted with it and with the nature of the blockade. But there are letters amongst the papers which show that the closest intimacy and communi- cation on domestic and commercial subjects was maintained between them; it becomes, therefore, scarcely credible that such an event, as the blockade of Amsterdam, should not have been known to the claimant at Saffee ; but the incredibility of this pretension is rendered still stronger if we consider that there is another middleman, the brother, in Portugal, by whom the vessel is freighted for tliis voyage so late as the 26th of November. The Court has already determined that the blockade must be taken to be generally known at Lisbon before that time. There was afterwards a further interval of near six months before the sailing of the vessel. Under this view of the case it is scarcely possible that the blockade of Amsterdam should not have been an event perfectly well known at Saffee." ^ Acts which amount to a violation of blockade must be such Acts amounting as are evidently done in execution of an intention to break BkciTade. " the blockade of the port by ingress or egress. The mere evidence of this intention will vary with each case, being usually complicated with fraud, and disguised for the purposes 1 The Hurtige Hane, Dahl, 3 C. Rob. ^ The Hurtige Hane, Dahl, 3 C. Bob. Ad. 324, 328 ; The Adelaide, Eose, 2 328. C. Eob. Ad. Ill, note. 574 NON-PERFORMANCE fCHAP. XI. of concealment. Little, therefore, can be learned from much detail. Sailing for tlie It is a general rule, however, that where knowledge of the Port before , . „.„. ixi Blockade ceases, blockade, as m the case of notification, precedes tne voyage, the mere sailing is an overt act that amounts to the offence in question.^ This rule appears to be applicable strictly to ships of the different states of Europe, in relation to European ports ; ^ but a relaxation of it has been admitted in favour of a vessel departing on a long voyage, with a distinct knowledge of the blockade, but with the intention of making inquiry about its continuance at a later period in her course.^ In one case it was held, that the offence once committed bj' sailing with the fraudulent intention, was afterwards purged by misinformation received from a fleet of the blockading power, in consequence of which the vessel continued her course under the false belief that the port was clear.* Sailing to inquire A pretence of making inquiry being the usual shift of men is breacli of ...... .. ,.. ./■• Blockade. taken in delicto, it is a presumption de jure m courts oi prize, that vessels found near the entrance of the port for such a purpose, are there with a fraudulent intention of breaking the blockade.^ Certainlj'^, if after being informed of the continu- ance of the blockade she nevertheless proceeds towards it,'^ or if she is taken on her way thither, but out of the course laid down in her papers on board,''^ or if after being warned off by the blockading force, she does not take herself out of the way,^ such circumstances are evidence of that fraudulent intention which amounts in law to a breach of blockade. 1 The Neptunus, Hempel, 2 C. Eob. " The Posten, HyU, 1 C. Eob. Ad. Ad. 110; The Columbia, "Weeks, 1 «Z. 235, note ; The Elizabeth, Nowell, Edw. 156. . Ad. 198 ; The James Cook, Jougain, 2 The Posten, Hyll, 1 C. Eob. Ad. Edw. Ad. 261 ; The Spes, aijd others, 335, note ; The Betsey, Goodhue, ibid. 5 C. Eob. Ad. 76. 334 ; The Vrow Johanna, Okhen, 2 C. "• The Mentor, Williams, Edw. Ad. Eob. Ad., 109. 207 ; The James Cook, Jougain, ,s?. M'Taggart, cited in * Northey v. Field, 2 Esp. 618. Hodgson V. Loy, 7 T. E. 442 ; see next * Nix v. Olive, coram Lord Ellen- note, borough, C. J., at Guildhall, post T. T. 2 But Fowler v. M'Taggart, nomine 1805. Fowler v. Kymer, as stated by Law- ^ Fer Lawrence, J., BohtKngk v. lence, J., in BohtUngk v. Liglis, 8 East, Inglis, 8 East, 381, 394. 896, appears to have been founded on ' Jackson v. Nichol, 5 Bing. N. C. a charter of this kind. 508. Niohol. 598 STOPPAGE IN TRANSITU. [CHAP. XH. country for Ms principal in London, the goods were ' obtained by the carrier from the vendor's warehouse under a delivery order which operated no prejudice to the rights of the vendor. The vessel arrived at her usual moorings in the river Thames on the 21st of January, the day on which the vendee became bankrupt. The lead was at the bottom of the vessel, but might have been dehvered on the 24th. On the 23rd the bankrupt's clerk, B., went on board with the bill of lading, and tendered the freight, demanding possession of the goods ; but the mate told him, that he could not have them, as they were stopped. The same answerwas given him on board the fol- lowing day, when a similar demand and tender were made, and was repeated the same day to a lighterman, who took his barge alongside and demanded the lead for the bankrupt. A letter from the vendor dated the 26th, arrived in London on the morning of the 28th, and that same day, the lead being still on board, his agent for the first time claimed to stop the goods. The Law in Bird These being the facts of the case before Tindal, C. J., and to Jackson v. the Court of Common Pleas, the law applicable to them is thus stated in a subsequent case before the Court of Exchequer, by Eolfe, B., pronouncing the judgment of the Court. " "We are of opinion that there could be no stoppage in transitu after the formal demand of the goods by B.^ The goods had then arrived at Liverpool, and were ready to be delivered to the parties en- titled. B. onbehalf of the assignees, demanded the goods, and tendered the amount due for the freight. Assuming that there had been no previous stoppage in transitu, the master of the vessel was thereby bound to deliver up the goods to B., as re- presenting the bankrupt, and he could not, by his wrongful detainer of them, and delivering them over to other parties, prolong the transitus, and so extend the period during which stoppage might be made. The transitus was at an end when the goods had reached the port of destination, and when the as- signees having demanded the goods and tendered the amount of the freight would have taken them into their possession but for a wrongful delivery of them to other parties." ^ 1 "On the 11th of May, and the ' Bird"!). Brown, i Exch. 786, 797. subsequent, delivery of them to the de- The point of law so clearly laid down fendants." — Omitted from the extract, in this excerpt, was necessary to the Nichol. CHAP.- xn.] WHEN IT IS VALID. 599 This being the law, Tindal,, C. J., on the facts of the case Decision pro- before him, nevertheless held, pronouncing the judgment of ^°'^'^'^- the full Court, that the transitus still continued when the goods were demanded for the first time on the 28th inst., by the agent of the consignor.^ It is difficult to believe of this case, that it is both correctly reported and well decided. The law, however, does not bind the agent on the demand of Assent of Agent the vendee to accede to a change of principal, or an alteration ^ fistrunient >j i i ' m terminating in the nature of his agency, e.g., from being a carrier to become Transit. a warehouseman or bailee for safe custody ; and if the result of his refusal be the continuance of the transitus, that is the direct consequence of the vendee's own act, and a stoppage of the goods in the meantime would be effectual.^ " It appears to us to be very doubtful whether an act of marking or taking samples, or the like, without any removal from the possession of the carrier, so as though done with the intention to take possession, would amount to a constructive possession, unless accompanied with such circumstances as to denote that the carrier was intended to keep, and assented to keep, the goods, in the nature of an agent for custody. In the case of Foster v. Frampton,^ it is clear that there were such circumstances. Whether in that of FUis v. Hunt,^ is decision, but the main point of the de- opinion, that if the vendee actually re- cision goes beyond that ; there is one ceives the possession of his goods on other reference therefore to the wrong- their passage to him, and before the ful delivery of the goods to other par- voyage is completely terminated, that ties, which I have left out in order to the delivery is complete and the right disembarrass the passage, but without of stoppage gone, yet no authority has impairing the honest truthfulness of been cited for the position, and the the extract. See preceding note, and principle seems the other way — that a post, p. 602. mere demand by the vendee without ' The following are the reasons of any delivery before the voyage is com- the learned Judge : — ■" It is to be re- pletely terminated deprives the con- collected, in the first place, that the signer of his right of stoppage." The observation of Mr. Justice Lawrence vessel discharged, as usual, in the was made in the case of a demand by a stream where she then lay. consignor for the purpose of revesting ' See Lucas v. Dorrien, 7 Taunt. his property in the goods, and not in 278 ; Lackington v. Atherton, 8 Scott, the case of a vendee. And in the N. S. 38 ; Harmau ■;;. Anderson, 2 second place, that here the goods had Camp. 243. not actually reached the terminus of •'' Foster v. Frampton, 6 B. & Or. their delivery when the demand of the 107. vendee took place ; and although it * Ellis r. Hunt, 3 T. R. 464, might be conceded to be the better 600 STOPPAGE IN TRANSITU. [chap. xn. Conclusion, that constructive pos- session may ter- minate the tran- sit before the end of the voyage. doubtful ; but it is unnecessary to determine this point, as there is no finding in this case even of any act done to the timber with intent to take possession. There being then no such act of ownership, it seems to us that unless, by contract with the Captain, express or implied, the relation in which he stood before, as a mere instrument of conveyance to an appointed place of destination, was altered, and he became the agent of the consignee for a new pm'pose, there was no constructive possession on the part of the vendee. There is no proof of any such contract. A promise by the captain to the agent of the assignees is stated, but it is no more than a promise, with- out a new consideration, to fulfil the original contract and deliver in due course to the consignee, on payment of freight, which leaves the captain in the same situation as before ; after the agreement he remained a mere agent for expediting the cargo to its original destination." ^ On the whole, then, it appears that constructive in the absence of corporal possession, will sufiice to end the transitus. Whether marking the goods, or taking samples of them, with- out more, would amount to constructive possession, as they are equivocal acts, is extremely doubtful. A mere demand and tender of the freight or carriage, when there is not a right of retainer under a general lien, is sufficient if the goods are ready to be delivered ; but if they are not ready to be delivered, something more is necessary, such as an order to stop their progress, or to change the route on the part of the vendee, and a binding consent thereto on the part of the carrier. If the vendee is not ready to receive the goods when they are ready to be delivered, a request on his part, consented to by the carrier, to let them remain in his custody, determines the transitus, and defeats the vendor's right. WHO MAT VALIDLY STOP GOODS IN TBAHSITU. Secondly. Stoppage in transitu, is a right exclusively belong- ing to the vendor, in respect of his price, and growing out of his original ownership and dominion.^ The inquiry, therefore. ' Per Parke, B., pronouncing the judgment of the Court of Exchequer in Whitehead v. Anderson, 9 M. & W. 518, 535. 2 Per Bayley, J., Bloxam v. Sanders, 4 B. &; Cr. 941, 948 ; per Parke, B., Edwards v. Brewer, 2 M. & W. 375 377. CHAP. xn.J WHO MAY STOP IN TRANSITU. 601 is, whether the claimant of the right stands in the position of Unpaid Vendor a vendor ; and that is a question upon the evidence in each garded by Law! case. Thus, the exercise of this right has been held to be valid on the part of a consignor, although the goods had been sent for sale on the joint account of himself and the consignee ;^ and even on the part of one, in whom the property in the goods had not vested at the time of the stoppage, but only an interest in, and a right to receive, a certain portion of the cargo to he afterwards ascertained and appropriated, it was held a good and effectual stoppage.^ And if one, at the request of his commercial correspondent, buy at his own risk, though he claim no other profit than his commission on the trans- action, he is, nevertheless, a vendor in respect of the other.^ Browne, a trader in London, gave an order to Fritzing, of Hamburg, to procure and ship for him a quantity of wax, and Fritzing having purchased accordingly from another, shipped it "on account and risk" of Browne, who continued however to be without privity or correspondence with that other in connection with this or any previous transaction. Fritzing sent an invoice of the goods, including a charge for his commis- sion on the transaction, and di-ew for the amount on Browne, who soon after became a bankrupt ; and the goods being stopped in transitu by Fritzing, his right to do so was affirmed by the Court of King's Bench." A mere surety, however, for the price of goods, has no right Not a mere to stop them. Thus, where the same bankrupt gave an order for wheat to Dubois & Co., merchants, at Dantzic, who shipped it on account and risk of the bankrupt, forwarding the bill of ' Newsom v. Thornton, 6 Bast, 17. rescind the contract with his vendee in 2 Jenkyns v. Usbome, 7 M. & Gr. that case as he might in the other. 678, 698, sed qusere, how far this de- If stoppage in transitu be not a re- cision can be sustained consistently scission of the contract, is this decision with the doctrine of Bayley, J., in sustainable? Bloxam v. Saunders, 4 B. & Cr. 948 ; ^ Feise v. Wray, 3 East, 93 ; see who says this is a right growing out of Tucker v. Humphrey, i Bing. 516 ; the vendor's original ownership and Ogle -v. Atkinson, 5 Taunt. 759 ; Tur- dominion. Tindal, C. J., in the prin- ner v. The Trustees of the Liverpool cipal case treats the interest of the Docks, (in error) 6 Exch. 543 ; EUer- claimant as an interest iu a contract shaw v. Magniac, 6 id. 570. for the delivery of goods to him, and * Feise v. Wray, 3 East, 93. says he sees no reason why he may not 602 STOPPAGE IN TRANSITU. [chap. XII. Not a mere stranger unless ratification ensues in time. lading through Fritzing, of Hamburg, on whom, at the bank- rupt's request, they drew for part of the price. The bill of exchange being accepted, and the bill of lading transmitted to the bankrupt, Fritzing, by his agent, stopped the goods in transitu, but Dubois & Co. being in truth the vendors, and Fritzing's agent without authority from them, the stoppage by Fritzing was a nullity, his liability on his acceptance notwith- standing.^ From that decision, it follows that this is an act which cannot be effectually done by a mere stranger. But his agency may be adopted ; and if the ratification reaches the bailee of the goods while the transitus continues, the stoppage is valid in law. If, however, the vendee intervene so as to end the transitus in the meantime, the ratification afterwards comes too late. Five cargoes of corn being sold and shipped at New York, to Came & Telo, of Liverpool, bills were drawn for the price, and sold; but C. & T. becoming bankrupts after receipt of the first cargo, Brown, Shipley & Co., who had been pur- chasers of some of the bills of exchange, claimed to stop the goods in transitu, on behalf of the shipper, and gave the masters notice accordingly on the 3rd, 5th, 6th, and 9th of May successively, as the vessels approached Liverpool. On the 11th of May the assignees of the bankrupts demanded the cargoes and tendered the freight, but the masters refusing their assent, delivered the com to Brown & Co., whose acts were some time after this adopted and ratified by the shipper. It was held, however, that such ratification came too late, when it came after the demand and tender made by the assignees on the nth of May.2 tjKDEK WHAT Thirdly. Of all the various circumstances which may qualify STOPPAGE IN *^® right of stoppage in transitu, there are two, the co-existence iBANsiTtr IS of YThich is in the nature of a condition precedent to the VALID. _ , ^ exercise of it, — the vendor must be unpaid, and the vendee bankrupt or insolvent. > Sifiken v. Wiay, 6 East, 371 ; see Gumey v. Behrend, 3 E. & B. 622 ; Jenkyns v. Usborne, 7 M. & G. 678. ^ Bird V. Brown, ante, p. 598. 4 Exch. 786, see CHAP. XII.] UNDER WHAT CIRCUMSTANCES. 603 This right of the vendor, therefore, does not exist, where Vendor being payment is properly made to his agent, although the latter never "^°P"'^* pay over the money,! or he has elected to take what is equivalent to payment, a hiU of exchange, e.g. when he might have had money,^ or the goods are sent by him to cover his own accept- ances,^ or to cover a loan or a balance due from him on a running account.* It is not defeated however by the circumstance of part being paid,' or of the sale beuig on credit,^ or a biU of exchange having been given for the amount,'' although the credit is not expired nor the bill at maturity. But if the vendee is not bankrupt or insolvent, although he Vendee being may have failed to perform his contract, performance in that jnsdvent. ™ case not being a condition precedent, there is no right to stop in transitu.^ It is not necessary however for this purpose, either that he should have been adjudicated a bankrupt, or taken the benefit of the Insolvent Act, if it can be shown that he was at the time in embarrassed circumstances.^ A second, or any subsequent vendee, though solvent, is in no Subsequent ' Bmmey v. Poyntz, i B. &, Ad. seller paying the expense. In virtue 568. of this contract and custom, the pos- 2 Strong V. Hart, 6 B. & 0. 160 ; session of the shipmaster becomes Lichfield Union v. Greene, 1 H. & N. therefore that of the shfpper or buyer, 88J: ; Eobinson v. Hawksford, 9 Q. B. and consequently the detainer of the 52; Cowasjee D.Thompson, 5 Moore, mate's receipt acknowledging the seller P. C. 165. There is a discrepancy in as shipper, could not change the legal the report of this latter case before the rights of the parties. Privy Council on the point for which ' Vertue v. Jewell, i Camp. 31, re- it is here cited. In the judgment, it is garded by Lord EUenborough in the said that the sellers having the option nature of a pledge ; see Patten v, of taking a bill at six months, or money Thompson, 5 M. & S. 350. less 2J per cent, discount, elected to ■* HaiUe v. Smith, 1 B. & P. 563 ; take a bill ; but in the statement of Vertue v. Jewell, S'upra. facts at the beginning of the report, it ^ Hodgson v. Loy, 7 T. R. 440. is said distinctly,.that it was the option ^ IngUs «. Usherwood, 1 East, 515 : and election of the buyers to give such Bohtlingk v. Inglis, 3 Bast, 381. a bUl, agreeing in that respect with ^ Feise v. Wray, 3 East, 93 ; Patten what I believe to be much the more v. Thompson, 5 M. & Sel. 350 ; Bemds- usual stipulation in commercial con- • ton v. Strang, L. K. 3 Ch. 588. tracts. If this point is removed from ^ Wilmshurst v. Bowker, 7 M. «fe Gr. the case, then it seems to rest on the 882 ; Walley v. Montgomery, 3 East, contract of sale taken in connection 585. with the custom of the port of London, ' James v. Griffin, 2 M. & W. 622 ; that where goods are sold " free on Edwards v. Brewer, 2 id. 375 ; Mills v. board," the buyer is the shipper, the Ball, 2 B. & P.. 457. 604 STOPPAGE IN TRANSITU. [CHAP. XII. Vendee and better situation than the bankrupt ; ^ unless the latter has been right of stoppage . . defeated. enabled by the vendor's own act to transfer a title indefeasible by stoppage in transitu. This he may do by means of the bill of lading. That instrument, when it makes the goods deliver- able to the vendor or assigns, or to order or assigns, reserves the control of the shipment to the vendor, and is not transfer- able, until it is indorsed.^ In the vendee's hands, under a blank indorsement, or a special indorsement of the vendee's name, or without indorsement if his name is in the body of it to receive the goods, the bill of lading leaves the right of stoppage still in the vendor ; ^ but transferred by the vendee although himself at the time insolvent, or his possession of the biU of lading fraudulent,* to a bond fide purchaser, it confers an indefeasible title on the latter, and defeats the vendor's right,^ to the extent of the payment actually made for the goods by the sub-vendee, but no further.^ If a qualified indorsement be made on the instrument by the shipper, a purchaser from the vendee takes it subject to the qualification.'' If a blank or special indorsement only appear on it, but delivery to the vendee is made upon condition, the latter could not have conferred a greater right on a bond fide purchaser without notice than he himself possessed ; * and the statute, which transfers the contract to him only, " to whom the property in the goods therein mentioned shall pass," and is not to prejudice or affect the right of stoppage in transitu, appears in this respect to have made no change.^ A fortiori, if the transferee take the bill of lading maid fide, for the ?" 1 Small V. Moates, 9 Bing. 574 ; East, 20 note ; Cuming v. Brown, 9 DixolL v. Yates, 5 B. & Ad. 313 ; Jen- East, 506 ; Gniney v. Behiend, 3 E. & kyns V. Usborne, 7 M. & Gr. 678. B. 622 ; Key v. Cotesworth, 7 Exch. ^Cbxe'W.Haxden, 4 East, 211; Brandt 595; Dracachi v. Anglo - Egyptian V. Bowlby, 2 B. & Ad. 932 ; and see Navlg. Co., 1 L. E. 3 C. P. 190 ; The Mitchell V. Ede, 11 A. & E. 888 ; ante, Argentina, L. E. 1 Ad. 370. as to the efEect of a bill of lading, " JUsk parte Falk re Kiell, 14 Ch. c. viii. p. 399. ' Div. 446 ; ex parte Golding Davis & 3 Per Tindal, C. J., Jenkyns v. Us- Co., 13 ibid. 628. borne, 7- M. & Gr. 678, 697 ; see Wait ? Barrow •;,. Coles, 3 Camp. 92 ; V. Baker, 2 Exch. 1. Mitchell v. Ede, 11 A. & E. 888. * Pease v. Gloabec, L. E. 1 P. C. « Key v. Cotesworth, 7 Exch. 595 ; 219. Gurney v. Behrend, 3 E. & B. 622. 5 Lickbarrow v. Mason, 2 T. E. 63 ; » 18 & 19 Vict. u. Ill, § 1, 2, see 1 H. Bl. 357 ; 5 T. E, 367, 683 ; 6 ante, o. viii. p. 898. CHAP. XII.J HOW EFFECTED. 605 purpose " of contravening the actual terms of sale on the part of the consignor, or his reasonable expectations arising out of them, or his rights connected therewith," he stands in no • better situation than the consignee.^ The vendor is not ousted of this right by a pledge of the Eight not de- bill of lading by the vendee,^ or a mortgage of the goods,'' or by cirramstaSr* the carrier's lien for his general balance against the vendee,* or by the goods being taken under a foreign attachment,' or by the vendee's transfer of a shipping note ^ or a delivery order to a third person for value,'' or by the indorsement of the bill of lading for value to one who knows that the indorser is bankrupt or insolvent,^ or that his possession of the bill of lading was fraudulent.' Whether a pre-existing debt is such a considera- tion for the assignment, of a bill of lading as will vest a title in the assignee, indefeasible by the vendor's stoppage in transitu, has been the subject of conflicting decisions.^" Fourthly. Stoppage in transitu, though it primarily implies in what way corporal apprehension, may be effectually exercised by notice.^^ ig made. " It was formerly held," says Chief Justice Gribbs, "that the only way of stoppage in transitu, was by actual corporal touch of the goods. It has since been held, that after notice to a carrier not to deliver, he is liable for the goods in trover against himself if he does deliver them."^^ ' Per Lord EUenborough, Cuming v. Jewell, 4 Camp. 31, 32. Brown, 9 Bast, 506, 514 ; and see Coxe *> Pease «. Gloaheo, L. E. 1 P. 0. 219. V. Harden, 4 East, 211 ; Walley ii. i" In the Privy Council it was held Montgomery, 3 East, 585. that such a consideration gives no in- 2 Ee Westzinthus, 5 B. & Ad. 817 ; defeasible title, Bodger v. The Comp- Spalding v. Euding, 6 Beav. 376. toir D'Escompte de Paris, supra. In 3 Coventry v. Gladstone, L. E. 6 Eq. the Court of Appeal from Q. B. Div. 44 ; Wood, V. C. it was held that it does. Least v. Scott, * Oppenheim v. Eussell, 1 N. E. 42. 2 Q. B. Div. 376, expressly dissenting The vendor is entitled to possession on from the above decision on this point ' tendering in such a case the amount in the P. C. due for the carriage of the goods. " Per Parke, B., Whitehead v. Ander- 5 Smith V. Goss, 1 Camp. 282. son, 9 M. & W. 518, 533, 534 ; per " Akerman?).Humphery,l C.&P.53. Tindal, C. J., Jackson u. Mchol, 5 ' Jenkyns v. Usborne, 7 M. & Gr. Bing. N. C. 508, 518 ; per Lawrence, 678, 699 ; McBwan o. Smith, 2 Ho. J., Bohtlingk v. Inglis, 3 East, 381, of Lds. Cases, 309. 394 ; per Lord Mansfield, Stokes v. La * Eodger v. The Comptoir D'Es- Eiviere, cited in Ellis v. Hunt, 3 T. E. compte de Paris, L. E. 2 P. 0. 303 ; 464, 466. per Lord EUenborough, Vertue v. ^^ Per Gibb, 0. J., Litt v. Cowley, 7 606 STOPPAGE IN TRANSITU. [cHAP. XII. Notice, by whom. We have already seen that this notice to be good must be with the authority of the vendor ; and if this be signified by way of ratification, but do not reach the bailee of the goods till the transitus is ended, the notice is a nullity.^ Notice, to whom. A notice, however, which is good in tliis respect, may still be rendered a nullity in law by the impossibility of its operating in fact. A shipowner seems bound to use all reasonable dili- gence in giving effect to such notice ;^ but there is no stoppage in law until the notice reach the person capable of controlling the actual possession of the goods. Where, therefore, a letter of the 18th of July was sent to the shipowner at Montrose, to stop delivery of a cargo then on its way from Quebec to Fleetwood, but on its arrival there upon the 8th of August, the bankrupt having anticipated all others by his demand of possession, it became necessary to determine whether this demand had ended the transitus, the notice to the shipowner not operating in law till it reached the master.^ " To make a notice effective," the Court said in that case, " as a stoppage in transitu, it must be given to the person who has the immediate custody of the goods; or, if given to the principal whose servant has the custody, it must be given as it was in the case of Litt v. Cowley,''' at such a time, and under such circumstances, that the principal by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the dehvery to the consignee ; and to hold that a notice to a principal at a distance is sufficient to revest the property in the unpaid vendor, and render the principal liable in trover for a subsequent delivery by his servants to the vendee, when it was impossible, from the distance and want of means of communication, to prevent that delivery, would be the height of injustice. The only duty that can be imposed on the absent principal is to use reasonable diligence to prevent the delivery." ^ Taunt. 169-170 ; see, e.g., the opinioa « p^^ Parke, B., in Whitehead v. of Lord Mansfield, cited in Ellis v. Anderson, 9 M. & W. 518, 534. Hunt; 466, 467 ; and of Lord Kenyon, a Whitehead v. Anderson, 9 M. & W. recanted by himself in Wrightti.La'wes, 518. 4 Esp. 82, 83. ■> Litt v. Cowley, 7 Taunt. 169. 1 Ante, p. 602 ; Bird v. Brown, 4 s i'ej-Parke, Whiteheads. Anderson, Exch. 786. 9 M. & W. 518, 533, 534. ' CHAP. XII.J HOW EFFECTED. 607 In Litt V. Cowley,^ certain goods delivered for that purpose to Pickford & Co., at Manchester, were dispatched by canal for London; a notice was afterwards sent on the vendee's bankruptcy by the vendor to Pickford & Co. of Manchester, to deUver the goods not to the vendee but another ; they com- municated by letter with the Messrs. Pickford of London accordingly, but solely owing to mistake in a clerk, the goods were delivered to the bankrupt; the stoppage, however, had already taken effect in law, and the vendor recovered the value of the goods from the assignees of the bankrupt. The title of the person who effectually stops in transitu extends no farther than to have the goods in the condition in which they are stopped,^ and the liability of him who refuses in such a case to dehver up the goods, or to consent to hold them for the other, is for the value of the goods detained as in case of a conversion.^ ' Litt V. Cowley, 7 Taunt. 1G9. ^ j^alk v. Fletcher, 34 L. J. (C. P.) Bemdston v. Strang, L. K. 3 Ch. 146. 588. CHAPTER XIII. SALVAGE. Civil Salvage .... 608 Who may be Salvors . . 609 those under no legal ob- ligation . . .609 those who render per- sonal service . . . 612 those who are successful 615 How claims may be barred 616 by general custom or agreement . .616 by special agreement . 616 misconduct of Salvors 617 delay in prosecuting claims . . .618 What are salvage services, and how rewarded . 618 ingredients of such ser- vice . . . .618 principles ia rewarding them . . . . 619 illustrations . . . 622 general. . . . 622 derelict . . . 627 transhipment . . 631 Civil Salvage — {continued). Remedy of the Salvors . 633 lien at Common Law . 633 by Statute . . 633 Maritime Law . 633 jurisdiction of Admi- ralty Court . . 634 as to Cinque Ports . 635 elsewhere in United Kingdom . . 635 in case of salvage by H. M. S. . . . 637 Military Salvage . . . . 638 Who may be Salvors, and by what services . . 638 Rights of Salvors . . 639 Reward of Salvors . . 639 Wreck 640 At Common Law . . 640 Within the Statute . . 641 Receivers of . , . 642 What it is. SALVAGE, ih its simple character, is the service which volunteer adventurers spontaneously render to the owners in the recovery of property from loss or damage at sea, under the responsibility of making restitution, and with a lien for their reward.^ In respect of the means hy which the recovery is made, it is distinguished, with a difference of remuneration, into Civil and Military Salvage. Our attention is to be engaged for the present with the consideration of Civil Salvage only. Civil Saltaoe. This subject is singularly indefinite, and perhaps always ' Per Sir Ch. Robinson, The Thetis, The Neptune, Clark, 1 Hagg. Ad. 227, 3 Hagg. Ad. 14, 48 ; per Lord Stowell, 236. CHAP. XIII.] THE SALVORS. 009 likely to be much at large. So far, however, as limits in respect of the rights of parties have been ascertained and fixed, or even indicated, they seem to be comprehended within the divisions under which we propose to consider the subject : namely : — First, "Who are entitled to claim as salvors ; Secondly, How the rights of the claimants may be barred ; Thirdly, What services are considered as salvage services, and how they are remunerated ; and, Fourthly, The remedies furnished by law for the recovery of this remuneration. It is assumed, and the term salvage implies, that the subject of such services is in a condition to require them ; but details on this point must appear among the particulars into which we are obliged to enter in discussing the third of these questions. First. The title of salvors to reward is incompatible with who mat be the existence of any legal duty or obligation at the time to render the services which are the foundation of their claim.^ A salvor is defined by Lord Stowell to be a person who, without Only those any particular relation to the ship in distress, proffers useful obligation to' service, and gives it as a volunteer adventurer, without any ^!"f;®^ *''^ ^^""^ pre-existing covenant to connect him with the duty of engaging in the preservation of the vessel.^ The crew, therefore, whose stipulated duty is to protect the As to the Crew, ship through all perils, and whose entu'e possible service for this purpose is pledged to that extent, cannot become salvors, except under such extraordinary circumstances as amount in law to a dissolution of the mariner's contract.^ "When, how- ever, a merchant ship is abandoned at sea, sine spe revertendi 1 This is not that moral obligation Lord Stowell, The Waterloo, Birch, to render such services, wliioh is sane- 2 Dods. Ad. 433, 437. tioned by conscience and commanded ^ Per Lord Stowell, The Neptune, by the instinctive principles of our Clark, 1 Hagg. Ad. 227, 236. common nature ; whereof equity cannot ^ A seaman's wages no longer depend enforce performance, or law give da- on the earning of freight, " but in all mages for breach. " It is the duty of cases of wreck or loss of the ship, all ships to give succour to others in proof that he has not exerted himself distress, none but a freebooter would to the utmost to save the ship, cargo, withhold it; but that does not dis- and stores, shall bar his claim thereto." charge from liability to payment where 17 & 18 Yict. c. 104, § 183. assistance is substantially given ; " j?er R E 610 SALVAGE. [chap. XIII. Vhen they may aid recuperandi, in consequence of damage received and the state of the elements, such abandonment taking' place bond fide and by order of the master, for the purpose of saving life, the seaman's contract with the shipowners is at an end, and the mariners are then capable in law of becoming salvors.^ This occurred in the case of The Florence, abandoned by order of the master in the Bay of Biscay, in an unmanageable condition, her rudder carried away, and part of her cargo thrown overboard in consequence of tempestuous weather. The crew were carried to Vigo, and shipped thence for England, but nieeting again when homeward bound, with The Florence and a smack near her, the mate and seventeen of her former hands volunteered, and were put on board and brought her to Corunna. Dr. Lushington, on a full consideration of the facts and authorities, held them entitled to salvage remuneration.^ According to an American case, the ship Le Blaireau received such serious damage by collision with a Spanish sixty-four- gun ship, about ten o'clock at night, that before morning there were three feet and a half of water in the hold, and the whole crew took refuge on board the Spaniard except an Irishman who either by accident or design was left behind ; he cleared away the wreck, lightened the vessel, put her before the wind, and hoisted a signal of distress, in consequence of which he was picked up by an American, and carried into port. The Irishman's claim as a salvor was resisted by the owners of Le Blaireau, but sustained on error by the Supreme Court of the United States.^ Lord Stowell appears to have been of opinion that capture by an enemy immediately discharges the crew from their duty to their employers, so that recapture by them would be in the nature, of a salvage service.* But the rescue of the ship from mutineers, although at considerable personal danger, is their 1 See this proposition laid down and Ad. 556. The general doctrine on which discussed, clause by clause, by Dr. this and the English decisions are Lushington in The Florence, 16 Jur. based, was recognised afterwards by 572. the same court in Hobart v. Drogan, 2 Ibid. ; The Warrior, Lush. Ad. 10 Peter's Eep. 108, 122. 376 ; Le Jonet, L. K. 3 Ad. 556. » The Two Friends, 1 C. Bob. Ad. 8 Mason v. Le Blaireau, 2 Cranch, 271, 277, 278. Eep. 239, 268. So, Le Jonet, L. R. 3 CHAP. XIII.] THE SALVOES. 611 bounden duty; and that learned judge ruled accordingly When not. against a claim for salvage on that ground.^ And for this purpose Dr. Lushington considers there is a very wide dis- tinction between an abandonment at sea, and quitting the ship on the coast, when there may exist a fair expectation of re- turning, and where the spes recuperandi is not improbable.^ A passenger, though at liberty to use the first opportunity of As to Pai>sengers. escaping for his life from the ship, is bound in law while he remains and danger exists, to render all assistance, without title on that account to salvage, unless his services are of an unusual and meritorious description.^ But in a case where the Salvors, when, ship had struck on Chichester rocks, and the master and three of the crew immediately after escaped in a pinnace, leaving the pilot on board drunk ; and the plaintiff, a passenger, took command of the vessel and carried her safe into Eamsgate harbour ; it was held that he was entitled to salvage, on the ground that he did more than his duty called upon him to perform, since, by assuming the command, he made himself responsible in the same manner as if he had been master.* The, courts, on the same ground, regard with jealousy the As to Pilots and claims of pilots and tug-owners to salvage reward ;' ^ but it is ° ' admitted that neither class are bound to engage for ordinarj'^ pilotage or towage with a vessel in distress ; " aijd if while towage services are being rendered, circumstances supervene involving serious danger, that would justify the tug in aban- doning her engagement, and she continues to render assistance, her services become then salvage services.'' In all cases, Generally where 1 The Governor Raffles, King, 2 The Joseph Harvey, Paddock, 1 0. Rob. Dods. Ad. 14, 17. 306 ; The Isabella, Monro, 3 Hagg. ^ JPer Dr. Lushington, The Florence, 427 ; Halsey v. Albertuszen, 11 Moore, 16 Jur. 572, 573. P. C. 313, 319 ; The Jonge Andries, 3 The Branston, Wilson, 2 Hagg. 1 Swab. Ad. 226, S. C. below. Ad. 3 note ; The Vrede, Lush. Ad. « The Rewai-d, Hogg, 1 W. Rob. Ad. 322. See^erLordEllenborough, C. J., 174; The Frederick, Thurman, 1 W. Boycei). BayliSe, 1 Camp. 58, 60. See Rob. Ad. IG, 17 ; The Elisabeth, 8 Jur. The Salacia, Garland, 2 Hagg. Ad. 262, 365 ; The Hebe, Cole, 2 W. Bob. Ad. 269 ; The Two Friends, 1 C, Eob. Ad. 246 ; The Industry, Davis, 3 Hagg. 271, 285. 203 ; The Galatea, 4 Jux. N. S. 1064 ; " Newman v. Walters, 3 B. & P. The Anders Knape, 4 Prob. Div. 213. 612. ■ ' The J, C. Potter, L. R. 3 Ad. 292 ; 5 The General Palmer, Trusoott, 2 The Albion, Lush. Ad. 282 ; The-gar^- Hagg. 176, and cases in note to p. 178 ; toga, iJW. 318. B B 2 612 SALVAGE. [chap. xni. oUlgation torders upon enterprise. Those are' Salvors who have done per- sonal servioea. indeed, where duty springing from office,^ or arising out of con- tract,^ would have legally bound the claimants to do services of the same nature as they actually rendered, the Court is vigilant to protect the owners from improper claims, without neglecting what is required for the ends of justice and the encouragement of enterprise on such occasions. And since the quelling of mutiny, and re-establishment of order in British merchant vessels, is somewhat in the nature of a duty incumbent on the ships in Her Majesty's navy, the Court is not in the habit of rewarding such services, unless they have been very splendid and extraordinary;*' a principle which is extended to salvors in merchant vessels in cases where there is a community of inte- rest and danger.* By the Merchant Shipping Act receivers of wreck are expressly appointed to render assistance to vessels in distress, and to take possession of all wreck within the district ; their claims to remuneration being on behalf of the mercantile marine fund, are confined to the fees fixed by the Board of Trade ; but their lien and remedies for the payment thereof are the same as those of ordinary salvors.^ The officers and seamen of Her Majesty's navy, notwithstanding they are in the service of the Crown, are competent claimants of salvage reward ; ^ but without first obtaining the consent of the Ad- miralty, signified under the hand of the Secretary of the Board, any such person enters his suit at the peril of having it after- wards dismissed with costs.^ The salvor's title which is thus imcompatible with the existence of legal duty, is also dependent on the fact of per- sonal service. " Salvage is personal in its primary character, ' The Aquila, JiTmsden, 1 C. Rob. Ad. 37, 46 ; a claim by a magistrate for services in that capacity rejected. See a case of very doubtful service by the agents of the freighter in respect of the cargo rewarded, Cargo ex Honor, L. R. 1 Ad. 87. 2 Contracts in the nature of Salvage Agency, The Happy Return, Wool- cock, 2 Hagg. Ad. 198, 205, 208 ; The Favourite, Lambert, 2 W. Rob. Ad. 255 ; The Purissima Concepoion, 3 W. Rob. 181. 3 Per Lord Stowell, The Francis and Eliza, 2 Dods. Ad. 115, 118. * Ihid. ; The Trelawney, Lake, 4 C. Rob. Ad. 223, 228. M7 & 18 Vict. c. 104, § 439, 441, 443, 461, 455, 457. ^ The Louisa, Higginbotham, 1 Dods. Ad. 317 ; The Mary Ann, Ferrier, 1 Hagg. Ad. 158 ; The Lustre, Finlay, 3 id. 155 ; The Earl of Eglinton, Hut- ton, 1 Swab. Ad. 7 ; The Alma, Lush. Ad. 378. 7 17 & 18 Yict. c. 104, § 485. THE SALVOES. 613 at least; and those who 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 tlie proprietors. These are the principles on which the Court of Admiralty proceeds in compelling restitution, when necessary, or in assigning a reward when due. It looks primarily to the actual salvor, and has uniformly rejected all claims founded on pre- rogative 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." ^ Claims, therefore, on behalf of the remaining officers and crew of a ship of war from which draughts of men and stores had been taken for salvage purposes ; ^ or on behalf of an officer of the coast guard, who sent his men and boat, but did not assist in person j ^ of a person who merely hired labourers to assist in unloading the ship ; * or of one of a ship's crew who refused to volunteer with the rest on the enterprise,^ have been rejected. But where the whole crew, with one exception, volunteered to encounter the risk, and part were necessarily left behind on board their own ship, the. Court pronounced for an equal reward to those who were reluctantly left, and those who had the better fortune to go.^ Yet, if there is a very decided dif- ference in favour of those who actually braved the peril, while the rest merely consent, and so risk their common interest in their own adventure, the apportionment differs accordingly.'^ When the subject of salvage is a mere derelict, the salvors Eights of Joint first in charge thereof have a recognised right to refuse any ^f derelict. other assistance.^ The obtrusion of services by others upon 1 Per Sir C. Eobinson, The Thetis, 137. 3 Hagg. Ad. 14, 48 ; The Calypso, 2 « IMd. ; The Sarah Jane, 2 W. Eob. Hagg. Ad. 209, 218 ; per Sir B. Simp- Ad. 110, 115 ; so in the case of the son, cited in The Thetis, 3 id. 63. crews of two vessels that came up 2 The Thetis, 3 Hagg. Ad. 14, 61. together to render assistance, The 3 The Vine, Jay, 2 Hagg. Ad. 1. Mountaineer, Heaton, 2 W. Eob. Ad. 7 ; 4 The Watt, 2 W. Eob. Ad. 70, 72, The Eoe, 1 Swab. Ad. 84. he was allowed his disbursements and ' The Jane, Hudson,2 Hagg. Ad. 338, some remuneration for his superinten- 343 ; The Sarah Jane, 2 W. Eob. Ad. dence ; The Lively, Chickley, 3 W. Eob. 110, 1 15 ; The Charles, L. E. 3 Ad. 536. _^^_ g4_ ^ The Eugene, Bourne, 3 Hagg. Ad. 6 The Baltimore, Baker, 2 Dods. Ad. 156 ; The BfEort, 3 id. 165. 614 SALVAGK. [chap. xni. In case of Ships not derelict. Eemuneratiou may not be diverted from the Salvor, them is,t'h.eT&ior&;iii viiewof the Court, a positive demerit, and no claim for them will be recognised ' in- the^ absence of necessity clearly established ; ^ but while accessory services actually rendered will be carefuUy weighed with a due regatd to What is equitable towards all, the claimants whose lien first attached, and whose service's were iinaUy successful; shall- not be Ousted' from their rights as principal' salvors. - ' •" Where' the ship is not derelict, salvors who have gone' on bpard'to her assistance act under sufferance and permission ; and do not adquire thereby the sole management of' the ship, or any; right to exclude, or to assume a control o'fer further assistance, especially when their ovin aid is insufficient.^ And it 'Seems to be in the power of the master or owners, when thej'' think proper, to dismiss the salvors, sxibject however to any claims on' their part, considered not only with reference to services actually rendered, but which would have been rendered with' reasonable prospects of success,- if not prevented by capricious dismissal.* -. . •• - "Personal service • being > primarily the condition: of. valid claims, any remuneration awarded to the salvor is payable only to him or his representatives' ; and the Court will not entertain the claims of a master or owner to recover the money awarded to an apprentice, any previous agreement to the contrary not- withstanding.^ Every stipulation in any agreement by which dseamart consents to- abandon any right which he may have or obtain; in the nature of salvage, is declared wholly inoperative ;® and any assignment of salvage reward already earned,' in con- sideration of stim's paid by the owneTs of the: vessel salted is imlU - This, however, does not apply to any ship which ac- 1 The Maria, Kilstrom, Bdw. Ad. .175,' 177;, The Charlolta,; Nesser, 2 Hagg. Ad. 361 ; The Eugene, Bourne, giipra; The Blendenhall, Barr, 1 Dods. Ad. 414. : 2 The Effort, 3 Hagg. Ad. 165 ; The Queen Mab, Tallman, 3 id. 242 ; The Maria, Kilstrom, Edw. Ad. 175 ; The .Claiisse Enm, 1 Swab. Ad. 129-132. a The Dantzic Packet, Tanner,' 8 Hagg. Ad. 383, 885 ; The Black Boy, 'Devey. itid. 386 li. ; The Champion, Br. &L. Ad. 69. ' * The ■ Charnpiori, ^s^pra. Sernlld, The Glasgow Packet, :NicoIl, 2 'W. Eob. Ad. 806. * The Two Friends, 8 Jur. 1011 ; The Columbine, 2 "W. Eob. Ad. 186. M7 & 18 Tiot. C. 104, § 182, the term is " seaman," which does not in- clude apprentices dulyindentuied and registered. Ibid. § 2. ^ The Eosario, 2 Prob. Div. 41. , ■, CHAP, Xni.J THE SALVOES. 615 cording to the terms of the agreement is to be employed on salvage service ; ^ and neither the agreement with respect to the ship, nor that taking awaj' the seaman's right to salvage reward, if clearly proved, need be in writing.^ The owners of the salving vessel are entitled to remuneration Claims of Owners in the nature of salvors, in addition to expenses incurred, when " * ^'"^ *^^° ' they can show actual loss suffered, or risk in respect of their property encountered in the service ; ' but charterers are not in the same position, unless there is a stipulation giving them control and benefit of salvage ; * or unless the vessel is leased, and sailed on their responsibility.^ The Board of Admiralty in the capacity of owners have Claims of the hitherto claimed and been allowed compensation in respect of owners sur- risk, damage, or expenditure, in rendering salvage assistance "tendered. to private owners. But now, " In cases where salvage services are rendered by any ship belonging to Her Majesty, or by the commander or crew thereof, no claim shall be made or allowed for any loss, damage or risk thereby caused to such ship, or to the stores, tackle, or furnitui'e thereof, or for the use of any stores or other articles belonging to Her Majesty, supplied in order to effect such services, or for any other expense or loss sustained by Her Majesty by reason of such services." ^ As the name implies, services to found a claim for salvage Those are must be successful, the remuneration being awarded for the suJes^f lU in^"^" preservation of property or life, and not for meritorious services saving. merely.'' Yet where a vessel in distress on a sand bank was boarded by the crew of a lifeboat and further assisted by the crew of a lugger, and their exertions were suspended before they were successful, only in consequence of the most imminent 1 25 & 26 Vict. c. 63, § 18. to prosecute their claim, should not if 2 The Pride of Canada, Br. & Lush. possible increase the expenses ; The Ad. 208. Baltimore, supra. •^ The Baltimore, Baker, 2 Dods. Ad. " The Alfen, Jacobsen, 1 Swab. Ad. 132, 138 ; The Vine, Jay, 2 Hagg. Ad. 189, 190. 1,2; The Salaoia, Garland, 2 id. 338, » Semble, ibid. ; and^er Lord Stowell, 343 ; The Glengaber, ibid. 53i ; The The Waterloo, Birch, 2 Dods. Ad. 433, Charles, L. E. 3 Ad. 536. 434 ; The Scout, L. K. 3 Ad. 512. The Miranda, ibid. 561. Where the « 17 & 18 Vict. c. 104, § 484. owners of the salving vessel were the ' The Zephyrus, Blake, 1 W. Bob. charterers, but not the lessees of the Ad. 330 ; The Lidia, 1 id. 406 ; The vessel salved, The Collier, L. E. 1 Ad. Edward Hawkins, Lush. Ad. 515. 83. But the manner of their appearing 616 SALVAGE. [chap. xin. danger which threatened the life of all engaged; they then abandoned the ship for the shore, and took a hawser on board the lugger with the intention of returning, but in the mean- while a steamer got the ship in tow, and all that the first salvors could now do was to accompany the ship to port; under these circumstances the Court, thinking the exertions of the claimants to be peculiarly meritorious, awarded them remuneration.^ now SALVABE CLAIMS MAT BE BAUKED. By general cus- tom or agree- ment. By special agree- ment, if held binding. Not binding, when. Claims for services in the nature of salvage are liable to be barred by evidence of a general custom of the trade, or a general agreement between the vessels concerned, to render mutual assistance to the extent actually given in the particular case;^ unless it be exceptional in its circumstances. Where therefore a Greenland whaler after being in the ice all the winter was rescued by the claimants, the crew of another Greenland whaler, the case was held to be of too exceptional a nature to fall within the intent of any such general custom.^ If the parties specially agree for a stated sum to give the assistance actually rendered, they are bound by their contract ; * but the party setting it up is required by the Court of Admiralty not only to prove that it was made, but also that it was just ; ^ at the same time the Court is reluctant to interfere, if it appear that no unfair advantage was taken of ignorance, and that after ample time to consider the terms a distinct bargain was definitely concluded.^ But if a salvor, under an erroneous opinion of his services, accept an inadequate sum in payment 1 The E. U. 1 Eco. & Ad. Eep. 63. See The Santipore, 1 Eco. & Ad. 231 ; The Undaunted, Lush. Ad. 90. ^ The Zephyr, Arrowsmith, 2 Hagg. Ad. 43 ; The Harriot, Sontrice, 1 W. Eob. Ad. 439, the existence of the cus- tom was tried by a jury upon an issue from the Court of Admiralty under the 3 & 4 Vict. c. 65, § 11. 3 The Swan, Dring, 1 W. Bob. Ad. 70. ■• The Mulgrave, Garbutt, 2 Hagg. Ad. 77 ; The True Blue, Roberts, 2 W. Eob. Ad. 176 ; The Betsey, Thomp- son, 2 id. 167 ; The Jonge Andrios, StefEene, 1 Swab. Ad. 226 ; S. C. oorwm P. C. 1 id. 303 ; The Jan Hendriok, 1 Bcc. & Ad. Eep. 181 ; The Waverley, L. E. 3 Ad. 369. * Per Dr. Lushington, The British Empire, 6 Jnr. 608 ; The Jan Hendrick, 1 Eco. & Ad. 181 ; The Medina, 2 Prob. Div. 5 ; The Amerique, L. E. 6 P. C. 468. ^ Ibid. ; 2Jor Dr. Lushington, The True Blue, Eoberts, 2 W. Eob. Ad. 176, 179 ; The Salaoia, Garland, 2 Hagg. Ad. 262, 265 ; The Kingaloct, 1 Ecc. & Ad. 263. CHAP. Xm.] HOW CLAIMS BAEEED. 617 for them, he is not bound thereby, although he have given a receipt in full of aU demands with a perfect comprehension of the effect of it ; ^ and for the same reason the Court has awarded more than the sum claimed by the suit, directing a fresh suit to be entered for the surplus.^ And neither the owners nor the master have any power to bind the crew, with- out their consent, by a previous agreement, or subsequent settlement for salvage services.^ The salvors by their misconduct, for instance in improperly By misconduct interfering with, or resisting the authority of the master,* or ' '" ^°"*' unnecessarily exposing the ship to risk, may give occasion to the Court in its discretion to dismiss the suit, if it is a very bad case, or to make a suitable reduction of the remuneration to be awarded, notwithstanding their services have been suc- cessful.^ Accordingly^, where salvage services had been success- fully rendered to a ship and cargo of considerable value on the coast of Africa, but the salvors afterwards unnecessarily'' and unduly prolonged their possession of the vessel, and also sold the cargo salved, acting at once as salvors, vendors, and pur- chasers of the same goods, their claims were deemed forfeited, and their suit dismissed, only without costs.^ At the same time, the Court will take care that a meritorious vessel shall not be discarded after agreement made and services rendered, merely because another vessel undertakes the salvage and performs it on lower terms.'' If services are not so successful as, with a proper degree 1 Silver BuUion, 2 Ecc. & Ad. Rep. Hagg. Ad. 383, 385 ; The Glasgow 70, 74 ; a fortiori, if the salvor is igno- Packet, NiohoU, 2 "W. Bob. Ad. 806, rant of the effect of the paper which he 313. signs, Ibid.; The Enchantress, Lush. ^ The Duke of Manchester, 10 Jiir. Ad. 93. 863 ; The Dosseitei, ibid. 865 ; The 2 Per Lord Stowell, ex relatione Dr. City of Edinburgh, Eraser, 2 Hagg. Ad. Lushington, 2 Eco. & Ad. 74. See The 333 ; The Perla, Andicoechea, 1 Swab. Jonge Bastiaan, 5 0. Eob. Ad. 322. Ad. 230 ; The Cargo ex Capella, L. E. But on the other hand the Coiu'trepro- 1 Ad. 356 ; The Minnehaha, Lush. Ad. bates the recklessness of entering suits 335. What is such misconduct as will and requiring bail to an amount dis- forfeit the reward of successful salvage, proportioned to the service ; The Earl see The Atlas, coram P. C. 31 L. J. Grey, 1 Ecc. & Ad. Rep. 180. (Ad.) 210. ^ The Britain, Allison, 1 W. Eob. « The Lady Worsley, 2 Ecc. & Ad. Ad. 40 ; The Sarah Jane, 2 W. Eob. Rep. 253. Ad. 110, 115, 116. ' The Manch, 26 L. T. N. 8. 26. ■* The Dantzic Packet, Tanner, 3 618 SALVAGE. [chap. xin. By unnecessary delay in prose- cuting claims. of skill and knowledge suitable to the station in life, of the salvors, they must have been, the remuneration awarded will be in proportion to the degree of success.-^ Persons who interfere with salvage contrary to the statute respecting the Eeceivers of Wreck, especially if they have been convicted of the oifence, cannot establish any claim to salvage reward ; ^ and any right previously acquired by successful and valuable services is afterwards forfeited by felonious or fraudu- lent dealing with the property saved. In salvage cases the Court expects that parties will enter their claims without unnecessarj'- delay, and prosecute their suits afterwards with proper diligence ; ^ lapse of time therefore when unaccounted for is prejudicial to the interests of the plaintiffs, and may occasion the dismissal of small claims, especially when prosecuted by monition against the owners personally and not by proceedings in rem.''' WHAT ABE SAL- VAGE SERVICES, AND HOW KEMU- NEBATED. Ingredients of Salvage service. In awarding upon claims for salvage, the Court is obliged to have a primary regard to the nature of the services rendered, and the success attending them. If salvage were a mere com- pensation for work and labour, at least the calculation would be easy, and some general rule applicable to all cases might not be difficult to discover. But the Court being satisfied with no such aim, its practice unfortunately cannot be reduced to any such rule. " Various circumstances upon public con- siderations, 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." * This, according to Sir John NichoU, is the object which the Court sets before it in awarding upon claims of this nature. The kind of merit which is looked for in adjudicating on such services is briefly but happily exhibited by the same high authority in the following nice and exhaustive analysis : " The ' The Lady Worsley, 2 Bco. & Ad. Eep. 253; The Neptune, Fricker, 1 W.Boh. Ad. 297 : The Lockwoods, 9 Jur. 1017. 2 The Wear Packet, 2 Ecc. & Ad. Eep. 256. 3 The Swan, Bring, 1 W. Eob. Ad. 70 ; The Eapid, Cochrane, 3 Hagg. Ad. 419. '' The Eapid, Cochrane, svpra. * Per Sir John NiohoU, The Clifton, Lightbody, 3 Hagg. Ad. 117, 120. CHAP. XIII.] SERVICES AND REWARD. 619 ingredients," he says, " of a salvage service are first, enter- prise 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 rescue the property of their fellow subjects ; secondly, the degree of danger and distress from which the property is rescued — whether it were 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 anj'^ take place, the compensation can hardly be denominated a salvage compensation ; it is little more than a mere remune- ration pro opere et lahore." ^ There is a careful vigilance at the same time exercised by The vigilance of the Court over the interests of the owners to protect them from improper claims, and from excessive demands advanced under the cover of useful services.^ The rule, if it ever guided the Court, to give specific proportions of the property saved, is for the same reason long since in disuse, as likely to operate unfavourably for their interests.^ Such a rule would require an undue sacrifice of property, when of great value ; it would yield a sum comparatively insignificant, when the property was small. The inducement to exertion in the one case would cease to operate, and much property in small amounts would never be saved. The sacrifice in the other would equal a ransom, and give the salvor at once the advantages of an enemy and the security of a subject. It is abandoned therefore even in respect of derelict.^ ' Accord. The Bkiblander, 3 Prob. Lush. Ad. 16. There is a merit even Div. 24. in giving information when to do so 2 Per Sir John NiohoU, The Clifton, takes the vessel out of her way. The Lightbody, 3 Hagg. Ad. 117, 120 ; see Sarah, 3 Prob. Div. 39. alsoi7«r Lord Stowell to the same effect » The Chetah, L. E. 2 P. 0. 205; in The William Beckford, Muirhead, 3 The Amerique, L. E. 6 P. C. 468. C. Eob. Ad. 355. Accord. The Glen- ■» The Thetis, 3 Hagg. Ad. U, 62 ; duror, L. E. 3 P. C. 589. There is a. The Salacia, Garland, 2 id. 262, 263, presumption that the loss or injury of 264 ; The Oscar, Lofgren, 2 id. 257, the salving vessel was due to the neces- 260. sity of the service rendered, and casts "^ The Aquila, Lunsden, 1 C. Eob. the om« of proving the contrary on Ad. 37, 43 ; see the general uuder- the other side ; The Thomas Blyth, standing stated by Sir J, MchoU, The 620 SALVAGE. [chap. xni. Liberality true economy. Salvage within the United dcm. But a just and comprehensive view, even of the interests of the owners, prevents anj' leaning in the Court towards iUiber- ality. The prevalence of this at the Admiralty, would too certainly destroy the spirit of enterprise in the forecastle, to the prejudice of commerce and of the security of navigation. Eecent legislation has also unfettered the Court with regard to the most meritorious class of salvage, the preservation of human life, which it possessed no power to reward, until this was conferred by the Merchant Shipping Act, 1854. Up to that time it had never failed to make a liberal estimate of such services whenever salvage of property at the same time ofi'ered the opportunity of combining both in the compensation.^ But this apparently clandestine mode of compensating valuable services under cover of others of a different nature, not very honourable to the law, though very equitable in the Court, is in respect of one class of salvage at least now no longer necessary. " Whenever any ship or boat is stranded, or otherwise in distress on the shore of any sea or tidal water situate within the limits of the United Kingdom,^ and services are rendered by any person (I.) in assisting such ship or boat ; (II.) in saving the lives of the persons belonging to such ship or boat; (III.) in saving the cargo or apparel of such ship or boat, or any portion thereof; — And whenever any wreck is saved by any person other than a Eeceiver within the United Kingdom ; 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 wreck 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." ^ Bwell Grore, Burton, 3 Hagg. Ad. 209, 221. 1 Per Lord Stowell, The Aid, Teasdel, 1 Hagg. Ad. 83, 84 ; per Dr. Lushing- ton. The Zephyrus, Blake, 1 W. Bob. Ad. 329, 330 ; per id. The Coroman- del, Anderson, 1 Swab. Ad. 205, 207 ; The Clarisse, Brun, coram Privy Coun- oil, 1 Swab. Ad. 129, 131 ; 17 & 18 Vict. c. 104, § 458, 459. ^ The limits of the United Kingdom extend to three miles seawards from the sea shore. The Leda, Swab. Ad. 40 ; Gen. Iron Screw Collier Co. v. Schur- manns, 29 L. J. (Ch.) 877 ; The Johannes, Lush. Ad. 182. M7 & 18 Vict. 0. 104, S 458 ; The Bartley, Stothard, 1 Swab. Ad. 198 ; The Goromaudel, Anderson, 1 id. 205 ; The Clarisse, Brun, coram P. C. 1 id. CHAP. Xin.] SERVICES AND REWARD. 621 The beneficial purpose of that provision was carried to the utmost geographical limits within the "cogaisance of the British Parliament by the 24 Vict. c. 10, § 9 : " All the provisions of Extending 17 & ' The Merchant Shipping Act, 1854,' in regard to salvage of as to clainia for' life from anj'- ship or boat within the limits of the United ^'''^s^ " " '^• Kingdom, shall be extended to the salvage of life from any British ship or boat, wheresoever the services may have been rendered, and from any foreign ship or boat, where the services have been rendered either wholly or in part in British waters." To carry the good intention further, the Legislature enacted. Whether salvage of life may be by the 25 & 26 Vict. c. 63, § 59, that " Whenever it is made applied to foreign to appear to Her Majesty that the government of any foreign i^ilii^g°as. country is willing that salvage shall be awarded by British courts for services rendered in saving life from any ship be- longing to such country when such ship is beyond the limits of British jurisdiction. Her Majesty may, by Order in Council, direct that the jprovisions of the principal Act and of this Act, with respect to salvage for services rendered in saving life from British ships, shall in all British courts be held to apply to services rendered in saving life from the ships of such foreign country, whether such services are rendered within British jurisdiction or not." Salvage claims for the preservation of human life have Priority of ckima priority over all other claims for salvage in respect of the same ° ' property ; ^ and extend to the lives of passengers as well as of the crew.^ But it is not salvage to take off a barbarous island the crew and passengers of a wrecked vessel, when though pressed by privations, there is no immediate danger.^ The fund out of which claims of this nature are to be From what Fund, satisfied being the ship and freight,* or the cargo ^ respectively, 129. In the oa,5e of The Coromandel, * Rule for estimating the freight in 2002. was awarded to a small Tes3el for the course of the voyage, The Norma, ■ rescuing 15 persons from the wreck, Lush. Ad. 12i ; The James Armstrong,, which was afterwards saved by other L. E. 4 Ad. 380. The Admiralty Court salvors 1 Swab. Ad. 205. 'will reconsider its decree, if it appear ' 17 & 18 Vict. c. 104, § 459. that a mistaken estimate has been laid = The Fusilier, 34 L. J. (Ad.) 25 ; before it, id. 3 Moo. P. C. N. S. 51; Cargo ex » The Sarpedon, 37 L. T.N. S. 505 ; Schiller, 1 Prob. Div. 473. 3 Prob. Div. 28 ; Cargo ex Schiller, 1 3 Cargo ex Woosung, 44 L. J. (Ad.) Prob. Div. 473. 45, 622 SALVAGE. [chap. XIII. Illustrations, The Baltimore. if these have altogether perished, or are insiiificient, after the payment of the actual expenses incurred, to pay the amount of salvage due in respect of life, the Court is powerless ; -^ but the Board of Trade may in its discretion 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 the amount unpaid.^ In illustration of the principles on which the Court of Admiralty proceeds in awarding remuneration for salvage services, the following cases are subjoined; but it is at the same time to be acknowledged, that any succinct summary, or even the more detailed account in the regular reports, upon claims of this nature, cannot reproduce the minute considera- tions that often modify the result, and sometimes, when there is a nice balance of evidence, determine the decision. Such illustrations are nevertheless of great utility, and any dis- cussion of the rules of salvage would be imperfect without them. The ship Baltimore,^ of America, on a voyage from Liverpool- to Baltimore, was met on the 4th of March in the Bay of Biscay by the post-office packet Rapid, very leaky, and four feet of water already in her hold, one of her pumps split, and the. other choked, her fore and main topmasts and the head of her foremast gone, nine of the crew disabled by sickness, and the rest in a state of great exhaustion, with a signal of distress aloft at the time. The master and crew were at their own earnest solicitation taken on board The Rapid, and the crew of the latter having, all but one man, volunteered their services as salvors, the mate and ten of them were sent on board The Baltimore, which they carried with acknowledged skill and merit safely into Falmouth. The value of the property saved being about 1900Z., the Court awarded the sum of 800Z. to the salvors, apportioning lOOL of it, a kind of flag eighth, to the captain of The Rapid, as being " the life and soul of the whole business ; '' to the mate 801. ; the residue of the money equally among the crew of The Rapid, both those who boarded the ' The Johannes, Lush. Ad, 182. 2 17 & 18 A^ct. 0. 104, § 459 ; per Dr. Lushington, The Coromandel, An- derson, 1 Swab. Ad. 205, 207. ' The Baltimore, Baker, 2 Dods. Ad. 132. CHAP. XIII.J SEEVICES AND REWARD. 623 damaged vessel and those who were willing but were not allowed ; the share of the man who refused his services being ordered to be given to the carpenter in addition to his own share. The Salacia} from Hull on her way to Lima, had put into The Salaoia. West Point Bay, Great Falkland Island, for water, and was there found on the 12th of June by the master of The Washington, an American whaler, upon her beam ends on the rocks. He surveyed the vessel at the request of her master, and with his crew released her from her perilous condition, unlading half the cargo and reloading it, and on the 7th of July The Salacia proceeded in company with The Washington to Valparaiso, where 600L, one fourth of the vessel, was awarded by arbitrators as salvage. ' The cargo being estimated at 38,000Z., the question of salvage in respect of it was reserved for the Admiralty Court in this country ; and Sir Christopher Eobinson, admitting it was a case of great merit and dis- tinguished courtesy on the part of the American master, and considering that the sealing adventure on which The Washington was bound had been interrupted for the sake of this service, which another whaler had refused to render, awarded on the report of the registrar and merchants lOOOZ. as a compensation for the loss of the sealing season and other items reported on ; and besides that 1500L as a gratuitous remuneration to the salvors, together with their costs ; and 200L to the master of The Washington for his particular expenses ; but of the 1500Z., 501. was to go to a shipwrecked master and crew on board The Salacia as passengers who were indefatigable in their assistance. The Marquis of Huntly,^ chartered by government, with a The Marquis of crew of twenty-eight men and five boys, eleven invalid soldiers, and a lieutenant in charge of the naval and ordnance stores on board, got on the middle sand off the coast of Essex, with her fore-yard carried away, the ■ weather being thick and rainy in the afternoon of a day in November. Eight Colchester smacks with thirty-two men left the Swin in response to her signal of distress, and at the time these men boarded, the vessel was 1 The Salacia, Garland, 2 Hagg. Ad. ^ The Marquia of Huntly, MoHsson, 262. 3 Hagg. Ad. 246. 624 SALVAGE. [chap. XIII. bumping on the sand, and the whole of the crew, except the master and lieutenant, had declared they would not stay by the ship all night. Forty tons of her cargo were thrown over- board, and the vessel was got off with the next tide, about six o'clock the same evening, and as pumping was all that she then needed, the salvors quitted her. In first attempting to board her, the men of the smacks encountered great peril, both boats and crews, from the surf and breakers ; a master and two men being actually drowned, several others having been rescued from the water, and three of the boats sunk. The ship being valued at 1500Z., and the government stores at nearly 5000L, the Court confirmed a tender of 400L for the ship, and awarded 900L in respect of the stores ; and of the whole 1300Z. gave 150L to each of the eight smacks, and lOOZ. to the representatives of those whose lives were lost, SOL for the master, and 251. each for the other two men. The costs were ordered to be borne pro raid in proportion to the property saved. The Albion. On the 14th of December, at four p.m.. The Harlequin, fishing smack, with a master and four men and three boys, while at sea off Brown Bank, forty-five miles from Lowestoff, discovered a dismasted vessel, about seven miles distant, the wind at the time W. by S. blowing heavily with squalls. The smack made the vessel by five o'clock, and not being able to board agreed to stay by her all night, both of them carrying lights. During the night it snowed heavily, and the vessel had drifted towards the coast of Holland, but at nine the next morning the smack had got her in tow. When the weather had moderated the day following, materials for a jury-mast and rigging were put on board by the smack, and at length, on the 19th, both got into Yarmouth harbour, the smack being much strained by the service, and in great peril whilst it continued. Sir John NichoU considering that a more complete rescue could hardly be described ; that it had been effected by great perseverance and skill, and had occupied five days ; and that if it had been a derelict, one-third at least would have been given ; awarded lOOOL and costs, the vessel being valued at 4600Z, and a tender made of no more than 400Z. That was apportioned as follows, viz., to the owner of The CHAP. Xril.] SERVICES AND EEWARD, 625 Harlequin, -^-'^ths, SSOl; the master, 230L; the mate, 120Z. ; three seamen, 901. each, 2701. ; and three boys, 101. each, QOV The Jane ^ while on her way from Berbice with a cargo of The Jane. West India produce, appears by the evidence to have encoun- tered gales on the 6th and 7th of December which dismasted her, broke in her bulwarks, carried away all means of making sail, and otherwise left her in a very helpless state. On the 8th she signalled to The Rover, an outward-bound South Sea whaler, the captain of which and four or five men volunteered to board her, and accordingly did so, with a very heavy gale and a tremendously high sea on at the time. The sea was then making a clean breach over her ; three or four of her crew were disabled from illness ; and the rest were very much fatigued and dispirited; and it may be collected that the master and crew were then thinking of abandoning the ship. The Rover staj^ed by her, lent assistance to rig a jury-mast and some sail, and as soon as the weather moderated, took her in tow, and brought her to Plymouth. The value of the ship and cargo being 7000Z. and a tender made of 500L with costs and expenses, the Court awarded in all 1 200L ; to the owners, 700L, in consideration of the interraption of the whaling adventure, inclusive of all repairs, risks, and expenses ; 200L to the master ; 1001. to his boat's crew of five men ; and to the remainder of the crew of The Rover, as their merit was of a more inactive kind, in consenting to the attempt and risking their common interest in the voyage, 2001., to be distributed according to their respective interests in the profits of the voyage. In the case of His Majesty's ship Thetis, with private h,M.S. Thetis, treasure on board to the amount of 810,000 dollars, which sunk, and soon after went to pieces on the rocks of Cape Frio Island, on the Brazihan coast, salvage services of extraordinary merit were attended with remarkable success, and met with a corresponding reward.^ It appears that the place in which the wreck sunk was a cove, enclosed on three sides by inaccessible > The Albion, Tumbull, 3 Hagg. Ad. •' The Thetis, 3 Hagg. Ad. 14, 39, 254. 63 ; on appeal, 2 Knapp, P. C. 390, 2 The Jane, Hudson, 2 Hagg. Ad. 410. 338. 8 S 626 SALVAGE. [chap. XIII. rocks, and that the water, varying from three fathoms to four- and-twenty in depth, covered a rocky bottom. To recover the treasure lost under these circumstances, after the hull of the ship had gone to pieces, ingenuity and skill extemporised a diving-bell apparatus, and a code of signals for working it, together with the means of safely launching it ; a net was made and sunk across the outlet of the cove; and a derrick for over- turning the rocks at the bottom was constructed and set up in spite of opposing difficulties. The exertions began about the 11th of December, and continued to the 27th of July following, during which time the bottom was thoroughly searched under the bell, all the rocks in the way of the investigation being turned over, and the expedition quitted the spot with -fg-ths of the property, amounting in value to 1.57,OOOZ. Captain Dickinson, the chief contriver and personal director of the salvage operations, received, throughout the operations, the sanction and assistance of Sir Thomas Baker, the admiral commanding on the station, and each of them urged strong claims to be considered principal salvor. The Court, upon a very full discussion of the merits of these two individuals, and after recognising, by special awards in particular cases, services that distinguished other persons among their compeers, directed the apportionment to be in the proportions settled by the then existing Order in Council relating to prize, namely, one-eighth to Admiral Baker, two-eighths to Captain Dickinson, and the remaining five-eighths among the other officers and seamen engaged. The sum finally given to the salvors was 29,00OL A further sum was allotted to the Admiralty for the pay and victualling of the officers and crew, and the tear and wear of His Majesty's ships,^ and this with the expenses incurred, and the money actually given to the salvors, made the total amount of salvage 54,000L Steamers. The effective service of steamers, and their greater compa- rative value, dispose the Court to take their claims for salvage, . when well founded, into very favourable consideration.^ Thus, 1 Such rights are now surreudored 3 Hagg. 401 ; The Eaikes, Gardener, 1 by the Admiralty, 17 & 18 Vict. c. 104, id. 246; The Meg Merrilies, 3 id. § 484 ; see ante, p. 615. 346 ; The Earl Grey, Topham, 3 id. • The London Merchant, Ijaker, 363 ; The Traveller, McClear, 3 id. 370. CHAP. Xni.] SERVICES AND REWARD. 627 M'here The London Merchant''- had got upon the rocks inside The London Holy Island, although the night was clear and the weather ^^"'^''''^■ moderate, jet the services of a steam tug from Berwick in getting her into deep water and towing her into port a distance of two miles, were remunerated with 400L The vessel saved in that case from considerable peril, had, in addition to a mis- cellaneous cargo of value, passengers on board to the number of twent3'--seven, a circumstance which, as the law then stood with regard to salvage of human life, induced the Court to be liberal in the sum it awarded.^ In cases of derelict, we are informed by Sir John Nicholl, l" cases of the old rule of the Court was to remunerate the salvors by specific proportions, seldom more than one-half, or less than one-third, of the property abandoned and restored. The rule in so far as it proceeded on fixed proportions, is now in disuse, but the award of the Court in such cases is very frequently still made with a reference to the former rule as a guide. ^ In the case on which these observations are founded, a vessel of S45 tons completely abandoned, and with only one mast stand- ing, was picked up in the Irish Channel by two pilots in a smack, with a crew of five men ; they were too weak to carry the vessel into harbour, and accepted assistance, with which thej'^ reached Milford. The Court awarded one moiety of the value of the ship as the entire salvage, and apportioned that sum of 800L ameng the salvors, in shares of four-eighths to the first smack as principal salvors, three-eighths to the second, and one-eighth to a ihiid smack, a gig, and two row-boats. The Blendenhall, transport ship, with government stores on Tlie ElendenhaU. board, was, in consequence of damage in tempestuous weather, abandoned by the officers and crew in the Bay of Biscay, and found by the post-office packet Eliza, the master of which put a crew on board, and both sailed for Falmouth. Thick weather, however, and tempest, separated the vessels, and the crew of the derelict finding neither chart nor log-glass on board, applied 1 The London Merchant, Laker, = Per Sir Jolon Nicholl, The Effort, 3 mipra. Hagg. Ad. 165, 167 ; jier Id., The Ewell, 2 Hid. ; The Ardinoaple, McLeod, Grove, 3 id. 209, 221. 8 Hagg. Ad. 151. S S 2 628 SALVAGE. [chap. XIII. to be accommodated with these articles from a British brig of war, the commander of which, instead of comptying with the request, dispossessed the original salvors, and took possession. The Court, after severely animadverting on this illegal pro- ceeding of the intruders, altogether rejected their claim as joint salvors, and decreed the officers and crew of The Eliza the sum of 7000L besides expenses, the total value of the property saved being 72,000^.^ L'Esperance. The ship L'Espemnce,^ from Dantzic to London, with a cargo of staves and deals, struck on a bank oif the English coast, and becoming water-logged, was abandoned by her master and crew in that condition. She was afterwards found at sea, with all her sails and most of her rigging cut away, and her rudder gone ; and the commander of L'Espiegle, sloop of war, sent a crew on board from the government transport which accompanied him. Through considerable danger, especially in passing the Goodwin Sands, the vessel was safely brought to Sheemess, and the Court awarded to the salvors one moiety of the full value, being more than 12,000L in all, in shares of three-fourths to the officers and crew of the sloop, and one- fourth to those of the transport. The Jubilee. A case of Salvage, every way as remarkable as that of The Thetis, is reported in respect of The Jubilee, sunk with a cargo of French brandy, at the end of November, 1824, in deep water in the Queen's Channel, near Margate Sand. Various unsuc- cessful attempts to raise the vessel were successively made by different sets of people in the course of the following eight months ; but on the 18th of August the principal claimants, with a specific plan of operations, a ship purchased and machinery expressly made for the purpose, proceeded to the spot where she lay docked in ten feet of sand. From that time till the 20th of January they continued their labours, when the hull being a second time afloat finally went to pieces, but cargo had been recovered by themselves to the value of 10,252Z. duty unpaid, and by chance finders to the amount of 4100i. additional. " The merits of this case," said Lord Stowell, " are certainly of a very peculiar kind. There was constant Th3 Blendenhall, Barr, 1 Dods. Ad. 414. ^ L'Esperance, 1 Dods. Ad. 46. CHAP. Xlir.J SERVICES AND llEWARD. 629 attention, risk, ready invention, and a mechanical apparatus, contrived in a very elaborate and highly creditable way. If a person were to sit down and fancy a case of high salvage merit, he could not easily surpass the present case in all its ingre- dients." The Court ultimately directed the expenses and charges, claimed by the salvors, to be taxed, and ordered in addition thereto, a salvage of 9000L, out of which they were to pay the chance finders one-fifth of the value of the goods brought in by them.^ The Watt was found, abandoned by her own crew, with four The Watt. or five feet of water in the hold, and was boarded by C. and six seamen, who with great gallantry persevered through five or six weeks, and brought her to land, finally running the vessel ashore at Eastbourne, in consequence of the wind and weather. She was there unloaded by men hired by W., and at length carried into Portsmouth by a steamer. The Court without any difficulty awarded a moiety of the ship's value to the salvors, subject to a further question as to what deductions, if any, should be made from the amount. These deductions were settled to be 250Z. for the steamer that took the ship to Ports- mouth ; lOlL expenses incurred ; the disbursements of W., if any : and for W.'s superintendence, as he was not a salvor, one guinea and a half a daj^. The sum of these various amounts being taken from the full value of the ship, a moiety was given as salvage, three-fourths of it to the seven men on board the derelict, C. to have a double share, and the remaining one- fourth to the ship which had supplied the derelict with salvors, half to the owners and half to the rest of the crew.^ The Caroline, with a valuable cargo, from Liverpool to the The Caroline. Cape of Grood Hope, struck upon a sand to the east of Wicklow Head, and was abandoned by the master and crew in a sinking condition. She was discovered next morning drifting in the Irish Channel, by a small schooner of 74 tons and six of a crew on her way to Terceira. There was then water to the depth of two or three feet in the hold, but with three men on board and the other vessel alongside, she was brought into Holyhead, still worth 15,000/., ship and cargo. The Court 1 The Jubilee, 3 Hagg. Ad. 43, note. ^ The Watt, 2 W. Rob. Ad. 70. 630 SALVAGE. [chap. XHI. awarded a salvage of 1800Z. ; QOOl. of that to go to the owners of the schooner for risk and loss of freight ; 4001. to the master; 2501. to the mate, and the remainder amongst the four seamen. The Two Friends. A singular reduction of the amount of salvage was occasioned hy the pecuHar circumstances of the case of The Two Friends. She had been abandoned on a dangerous reef of rocks, 29 miles from Cuba, and was found by the crew of The John Blake, after having been obliged to abandon their own vessel under similar circumstances in the same neighbourhood. They got her off by taking out part of the cargo, and sailed in her to England, saving thereby property to the value of 1237Z. Benefit was here received as well as rendered, and the- Court in consideration of that awarded only 350Z. to the actual salvors and their costs, rejecting any claim on the part of the owners of The John Blake.^ Eight of Pro- Derelict, as a term, describes the condition of the goods or perty m Derelict. . . ° . vessel, but designates no right of property acquired therein by the finder. It is true that property may be acquired by occupancy, but to whom ? By. the law of nature, to the indi- vidual finder or occupant; but in a state of civil society, not necessarily to him ; for the positive regulations of the State may, for reasons of public peace and policy, have appropriated it to other persons, for instance, to the State itself, or its grantees. "I consider it to be," says Lord Stowell,^ "the general rule of civilised countries, that what is found derelict on the seas, is acquired beneficially for the Sovereign, if no owner shall appear. Selden lays it down as a right annexed to sovereignty, and acknowledged among all nations ancient and modern.^ 1 The Two Friends, 8 Jur. 1011. he traces from a Ehodian origin down 2 Per Lord Stowell, The Aquila, through complures principes to the Lunsden, 1 C. Eob. Ad. 37, 41. English, Armorioans, Sicilians, and the 3 This is not quite an accurate re- Italian States.— Selden, Mare Clausum, presentation of Selden, who expressly lib. 1, c. 24 ; — Opera, vol. 2, 1265. As states, almost as his main proposition, to the civil law, see Cod. 11. 5. fr. 1 & that hy the Justinian law (and also as 3 de Navfragiis ; in some recensions established in practice in the German of the text it appears as title 6 ; Dig. Empire) the property vested in the 47. 9. 7; and as to the doctrine of finder, the public treasury never inter- occupancy, see Dig. 41. 2. posing ; and this claim of the State .CHAP. XIII.J SERVICES AND REWARD. 631 Loccenius mentions it as an incontestable right of sovereignty in the North of Europe.^ Valin** ascribes the same right to the crown of France ; and speaking of the rule in France, that a third shaU be given to salvors in cases of shipwreck, expressly applies the same rule to derelicts, as standing on the same footing. In England this right is as firmly established as any one prerogative of the Crown." In point of right there is, therefore, no distinction to the finder between salvage and derelict; he is entitled in both cases to a reward, but in the latter perhaps on a more liberal scale. In the case of The Aquila, as nothing satisfactory could be learned concerning the cargo from papers on board, and it was suspected that it had belonged to an enemy, the proceed- ings in the Admiralty Court took the form of a prize suit, so as to secure title at all hazards to the purchaser.^ Transhipment of the cargo, although partaking under In cases of ton- ordinary circumstances of the nature of affreightment, may be effected under the pressure of such danger as to entitle the officers and crew of the receiving ship to be regarded in the light of salvors. On the 28th of January, The Phenomene, fi-'om Batavia to Rotterdam, discovered The Columbia under a The Columtia. flag of distress, rolling excessively and ungovernable, without a rudder, and with the sea occasionally making a clean breach over her. The rudder had been carried away on the 21st, the crew had been unable to replace it, and through work at the pumps they were all exhausted, eight of them being disabled by sick- ness. The crew abandoned her for The Phenomene, and took with them property to the value of 10,000L The Court under these circumstances ordered the costs and expenses to be deducted, and the remainder to be divided in moieties between the salvors and the owners of the property.* "I apprehend," says Dr. Lushington, "that where a cargo Principle in . cases of tranship- becomes in any degree of danger, the duty ot transhipment, ment. however strongly it may be imposed upon the owners of the carrying ship, cannot at all affect the interests of others who may be concerned in the preservation of the cargo. Looking 1 Loocenius, lib. 1, c. 7, § 10. Ad. 37, 41. 2 2 Valin, 623, 635. ^ The Columbia, Thornton, 8 Hagg. 3 The Aqiiila, Lunsden,- 1 C. Eob. Ad. 428. 632 SALVAGE. [chap. xm. The West- minster. Whether it be ge, quaere. The City of Edinburgh. to the facts of this case, I am of opinion, that whatever may be the nature of the service which has been rendered in other respects, it is to be considered as a salvage service, and for this reason, that the vessel was grounded on the rocks, and the cargo itself was in danger. The degree of the danger is im- material in considering the nature of the service. If the cargo at all required assistance to remove it into a place of safety, the service then assumes the character of a salvage service." The case out of which these observations arose, was that of The Westminster, with a very valuable cargo of tea which went ashore on the rocks in Palm Bay, to the eastward of Margate. Three steamers of large size were engaged by the master to tranship the cargo, for remuneration " according to the services rendered and the risk encountered;" and the Court estimating the tea and freight saved at 24,000L, and considering that the steamers engaged exceeded 30,000L in value, with fifty-eight men on board, ordered a salvage of 1500L^ At the same time, in this case, as in that of all services which are susceptible of a double construction, either as being the exertions of volunteer adventurers, or merely the per- formance of legal obligations, there is a wakeful jealousy in scrutinising the evidence, lest undue advantage be obtained under improper representations.^ It is for the claimants to prove their capacity to volunteer as salvors, and also the actual services in that capacity for which they are to be rewarded. Certainly, it is not enough that the ship required such assistance as they claim for, if in the hour of necessity, that was denied her. The City of Edinburgh steamer, valued with her cargo at 33,000L, lay off Blakeney, in the county of Norfolk, with a signal of distress at her mast-head during the 13th and 14th of January, and all that time no boat came off to her, or even made the attempt ; but on the 15th, when the storm had moderated, and the wind was fair for the harbour, twenty-five boatmen boarded and took her into the port, for which service the Court, rejecting the claim for salvage, allowed them 151. in the name of pilotage.^ 1 The Westminster, 2 W. Eob. Ad. 229, 231, 234. 2 Pct- Sir John NiohoU, The Hope, Norman, 3 Hagg. Ad. 423, 424 ; and see ante, pp. 609, 610. 3 The City of Edinburgh, Frazer, 2 Hagg. 337. CHAP. XIII.] THE salvor's kemedy. 633 The remedy of the salvor for the remuneration of his services the eejikdy of is primarily his lien at common law that sanctions the deten- tion of the property till payment is made. This is an offshoot Lien at Common cultivated by civil society from that right of acquisition by occupancy which exists by the law of nature. " A person," says Mr. Abbott,^ " who by his own labour preserves goods, which the owner or those entrusted with the care of them, have either 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." ^ So, the Merchant Shipping Act, as to salvage in the United Statutory Lien. Kingdom, empowers the receiver of wreck to detain the ship, boat, cargo, or apparel respectively, till payment is made, or arrest issues ; unless, in the meantime, security is given, with power in that case, when the amount exceeds 200L, to refer any question, as to the amount of security, to the Court of Admiralty in England or Ireland, or Court of Session in Scotland, and in the same courts to litigate afterwards any difference as to the right of the claimants to salvage.^ The Law Maritime also gives him a lien for his remunera- Lien by Law Maritime, tion,* and therewith a remedy that better serves the convenience and interests of commerce. The lien at common law is dependent on continuing possession. A lien by the law mari- time is indefeasible by change of possession or even by transfer of property.^ It is enforceable at a subsequent period when the ship has performed her voyage and returned within the jurisdiction of the Court of Admiralty; and if circumstances justify it, that court wUl allow of a monition against the owners personally whilst the vessel still continues abroad.^ Delay in the prosecution of claims is foreign to the course and poHcy of 1 Abbott on Shipping, 4th ed. 407. B. & Aid. 196, 203, n. 2 Hartfort v. Jones, 1 Lord Eaym. ^ Eiohardson i). Campbell, 5 B. & Aid. 393 ; Baring v. Day, 8 East, 57. 196, 203 n. ; Harmer v. Bell, 7 Moore, 3 17 & 18 Vict. c. 104, § 468. P. C. 267. * Per Sir C. Robinson, The Thetis, 3 ^ The Hope, Horncastle, 3 C. Eob. Hagg. Ad. 14, 48 ; per Lord Stowell, Ad. 215 ; The Meg Merrilies, 3 Hagg. The °Neptune, Clark, 1 Hagg. Ad. 346 ; The Rapid, Cochrane, 3 id. 419, 227, 236 ; Richardson -o. Campbell, 5 422. 634 SALVAGE. [chap. xm. Discharge from Arrest "by Bail, payment into Court, or statu- tory agreement and security. Limits to the jurisdiction of the Admiralty Division. that jurisdiction. Detainer of the ship in the first instance by the salvor beyond what is barely needful for security, is as abhorrent to the court as it is inconvenient to commerce. Yet in the absence of malice or of crassa negligentia, the court will not award demurrage or damages in the nature of it.^ By undue delay, as by improper detention, the salvor, we have already seen, may forego his remedy and even forfeit his rights.^ The ship or cargo may be discharged from arrest in a salvage suit upon bail to the requisite amount being given, or money in lieu thereof paid into Court.^ But before suit entered, it is now competent to the master, in case the salvors agree to abandon their lien on the ship, cargo, and property alleged to be saved, to enter into a written agreement, attested by two witnesses, to abide the decision of the Court of Admiralty or any vice-admiralty court, and to give security in that behalf to any amount agreed on. This security is by statute binding on the ship, cargo, and freight, and their respective owners, their heirs and representatives, for the salvage to be afterwards adjudged payable.* The ancient limits to this jurisdiction have been removed. New limits have been imposed. In both changes the Legislature have proceeded with a view to the convenience and interests of the suitors. The right of suing in the Court of Admiralty is no longer dependent on the circumstances of the salvage services having been rendered on the high seas. Claims may now be there entertained, "whether the ship was at the time upon the high seas, or within the body of a county." ^ But it is not now a court of the first instance for claims of small • The Strathnaver, 1 App. Gas. 58, 67 ; The Evangelismos, ibid. 2 Ante, pp. 617, 618. 3 Where bail was given for a ship and freight, the ship having been arrested after the cargo was out, the owners were ordered to bring in an account of the freight on oath, and to declare the names of the parties by whom it was paid ; The Peace, 1 Swab. 85. 4 17 & 18 Vict. c. 104, § 497. The salvors and the master respectively are thereupon required to make the statu- tory statements particularised in § 486, only that in this case they need not be on oath ; and the salvors are as soon as possible to transmit the agreement and statements to the Admiralty Court, which is to adjudicate upon the case ; ibid. § 497. 5 3 & 4 Vict. c. 65, § 6 ; 17 & 18 Vict. c. 104, § 460, 476. CHAP, xiii.] THE salvor's remedy. 635 amount or affecting property not exceeding the value of lOOOL And the concurrent jurisdiction of the authorities within the Cinque Ports over claims arising within their limits is re- cognised and stiU preserved.^ Upon questions of salvage arising within the Cinque Ports, Cinque Ports. " commissioners appointed by the Lord Warden, consisting of three or more substantial persons in each of the Cinque Ports, Two Ancient Towns and their Members," ^ are required and empowered to adjudicate, any three or more of them, within their own district, and within twenty-four hours of the matter being referred to them. An appeal from their award lies either to the Admiralty Court of the Cinque Ports, or to the Court of Admiralty for England, provided notice of such intention is given within eight days from the date of the award, and proceedings be commenced within twenty days from the same time ; and the sentence of either Court thereon is final and conclusive.^ Salvage cases arising elsewhere within or beji^ond the limits Elsewhere in the of the United Kingdom, in which the claims do not exceed the sum of 2001., or the value of the property saved does not exceed lOOOZ., are, in case of dispute, to be referred to two justices of the peace (or one stipendiary magistrate) residing near where the wreck is found, or the ship or boat may be lying, or be first brought to shore.* Thej^ may appoint an umpire or call in any person conversant with maritime affairs, as assessor ; and the question is to be decided by them within forty-eight hours after it is referred, or by the umpire within forty-eight hours after his appointment, unless they or he respectively by writing extend the time.^ They may call for documents in the course of the inquiry, and take evidence upon oath.^ An appeal, in case the sum in dispute exceeds 501., lies from ' 17 & 18 Vict. o. 104, § 4G0. The diction are exactly defined in the 1 &2 Maria Luisa, 2 Jur. N". S. 264 ; The Geo. 4,'c. 76, § 18. See 4 Inst. 222. Leda, 2 id. 119 ; The Actif, 3 Jur. N. S. ^ 1 & 2 Geo. 4, c. 76, § 1,, 4, 5. 893. ■* 17 & 18 Vict. c. 104, § 450 .; 25 & 2 The Cinque Ports are Dover, Sand- 26 Vict. c. 63, § 49. wich, Romney, Hastings, and liythe ; ^ i7 & 18 Vict. c. 104, § 461. and the two ancient towns are Winchel- ^ Ibid. % i6'd. sea and Eye. The limits of this juris- 636 SALVAGE. [chap. xin. County Courts. The Sum awarded, how obtained. their award to the Court of Admiralty of England or Ireland, or to the Court of Session in Scotland, according as the claim originates in one country or the other. But such appeal is not allowed unless notice of the intention to appeal be given to the justices within ten days from the date of the award, and proceedings be commenced within twenty days from the same time.^ Claims that exceed 200L in amount may, with the consent of the parties interested therein, be referred to the same justices;^ and with the same right of appeal as in other cases.'' But if the parties proceed in the first instance in the superior court, and do not recover a greater sum than 200Z., costs are not allowed unless under certificate of the court that the cause was fit to be tried before it.* By the Act, 31 & 32 Vict. c. 71, conferring Admiralty juris- diction on certain county courts, these courts have jurisdiction, § 3, over claims for salvage, where the value of the property saved does not exceed lOOOZ., or the amount claimed does not exceed 300L, with power to proceed in such causes either iii rem or in personam,^ and liability of the party who notwith- standing proceeds in the Admiralty Court with such a cause, in case the property saved does not exceed lOOOZ., or the sum recovered does not exceed 300Z., not only to be deprived of costs, but to be required to pay costs ; unless the judge shall certify that it was proper to have been heard before him.^ The sum awarded as salvage may be realised in invitum by sale of the property under a decree of the court, or by the receiver under authority of the Act of Parliament. The statutory authority to sell arises after the expiration of twenty days — first, from the time when payment of undisputed salvage is due ; secondly, from the time of a decision without right of appeal ; or thirdly, from the time of a decision with right of 1 17 & 18 Vict. c. 104, § 464. 3 Ibid. § 460. 3 Ibid. § 464. * Ibid. § 460. Questions of agree- ment or charges of misconduct brought against the salvors wiU be ground for the Court to certify for costs under this section ; The Fenix, 1 Swab. Ad. 13. « 32 & 33 Vict. c. 51, § 3. 6 31 & 32 Vict. c. 71, § 9. CHAP. XIII.] THE salvor's REMEDY. 637 appeal, when proceedings have not meanwhile been taken for that purpose.^ In case of dispute among the salvors as to the apportionment How appor- of the sum awarded by the justices, or agreed on by the parties, when it does not exceed 200L, the receiver of wrecks has authority to receive the amount and give a final discharge for it, and proceed to apportion and distribute the same as shall seem right upon the evidence ; such apportionment being con- clusive against the rights of all claimants.^ "When it exceeds 200?., the parties may proceed for the purpose of apportionment in the superior court. ^ In case of salvage services to any ship being rendered bj'' in case of Salvage any of Her Majesty's ships anywhere out of the United Kingdom and the four seas adjoining thereto, the British consular officer or judge of the vice-admiralty court at the port they carry the salved vessel to is, upon written statements verified by oath on both sides, to fix the amount of the security ; and the bond signed by the master for that amount entitles him to delivery of the ship, and binds the owners of ship, freight, and cargo, and their heirs and representatives re- - spectively, for the salvage payable.* But in case the owners are not domiciled within Her Majesty's dominions, such further security for the salvage as the judge or consular officer thinks requisite shall be deposited with him, or with him and some other person, in order to the delivery up of the ship.^ The Coui-t of Admiralty, or any vice-admiralty court, named and agreed on by the parties, is empowered to adjudi- cate on the claim, and to enforce the bond so given, anywhere in Her Majesty's dominions, the courts with admiralty juris- diction in Scotland, Ireland, and the Channel Islands, including Man, to be aiding therein, and the persons with whom security is deposited for the same, are to deal therewith as the court directs.^ 1 17 & 18 Vict. c. 104, § 469. ■* Ibid. § 486, 487, 488, 491. As to 2 Hid. § 466, 467. The instmctions the particulars required in such state- issued by the Board of Trade for the ments, see § 486, post, in the Ap- guidance of those required to make pendix. such apportionment and distribution, ' IMd. § 489. are given in the Appendix. " 17 & 18 Vict. c. 104, § 492, 493. 3 17 & 18 Vict. 0. 104, § 498. 638 SALVAGE. [chap. XIII. Any such salvor, not electing to proceed under the Merchant Shipping Act, may proceed otherwise for the enforcement of his claims, but he has no power in that case to detain the ship, cargo, or property.^ But without the consent of the Board of Admiralty, signified under the hand of the Secretary, no claim to salvage by any of Her Majesty's ships can be prosecuted to final adjudication; and it is for the claimant to prove such consent, or pay all the costs of the proceeding ; any document however, purporting to give consent, and to be so signed, is prima facie evidence of the consent required.^ Military Sal- TAOE. Who may be Salvors, and by what services. Military salvage, difi'ering from that which has been con- sidered, chiefly in the description of dangers braved, and the means of successful delivery, without any variance of legal principles, may be dismissed in a few words. Although services of this nature are usually expected from the ships of the Eoyal Navy, no legal incompetency debars others, and letters of marque or any licence are quite un- necessary.'' Additional force may acquire the right of joint salvors without ever coming into action, if their mere presence has had the effect of scaring the enemy ; * but this does not extend to a privateer claiming to share with a Queen's ship, unless the privateer chase ; ' nor even to a Queen's ship when on a directly opposite course, or becalmed, or in some other condition that counteracts her influence at the time.^ If the vessel rescued be a hired government transport, no salvage is due to a ship of the Eoyal Navy, since the salvors and salved are regarded as joint combatants in the same battle.'' Nor 1 17 & 18 Vict. c. 104, § iU. 2 Ibid. § 485. The term H. M. Ships, does not include a Board of Trade vessel retained at Ramsgate, The Cybele, 3 Prob. Div. 8 ; but does cover a dispatch boat, in the employ- merit of the Bombay Government, Cargo ex Woosung, H L. J. (Ad.) 45. 3 I'he Helen, Marshall, 3 C. Eob. Ad. 224, 228 ; The Urania, Walker, 5 C!. Kob. Ad. 148 ; The Progress, Barker, Edw. Ad. 210, 214. * The AVanstead, Morton, Edw. Ad. 268 ; The Sparkler, Brown, 1 Dods. 360. * The Wanstead, Morton, siipra. " The Sparkler, Brown, 1 Dods. Ad. 360, 361 ; The Dorothy Foster, Sowden, 6 C. Kob. Ad. 88. ' The Belle, Betts, Edw. Ad. 66. CHAP. Xin.] THE salvor's REMEDY. 639 does any one acquire a title -to reward by recapturing a neutral, his delivery in due course of law being presumed a certainty.^ The rights of the captor in these and other cases are usually Rights of Salvors. governed in this country by a special Act of Parliament passed at the beginning of the war, and by a general Order in Council regulating the apportionment of the money among the officers and crew.^ Although mention is made by these of the ship, boats, and goods only, freight also, if being earned at the time, is included in the value subject to the claims of salvage. If the vessel be cut out of port before the voyage commenced, the salvor has no claim on freight, though it is afterwards earned ; but if freight was in the course of being earned at the time of capture, and the voyage is accomplished afterwards, the Court will then award salvage on freight, not merely pro rata itineris but for the whole voyage.^ The reward of war salvage is usually fixed at a low rate ; if Reward of • ■11 -1 IT • n T • 1 T ■ Salvors. Civil salvage is also rendered, remuneration for that m addition to the other will be awarded, although the salvors belong to ships of the Eoyal Navy.* Here is the proper place to notice the decision of the House Recovery of Sal- of Lords in Lohre v. Aitchison ^ determining for the first time Sue and Labour in this country that salvage is not recoverable from the insurer -p^^^y ° ^ under the Sue and Labour Clause of the Lloyd's policy. Not that salvage is not recoverable against the insurer as a conse- quential loss due to the perils insured against, in so far, that is, as the amount insured, the 100 per cent, of the policy is not exhausted by the damage directly done by perils to the subject of insurance. But when this amount is exhausted ; or, when by the wording of the policy; or in consequence of the nature of the 1 The War Onskan, Biedumpel, 2 0. 4 0. Rob. Ad. 156. Rob. Ad. 299 ; The Oharlotta, Pasqual, ^ See 45 Geo. 3, c. 72 ; 17 & 18 Vict. 5 id. 54 ; The Jonge, Lambert, itid. c. 19. note. The conduct of the enemy, how- ^ Per Lord Stowell, The Dorotliy ever, during the great French war, in Foster, Sowden, 6 0. Bob. Ad. 88 ; The making lawless captures, changed the Progress, Barker, Edw. Ad. 210, 223. presumption, and induced the English ^ The Sir B'rancis Burton, Hare, 2 Court of Admiralty to award salvage. Hagg. Ad. 157 ; The Louisa, Higgin- See 2 C. Rob. Ad. 375, Appendix ; botham, 1 Dods. Ad. 317 ; The Lustre, The Huntress, Stinson, 6 0. Bob. Ad. Finlay, 3 Hagg. Ad. 155. 104 ; The Eleonora Catharina, Kreagh, = i App. Gas. 755. 640 SALVAGE. [chap. xiir. interest of the assured in the subject of insurance, as in the case of the Egyptian obelisk ; nothing can be recovered for salvage, if not under the Sue and Labour Clause, — in such a case it is held that no title to salvage is conferred by that clause. I have offered reasons on a subsequent page ^ for thinking that this judgment of the House of Lords is entirely erroneous. Wreck. AT COMMON LAW. Derelict. Becomes ■wreck, when. Wreck of the sea was, by presumption of the ancient common law, the property of no one, and belonged therefore prima facie to the Crown.^ The harsh operation of such a law, probably as harshly enforced by the early Norman sovereigns, produced one of those subtle refinements of the monkish lawyers, which in better times, when the oppression that justified them is abolished, have a merely childish and ludicrous air. If any live thing (by the statute of Westminster the First,^ " man, dog, or cat ") escaped to land from the ship, the presumption was changed, and the wreck was preserved for a year and a daj', that the owner might assert and prove his claim to possession. Derelict of the sea, comprehending the flotsam, jetsam, and ligan of the early English lawyers,* is not within the cognisance of the common law, and therefore, at first sight, beyond the prerogative of the Crown. But in its office of Admiralty, asserting jurisdiction over the sea, it claimed derelict as its droit, if no one appeared within a year and a day and made a better title. ^ Derelict becomes wreck of the sea when it is cast by the sea upon the land. But here the grantees of the Crown in ' Post, p. 644, in an Appendix to this chapter. 2 See the common law on this subject, very fully set out in Constable's case, 5 Go. Kep. 106 a, and see the learned judge's commentary on the Statute of Westminster, 2 Inst. 167. ^ Stat, of West. i. u. 4, which in the absence of any strong argument, may be received as only a declaration of what was law before it. Lord Coke, however, seems to have had opponents who were of a different opinion, and who could hardly have known how much the jurists of those times quibbled to ameliorate the law without endan- gering their own security. See the 17 Edw. 2, u. 11. * As to these terms, see 5 Co. Rep. 106 i,post,Tp. 641. * Seepe?' Lord Stowell, The Aquila, ante, p. 630 ; and per Sir John NichoU, The King v. Forty-nine Casks of Brandy, 3 Hagg. Ad. 257, 270 ; The King v. Two Casks of Tallow, B id. 294, 298. CHAP. Xm.J WRECK. 641 the exercise of its regal prerogative, claiming wreck, came Conflict of into conflict with the sovereign and his rights as Admiral with '^ ^' respect to property between low and high water mark. It was, therefore, determined at common law that "below the low- water mark the Admiral has the sole and absolute jurisdiction ; but between high-water mark and low-water mark, the common law and the Admiral have divisum imperium interchangeabty — scilicet, one super aqiiam, and the other super terram." Goods therefore, when stranded at low-water become wreck, which were derelict ov flotsam while they floated over the same spot at high-water.^ Contrary to these various rights as ascertained by law, the Wreckers, peojple in many of the coast districts persisted in usurping a right of property by occupancy, often with such resolute cruelty to distressed mariners, that the repression of such practices has continued to be an object of legislation from the earliest periods of our history.^ Wreck, within the meaning of the Merchant Shipping Act, wreck within includes Jetsam, Flotsam, Lagan, and Derelict, found in or on the shoi'es of the sea, or any tidal water.^ " Flotsavi," says Lord Coke, " is when a ship is sunk, or otherwise perished, and the goods float on the sea ; jetsayn is when the ship is in danger of being sunk, and to lighten the ship the goods are cast into the sea, and afterwards notwithstanding the ship perish. Lagan {vel potius ligan) is when the goods are so cast into the sea, and afterwards the ship perishes, and such goods cast are so heavy that they sink to the bottom, and the mariners to the intent to have them again, tie to them ' Constable's case, 5 Co. Rep. 106 a, v. Two Casks of Tallow, 3 Hagg. Ad. 107 a; per Sir John NichoU, " If the 294, 298. article be floating, it belongs to the ^ 13 Bdw. 1, c. 4 ; 4 Bdw. 1, st. 2 sea ; it is not mreocum maris, 'but flot- 27 Bdw. 3, st. 2, c. 13 ; 8 Eliz. c. 13 sam; if it become fixed to the land, 12 Anne, st. 2, c. 18 ; 4 Geo. 1, c. 12 though there maybe some tide remain- 11 Geo. 1, c. 29, § 6 ; 26 Geo. 2, i;. 19 ing around it, it may be considered as 43 Geo. 3, c. 113 ; 49 Geo. 3, c. 122 wreccwin maris; but it having merely 7 & 8 Geo. 4, c. 29, § 17-20 ; 7 & 8 touched the ground and being again Geo. 4, c. 30, § 5-11. floating about, its character will depend ^ 17 & 18 Vict. c. 104, § 2, " inter- upon its state at the time it was seized pretation of terms." and secured into possession ; " The King T T 642 WRECK. [chap. xiir. EeceiTers of Wreck. Finders of Wreck. Powers for se- curing Wreck. Power for ren- dering assistance to Ships in dis- tress. a buoy, or cork, or such otter thing that will not sink, so that they may find them again." ^ By the Merchant Shipping Act receivers of wreck are appointed throughout the United Kingdom as the persons who are to take possession of all wreck, and give due notice thereof at the nearest custom-house, and also if it exceed the ■ value of 201. to the secretary of Lloyd's, and in all cases to any one entitled as of right to unclaimed wreck within the district.^ There is power to sell it if perishable, or if of so little value as not to bear the expense of warehousing ; but in other cases, after keeping unclaimed wreck for a year, they are to deliver it over to, any one entitled of right to such unclaimed wreck, or otherwise to sell the same and pay the surplus after expenses, into Her Majesty's exchequer.^ All persons finding wreck are to give notice of the same immediately to the receiver of wreck, under penalty for default in case such finder is the owner, of lOOL ; and if he is not owner of the wreck, under pain of forfeiting all claim to salvage, paying double value to the person entitled to such wreck, and also a penalty of lOOZ.* Persons finding a laden barge floating about on the Thames with no one on board and restoring it to the owners are not within this section and consequently not deprived of their right to salvage.^ The receiver may, under warrant of a, justice of the peace, search for; and seize concealed wreck ; any article of wreck im- properly in the possession of any one, he may take from him by force ; and any attempt to plunder wreck, or to raise disorder, or riot, in case of shipwreck on the coast, may be suppressed by him with force, being indemnified and kept harmless notwith- standing any hurt, maim, or loss of life sustained in consequence of any orders from him in the lawful execution of his duties.^ Ample and salutary powers are conferred on him to impress men and means for giving effective and immediate assistance to vessels in distress, with a view to saving life and property theirefrom.'' 1 5 Co. Eep. 106 b. 2 17 & 18 Vict.c. 104, § 439, 440, 443, 452, 45i. 3 IhU. § 453, 471, 475. 1 Ibid. § 450. 444, The Zeta, L. E. 4 Ad. 460. 17 & 18 Vict. c. 104, § 451, 443, ? 2bid. § 441, 442, 446-448. CHAP, xni.] WRECK. 643 In such a case, if property is plundered, damaged, or Compensation to destroyed by persons riotously and tumultuously assembled plundered ot""'' together, on shore or afloat, provision is made for the owner Deck loads of heavy timlber are in Milward v. Hibbert, 3 Q. B. 120. prohibited between 31st October and 2 Da Costa i). Edmund, 4 Camp. 16th April, and of light timber over a 142. This, however, was not a case of certain specified quantity, except it general average ; but it shows how be kept on deck in consequence of English judges have dealt with the springing a leak ; 39 & 40 Yict. c. 80 practice of carrying goods on deck, § 24. vrhen there is no absolute law to the * Harley v. Milward, 1 Jones & contrary of usage. Carey, 224. » Gould D. Oliver, 4 Bing. N. 0. « Milward d. Hibbert, 3 Q. B. 120. 134. CHAP. XIV.] GENERAL AVERAGE LOSS. 667 The received opinion, therefore, now is, that by the law of this country the jettison of deck-cargo gives no claim to general average contribution, unless such mode of carriage is justified and sustained by a usage of the trade. Even this however admits of being further modified, for in one case evidence of a custom that the deck load of timber was so carried at the shipowner's risk was admitted, and the custom upon the finding of the jury, held good.^ This is not unlOte the custom of Liverpool proved in another case that the under- writer should not be liable for it if lost.^ Still, if the charter-party in terms contemplate the loading of cargo on deck, the presumption at least is, that as between the parties to the contract, it is so carried subject to the law of general average.^ How far others who have goods in the same adventure may be liable to contribute to the loss of goods from the deck, is a question that can hardly be determined by evidence of mere consent to the loading of a deck cargo ; since a contract or a custom of a nature which is tantamount to a contract to contribute in such a case would seem to be in- dispensable. The average adjusters, curious occasionally in their nice distinctions, call this, says Mr. Lowndes, a general contribution as distinguished from general average ; and while they apply it in the case of timber, they discard it in respect of cotton or tallow.* By the French law,^ goods so carried, give no claim to con- French Law. tribution though jettisoned ; and are not exempt from liability to contribute if preserved ; the merchant being left to his remedy against the captain.^ Yet absolute as are the terms of the law, the Admiralty Court of Eochelle appear by Valin 1 to have conceded the right to contribution on proof of established usage so to carry. This rule of the French Ordinance and Code is copied from Foreign Ordi- nances. 1 Gould V. Oliver, 2 M. & Gr. 208. ° The master is forbidden to carry 2 Miller v. Titherington, 30 L. J. deck-load on pain of being answerable (Ex.) 217 ; 31 L. J. (Ex.) 363. to the merchant for loss or damage. 3 Per Willes, J., Johnson v. Chap- Ord. liv. 2, t. 1, art. 12 — 4 Pardess. man, 85 L. J. (C. P.) 23. 347 ; Code de Com. art. 229 ; Conso- " Lowndes, Gen. Av. 43, 45. lato, c. 141—2 Pardess. 155. ° Ord. liv. 3, t. 8, art. 13 — 4 Pardess. ' 2 Valin, 203, in loo.; but see 1 383 ; Code de Com. art. 421. Bmerigon, 623. 668 GENERAL AVERAGE. [CHAP. XIV. the Consolato ; ^ a similar provision is to be found in the Ordinance of Hamburg ; ^ and the Ordinance of Konigsberg,^ and of Bilboa,* are to the same effect. American Law. In the United States of America, the rule against contri- bution for jettison of deck-cargo is strictly applied to all cases without any exception in favour of local or trade usage. The case of Lenox v. The United Insurance Company,^ was an action against the underwriters upon goods partly shipped on deck and partly below, for loss sustained by the deck-lading having been thrown overboard for the common safety. The Court (Chancellor Kent being Chief Justice at the time), said, " The policy in this case expressly covers the lading on deck, which would not otherwise be included in a general insurance on goods. The defendants are therefore liable ; but whether for a partial loss, or a general average, depends on the propriety of charging as general average a loss of the lading on deck. This, we think, ought not to be done. An insurance does not reach goods on deck unless expressly mentioned. They are not considered as part of the cargo in which the other shippers are interested. The owners of the cargo under cover ought not therefore to contribute to the jettison of goods on deck. The plaintiff is therefore entitled only to a partial loss." In Smith V. Wright,^ and Bodge v. Bartol,'' the shipowners being defendants, who carried the deck-lading for half freight, the same rule was applied. But the question of usage which had not been raised in any of these cases, was in the amplest way averred and admitted on the record, in Cram v. Aiken,^ which was an action for general average contribution on jettison of deck-cargo against the shipowners who moreover had received fuU freight for the deck-lading; and there, although the exception mentioned by Valin in favour of established usage was noticed, and notwithstanding the existence of usage to the 1 Consolato, o. 141—2 Pardess. 155. C. 178, 179. 3 Ord. Hamburg, ait. 8—2 Magens, « Smith v. Wright, 1 Gaines (New 240. York) Rep. 43. 3 Ord. Konigsberg, art. 29—2 Ma- ? Dodge v. Bartol, 5 Greenleaf, Eep. gens, 206. 386. ' Ord. Bilboa, art. 29—2 Magens, » Cram v. Aiken, 13 Maine. Rep. 229 402. (the same volume is cited as 1 Shepley's 6 Lenox v. United Ins. Co., 3 Johns. Rep.). CHAP. XIV.] GENERAL AVEEAGE LOSS. 669 knowledge of both parties in the case under consideration, judgment was given for the defendant, the Court stating, that by applj'ing the strict rule and admitting no exception they Avould consult the interests of commerce and maintain the simplicity and certainty of the law. Apart from positive law, this exception to deck-lading seems not unreasonable when the practice is regarded as a temptation to surcharge the vessel, at the risk and cost of the other freighters ; and notwithstanding the observations of Lord Denman to the contrary,^ we think with Valin, that such encumbrances on deck operating as obstructions to the simultaneous handling of the ship at a time of growing peril are not only a provocation to a hasty clearance overboard, but positively create the occasion of jettison by prematurely disabling the crew in their dutj'.^ If goods are exposed in boats or barges to save a ship from Losses in the foundering, to float her after stranding, to enable her to enter son. a port of distress, or the like, and they are lost in consequence, it is in effect a jettison ;^ and so it is if goods are washed over- board after being brought up on deck in order to get at others for the purpose of being thrown overboard ;* and in either case it is a loss to be borne by general average. If goods are transhipped from the vessel into barges or boats, either because the vessel cannot enter the river or the port, or because it is a usage, e.g., in the West India trade, or at the port of London, and the goods are lost in consequence, the casualty is an ordinary accident from the perils of the sea, and the loss not one that falls within the rule of general average.^ If part of the cargo be voluntarily, and without fraud or Ransom, cowardice delivered up to a pirate by way of composition or 1 See the judgment of Lord Denman, other goods were taken aboard, or if in Milward v. Hibbert, 3 Q. B. 120. the merchant protested and opposed 2 2 Valin, 203 ; Casaregis, Disc. 46, the shipment notwithstanding there § 40-42, puts the case of an entire vessel was room for it in the vessel. being freighted by one merchant who ^ In the Dig. 14. 2. 4, the rule is laid prohibits other goods than his own from down much more generally, and would being put on board ; the master, never- include cases which all writers now theless, ships other goods, and the agree to exclude ; 1 Emerigon, 599 ; charterer shall contribute if they are 2 Valin, 167 ; Baily, 60 ; Benecke, 178. jettisoned ; but he may recover over ■• Benecke, 213. from the master on two grounds, either " Benecke, 178. if the ship was already full when the 670 GENERAL AVERAGE. [CHAP. XIV. ransom, to induce him to spare the vessel and the residue of the goods (an event highly improbable) ; or if a sum of money be agreed to be paid to a pirate or enemy by way of ransom, all writers agree that the value of the ransomed property must contribute to the loss ; ^ but if the enemy or pirate, having overpowered 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 the residue and the ship.^ Ransom however in the case of capture by an enemy, can hardly become the subject of general average in this country ; for by statute,^ the ransom of any ship, or merchandise on board the same, belonging to any subject of this country and taken by " the subjects of any state at war with His Majesty, or by aiiy persons committing hostilities against His Majesty's subjects," is absolutely prohibited, "unless in the case of extreme necessity to be allowed by the Court of Admiralty;'' and all contracts for ransom contrary to these statutes are made void ; and the person entering into such contract is subjected to a penalty of 500Z. Sacrifice of Ship's A sacrifice on the part of the ship for the common safety of the adventure, — as when masts or sails are cut away to right the vessel, or to lighten the burden of the storm, or the cable is cut and anchor abandoned to allow of her putting to sea and thereby avoid drifting on a lee shore, or in emergency spars or sails are applied to other than their proper purposes for a common benefit, — is, in any such case, equally a loss within this rule of general average.* But it seems that in this country, a cable cut or anchor abandoned to avoid being separated from convoy, is not a general average loss,^ though on the Continent ' Dig. 14. 2. 2, 3. Hicks v. Paling- § 34, 35 ; 45 Geo. 3, u. 72, § 16, 17 ; ton, Moore, 297. See 22 Geo. 3, c. 25, statutes which are all repealed. See and query if it affects this. "Wellwood, ante, 272. tit. 18. " 1 Emerigon, 605, 606 ; Guidon, 2 Nesbitt V. Lushington, 4 T. R. 783- c. 5, art. 1 and 21 ; French Ord. liv. 3, 3 22 Geo. 3, o. 25. The statute is t. 8, art. 6—4 Pardess. 380 : Go. de not limited as to time ; the following Com. art. 400 ; Ord. Hamburg, t. 21, .Statutes contain the same prohibition, art. 9 — 2 Magens, 237 ; Baily, 64, 72 ; but were enacted with a view to the 2 Arnould, Ins. 830 ; 2 Phillips, Ins, then impendiag war — the 33 Geo. 3, no. 1285. c. 66 ; § 37, 38, 39 ; 43 Geo. 3, c. 160, 5 Stevens, 14. Apparel. CHAP. XrV.J GENERAL AVERAGE LOSS. 671 it is otherwise.^ Yet if a mast snaps in the wind, and for the common safety it is necessary to clear it away, though this gives no claim to general average," yet, the subsequent detri- ment done to the vessel by the clearance gives a claim to con- tribution to that extent.^ A vessel having encountered a sudden squall as she entered Sunderland harbour, was hastily lashed to the pier-head, and as the force of the wind increased, and there was a fear of another vessel driving against her, which actually happened the minute after she was secure, the master cut the cable from the best bower anchor, and therewith fastened the ship in time to retain her at her moorings ; the injury to the cable was held to be within the rule.* The ship Brothers, bound from Bahia to Gibraltar or Malta, with a cargo of sugar, tobacco, and hides, was taken by a French privateer, and despatched for Marseilles under a French prize-master and crew, the mate and two men being all that were left on board of her original hands. In a storm which overtook them they threw overboard, with the assistance and advice of the mate, the guns, two anchors, two cables, and other stores from the middle deck ; and at a subsequent part of their course, the mate with some help rose on the captors, and mastered them, and carried the vessel into Gibraltar. In an action for contribution the propiietors of the cargo resisted, on the ground of the sacrifice having been injudiciously selected ; but Mansfield, 0. J., pronouncing the judgment of the Court in favour of the plaintiffs, said, " Whatever the- law might be in a case where there was any evidence that the goods were grossly and ignorantly thrown over, that is not this case ; for looking at the testimony of the mate, I see that his expressions were, ' We met with bad weather, and were obliged to throw these articles overboard. It was necessary to do it, 1 1 Emerig. 605 ; referring to Van if sails and rigging are hanging over Weytsen, § 8 ; Casaregis, Disc. 46, no. the side because the mast is broken, 9 ; 2 Arnould, 830. they are cut away because of no more 2 Shepherd v. Kottgen, 2 0. P. Div. use. See this principle affirmed per 578, (0. A.) 585. WiUes, J., in Johnson v. Chapman, ,35 3 1 Emerig. 606 ; Benecke, 183 ; L. J. (C. P.) 23 ; 19 C. B. N. S. 563 ; Stevens, 15, says, of course, that the and adopted in Shepherd v. Kotgen, mere cutting away of the wreck does 2 C. P. Div. 585 (G. A.) not make it a general average loss ; for * Birkley v. Presgrave, 1 East, 220. 672 GENEEAL AVERAGE. [chap. XIV. Damage inci- dental to the sacrifice. Controversy as to Voluntary Stranding. I should not have thrown the stores overboard, if I could have got at the cargo. It was necessary to the preservation of our lives.' So it seems that the French had so much better an opinion of the judgment of the mate than of their own, that they consulted him, and entrusted him with the navigation, and the stores seem to have been thrown over by his own individual direction." ^ Boats that were properly lashed on deck, if thrown over- board, or lost when charged with goods, for the purpose of lightening the ship and saving the adventure, are subjects of general average ; ^ but it seems to be against the practice of average adjusters to allow for boats if they were cut from the quarters or from the stern davits, unless it is a usage in the trade so to carrjr them.^ All damage whatsoever to ship or cargo, which is properly incidental to the intended sacrifice of property, and is occasioned by the making thereof, follows as an accessory the rule with regard to the principal, and is or is not a subject of general average accordingly. The ship is broken into and damaged for the purpose of jettison; other goods are injured in drenching those that are accidentally on fiie, by water down the hatches ; the bulwarks, and other parts of the ship, are carried away by the falling mast which has been cut for the common safety ; — these are instances of that accessory damage which becomes with the principal loss the object of general average contribution.* " If the ship be voluntarily stranded," says Chancellor Kent,^ " to escape danger from tempests, or the chase of an enemy, the damages resulting from that act are to be borne as general average, if the ship be afterwards recovered and perform her voyage." Mr. Abbott had omitted all notice of the subject, but in the fifth edition of his treatise, for which he was not 1 Price V. Noble, i Taunt. 123. 2 Stevens, 14 ; Beneoke, 187 1 Bmerig. 599. ' Any evidence of the kind, intended to cut down the plain effect of the words in a, policy, was rejected in Blackett v. Eoyal Exch. Ass. Co., 2 Gr. & J. 244. Stevens, 14, says it is the practice to allow contribution for boats cut from the quarters if they had been properly secured there. In Lenox v. United Ins. Co., 3 Johns. C. 178, a boat seemingly cut from the stem davits was held to be the subject of general average. * Baily, 30, 47, 48, 50 ; 1 Emerig. 601, 606 ; Co. de Com. art. 400 ; Benecke, 177, 243 ; Stevens, 12, 15, 41 ; 2 Phillips, Ins. no. 1286. = 3 Kent, Coram. 239. .CHAP. XIV.] GEJJERAL AVERAGE LOSS. 673 responsible, the law was laid down to the same effect.^ Mr. Phillips.^ and Mr. Arnould,^ adopt the rule. Mr. Stevens regarding the loss as inevitable, and the voluntary destruction of the ship as only a means to save the cargo, argues, against the foreign authorities, that it ought not in any case to be the subject of general average.* Mr. Benecke differs, and thinks it ought to be, in all cases, except where the situation of the ship is so desperate that the choice is between destruction or stranding, it being then no longer, in his opinion, a voluntary act.^ But Mr. Baily states that the practice in this country is, in aU cases, to disallow it, on grounds of policy and expediency, although he admits this practice may sometimes be contrary to the claims of equity.^ There is no judicial determination of the question in this country; and the practice of mercantile men appears to be contrary to the rule, laid down by Kent and others, which brings it within the principle of general average. In the United States it has been the subject of judicial decision oftener than once, and within the limits of Chancellor Kent's proposition, has been held perhaps invariably to be the subject of general average.''' Upon the supposition, however, that the ship is lost by the Especially stranding, and the cargo saved, the authorities are divided as g^JL b" I'oat ^ to whether the damage resulting is the subject of general tliereby. average. This difference among jurists is traced to a frag- mentary passage in the Digest, which, where it stands now, for ever torn from its context, is not incapable of two explanations. It is this : — Amissse navis damnum collationis consortio non sarcitur per eos, qui merces suas ex naufragio liberaverunt ; nam hujus sequitatem tunc admitti placuit, quum j actus remedio ceteris in communi periculo salva nave consultum est.^ Beading this passage with the assistance of Emerigon,^ the ' Abbott, Shipping (5 ed. 1827) 349. practice, for there is no universalprao- 2 2 Phillips, Ins. no. 1313, i.e., the tioe, owing to inattention to principle. American law includes this proposition ' Bradhurst ?). Columbian Ins. Co., and something more. 9 Johns. N. Y. Eep. 9 ; Columbian 3 2 Amould, Ins. (2nd ed.) 915. Ins. Co. v. Ashby, 13 Peter's Eep. of ^ Stevens, 29, 30-34. Supreme Court, 331 ; and cases re- * Benecke, 219. ferred to in each. « Baily, 43, 57, 60. By practice, he " Dig. 14. 2. 5. says in his preface, he means general ' 1 Emerigon, 600, Les dommages X X 674 GENERAL AVERAGE. [CHAP. XIV. conclusion is, that voluntary stranding, followed by shipwreck, is not the subject of general average ; and of that opinion was Chief Justice Kent and the rest of the Court in the case of Bradhurst v. The Colmnbian Inswrance Company} Pothier, too, seems to entertain the same view ; for although in his treatise de Louage Maritime — des Avaries,^ he merely says that voluntary stranding gives a claim to contribution for the resulting damage; yet in his work on the Pandects,^ he classes the passage already cited from the Digest as a case of "jactura quae non facta est communis periculi depellendi causa" whereas in the opinion of those who differ from this view, the passage relates expressly and exclusively to jettison made communis periculi depellendi caus^, but not successful in its purpose. This other explanation of the Digest, appears most obvious in the brief expression of Peckius* . . . nave tantum salva, . . Etenim ob hoc solum j actus fit — showing that he regarded it as a case of ordinary jettison of goods or ship furniture followed by shipwreck notwithstanding. Bynkershoek,^ accord- ingly, after relating that the delegates and judges in admiralty causes at Amsterdam had laid it down, that if a ship be pur- posely stranded, the goods saved contribute nothing, because nothing is contributed unless the ship be saved, adds — Parum acutfe, nam semper res aliter salva esse nequit, periculo coacti jacimus, neque aliter navis salva desideratur, jactis mercibus, quam ut ita servata nave etiam merces in ea salvse sint, merces etiam salvse, damnumque ob earn rem factum contributionem inducunt. Voet,^ and also Casaregis,'' lays down the same law in arriyfe par tehouemeiit sont avaries ^ Pothier ad Pandeotas, lib. 14. 2. ,5. simples pour le compte des propria- « Peckius, De Ee Nauticg,, Dig. 14. taires. 2. 5. in loo. Mais ce serait avaiie grosse, si ^ Bynkershoek, QuEest. Jur. Priv. lib. .I'tehouement avait 6t6 volontairement 4, c. 24. fait pour le salut commim, pourvu 6 Voet, ad Pandeotas, 14. 2. 5, Ad. toutefois que le navire eut it6 remis avariaiu magnam pertinet se oommuni & flot ; car si rdohouement est suivi de peritpjmm consilio navis > ad mercium naufrage , smtve qui ^eut. Comp. pp. oonservationem oonsulto in. litus im- 405, 408, 612. pulsa fuerit, atque, ita salvatis merci- 1 Bradhurst v. The Columbian Ins. bus ipsa perierit. Co., .9 Johns. N. Y. Rep. 9 ; but we ' Casaregis, Disc. 46, Additio ; He shall see that this is ,not now the law says, if the vessel is driven by the winds of the United States. on shore, et naufragium passa fuerit, 2 Des Avaries, no. 150. tale damnum amissse navis vel deterio- CHAP. XIV.] GENEKAL AVERAGE LOSS. 675 explicit terms ; and in the Consolato/ the doctrine is developed to its amplest limit. Valin" and Eoccus^ confine themselves to a statement of the general doctrine, that voluntary stranding for the common benefit is subject of general average ; thereby agreeing with aU. the other authorities, against what Mr. Baily states to be the English practice of mercantile men, in this that at least when the vessel is saved and performs the voyage, contribution is due for the resulting damage ; but what the opinion of these two distinguished jurists was, in case the ship were lost, is perhaps not now to be discovered. Notwithstandiag those authorities and this opinion, if there Voluntaiy .-.-. I* n stranding not as still any room left for doubt, I must be allowed to express a case of General the doubt which I entertain. The case is necessarily a hypo- "'^^^s^- thetical one, and, as necessarily, a case of the most hopeless character. The circumstances, actual or supposed, attendant on voluntary stranding are so closely allied to those of wreck, that it will always be easier to assert than show a difference. The condition of the whole adventure is confessedly desperate; and recourse is had to that which cannot be called, for it is not even hoped to be, an alternative. Whether the result may be the destruction of the whole, or the saving of something, is a mere chance that defies ingenuity or calculation. The act of putting the helm about to accompHsh it is a blind throw for life. The whole adventure is the stake played. And to risk the whole upon the turn of a die does appear to be utterly reckless, -and not to be justified in view of the law except under the desperate circumstances of wreck. In that view of voluntary stranding, the resulting loss, although something be saved, cannot be allowed to be general averageu* The distinction made by the older authorities, and adopted raise, shall be borne by the shipowner. prefers to save the goods, and the Et tunc solum oontributioni erit locus vessel is destroyed ; in that case he si magister navim naufragandam ti- says the owners of the goods shall con- mens, consilio prius in navi accepto, tribute to the loss of the vessel, ut merces et navigantes salvarentur in ^ Consolato, c. 150 — 2 Pardess. 166. litus navim impeUere fecisset. ^ 2 Valin, 168. In Disc. 46, § 12, he put the case of ^ Eoccus, de Nav. not. 60. a vessel being by accident on a sand- ■• Such, accordingly, seems to be the bank, and the master could save the practice among adjusters ; Lowndes, ship by jettison of the goods, but Gen. Av. 74, 78. X X 2 676 GENEEAL AVERAGE. [chap. XIV. Extraordinary Expenditure. Making for a Port of Distress. Repairs not a general average Loss, when. hy Mr. Arnould, between the case in which the ship perishes, and that in which she is ultimately saved, seems to rest upon the view, now discarded in modern practice, that success is a necessary condition of any sacrifice in order to its being allowed to be general average. A sacrifice of money, when the expenditure incurred is for the common benefit, and not such as the shipowner undertakes by his contract to bear, is also subject of general average. If the ship be so deeply injured by a particular average loss as to be obliged for the common safety to deviate in the course of the voyage in order to repair at an intermediate port, the expenses of entering the port, incurred in pilotage, towage when disabled, dues, and indispensable extra services attendant thereon, are allowed as general average.^ And if the cargo is necessarily unloaded for the sake of both ship and cargo, the expense of that is included ; ^ but not if the unloading was merely for the sake of preserving the cargo.^ So, as the removal of the ship's stores after the cargo is out, is merely for the sake of the ship, that expense is not allowed.* The expenditure for warehouse rent of cargo falls on cargo, and of port charges outwards together with the charges for reloading, on freight.^ So much as to the consequences of having to enter a port of distress to repair after a particular average loss. But when the original disaster is a general average loss, it has been recently held that the expense of entering the port, of un- loading and reloading the cargo, warehouse rent, and ship's charges outwards again, falls upon general average.^ The repairs done to the ship, if the injury to be remedied is not the result of voluutary sacrifice for the common benefit, are borne by the shipowner alone. That is the rule of law in this country ever since Power v. Whitmore was decided by Lord EUenborough and the other members of the Court of 1 Benecke, 192, 193 ; Stevens, 23 ; 2 Amould, 840. ' Lord Campbell even includes the expense of reloading the cargo, Hall V. Janson, 24 L. J. (Q. B.) 97. ' Pel' Le Blanc, J., Plummer v. Wild- man, 3 M. & Sel. 482, 487 ; The Copen- hagen, Mening 1 C. Eob. Ad. 289, 298. ■' Stevens, 75 ; see Job v. Langton, 26 L. J. (Q. B.) 97. = 2 Arnould, Ins. 782, 841 ; ^er cu- rmm, Atwood v. Sellar, 5 Q. B. Div. 289. " Atwood V. Sellar, 4 Q. B. Div. 342 ; 5 Q. B. Div. 286 ; (G. A.). .CHAP. XIV.] GENERAL AVERAGE LOSS. 677 King's Bench.i But in a previous case, the same Court apparently- measuring what of the loss was attributable to general average, held that she was entitled to contribution for such repairs as were necessary to enable her to prosecute the voyage without being of permanent benefit to her.^ The language of Lord Ellen- borough in this case is misleading ; the decision itself in the opinion of some cannot be supported on the facts of the case ;** upon this decision, however, the courts of the United States appear to have framed a general rule, which they apply to all cases of necessary repairs during the voj^age.* A large clipper having been disabled to carry sail from having been in colHsion with an iceberg, instead of repamng at an intermediate port, took coals on board at a heavy expense and steamed home by means of her auxiliary screw. This expenditure on coals was held to give no claim for general average contribution, as it was no more than one method of performing the ordinary duty of the shipowner.^ The wages and provisions of the crew, become necessary by As to Wages the deviation in the course of the voyage for repairs, follow the rule applicable to the repairs themselves, and are or are not subjects of general average accordingly.^ And the Enghsh case,'' where, a ship having gone in for repairs, the seamen were immediately discharged and taken on again as day labourers, the Court holding their wages and provisions must be allowed for, is now, with much reason, regarded as of no authority, the practice sanctioned by it being but an evasion of the rule of law. In practice among mercantile men in this country, it appears to be disregarded.^ The rule in the United Statgs, at least in New York and Massachusetts, is to allow such expenses invariably ; ^ but by the French law, they are conditional on the circumstance of the repairs done being themselves subject of 1 Power V. Whitmore, 4 M. & Sel. Amer. ed. 498 note). 141 ; per Lord Campbell, C. J., in Job * Wilson v. Bank of Victoria, L. E. V. Langton, 26 L. J. (Q. B.) 97, 100. 2 Q. B. 203. 2 Plummer v. Wildman, 3 M. & Sel. " Hallett v. Wigram, 9 C. B. 586. 432. ' Da Costa v. Newnham, 2 T. E. 3 See a review of this and other cases 407. 2)er C. A. in Atwood v. Sellar, supra. ' Baily, 82 ; Stevens, 40, " 3 Kent, Com. 236 ; but see Paddle- ^ 3 Kent, Com. 236. ford V. Bordman, 4 Mass. 548 (Abbott, ordinary Danger. 678 GENEEAl AVEEAGE. [CHAP. XIV- general average, and of the ship repaired being at the time freighted by the month.'^ Such expenses as these are said to be allowed in case of detention after capture, when the alleged cause of detention affects equally the ship and the cargo ; ^ but the reason given for this, that the contract of affreightment is dissolved by the fact of capture, not holding good, as we have already seen, the rule may be doubted in this instance. Until condemnation, that contract is stiU binding on both parties, the shipowner and the freighter, unless there is a separation of the goods from the ship by authority of a court of admiralty jurisdiction.^ For the same reason, therefore, that these expenses are not allowed in the case of detention under embargo, the propriety of allowing them is open to question in .the case of detention after capture and before condemnation. In case of extra- But under extraordinary danger, compelling the vessel, for the common benefit, to wait for convoy, it seems to be within the principle of the Ehodian Law, that such expenses as these should be allowed.* Three decisions of the different courts in Holland on this subject are related by Bynkershoek,^ which seem worthy of notice in this place. In the first case the master of a general ship, which was armed, and had letters of marque, and was bound to several Italian ports, during a war between the Dutch and the 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 war destined for Portsmouth, entered with her the harbour of that place, and there waited a whole year for another convoy, under which he sailed to Cadiz ; and there waited a second year for a third convoy, under which he sailed to Italy, and delivered his cargo there. Under these 1 Co. de Com. art. 400. Freight is ^ The Diana, Eunke, 5 C. Bob. Ad. •not due during the detention under 67, and cases Hid. 75 note ; The Wil- such a charter ; therefore wages and helmina Eleoaora, Mohr, 3 C. Eob. Ad provisions being in the nature of ex- 234 ; The Hoffnung, Eask, 6 C. Eob. •traordinary expenses, are made subject Ad. 231. of general average : Pothier, de Charte- ■* Bynkershoek, Priy. Juris, lib. 4 partie, no. 85. o. 25 ; Benecke, 225 ; 2 Aruould, 845. 2 2 Amould, Ins. (2nd ed.) 928 ; 1 * Bynkershoek, Qusest. Juris. Priv. Emerigon, 613 ; 3 Kent, Com, 236. lib. 4, c. 25. CHAP. XIV.] GENERAL AVERAGE LOSS. 679 circumstances, the master sued the merchants for general average, and obtained a decree in his favour, which was con- firmed by one court of appeal, reversed by a second, and at last finally affirmed by the Senate, of which the learned author was then a member, against his opinion, and against the general principles of law on this subject, and against the particular engagement made by the master on this occasion. This judg- ment appears to have been disapproved of in Holland ; for, in another case, which happened soon afterwards, where five Dutch vessels coming from Surinam, and learning on their voyage that a war had broken out between the Dutch and French, put into Plymouth, and there waited for convoy, the Senate, before whom the case was ultimately brought, decreed against the claim of contribution. A third case happened soon afterwards, in which the same 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 judgment pronounced in it. It was the case of a ship freighted from Amsterdam to Cadiz, with 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 when she came near Lisbon, feU in with a fleet of privateers, by which some of the other vessels were captured, but the ship in question put into Lisbon in obedience to a signal from the man-of-war, and there waited six months before she could safely proceed to Cadiz. In this case, there was an extraordinary and impending peril, and not merely the ordinary dangers always accompanying a state of warfare ; and ■the expense incurred in consequence appears to come entirely within the principle of the Ehodian law. Occasion for applying the same principle is found in the case Salvage. of salvage and extra services indispensably requisite in the nature of salvage, when both ship and cargo are involved in the same peril and delivered by such means.^ But in the case of the vessel already mentioned as having gone ashore in Malahide Bay, Ireland, the services rendered in. getting her afloat, after the cargo had been unloaded and warehoused, the digging of a 1 Birkley v. Presgrave, 1 East, 220 ; 233 ; L. E. 1 Q. B. 520 ; Stevens, 25 ; Kemp V. HaUiday, 34 L. J. (Q. B,) Benecke, 230 ; 2 Amould, 847. 680 GENERAL AVERAGE. [chap. XIV. Extraordinary in point of occasion. channel, and the employment of a steam tug, which took her off, and towed her to liiverpool for repairs, heing wholly for the benefit of the ship, were held by the Court not to be subject of general average.^ On the contrary, where a vessel chartered from Liverpool for Callao and the Chincha Islands and back, was driven by storm on a bank near the entrance to the port of Liverpool, in a situation of great peril ; but by means of lighters, the goods and the wreck of the rigging were removed to a warehouse at Liverpool, and the ship being then scuttled, 300 tons of ballast were thrown out, and she was got off and carried into Liver- pool, where she was repaired and despatched again on her voyage with the goods and other ballast on board, it was held that the expense incurred till she reached the port of repair was occasioned by one continuous operation, intended to enable the ship to prosecute the original voyage, and formed a general average loss, to which the goods also were liable to contribute.^ A vessel at anchor on the coast of Ireland, with a cargo of corn and coals, was boarded by the people of the neighbouring district, who seized the ship, and compelled the master to sell the corn at a price much under its value. The Court held, however, that this was not a general average loss, as the whole adventure never had been in jeopardy, the people at no time intending to do more than take the corn for the relief of their sufferings in consequence of the scarcity that prevailed.^ In that case the danger was particular, and the consequent sacrifice without any more general object. But although the danger is common, if the sacrifice, as of hard dollars which are thrown overboard to prevent them falling into the hands of the enemy, be without reference to the common benefit, it is not an object of general contribution.* Losses, which though unusual in the attending circumstances, are yet fairly within the scope and contemplation of the contra,ct made by the carrier, are not within the law of general average.^ 1 Job V. Langton, 26 L. J. (Q. B.) 97. So, Walthew v. MavTojam, L. E, 5 Ex. 116. 2 Moran v. Jones, 26 L. J. (Q, B.) 187. See this case reviewed in Wal- thew V. Mavrojani, L. E. 5 Ex. 116. ^ Nesbitt V. Lusbington, i T. E. 783. " Butler V. Wildman, 3 B. & Aid. 398. I" Schuster v. Fletcher, 3 Q. B. Div- 418. CHAP. XIV.] GESfEEAL AVERAGE LOSS. 681 The loss of sails, yards, or masts, therefore, and generftUy Losses that are any damage to the ship by perils of the sea, with all expense of G'enlral"**'"* of repairing the same, fall upon the shipowner without right of -A-^erage. recovery over unless it be from his own insurer.^ An iron vessel, because her compasses were improperly adjusted, went ashore on the coast of Ireland, with a cargo on board ; and after the goods were unloaded and warehoused, considerable expense was incurred in floating her off, taking her to a neigh- bouring port for repaii's, and in repairing her ; but this expense, it was held, must fall on the shipowner alone, the benefit being confined to the ship, and the casualty such as was contemplated by his contract.^ A vessel that had struck to a privateer, but could not be immediately boarded by the captors for the storm that pre- vailed, crowded sail and made off, but lost a spar and was much strained by the effort ; the cargo was thereby saved, and the master had wisely done his duty, but the loss resulting to the ship was occasioned by a use of her that was clearly within the shipowner's engagement.^ The Hibernia, merchantman, with twenty-two men and six guns, was overtaken on her voyage to St. Thomas by an American privateer, carrying twenty-two guns and 125 men, and after a conflict of eleven hours, she obliged the privateer to sheer ofl', having in the meantime sustained much injury herself; a claim was afterwards made for damage to the huU and rigging, and the expense of repairs ; for cost of curing wounds ; and for expenditure in powder and shot; butthe Court held as to the whole of the claim, that it was not a loss within the rule of general average. For, per Gibbs, C. J., " the measure of resisting the privateer was for the general benefit ; but it was a part of the adventure. No particular part of the property was voluntarily sacrificed for the protection of the rest. The losses feU where the fortune of war cast them, and there, it seems to me, they ought to rest." * VaUn, however, as he admits, against the weight of authority, 1 Power V. Whitmore, 4 M. & Sel. ^ job v. Lamgton, 6 B. & B. 779 ; 142 ; qualifying Plummer v. Wildman, 26 L. J. (Q. B.) 97, S. 0. 3 M. & Sel. 482 ; Hallett v. Wigram, ^ Covington v. Eoberts, 2 B. & P. 9 C. B. 586 ; j)er curiam, Job v. Lang- N. R. 378. ton, 6 B. & B. 779 ; 26 L. J. (Q. B.) " Taylor v. Curtis, 6 Taunt. 608, 97, 100. 624. 682 GENERAL AVERAGE. [CHAP. XIV. is of opinion that the damage to ship and cargo received in fighting to avoid being taken should be a general average loss.^ Certainly the expense of curing wounds received in defence of the ship is expressly made the subject of general average by the Hanse law,^ and the French Code.^ So, generally, damage received by the ship in a storm which obliges her to put to sea in order to avoid the danger of a lee shore,* or sustained by accidental collision with another,^ and the repairs consequent thereon, are not of the nature of a general average loss. Nor has the shipowner any claim of this kind for expense incurred by the ship in running into an intermediate port to avoid contrary winds, or to obtain water or provisions ; ^ or for the expense occasioned by the wages and provisions of the crew during necessary repairs in the course of the voyage,'' or during a detention under embargo,^ or in quarantine in the ordinary course of the voyage,® or in waiting for convoy, unless there is obviously common danger to ship and cargo in pro- ceeding without,-'^" or whilst she is wind-bound, ice-bound, or the like, in a place that she was not compelled to make for, out of the ordinary course of the voyage, with a view to the common advantage .^^ All these losses, though attended with circumstances of an unusual character, are within the scope of the shipowner's ordinary contract, and the limit of his individual responsibility.^^ ' 2 Valin,- 167, referring to Kurioke ^ Power v. Whitmore, 4 M. & Sel. ad Jus. Hans. 1. 14, ait. 3 ; Targa, 322 ; 141 ; Hallett v. Wigram, 9 C. B. 586. Casaregis, Disc. 46, no. 43, as being of Baily on Average, 82. a difierent opinion. " Benecke, 234 ; Baily, 82 ; 2 2 Hans. Ord. 1591, art. 36—2 Par- Arnould, 785 ; but see Da Costa v. dess. 518. Newnham, 2 T. E. 407 ; and per Lord 3 Code de Com. art. 6 ; Ord. 1681, BUenborough, in Sharp v. Gladstone, liv. 3, t. 7, art. 6—4 Pardess. 380. 7 Bast, 24, 34. * Power V. Whitmore, 4 M. & Sel. ' 2 Phillips, Ins. no. 1323 ; 2 141. Arnould, Ins. 786 ; 1 Magens, 67. * Plummer ii. Wildman, 3 M. & Sel. ^^ Beneoke, 225 ; 2 Arnould, 930 ; 482, is not now received as law even Bynkershoek, Privati Juris, lib. 4, c. 25. to the extent that it goes ; per Lord " 1 Magens, 67 ; Benecke, 214 ; Campbell, C. J., in Job v. Langton ; 2 2 Phillips, Ins. no. 1321 ; 2 Arnould, Phillips, Ins. 1272 ; Peters v. Warren, Ins. 845 ; 1 Bmerigon, 614. Ins. Co., 1 Story E. 463. 12 Hallett v. Wigram, 9 C. B. 586 ; 8 Stevens on Average, 23 ; Benecke, Notes of Boulay-Paty to 1 Bmerigon, 214. 610, 620. CHAP. XIV.] GENEEAL AVERAGE CONTEIBUTION. 683 And if it become necessary to sell part of the cargo to meet expenses of this nature, the burden is not thereby shifted, or the nature of the loss altered, so as to give a claim to contribu- tion for the worth of the goods sold.^ Having ascertained the loss, we have now to consider on genbkai ave- whom the contribution is to be levied. For this is the equity ^f™ oontribu- of the Ehodian law, ut omnium contributione sarciatur, quod By whom. pro omnibus datum est. Qusesita deinde sunt haec, an omnes jacturam praeatare oporteat? Placuit, omnes, quorum iuter- fuisset, jacturam fieri, conferre oportere, quia id tributum ob servatas res deberent.^ The first rule, now in force, on this subject is the same as Whatever is be- the rule of the civil law just quoted, that of all the property in j^utes the expedition and ultimately saved, including freight, that only contributes to the loss which encountered the risk and shared in the benefit. Ex hypothesi, this includes also the goods that were thrown overboard and their freight ; for by the contri- bution these are restored to the proprietor and the shipowner respectively, and contribute their proportion of the sacrifice. Those things are excluded, by the terms of the rule, which were either shipped after the risk was past or had been discharged, no matter for what purpose, before it arose. The second rule applicable to the subject, is merely a further provided it be modification of the first and limits the levy to all merchandise conveyed in the ship for the purposes of traffic, whether be- longing to merchants or passengers, to the owner or the master, of whatever kind, and however small be their weight ^ in com- parison of their value.* For the contribution is made not on account of incumbrance to the ship, but of safety obtained. Therefore in this country bullion and jewels contribute accord- ing to their full value.^ But here our law introduces an ' Hallett V. Wigram, siu/pra, ; Powell '^ Lord Karnes admits this rule, bat V. Gudgeon, 5 M. & Sel. 431 ; Sarguy controverts its propriety, and contends V. Hobson, 3 Bing. 181 ; see Benson v. that the contribution should be accord- Duncan, 8 Exch. 644 ; Code de Com. ing to weight and not value. Principles art. 298 ; 2 Valin, 525. of Equity, page 116. I cannot think 2 Dig. 14. 2. fr. 1 & 2, 2. his arguments satisfactory. — Abbott. 3 Dig. 14. 2. 2, 2 ; 1 Magens, p. 62, = 1 Magens, p. 62, 63. 63 ; 1 Bmeiigon, 622, 623. 684 , GENERAL AVERAGE. [CHAP. XIV. exception, of the apparel of the passengers, including their personal jewelry and baggage, articles that do not contribute ; ^ agreeing in this with the French law, according to Emerigon and Valin,^ in the absence, indeed, of any express provision to that effect ; but differing directly from the civil law in one of its express rules. Ibidem agitatum est, an etiam vestimentorum cujusque et annulorum sestimationem fieri oporteat? Et omnium visum est, nisi si qua consumendi causa imposita forent ; quo in numero essent cibaria.^ Provisions. Modern laws generally agree with that part of the civil law just cited which exempts provisions from liability to contribute, and place warlike stores also in the same category.* Mr. PhiUips, however, thinks there is reason for modifying the general doctrine, and concludes that " provisions supplied by the shipper of passengers or animals, and consumed on the voyage, where the passengers or animals arrive at the port of adjust- ment, contribute to general average, except those for animals going to market." ^ It is a little remarkable that the distinction on which Mr. Phillips founds this modification of the general rule, is the ground expressly taken in the civil law for rejecting it. After stating that all articles are exempted from contribu- tion, si consumendi causa imposita forent ; it proceeds—" quo in numero essent cibaria eo magis quod, si quando ea defecerint in navigatione, quod quisque haberet in commune conferret."^ Bank-Notes. Mr. Phillips thinks that bank-notes ought not to contribute, as being the mere evidence of property, and Mr. Arnould, in adopting Weskett's opinion to the contrary, states as a reason for it, that they are saved by the sacrifice from becoming valueless.'' If this be the only reason for it, Mr. Arnould's con- clusion is unsupported, because the owner is not deprived of his remedy for the money by the loss of the bill of exchange or promissory note.^ 1 1 Magens, 62, 63 ; Abbott, 4 ed. * Per Park, J., Brown v. Stapyleton, 369. 4 Bing. 119, 122 ; 1 Emerigon, 624 '; 2 1 Emerigon, 623 ; 2 VaUn, 187. 2 Amould, Ins. 8.'i2. 3 Dig. 14. 2. 2, 2 ; The Laws of = 2 Phillips, Ins. 153, no. 1399. Oleron, art. 85—1 Pardess. 346, pro- « Dig. li. 2. 2, 2. fessedly follow the Justinian rule ; and ' 2 Amould, Ins. (2d ed.) 936. . Le Guidon, c. 5, art. 26—2 Pardess. « Chitty on Bills of Exchange, 178. 393, is to the same effect. CHAP. XIV.J GENERAL AVERAGE ADJUSTMENT. 685 Deck-cargo always contributes, although it may not always Deck-Lading. or indeed, very seldom, be the object of a general average contribution.^ The ship contributes to redeem the loss, and so much also Freight and of the freight contributes as is directly benefited by the sacri- ^^' fice, including the freight of suc.h goods, as have become the subject of a general average loss.^ It is no answer on the part of the shipowner to say that the general average loss was occa- sioned by one of the perils excepted in the bill of lading, for these concern the safe delivery of the cargo by him as carrier and do not cover this claim.^ The adjustment of the loss proceeds on the principle of adjustment of distributing the burden among the contributors in propor- tion to their several interests benefited by the sacrifice and surviving the voyage. He whose property was sacrificed In case of Sacri- abates from the payment in like proportion. No one is thereby better or worse than another of all those who had embarked their property, ship or merchandise, in the expedition. This is the rule when the property sacrificed had formed part of the adventure benefited. But if the property, whether money or materials, supplied as In case of Ex- a remedy in distress, never was of the expedition which is ^^fa-a. ' benefited, repayment of it must be without abatement and irrespective of any contingency. Abatement is made in con- sideration of benefit ; but here is no benefit, because there is no danger ; the supply being ab extra, whilst the benefit like the danger is confined to the expedition. And if it was subject to no risk when supplied, the law presumes that it became an absolute debt when accepted. Payment, therefore, must be made in fuU by all who benefited by the expenditure, and in the proportions of their several interests in the expedition at the time, be the ultimate result as to each interest or the whole adventure what it may. The estimation of value, for the purpose of arriving at the Estimation 1 2 Arnould, 852 ; 1 Bmerigon, 648 ; * Sohmidt v. Eoy. Mail Stm. Ship ante. Co., 45 L. J. (Q. B.) 646 ; Crooks v. 2 Laws of Oleron, art. 8, 23, 31—1 AUan, 5 Q. B. Div. 38. Pardess. 328, 339, 344. 686 GENEEAL AVEKAGE. [chap. XIV. of Value for the general average loss, takes goods thrown overboard at their amount of Loss. , .., «,,, ./.,t i* market pnce m the port of destination if the ship arrives there, or in any intermediate port where the voyage through necessity ends ; subject, however, to the deduction of freight, duty, and landing expenses; a deduction, also, for damage, proportionate to any which may have happened to the whole cargo, and from which these goods could not have been exempt;^ and a further deduction for any damage usually happening to such goods by leakage or breakage. But if the vessel is obliged to put back into the port of departure, their value is the prime cost, including shipping charges and premiums of insurance, subject to any inevitable damage that has occurred to the residue.^ These goods were valued under the civil law at their prime cost only ; ^ and that was formerly the rule in this and other countries, when the jettison occurred before half the voyage was performed, notwithstanding the vessel afterwards reached the port of destination.* Goods that are jettisoned are not by intention derelict. Ees autem jacta domini manet, nee fit . apprehendentis quia pro derelicto non habetur.^ If they are afterwards found, there- fore, there is an abatement froin the contribution to the extent of their value, less the salvage ; and if the money is already paid, it may be recovered back to the amount of the surplus. It is the right of him whose goods have been sold in the course of the voyage to raise means for the common adventure to have them estimated at the successful termination of the voyage, either at the nett value they -v^ould have fetched there, or at the price which they fetched when sold ; ^ but if the ad- venture does not reach its destined port, then at the sum they actually fetched, less freight, duty, and landing expenses.''' In case the goods jettisoned are recovered. > Fletcher?;. Alexander, L. R. 3 C. P. 375, 384 ; Beneoke, 293. 2 Hid.; 2 Aruould, 869. •" Dig. 14. 2. 2, 4. " Malyne, 113 ; MoUoy, bk. 2, c. 6, § 6 ; Well-wood, 21 ; 1 EmeHgon, 637, referring to many authorities ; Vinnius, in Peckium, 220 ; Abbott, 4th ed, 370. ^ Dig. 14. 2. 2, 8. « 2 Amould, 861 ; 2 Phillips, no. 1363 ; Depau v. Ocean Ins. Co., 5 Cowen, 63 ; Richardson v. Nourse, 3 B. & Aid. 237 ; Atkinson v. Stephens, 7Exch. 567. ' 2 Amould, 862. CHAP. Xrv.] GENERAL AVERAGE ADJUSTMENT. 687 In case of damage to the ship or her apparel forming a of value of general average loss, tlie expense of the repairs, if they are ^^P*™" already done, is taken as the amount of the loss, subject to a deduction of one-third from the price of the new work ; if the repairs have not been done, the damage must be estimated, having regard to the state the ship was in before, and not the condition into which it will be put by new work and materials. As to contributory value, the rule is, that property saved Contributory contributes on the nett value thereof at one or other of two different periods, according as the object of contribution is an expenditure of money or materials that never formed part of Distinction . . „ governed by tlis the expedition, or a sacrifice of property embarked upon the object. same fortune as that which contributes. For the purposes of the latter, the value of the goods is their market price at the port of adjustment less the freight, duty and expenses of landing, and if that be the port of loading, it will be "their cost on board without insurance," that is the amount of the tradesmen's bills and shipping charges,'' less any damage which the goods have suffered since their shipment. And the goods jettisoned will be valued on the same estimate, and subject to any deductions appKcable to them, including damage from which they could not have been exempt, had they remained on board, but exclusive of all damage sustained by them in consequence of their beiag cast away.^ For a contribution, however, towards expenditure, the goods are liable on their value as they existed at the time of the risk, exclusive of any subsequent damage, subject to the de- ductions already specified, and notwithstanding their ultimate loss. Freight contributes on all that was subject to the risk when Freight. relief became necessary, excluding therefore freight of goods previously discharged, and also freight paid in advance and not liable to be recovered back. If freight is paid pro raid itineris, that is the amount liable to contribution, subject, however, in this and all other cases, to deductions for the wages of the master and crew, being the expense of earning it.^ But only ' Fletcher v. Alexander, L. E. 3 ^ /j^^. C. P. 375 ; Stevens on Average, 47, 48. ^ 2 Arnould, Ins, 866. 688 GENEEAL AVERAGE. [CHAP. XIV. such freight is liable as is earned on the same voyage in which the risk and the necessity for relief accrued. It has been held, however, under a charter-party for a voyage out and home, where the return freight was not payable unless the vessel should arrive at her port of departure, that the return freight was liable to contribute to a general average loss on the out- ward voyage.^ Much doubt is expressed as to the equity and justice of this decision. The homeward freight is always in a sense at risk on the outward voyage, and to that degree involved in its prosperous termination. But the rule of general average proceeds upon the fact of actual earnings being in actual risk, and the general rule of law is to consider possibilities as too remote to enter into the calculation of damage ; in view of either, therefore, it is difficult to sustain this decision. Ship. The value of the ship liable to contribute is the actual worth of her at the time of the risk, when expenditure is the object of contribution ; but it is the actual worth of her when she arrives,^ if the contribution be for a loss by the sacrifice of property in the expedition. This worth is ascertained, according to Mr. Stevens,^ for the former purpose, by deducting, from the value of the ship when she sailed, the provisions and stores expended, the wear and tear of the voyage, and any partial loss incurred, in all the three items, up to the time when the risk arose. For the purpose of meeting a sacrifice of property embarked in the expedition, these items must be taken for the whole of the voyage, and deducted from her value at departing. A GBNERAi ATE- Supposiug therefore a general average comes to be settled RAGE STATE- upon the ship's arrival at the port of destination, according to the principles before advanced, it wiU be 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, an account 1 Williams V. The London Assur. Co., she will be worth more ; if a peculiar 1 M. & Sel. 318. ship, but not in that trade, she wUl be 2 In either case it is the worth of her worth less. Grainger v. Martin, 31 to her owners, and therefore if a peou- L, J. (Q. B.) 186 ; in error, 4 B. & S. 9. liar ship in tlje trg,de she was built for, . ^ Stevens, 53. HENT. CHAP. XIV.J GENERAL AVERAGE STATEMENT. 689 of the value of all the articles that are to contribute ; and then strike the proportion between the gross amounts in order to obtain the particular result, — the sum of the contributing values being to the sum of the losses, as the value of each adventurer's interest is to his share of the common burden. The following example, given by Mr. Abbott,^ illustrates the principles dis- cussed, and exhibits their application to the facts of a case. Let it be supposed that it became necessary in the Downs, to cut the cable of a ship destined for Hull ; that the ship after- wards struek upon the Goodwin Sands, 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 : — • Amount of Lossbs. Goods of A. cast OTerboard Damage of the goods of B. by the jettison . Freight of the goods cast over- ) board ) Price of a new cable, anchor, i and mast . . . 300 V Deduct one-third . . 100 J Expense of bringing the ship ) oS the sands . . .1 PUotage and port duties going , into the harbour and out, and / commission to the agent, who f made the disbursements . . ' Expenses there .... Adjusting this average . . . Postage 500 200 100 200 50 100 25 4 1 Value op Articles to OONTHiBUTii:. £ Goods of A. cast overboard . 500 Sound value of goods of B. de- ) , „„„ ducting freight and charges ) Goods of C 500 Of D 2,000 Goods of E 5,000 Value of the ship, deducting \ provisions and stores, wear ( and tear of the voyage, and I ' previous partial losses . ' Clear freight, deducting wages . 800 Total of contributory values, 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. • Abbott, 4th ed. 372. The de- ductions from ship and freight re- spectively difEer from Mr. Abbott's account ; in all other respects it is the same. 690 GENERAL AVERAGE. , [CHAP. XIV. £ Therefore A. loses . 50 B. . 100 C. . . 50 D. . 200 B. . . 500 The owners . . 280 Total . . £1,180, which is the exact amount of the losses. Upon this calculation the owners are to lose 280L, hut they are to receive from the contribution 380L to make good their disbursements, and lOOL more for the freight of the goods thrown overboard, or 480J. minus 280Z. £ They therefore are actually to receive . . . 200 A. is to contribute £50, but has lost £500 ; there- fore A. is to receive ..... 450 B. is to contribute £100, but has lost £200 ; there- fore B. is to receive 100 Total to be actually received . . . £750 £ On the other hand C, D., and E. have lost nothing \ C. 50 -D. 200 And are to pay as before, viz., . . . .) E. 500 Total to be actually paid . . £750 which is exactly equal to the total to be actually received, and must be paid by and to each person in rateable proportion to be ascertained by another calculation, with which it is unneces- sary to trouble the reader. roREiQN ID- • Sucli is an instance of average adjustment in accordance with the principles of the law of this country. But the laws of other countries differ from some of these principles, and also vary from one another, chiefly in respect of what shall be deemed to be a general average loss. Notwithstanding this jnSTMlSNIS ARi: CONOLBSIVE. CHAP. XIV.] PLACE OF ADJUSTMENT. 691 variance, however, among the laws of different coiintries, it is agreed by all of them, that the port of discharge shall be the place where the general average is adjusted. The shipper of goods, tacitly, if not expressly, assents to general average, as a known maritime usage, which may, according to the events ol the voyage, be either beneficial or disadvantageous to him. And by assenting to general average, he must be understood to assent also to its adjustment, and to its adjustment at the visual and proper place ; and to aU this, it seems to us, to be only an obvious consequence to add, that he must be under- stood to consent also to its adjustment according to the usage and law of the place at which the adjustment is to be made.^ But whether the adjustment ought to be made abroad is a place or question which is not left to caprice, if there is no express •^"■"'^''^'^"■'^■ contract between the parties with regard to it. As a general rule the place for this, is the ship's port of destination or discharge. "When this happens to be a foreign port, the general average loss is adjusted there, according to the law and usage of the country to which such foreign port belongs ; and the adjustment so made is called a foreign adjustment.^ If the adventure be broken up at an intermediate port, the ship and the cargo entirely quitting company with each other, that port becomes in effect the port of discharge, and the place therefore for adjusting the general average. But a mere temporary suspension of the voyage at a port of refuge does not authorise such adjustment, and if made there it is not binding on a non-consenting party. So it was held although at that port the cargo of the dissentient was necessarily sold in consequence of damage received in the course of the voyage.^ By the civil law the master of the ship was required to have lien for con- the contribution settled, and to receive and pay over the sums ' Fer Abbott, C. J., Simonds v. As to the relation of the English in- White, 2 B. & Cr. 804, 813, holding the surer to a foreign statement of average law of Eussia, though differing from and his liability thereon, see Harris xi. that of England as to general average Soaramanga, L. E. 7 C. P, 481 ; and losses, to be binding on an English sub- per Brett, J., %bid. 4g5, 496. ject in respect of an adjustment made ^ Simonds d. White, 2 B. & Cr. at St. Petersburgh, the proper place 805 ; 2 Arnould, 872. by law for its being made. ^ Hill v. Wilson, 4 0. P. Div. 329. y Y 2 ^^^ GENERAL AVERAGE. [cHAP. XlV. to be contributed to the losers, being himself empowered to sue and liable to be sued for them, with a right to detain the goods for the sums to be contributed by their owners.^ The laws of most maritime countries, however they may differ as to what shall be deemed a general average loss, are agreed that for the contribution the master shall have this power of detaining the goods.^ The liability for this contri- bution arises upon a contract implied by the maritime law in every bailment of goods on board ship for the purpose of beiug carried.^ It might have been recovered in this country by a suit in equity,* or by an action at law/ instituted by each indi- vidual entitled to receive against each party Uable to pay for the amount of his share. But the consignee named in a bill of lading, not being the owner of the goods, is not liable, not- withstanding he receives the goods, unless this payment is expressly stipulated in the bill of lading as a condition of his receiving them.® There was no jurisdiction in- the Admiralty Court in respect of questions of general average.''' The master's lien on the goods for the amount of this contribution is at common law, and he may detain them tiU it is paid ; ® but instead of enforcing his lien for his own account, he may recover the whole against his insurer, and subrogate the insurer into his rights.^ In the case of a general ship, where the consignees are numerous, the more usual course is for the master, before he delivers the goods, to take a bond from the different merchants for payment of their proportions of the average when the same shall be adjusted. If the master neglect to take the necessary steps to enforce contribution, and the goods owner suffer by his negligence, the shipowner is liable iu an action by the goods owner for the loss.^" 1 Dig. 14. 2. 2. See Wellwood, tit. 18. 21. ^ Birkley v. Presgrave, 1 East, 220. 2 French Ord. liv. 3, t. 8, art. 21— " Soaife v. Tobin, 3 B. & Ad. 523. 4 Pardess. 384 ; Co. de Com. art. 428 ; ' The Constancia, 4 Notes of C. 677 . Cleirac, 35 ; Consolato, c. 53—2 Par- The North Star, 29 L. J. (Ad.) 73. ' dess. 102 ; The Kussian law — Simonds ^ Per Lord Tenterden, Scaif e v. V. White, 2 B. & Or. 804. Tobin, 3 B. & Ad. 523. 3 Per Abbott, C. J., Simonds v. ^ Dickinson v. Jardine, L. E. 3 C. P. White, 2 B. & Cr. 804, 813. 639. ■• Shepherd v. Wright, Show. P. C. "> Crooks v. Allan, 5 Q. B. Div. 38. CHAP. XIV.] GENERAL AVEKAGE. ,693 UPON THE ETYMOLOGY, MEANING, AND HISTORY OF THE TERM AVERAGE AS USED IN THE MARITIME LAW. The term Atierage used in the Law Maritime is regarded as an unintelligible symbol. As such, it has been used for a period probably of eighteen centuries. True, as here written, it wears an English guise, but it is a foreign word. No doubt it came to us through the French ; and as Kicli-shans is cpiclque cliose, so average is avarie disguised. But avarie according to Emerigon is a mere un- intelligible symbol. As a consequence of that, it readily lends itself to any theory whatever, without the disadvantage of ob^dous inconsistency or contra- diction. I propose to point out, however, what I believe to be its origin, history, and meaning. All the learning and theory, so far as I know, which have hitherto been employed in the exposition of this term, are so conveniently epitomised by Mr. Stevens that I gladly avail myself of his note. " The writers on Insurance are not agreed as to the etymology of the word Former ' Average.'— Mr. Serjeant Marshall (Marshall, p. 538, n.) quotes Cowell, who tlieories. considers it to be 'derived from the Latiu word a%-eragium ; which comes from the verb averare, to carry, — and originally signified a service which the tenant owed to his lord by horse or carriage. It is said to have been introduced into commerce, to show the proportion and allotment to be paid by every man according to his goods carried.' Millar (Millar, p. 334) thinks the word is derived from the Saxon healp, i.e., half, which corresponds with a word of similar sound in all the Teutonic languages, pronounced with the I mute (Johnson's Dictionary) ; — hence the word haZvers, partners ; and haZverage, partnership. HaZverage or average loss means a partnership loss. Perhaps the opinion of this being the most correct derivation may meet with some confirmation from the word being wi-itten in the German (a self-derived language), Saverie. In the Dutch, it is Averie ; in the French, Avarie ; in the Italian and Spanish, Averia. If any person be particularly curious on this subject he may consult M. L. Boxhorn (in Dissert, ad Arnold. Vinnium J. C), who pretends to trace back the word to the Arabians and Scythians, from the latter of whom he says the Germans received it, and the French from them. Q. van Weytsen, in his Treatise on Average, says that the word is derived from the Greek, ^apos (which signifies onus, or weight, without charge), and having the privative prefixed, makes a$apos, {aiaros or avaros) — without charge, which word is made use of when a vessel having made a jettison arrives without its entire cargo. — Be this as it may, it would require some boldness for any one to assert that he had found the true etymology of the word, after the verj' learned author, Emerigon (Traits d' Assurances, torn. i. p. 586), having declared that it is not yet discovered, and that it is probable it never will be." — Stevens Av. 2. Nothing so remarkably shows how easily the mind is diverted into error than this conflict of opinion among learned men ; — Cowell following the tendency of his day to explain everything by the feudal system, — Boxhornius and Mar- quardus, like our own Selden, yielding to the theological impulse of the sixteenth and seventeenth centuries, to look for an account of all mysteries in the languages of the East, — Millar with his insular prejudices satisfied of the term being Saxon in origin because of its forced coincidence in form with an English word, — and the others, including the very learned Emerigon, too familiar with the term under its original form in a very secondary sense to discover an old friend under a slight disguise. Le mot avarie, says Emerigon, est usit6 dans les places de commerce. This Origin, history, admitted fact, that the same term applied to the same uses is to be found in the and meaning of the term. 694 GENERAL AVERAGE. [chap. XIV. Its original form. In this form and use it is obsolete. Except in one phrase. Origin of this phrase among the Eomans, language of every maritime country in Europe, leads me to a very plain inference — the term is Latin, or it must have descended to us through that language. This seems to me to he a condition imposed by the state of the facts upon any explanation that may be offered ; the word is portion of the heritage from classical Rome to modern Bm'ope. Now I do find the form of this term in a very familiar classical word. I shall moreover show by an adverbial fragment from the language of the forum and the market-place of ancient Rome that the peculiar meaning which we professionally give to this tenn average was at one time appropriated to the classical word in question, but afterwards so entirely perished that the adverbial fragment I refer to, became etymologically unintelligible. When I say, however, iYatit perulied, I mean that it ceased from among men on shore. But that the term and the signification attached to it survived in union at sea is evidenced to our own day, as I have said, by their preservation in union in the language of every country on the European sea-board. This evidence is the more striking that by the archaic guise which it generally wears, it continues isolated though familiar. The classical term which I refer to, as the original of average, avarie, averia. is Aversio. I need not point out how naturally, from its etymology, it would lend itself to the purposes of the Lex Ehodia to designate fii'st, the effect of jettison (jactus), the averting, namely, of destruction from the whole adventure (aversio periculi) by sacrifice of part, — secondly, the loss sustained by the sacri- fice, as the thing chiefly considered after the peril was over and the co-adventurers were, once more at land, — and thirdly, the result of all, the contribution wrangled about among these co-adventurers when at their ease, and shortly called by them aversio, being in fact thepretiwni aversioTvU according to the first meaning, and the eontributio ad aversionem according to the second. That each of the three should come to be called aversio is in accordance with what we know of the exigency of business for laconip phraseology, and with our daily experience of the economical shifts that men are forced to by a meagre vocabulary such as would be found among sea-faring men of any time. Consequently, the word Average has come to be used at this hour in the high places of the law and of commerce after this manner in the same three senses. But since I am obliged to own that this use of the simple form aversio has entii-ely disappeared from all the literary remains of ancient Rome, not except- ing her laws and legal commentaries, have I anything besides the mere form of the word and my own imagination for the inference that it ever was in use in this signification t As I have said, there is an adverbial use of the word in a sense as incompre- hensible etymologically to grammarians, as the modern term avarie is to lawyers, but when both are brought into juxtaposition, avarie with ex aversione, there is such a solution of difficulties on both sides, — difficulties of form and etymology on the part of the modern term, — difficulties of meaning etymologically con- sidered on the part of the ancient fragment, as to convince everyone that the light thus given forth is the effect of truth, and that the identification of the modem with the ancient term is unquestionable. Let me assume, for a moment this conclusion as admitted, in order that I may show how natural among such a people as the ancient Romans was the loss of the term as a sea phrase, and also how intelligible was the salvage, among that same people, of this fragment from the embrace pf the ocean to serve the purposes of civic life. They were a people incapable of any zest for maritime pursuits. They have given evidence, however, to the latest posterity of having been possessed with the loftiest genius for legislation and government. It is probable that we cannot appreciate with what a generous pleasure this people would regard the equity and beneficence (sequum et bouum) involved in the principle of the Lex Rhodia. CHAP. XIV.] GENERAL AVERAGE. 695 Cicero before the citizens in comitia assembled celebrates the Rhodiorum usque ad nostram memoriam disciplina navalis et gloria ; and six centuries after Cicero, the Roman legislators were stUl not so degenerate but they devoted a whole title of the Digest to the Lex Ehodia de Jactu. I refer to this law and to the large space it fiUed in the public eye during those time's as accounting for the familiar use of a phrase attributable wholly to maritime pursuits and the forensic dis- cussion of questions arising upon these m connection with the Lex Ehodia. On 'Change, as we should say, and among the lawyers they were accustomed Use of it probably earlier than the time of Cicero, to speak of buying, hiring, or letting among the ex aversione. The general meaning of this phrase survives, but the etymological J^on'ans. origin and signiiicance of it have baffled all writers. See e.g., the Lexicon Juri- dicum Calvini, and Facciolati. Some propose to change the word to adversio ; others more faithful to tradition, retain the true word and suggest various ex- planations, all fanciful and most of them ludicrous, the least unplausible of all being, r. g., ex aversione ooculormn, — a,jpig in a poke mode of buying, which I need not say is in great esteem (!) with all shrewd piirchasqrs, the pick and choice of whom I am here dealing with. The general meaning of ex aversione cmere was to purchase for a lump sum. Etymological to buy in the gross, to give a sum out of hand and assume all the risk. The first origin and sense occasion of such a phrase and meaning was so lost in the time of Gains that the "^ ^^^ ancient adverbial form is corrupted to -/» acer-Hone (see Dig. 18, 1 , 62 adjinem) and even, P"''^^^- per aversionem. But, in its proper form, how picturesque and significant a phrase does it become when viewed in relation to the jactus of the Lex Ehodia. Those who have ever seen the purchase of a job lot, as the same thing is called among us, will appreciate the complex figure conveyed by this expression, — first the notion of flinging away of the lump sum (jactus — a favourite notion certainly with the purchaser), and the assumption of all risk on the shoulders of the buyer alone, so as to remove all responsibility (aversio) from those of the seller. See the Digest iiii siqn'a. The original from which this picture is drawn is that general average act at sea by which one of the co-adventurers sacrificed to the vengeance of the waves a portion of his goods and took upon his own shoulders the peril of all the others. Such an act amid cu'cumstanoes such as they always spoke of with dread seems to have kindled the imagination of the early Romans ; they carried the thought of it with them from the discussions of the forum into the business of the market-place, and it yielded them in both places an expres- sive phrase that served the chaffering traffic of the trader and the discriminative arguments of the lawyer. In this single fragment of an ancient language we discover, it seems to me, the history and nomenclature of what we have been accustomed to call general average, as vividly as if but yesterday we had listened to a case of Aversio from the Adriatic, discussed before the Praetor between Cicero and Hortensius. It may have been about the time of these distinguished men that a severance History of this began in the history of these terms. Civil life had obtained a phrase which it phrase and of urgently wanted. The phrase lived on amidst the technicalities of the market *"^ ^^* term, and the forum. Buffering such alteration as ignorance of its origin was sure to effect, yet never such disfigurement as to become unfit for the presence of the Pi'ffitor, or unworthy of a place among the noble remains of ancient legal philo- sophy. The original term, however, was, at the same time, as indispensable to the daily concerns of the population on the Mediterranean shores. The term ceased from city life, went down to the sea in ships with the merchant adven- turers of those times, and was already enured to the dangers of the deep when these came to be dared by the hardy children of the North who swarmed over the territories and seas of the great empire, and everywhere welcomed this Roman stranger to their ships and to their homes. 696 The sea term. Neict stage of its history. GKNERAL AVERAGE. [chap. XIV. Full effect of this term in Marine In- surance. The loss on shore of this ancient sea term is not so remarkable as its survival afloat these 1800 years, so little altered from its original form, and though so little altered, so totally unrecognised under the slight disguise it wears, domi- ciled and yet a stranger to the present hour in the language of every commercial country. Quite as singular, however, is the next stage of its history. Naturally enough an account of the origin of Marine Insurance is hopelessly lost. Vain attempts have been made to discover its existence among the remains of the Eoman Law. Its original designation seems to have been Assecnratio, a barbarism, converted by Continental merchants into Adseurantie and by ourselves into Asswanee. Classical writers upon the law merchant in the sixteenth and seventeenth cen- turies, wrote of it, however, under the designation Aversio pericuU vulgo Asse- cnratio. See Loccenius, 979. Singular as may seem this revival of an ancient classical term so completely lost to use in its maritime signification, more sin- gular perhaps is the dual existence which it hereby obtained, as it seems to have continued unrecognised, unidentified with the averia — averie — avarie of daily life. C'est k dire, says Bmerigon, vol. ii. c. xvii. s. 9, p. 265, — c'est k dire comme si I'entreprise nautique eftt 6t6 toang^re k I'assuri. Le p6ril est renvers^ sur I'assureur ; Assecuratio est amersio pericvU. Much more to my purpose is it that the modem reader should compare the two terms, and from the undisguised classical form in this new connection should comprehend the full meaning of the other, which in no long time once more usurped -the place of the classical term and now continues to fill that place with all the significance of the more intelligible word. See the citation from Emeri- gou, swpra. Just as Aversio successively designated first what we call general average, and secondly Marine Insurance, the corrupted form of it better known to sea life succeeded to these two functions, coupled with a distinctive epithet to point out in which it is to be accepted. Average, as the English form is of this ancient classical term, when used in connection with the contract of marine insurance signifies the whole purpose of that contract, namely, the a/verting from the individual adventurer, by interposition of the underwriter, of all the imme- diate consequences of the perils mentioned. This is the only use of the term appropriate to the subject of the present treatise. This is Pwrticiilar Average, as it is commonly called, to distinguish it from that other use of the same term which forms the subject of the present chapter. Lowndes on Since the above note was published in my 4th ed. of Amould on Marine Insu- Qeneral Average, ranee, Lowndes on General Average has appeared, a work while it was yet in the press, which I was pleased to bring to the notice of the public. Mr. Lowndes, in his appendix, p. 311, believes he has discovered the origin of this term in some obscure Italian transcripts of Maritime Law of the thirteenth and fourteenth centuries, published by Pardessus. So early as that age he finds the common Italian word aiiere used in some of these laws in the sense that it still bears in common use, viz., goods, possessions [as the Scotch to this day say 'hamiigs\. And because he finds also in some of these laws the word avaria, and the fragment varea, used in the sense of oontniution, he hopes his reader will conclude that all are but varieties of the same word. By any one enamoured of a novelty, as a child of a new toy, the suggested identity will be received without question. The author, however, deprives his case of any vraAsemMance it might have presented by his concluding observation : — " If more is needed to vindicate the Italian origin of this word, it is found in the form of the termination age, which is evidently taken from the word agio, used in commerce to denote a rate- able proportion, as in the agio of exchange. Avere being the property of each CHAP. XIV. j GENERAL AVERAGE. 697 and agio the rateable proportion, ateraggia, one of the Italian forms of this word, must mean a loss or payment levied rateably on the property of each." I am not to deny that the English term may have been Italianised into averaggia, but it seems a little too much to say that the very common English termination age is the mercantile agio. What is wanted, however, is not the origin of an English noun termination, but of the syllables aver, avar. It forms an odd com- ment on Mr. Lowndes's suggestion, that in the extract which he himself makes from the Italian Commercial Code, the French form of this word, viz., avarie, should beused, showing that under the one form or the other, avarie or avaria, it is the same unintelligible symbol in both countries. Before I had written the preceding Note, or had thought of doing so, I had OrigiDal Note been accustomed to hear, and never without a sense of disappointment, Dr. confirmed. Johnson's Dictionary definition of the English word Average referred to in our Courts, as an authority on questions of Average in the law of marine insurances. Disappointed, as I have said, and pained by such a reference, I hoped by point- ing out the use of the legal term as a symbol for the same set of legal ideas among the maritime nations of Europe, to convey to those who had less time for the investigation some flavour of the ancient learning and of the sea commerce with which it comes associated to us, if peradventure they might be induced to look elsewhere for light and assistance in the forensic discussion of such questions. Such was the main object I had in view in entering upon the investigation, and whatever else might have mingled with my thoughts, they certainly never were directed to the aim of etymological research. For I have always been accustomed to consider that such an aim is beside the purpose of a law treatise. Nor am I now to suffer myself to be led aside from that purpose by the etymological researches of others. I will not pronounce upon the merits of a suggestion of that order recently made by Mr. Lowndes 'in his treatise on General Averages. And if I advert to what he says of the above Note, I do so for the sake of the occasion that it gives me to develop somewhat further my original suggestion in the hope that others, with more facilities and informa- tion under their hand, may be induced to press the inquiry in the direction of what appears to me to be a very curious history. For it is in this view that it is so fascinating to the mind, as a point of shy, fugitive history, identified at its source with the feelings of our common nature,' and traceable in its descent through time as it crops up strangely at distant intervals in the legislation, or other commercial remains of the maritime nations of Europe. My, friend, Mr. Lowndes, is in error when he says that I have endeavoured to connect this term average, with the " actio de aversione of the old Roman Law," or with " the forms of Roman Law." Moreover, there never was any such actio, and I am afraid he is scarcely aware how technical and special is the sense of his phrase, "forms of Roman Lan:^' And when he says that the term average " did not come into use till many centuries after the forms of Roman Law had been laid aside and practically forgotten," Mr. Lowndes is venturing upon an assertion which no one in Europe or in the world, himself not excepted, is in a condition at this time to verify. But as he does pretend to verify this very large assertion, I give his verification in his own words. " The word a/oerage is not to be found in the Digest, nor is it in any of the older Sea Laws which were, like the laws of Oleron, of general authority throughout Europe. It is not in the Consolato Del Mare. If we except Italy," — [my friend has found in a transcript of Italian Law from medieval times given in Pardessus, a use of avere for goods, possessions, such as is made of it in Italy to this day, and an old fragment varea, in the sense, he says, of contribution, which to him 698 GENEEAL AVEEAGE. [chap. XIV. Dual Existence of General m Ancient Times. As in Modern Times. looks like the same avere. It does not odour to him that this varea might be the time-worn form of the aversio of ancient classical times] — "If we except Italy," Mr. Lowndes continues, "it is not to be traced in Europe to an earlier date than the OvAion, that is than the sixteenth century." My friend is very much at his ease in making assertions ; this certainly is a large one. Ifow if I allow for fact the smallest half of this assertion, which even then is surely large enough for the faith of his readers— namely, all that about the Digest, aud as many Codes in addition as he chooses to include in the statement, — I have to remind him and his readers, that all that is. utterly beside the point when adduced as evidence against my suggestion in the above Note, which any one that reads it will see, presupposes the very thing he here alleges. The very pith of my suggestion is, that from very early times what is known to us now as General Average existed as 3. practice, and that, though not so early, yet from an early period, it existed as a Lam; but that this existence continued for centuries to be a dual existence of Practice and of Law, with little, if any, reference from one to the other — ^the one, altogether maritime, pursued by average adjusters in the Mediterranean ports ; the other a scientific principle in the hands of a learned profession congregated in the great inland cities of those times. Men will hardly remain sceptical of the possibility of such a dual existence if they listen to evidence which I think is very cogent on this point. The statute law of England from the earliest enactment up to the year 1867 fills ONE HUNDRED AND SIX octavo volumes of about 500 pages apiece, and yet the word average, in the sense of general average, will not, I believe, be found once ia all these volumes, if we except from them the Lloyd's policy, a purely commercial instrument not owing its origin to the Legislature, which the Legislature have embodied once, or it. may be twice, in statutes passed merely for the purposes of revenue. Again, taking the reported cases from the earliest of the Year Books up to the year 1756, when Lord Mansfield became a judge, I find them comprised in about one hdndbkd and sevbntt- THEBE volumes of various sizes — folio, quarto, or octavo, — and in all this matter, being the daily record of the life of the English nation, I have not succeeded in finding more than two cases bearing upon this subject, and con- taining mention of this term. In this immense mass of printed paper, bound up in 279 volumes, being the written law of the greatest maritime and commercial people the world has seen, extending with the progress of affairs and the spring- ing up of contentious disputes, year by year over a period of about six centuries, not being a digest, nor a collection of random clippings by any Tribonian, but the garnered wisdom of England in relation to the chief interests of her people, this term probably occurs in three obscure passages and no more. At the same time the Lex Ehodia confessedly had a professional existence in England, for in the work of MoUoy de Jure Maritime, published in the time of Charles II., he devotes a chapter to Averages, chiefly made up from the Title in the Digest, and of references to the two English cases already mentioned. ' Notwithstanding this singular abstinence of the English Law f rbm mention of it, the term yet lives at the present day in the mouths of men on the chief places of commerce, and has done so any day thete three hundred years past, with all the vitality and commotion proper to a symbol of losses and conflicting claims and competiag interests. This possible contradiction between the existence of a commercial practice and the absence of notice of it in the laws aud legal records of a commercial cpuntry is assumed by Mr. Lowndes in the passage quoted to be impossible, or the evidence he adduces is worthless for his purpose. Mr. Lowndes, when he came to write his Introduction, may have forgotten his theoretical arguments in favour of his antiquarian etymology. In the first dozen lines of the volume he says, — " It is not too much to say that during this period CHAP. XIV.J GENERAL AVERAGE. 699 Ancient Practice of General Average. [the last sixteen years] this little branch of law [General Average] has quickly passed from the traditionary to the written stage. Formerly, it was governed by what were called the ' Customs of Lloyd's.' " This is exactly the state of things which I ventured to hint in the above Kote as having existed for centuries before the Christian era around the Mediterranean seaboard. I could certainly see, " in my mind's eye," the Stevenses and the Richardses, the Davisons and the Lowndeses of those times, men distinguished in that day for their facile power of arithmetic, their experience of maritime affairs, and their logical discrimination, each in his chosen port, passing from ship to ship, in the manner of his predecessors, this one with his board and chalk, that one with his waxen tablets and stylus, smoothing difficalties, adjusting claims, convincing the obstinate seaman or mercator by a little argument and a slight lesson in arithmetic on his finger ends, and then exhibiting on his tablets the final results of the effect of the sea perils during the adventure. These were men that arose with the need there was for them, and the necessity by which they were bred arose out of the nature and oii'cumstances of maritime commerce in connection with the perils of the sea. For these men the sanction of their practice lay in convenience and natural right, and the principle which they applied would vary in development with the genius and capacity of each and of the prede- cessors into whose heritage he had come. By what Solon or Numa, and in what age, their practice came to be formulated into some such law as that which we stUl call the Lex Rliodia, as they in all probability knew not, so it were idle speculation for us to inquire. Even after such a law had been promulgated, those ancient Average adjusters continued no doubt for centuries as unconscious of the law as we are now of its author. But were they without a name to designate the object and end of their daily itg name, labour ? It is contrary to our nature to suppose it ; in fact, an impossibility. Business requires but abbreviates talk, and a common purpose frequently arising comes to assume a single word for its name ; a name that may be characteristic, it may be casual, or it may be wholly unaccountable even to contemporaries ; but a name it necessarily assumes. Kow the occasion for the average adjuster arose on shipboard in the presence Origin of its of death. Avcrtamus ! would be the word on the lips of every Roman who had Name, presence of mind left to help himself. Not one of them, having once looked death in the face and compromised with him by the sacrifice of property, could ever forget the A'versio. It was the first, the last, the only word in the Roman vocabulary of these seafarers suited to their lips and to the circumstances. On land, the parties to the dispute had been parties on shipboard to the sacrifice and the terror. Aversio was enough for both, therefore ; and the adjuster was content to accept their own term and profit by his practice. On the other hand, no such necessity for a name was laid upon the jurisconsult ^jiy i^ame at Rome. To him the subject first came, already formulated into a law. For unknown at him the place of its origin, the island of Rhodes, would be a designation quite as Rome, serviceable as the name of the author of its existence had it originated in Rome. The Consular name, or the names of both Consuls joined, sufficed to designate the law of the year ; unless such an innovator as the first Csesar were the author, and then to distinguish the Leges Juliae, the object of the particular law was conjoined. (See the Index Legum., by Orellius and Baiter, in their edition of Cicero, passim.) In fact, to a Roman jurisconsult thus accustomed to distinguish the legislation of his country, such a word as Aversio wanting for him the terrible meaning which it carried to the mind of the parties to a jettison, would be as the slang of sea pedlars — to be heard and flung aside with contempt. Thus it might continue to be, in the private practice of these jurisconsults for years, nay, generations. 700 GENERAL AVEEAGE. fCHAP. XIV. Till a Casual Accident gave it Cun-ency. The Name lived with the Prac- tice, of course. At length a case of unusual complexity in facts and interests, and invoMng unusually large sums, might well arise at such a port as Marseilles among the wily Greeks of that emporium, and each with pretensions that brooked no compromise, might, without fear of detection, contend that the whole result of the case tui-ned in his own favour. The local adjuster states the case ; the local judge is only the means of getting it appealed to Kome ; the patrons of each side, stimulated to unusual exertion by unusual fees, exercise their keenest skill and their most powerful rhetoric ; and the idle frequenters of the forum that day axe outnum- bered by a great levy from the better classes drawn by the rumour of a suit originating in the very crisis of death and destruction amid the sea waves, a claim called by the uncouth and to them ridiculous designation — a claim ex aversione— to hear it related and argued before the Praetor. It was indeed to them some new thing. It made a great impression. It was a nine days' wonder. And then it died away from the memory of the Romans. But the phrase for its brief uncouthness, after living in the slang of the streets, came to serve the necessities of the market-place, and continued to do service in this inland capa- city long after its origin had been wiped from the recollections of the Eoman citizen. Meanwhile the local practice of adjustment continued as before in the ports of the Mediterranean. And just as the sea suffered no change by all the convulsions that upheaved and at length overthrew the mighty empire about its margin ; so the peculiar habits and vocabulary born of that sea in those ancient mariners and their dependants continued, as the; had been, and were bred in successive generations of men as they rose, rank behind rank, in the long course of centuries, seeming to show but little change whether the men they served to characterise acknowledged a Eoman Emperor or a British Queen. The term arersio needs must suffer defacement, when the language that gave it life and form ceased from living use, and left it a fragment tossed to and fro by the waters of the great deep. With some of its angularity gone, through the abrasion of time and uncouth circumstances, as it rolled down the current of centuries, here turning up as avaria, there as varea, in one place as avarie, in another sis average, there is still, I think, enough to identify it to the mind of the scholar with the ex aversione of ancient Rome and to conciliate assent by the light which it gives and receives in that connection. CHAPTER XV. OP COMPETING LIENS. Ix the course of the preceding pages I have been obHged to discuss the leading principles of the maritime law relating to bottomry, maritime liens, employment of the ship by some against the will of other of the part-owners, wages, pilotage, towage, salvage, and damage causes ; and I have invariably considered the remedy that was open to the claimant under each particular. One thing remains to be done, because it could not be done piecemeal — namely, to exhibit in a succinct and collected form those principles on which the Court of Admiralty deals with competing claims, whether founded on liens maritime or at common law or otherwise. Diligence in the institution of the suit and procedure therein puioKiir of OOMPKTIN SUIIOBS. unto decree is rewarded in this court with priority of claim against °''"™'^''"' the fund. This is the first general rule of relative right among separate claimants against the same res.^ "When several claimants, founding on different liens, are Priority of Lions. equal in point of diligence, if the fund in court be insufficient for all, the rule of priority must then be derived from con- siderations affecting the liens themselves. Considered in relation to their object, liens may be divided Liens classified. into two classes : — First, liens in the nature of rewards for benefit conferred ; Secondly, liens in the nature of reparation for wrong done. Those of the former class generally rank General rale of against the fund in the inverse order of their attachment on the ™° "^' res ; those of the latter class in the direct order of their attach- ment on the res ; and relatively to each other, whilst Hens of ' The Saracen, i Notes of Cases, The "W. F. SaflEord, 1 Lush. Ad. 69. 512 ; on appeal, 6 Moore, P. 0. 75 ; 702 COMPETING LIENS. [cHAP. XV. the one class when prioir in date yield precedence in claim to those of the other class when subsequent, the actual result of this order of ranking is greatly modified by positive law and equitable considerations. Liens in the na- Liens which are in the nature of rewards for benefits cou- ture of Kewarda. ferred comprise liens for bottomry, wages, master s disburse- ments, pilotage, towage, salvage, and, in the case of foreign ships, necessaries. Of these, the general rule, subject to some exceptions, is that the later in time is the earlier in payment. The chief if not the only reason for that order of precedence lies in this, that the prior claimant shares in the later benefit conferred on the common subject of their liens, the presumption of law ever being that the more recent benefit — salvam fecit totius pignoris causam.^ Each person, therefore, becoming by his right of lien " so to speak a part-owner in interest," con- tracts with regard to every later lien a kind of liability to the extent of a proportionate diminution of the value of his own lien.^ Hence of several bottomry bonds on the same ship, the later is paid before the earlier ; ^ and any subsequent bond before a prior mortgage * or prior salvage ; ' but subsequent salvage takes priority to a previous bond.^ Seamen's wages have been always favoured by the Court, which gives a claim of this nature an inviolable priority over all other claims whatever, irrespective of the order in which they attached upon the res J A master's wages and disbursements rank after the seamen's wages, and prior to all other claims,® notwithstanding he be a part-owner;^ excepting, however, such » Dig.20.4.6;^firSirJ.Nicholl,The , 'The Union, Lush. Ad. 138, in Sydney Cove, Fudge, 2 Dods. Ad. 1. which Dr. Luahington dieapproTeii of 2 Per Sir John Jervis, Harmer v. Ms own decisions in The Mary Ann, 9 BeU, 7 Moore, P. C. 267. Jur. 94 ; The Janet Wilson, Swab. Ad. 3 , The Sydney Cove, Fudge, 2 Dods. 261, and The Jonathan, Goodhue, Swab. Ad. 1 ; The Eliza, Weddell, 3 Hagg. Ad. 524 ; See also The Hersey, 3 Hagg. Ad. 89 ; The Betsey, Hay, 1 Dods. Ad. Ad. 404, 407 ; The Madonna D'Idra, 289 ; The Constanoia, 10 Jur. 850 ; 4 1 Dods. Ad. 37, 40 ; The Eepulse, 4 Notes of Cases, 285. Notes of Gas. 166, 168 ; The Constan- ^ The Duke of Bedford, Morris, 2 cia, 4 N. of Cas. 512, 521. Hagg. Ad. 294. a The Salacia, Lush. Ad. 545. 5 Tfae.Selina, 2 N. of Cas. 18. « The Feronia, L. K. 2 Ad. 65. 6 The W. F. SafEord, Lush. Ad. 69. CHAP. XV.] COMPETING LIENS. 703 claims as he has made himself liabl(5 to in the capacity of master.-^, He is therefore obliged to give precedence to a claim — for bottomry if he has bound himself in the bond,^ — for mortgage, if his own shares are included in the charge ^ — or for necessaries ordered by himself.* Pilotage and towage, as they are usually subsequent in time to other claims, are therefore usually allowed to rank after wages.^ A shipwright's possessory lien for repairs is subject to all liens on the vessel at the time she was put into his hands, and takes precedence of subsequent claims, e.g. for necessaries.^ Liens in the nature of reparation for wrong done, usually Lieua iu the arise out of collision, and form the subject of proceedings in ration, damage causes. They have their origin in positive law, and iu the policy of quieting strife by distributing compensation for in- juries done at the expense of the wrong- doer. They are severally CO -extensive with the statutory tonnage rate, and faihng a fund otherwise supplied, rank against ship and freight. Of two successive collisions with the same ship, the sufferers by the earlier standing to the sufferers by the later in no relation of demerit or obhgation, retain their priority of claim against the fund, on the principle of the legal maxim, — qui prior in tempore, potior est in jure. Such liens rank against ship and freight in derogation of any Considered in • -, , n !• -lii i 1 n • -I f relation to other rights of ownership or rights by mortgage or beneficial hen subsequent existing at the time of the collision. They acquire thereby ^'^°^" priority over mortgages, prior bottomry, wages, pilotage, towage, and salvage, and subsist adversely to proprietary interests and claims.'^ A far more difficult question relates to the attachment on the res of subsequent beneficial liens. These considered in relation to merit appear prima facie entitled to priority over all interests of any kind that have shared in the advantage; and, taking into account the fact that damage 1 The Daring, L. R. 2 Ad. 262. ^ Jenny Lind, stipra. 2 The Jonathan, Goodhue, Swab. Ad. * xhe Constancia, 4 jST. of Gas. 512, 524 ; The Edward Oliver, L. B. 1 Ad. 521 ; The Mary Ann, 9 Jur. 95, and 379. cases, supra, p. 702, note ". 3 The Jenny Lind, L. R. .3 Ad. 532 ; « The Gustaf , Lush. Ad. 506. The Mary Ann, L. E. 1 Ad. 8 ; The ? See The Benares, 7 Notes of Cas. Daring, supra ; The Feronia, supra,. Supp. 50, 54. 704 COMPETING LIENS. [chap. XV. Subsequent Wages. Subsequent Towage and Pilotage. Subsequent Salvage. plaintiffs are not confined to a suit in rem for their remedy, there would be little difficulty in according them this pre- cedence but for the case of foreign ships, and the bankruptcy or insolvent condition of a British owner.^ Subsequent wages in the case of foreign ships have been refused priority over damage plaintiffs on this ground — that the effect of allowing them would be to exonerate the wrong- doers at the expense of those to whom the wrong was done ; whilst the only consequence of the other course to the seamen is to remit them to their personal remedy against the owners and master in their own country.^ Under the bankruptcy of a British owner, their claim presents a different aspect, sugges- tive of equitable considerations favourable and unfavourable to the seamen. They have been the active cause of the damage ; the sufferer is thereby thrown for compensation upon a deficient fund; that fund, however, such as it is, has benefited by their services ; in a very extreme case therefore, the court may take account only of the services rendered since the collision happened, disregarding the surplus of the claim due to them at common law, and modify even that estimate in consideration of the dividend to be expected from the rest of the bankrupt's estate. The same reasons are not applicable to towage or pilotage subsequently rendered.^ The claimants are strangers to the ship, whether she is foreign or British ; their lien is founded upon benefit without alloy; and their services have secured the fund which is to compensate the damage plaintiff. These reasons apply with increased force in favour of the lien for subsequent salvage, the advantage being the greater as the loss was more imminent, the merit the higher when danger is encountered by a mere volunteer, and the benefit all the more 1 Per cur. The Aline, 1 W. Rob. Ad. 111. 2 The Linda Flor, i Jut. N. S. 172, where the marginal note is erroneous, in representing the suit as by the crew of the damaged ship ; The Chimaera cited Hid. and stated, Coote's Ad. Pract. 121, note. 2 There can be no doubt that the language of the Court in the Benares, 7 Notes of Cases, Supp. 50, 5i, assert- ing the priority of damage liens over wages, pilotage, and towage, when taken as a general proposition, must be understood of prior wages, prior pilotage, and prior towage ; see The Aline, 1 W. Rob. Ad. Ill, 118. CHAP. XV.] COMPETING LIENS. 705 peculiarly his, who in virtue of his damage lien, derives from positive law a priority so exclusive.^ But the lender on bottomry occupies on this question a Subsequent position apart by himself. He confers an indispensable benefit ; and that is the full statement of his merit. On the other hand, he deliberately buys a risk, and, encouraged by the premium to speculate largely, he vaaj embark in it to the full extent of the ship's value. The concession of priority to such a claimant without any restraint, would oust the innocent sufferer of his compensation, and might open the door to collusion and fraud. To preserve the benefit for the sake of British owners, and to impose limits upon it for the sake of the damage plaintiff, the Court of Admiralty in such a case concedes priority to the bondholder against the accretion of value which his loan con- ferred upon the res.'^ But this rule is liable to modification under a difference of circumstances which require to be distin- guished. The necessity, for repairs to a vessel that has reached a port of this country after collision, considered in relation to the damage plaintiff and the mere preservation of the res, may be inconsiderable ; and if proceedings are to be taken forthwith in the English Court of Admiralty, a lender, in that case, with notice of the collision, comes to be in the position of a voluntary benefactor without claim to priority. A lender without notice in such a case was allowed his priority, but not for repairs done after the ship was arrested.^ A shipwright for repairs to a foreign vessel seems to stand in the position of a lender on bottomry, but in so far as he acquires and retains a hen at common law, his advantage is paramount. It is not by mere notice of the collision, however, that the When affected by bond-holder is deprived of his priority. The validity of the collision. ^"""^ bond in any case rests upon necessity, and the necessity of the ship may be such as to render the loan exceedingly meritorious in relation to the damage plaintiff. It is only when, in that relation considered, the necessity is evanescent, that knowledge operates to the disadvantage of the lender.* ' The Court only asserts the prece- recognised in Harmer v. Bell, 7 Moore, dence of damage liens over prior sal- P. 0. 267, 285. vage ; The Aline, 1 W. Rob. Ad. Ill, =* The Aline, 1 W. Bob. Ad. 111. j2g_ * This I apprehend to be the fair 2 The Aline, 1 W. Rob. Ad. Ill ; representation of the doctrine partl;|' z z 706 MARSHALLINra, Ante, c. iii. p. 122. = The Mary Ann, 9 Jur. 9i, 95, that ■was the case of a bottomry bond on ship only, and there ■vras a competing claim for seamen's wages, which the Court directed to be paid out of freight. 3 The Dowthorpe, Lofty, 2 W. Eob. Ad. 79 ; 2 Notes of Cases, 264, S. C. " The Constancia, 10 Jur. 845. ' '" The Constancia, snpra ; and see The Trident, Simson, 1 W. Eob. Ad. 29 ; The Dowthorpe, Lofty, supra. CJIAP. XV.] MARSHALLING ASSETS. 707 doubt of the solvency of such defendants.^ That would be to take away a right which the law had given to the suitors. It is a veiy different case if the law itself, expressly or impliedly, take away or postpone such right ; the Court may then deny precedence to seamen suing for subsequent wages, as against the right of a damage plaintiff.^ As between separate defendants who have relative interests, To protect De- and are liable in solido to the same claim, the Court will moderate the incidence of the suit so as to distribute the burthen in accordance with equity, if that can be done without impairing the plaintiff's security for the fruits of his vigilance. Thus, the proceeds of the ship alone have not been encumbered with the entire burthen, when the freight, which had been assigned to a third person, had shared in the advantage ;^ and if the cargo, being the property of a mere freighter, is hypothe- cated for the purposes of the ship, by a bond that names no other security, the bond-holder will rank against ship and freight in his own degree, and only resort to the cargo when the more legitimate fund is deficient, and to that extent.* 1 The Arab, 5 Jur. N. S. 517 ; The ^ The Dowthorpe, Lofty, 2 "W. Bob. Henry Eeed, Coote's Practice, 125. Ad. 79 ; 2 Notes of Cases, 264. ^ The Linda Flor, 4 Jur. N. S. 172 ; ■> The Coustancia, 10 Jur. 845 ; i ante, p. 704. Notes of Cases, 512, S, C, ? 7' APPENDIX. TABLE OF CONTENTS. PAQE Schedule of Repeals 710 Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104) . . . .711 Schedule of Forms 809 Agreement for Home Trade Ship ... ... 835 Agreement for Foreign going Ship 837 Regulations for discipline 839 Seaman's Allotment Note 840 Instructions for Apportionment of Salvage 841 Merchant Shipping Repeal Act, 1854 (17 & 18 Vict. c. 120) . . . 843 Merchant Shipping Act Amendment Act, 1855 (18 & 19 Vict. c. 91) . 845 Bills of Lading Act (18 & 19 Vict. c. Ill) 848 Passengers Act, 1855 (18 & 19 Vict. c. 119) 849 Admiralty Court Act, 1861 (24 Vict. c. 10) 879 Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63) . 882 Passengers Act Amendment Act, 1863 (26 & 27 Vict. c. 51) . . . 899 Merchant Shipping Act, 1854, Amendment Act, 1867 (30 & 31 Vict. c. 124) . 903 County Courts Admiralty Jurisdiction Act, 1868 (31 & 32 Vict. c. 71) 906 Merchant Shipping (Colonial) Act, 1869 (32 Vict. c. 11) . . . 909 County Courts Admiralty Jurisdiction Amendment Act, 1869 (32 & 33Vict. c. 51) 911 Passengers Act Amendment Act, 1870 (33 & 34 Vict. c. 95) . . 912 MerchantShipping Act, 1871 (34&35 Vict. c. 110) . . . . 912 Merchant Shipping Act, 1872 (35 & 36 Vict. c. 73) . . . . 914 Merchant Shipping Act, 1873 (36 & 37 Vict. c. 85) . . . . 917 Merchant Shipping Act, 1876 (39 & 40 Vict. c. 80) . . . . 923 Shipping Casualties Investigation Act (42 & 43 Vict. c. 72) . . . 934 General Rules for Investigations into Shipping Casualties . . . 935 Merchant Seamen (Wages and Rating) Act (43 & 44 Vict. c. 16) . . 941 .Merchant Shipping (Carriage of Grain) Act (43 & 44 Vict. o. 43) . 945 Bottomry Bond on Ship and Freight 947 Bottomry Bill on Ship, Freight (and Cargo) 947 Respondentia Bond on Cargo 948 Index ^^1 SCHEDULE .OF EEPEALS AFFECTING THE MERCHANT SHIPPING ACTS. Statutes Repealed. 17 & 18 Vict. c. 17 & 18 Vict. c. 18 & 19 Vict. c. 18 & 19 Vict. c. 25 & 26 Vict. c. 26 & 27 Vict. c. .30 & .31 Vict. c. 34 & 35 Vict. c. 35 & 36 Vict. c. 36 & 37 Vict. c. 38 & 39 Vict. c. 39 & 40 Vict. c. 104, § 295, 296, 297, 298, 299, 300, 322, 323, 504, 505, 224,227,231 . . . 25,34 304 327,329 . . . . 301, subs. 4; so much of 318 as requires owner of ship to transmit declara- tions mentioned ; 434 ; 437 from " and in case he so requires " to the end ; and 449 ; 418, subs. 2, from 1 Jan., 1877 . 436, from " and may pay " to end . . . . 243, subs. 1, the words " to imprisonment for any pe- riod not exceeding twelve weeks with or without hard labour ; and also " . 243, subs. 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" . . . . 246, 247, the words "in- stead of committing the offender to prison " 248 120, first proviso of § 4 ; 5 ; 8, from "And whereas" to the end; 9,14; §§7,10,12, each from " and this " to end § 13 § 3, so much as defines " Pas- senger Ship ; " 12 ; 14, rule 1, and so much of § as relates thereto ; 51, 53, 54 6, 7 1 ; 4, from "nor to any ship of war" to the end; 5, 68 ; Sched. A., as to all H. M.'s dominions § 2, and Table A. in Sched, 29, 33, 38 . 5 ; 12, as to all H. M.'s dominions § 2, 3 . 110;^4, 9, 10. . 11 14, from 1 Jan 11, 12, 13, 14 whole Act . §22 . . 91, 119, 63, 51, § 124, 1877 Repealing Statutes. 25 & 26 Vict. 30 & 31 Vict. 34 & 35 Vict. 35 & 36 Vict. 36 & 37 Vict. 63. 124. 110. 73. 85. 39 & 40 Vict. c. 80. 41 & 42 Vict. c. 79. 43 & 44 Vict. c. 16. 43 & 44 Vict. c. 16. 43 & 44 Vict. c. 16. 43 & 44 Vict. c. 16. 38 & 39 Vict. c. 66. 34 & 35 Vict. c. 110. 26 & 27 Vict. c. 51. 35 & 3G Vict. c. 73. 38 & 39 Vict. c. 66. 38 & 39 Vict. c. 66. 36 & 37 Vict. c. 85 38 & 39 Vict. c. 66. 38 & 39 Vict. c. 66. 36 & 37 Vict. c. 85. 39 & 40 Vict. c. 80. 39 & 40 Vict. c. 80. 39 & 40 Vict. c. 80. ;;9 & 40 Vict. c. 80. 43 & 44 Vict, c. 43. Part I. Of the Board of Trade . 713 „ II. Of Britisli Ships, their Ow- nership and Registry . 715 „ III. Of Masters and Seamen . 732 „ IV. Of Safety, and Prevention of Accidents . . . 766 ,. V. Of Pilotage 772 „ VI. Of Lighthouses . . . 7S2 STATUTES. THE MEECHANT SHIPPING ACT, 1854. 17 & 18 ViOT. c. 104. AN ACT TO AMEND AND CONSOLIDATE THE ACTS EELATING TO MERCHANT SHIPPING. [10<7i August, 1854.] Part VII. Of the Mercantile Marine Fund . . . .786 „ VIII. Of Wrecks, Casualties, and Salvage . . . . 788 „ IX. Of Liability of Shipowners 800 „ X. Of Local Procedure . 803 „ XI. Of Miscellaneous Matters 807 Whereas it is expedient to amend and consolidate the acts relating to Merchant 17 & 18 ViCT. Shipping : Be it therefore enacted by the Queen's most Excellent Majesty, by and with 0. 104. the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows ; Preliminary. 1. This act may be cited for all purposes as " The Merchant Shipping Act, 1854." gj^j^jj jjjj^ ^j 2. In the construction and for the purposes of this Act (if not inconsistent with the Act. context or subject matter) the following terms shall have the respective meanings herein- interpretation after assigned to them ; that is to saj', of certain terma " Her Majesty's dominions " shall mean Her Majesty's dominions strictly so called, in this Act. and all territories under the government of the East India Company, and all other territories (if any) governed by any charter or licence from the Crown or Parliament of the United Kingdom : " The United Kingdom " shall mean Great Britain and Ireland : "British possession" shall mean any colony, plantation, island, territory, or settlement within Her Majesty's dominions and not within the " United Kingdom : " "The Treasury" shall mean the commissioners of Her Majesty's Treasury : "The Admiralty" shall mean the Lord High Admiral or the commissioners for executing his office : " The Board of Trade " shall mean the Lords of the Committee of Privy Council appointed for the consideration of matters relating to trade and foreign planta- tions : " The Trinity House " shall mean the master, wardens, and assistants of the guild, fraternity, or brotherhood of the Most Glorious and Undivided Trinity and of St. Clement in the parish of Deptford Strond in the County of Kent, commonly called the Corporation of the Trinity House of Deptford Strond ; "The Port of Dublin Corporation" shall mean the Corporation for Preserving and Improving the Port of Dublin : "Consular ofBcer" shall include consul general, consul, and vice consul, and any person for the time being dischai-ging the duties of consul general, consul, or vice' consul : " Receiver " shall mean any person appointed in pursuance of this Act receiver o£ wreck ; 712 PRELIMINARY. 17 & 18 VioT. c. 104. Commencement of Act. Exemption of Her Majesty's Ships. Division of Act. ' Pilotage authority " shall include all bodies and persons authorised to appoint or license pilots, or to fix or alter rates of pilotage, or to exercise any jurisdiction in respect of pilotage : "Pilot" shall mean any person not belonging to a ship who has the conduct thereof : " Qualified Pilot " shall mean any person duly Ucensed by any pilotage authority to conduct ships to which he does not belong : " Master " shall include every person (except a pilot) having command 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 Her Majesty, mean the peison in command of such ship :' " Person " shall include body corporate : " Ship " shall include every description of vessel used in navigation not propelled by oars : " Foreign-going ship " shall include every ship employed in trading or going between some place or places in the United Kingdom, and some place or places situate beyond the following limits ; that is to say, the coasts of the United Kingdom, the islands of Guernsey, Jersey, Sark, Alderney, and Man, and the continent of Europe between the river Kibe and Brest inclusive : " Home-trade ship " shall include every ship employed in trading or going within the following limits ; that is to say, the United Kingdom, the Islands of Guernsey, Jersey, Sark, Alderney, and Man, and the continent of Kurope between the river Elbe and Brest inclusive : " Home-trade passenger ship " shall mean every home-trade ship employed in carrying passengers : " Light-houses " shall, in addition to the ordinary meaning of the word, include floating and other lights exhibited for the guidance of ships, 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, one thousand eight hundred and fifty-five. 4. This Act shall not, except as hereinafter specially provided, apply to ships belonging to Her Majesty. 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 third 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 liabihty of shipowners : The tenth part to legal procedure : The eleventh part to miscellaneous matters. PART I.] OF THE BOARD OF TRADE. 713 PAET I. THE BOARD OF TRADE : ITS GENERAL FUNCTIONS. 17 & ig Vict. c. 104. 6. The Board of Trade shall be the department to undertake the general superin- tendence of matters relating to merchant ships and seamen, and shall be authorised to Board of Trade can-y into execution the provisions of this Act, and of all other acts relating to merchant *° ^, ?^^u'^'j--„. ships and seamen in force for the time being, other than such acts as relate to the temi merchant revenue. shipping. 7. All documents whatever purporting to be issued or written by or under the direction Certiflcates and of the Board of Trade, and purporting either to be sealed with the seal of such board, or documents to be signed by one of the secretaries or assistant secretaries to such board, shall be purporting to received in evidence, and shall be deemed to be issued or written by or under the direction sio^ied in a of the said board, without further proof, unless the contrary be shown ; and all documents given manner to purporting to be certificates issued by the Board of Trade in pursuance of this Act, and be received In to be sealed with the seal of such board, or to be signed by one of the officers of the '^^^'i'*'""'- marine department of such board, shall be received in evidence, and shall be deemed to be such certificates, without further proof, unless the contrary be shown. 8. The Board of Trade may from time to time prepare and sanction forms of the jjoard of Trade various books, instruments, and papers required by this Act other than those required by to issue fonus the second part thereof, and may from time to time make such alterations therein of instruments, 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 supplied at the custom houses and shipping offices of the United Kingdom free of charge, or at such moderate prices as it may from time to time fix, or may hcense 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 sanctioned by it as the proper form for the time being ; and no such book, instrument, or paper as aforesaid, unless made in such form, shall be admissible in evidence in any civil proceeding on the part of any owner or master of any ship ; and every such book, instrument, or paper, 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 iu the form hereby required, unless the contrary is proved. 9. All instruments used in carrying into effect the second part of this Act, if not certain forms already exempted from stamp duty, and all instruments which by the third, fourth, and instruments sixth, or seventh parts of this Act are required to be made in forms sanctioned by the Jo ^^ exempt Board of Trade, if made in such forms, and all instruments used by or under the 1°^ ^ "'"'' direction of the Board of Trade iu carrying such parts of this Act into effect, shall be exempt from stamp duty. 1 0. Every person who forges, assists in forging, or procures to be forged, such seal or Penalties for other distinguishing mark as aforesaid, or who fraudulently alters, assists in fraudulently forgery of seal altering, or procures to be fraudulently altered, any form issued by the Board of Trade, aiteraSon"of " with the view of evading any of the provisions of this Act or any condition contained in forms, and for such form, shall for each offence be deemed guilty of a misdemeanour ; and every person not using forms who, in any case in which a form sanctioned by the Board of Trade is by the third part of Jff ^rade' this Act required to be used, uses without reasonable excuse any form 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 sanctioned for the time being or not to have been prepared and issned by the Board of Trade, shall for each such offence incur a penalty not exceeding ten pounds. 11. Subject to the provisions hereinafter contained, all fees and payments (other than Application of fines) coming to the hands of the Board of Trade under the third and fourth parts of this monies and Act, shall be carried to the account of the Mercantile Marine Fund hereinafter mentioned, g"^!,! of Trade. and shall be dealt with as herein prescribed in that behalf ; and all fines coming to the hands of the Board of Trade under this Act shall be paid into the receipt of Her Majesty's Exchequer in such manner as the Treasury may direct, and shall be carried to and form part of the Consolidated Fund of the United Kingdom. 714 OF THE BOARD Ol<' TRADE. [part 17 & 18 Vict. c. 104. Retunis to Board of Trade. Officers of Board of Trade, naval officers, consuls, the Registrar General of seamen, officers of customs and shipping masters, may inspect docu- ments and muster crews. Board of Trade may appoint inspectors. Powers of inspectors. Witnesses to he allowed expenses ; Penalty for refusing to give evidence. 12. All consular officers, and all officers of customs abroad, and all local marine boards and shipping masters, shall make and send to the Board of Trade such returns or reports on any matter relating to British merchant shipping or seaman as such Board requires ; and ail shipping masters shall, whenever required by the Board of Trade, produce to such Board or to its officers all official log books and other documents which, in pursuance of this Act, are delivered to them. 13. Every officer of the Board of Trade, and every commissioned officer of any of Her Majesty's ships on full pay, and every British con.sular officer, and the registrar-general of seamen and his assistant, and every chief officer of customs in any place in Her Majesty's dominions, and every shipping master, may, in cases where he has reason to suspect that the provisions of this Act or the laws for the time being j-elating to merchant seamen and to navigation are not complied with, exercise the following powers ; (that is to say,) He may require the owner, master, or any of the crew of any British ship to produce any official log books or other documents relating to such crew or any member thereof in their respective possession or control : He may require any such master to produce a list of all persons 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 crew or the said official log books or documents : And if upon requisition duly made by any person so authorised in that behalf as aforesaid, any person refuses or neglects to produce any such official log book or document as he is hereinbefore required to produce, or to allow the same to be inspected or copied as afore- said, or impedes any such muster of a crew as aforesaid, or refuses or neglects to give any explanation which he is hereinbefore required to give, or knowingly misleads or deceives any person hereinbefore authorised to demand any such explanation, he shall for each such offence incur a penalty not exceeding twenty pounds. 14. The Board of Trade may from time to time, whenever it seems expedient to them so to do, appoint any person, as an inspector, to report to them upon the following matters ; (that is to say,) (1. ) Upon the nature and causes of any accident or damage which any ship has sus- tained 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 : (3.) Whether the hull and machinery of any steamship are sufficient and in good condition. 15. Every such inspector as aforesaid shall have the following powers; (that is to say,) (1.) He may go on board any ship, and may inspect the same or any part thereof, or any of the machinery, boats, equipments, or articles on board thereof to which 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 which 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 fit to call before him and examirie for such purpose, and may require answers or returns to any inquiries he thinks fit to make : (4.) He may require and enforce the production of all books, papers, or documents which he considers important for such purpose : (5.) He may administer oaths, or may, in lieu of requiring or administering an oath, require 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 Record, or if in Scotland, to any witness attending on citation the Court of Justiciary ; and in case of any dispute as to the amount of such expenses the same shall be referred by the inspector to one of the masters of Her Majesty's Court of Queen's Bench in England or Ireland, or to the Queen's and Lord Treasurer's Remembrancer in Scotland, who, on a request made to him for that purpose under the hand of the said inspector, shall ascertain and certify the proper amount of such expenses ; and every person who refuses to attend as a witness before any such inspector, after having been required so to do in the manner hereby directed and after having 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 declarations which any such inspector is hereby empowered to require, shall for each such offence incur a penalty not exceeding ten pounds. PAEX II.] OF BRITISH SHIPS, THEIR OWNERSHIP AND REGISTRY. 715 16. Every person who wilfully impedes any such inspector appointed ty the Board of 17 & 18 Vicr. Trade as aforesaid in the execution of his duty, whether on board any ship or elsewhere, c. 104. shall incur a penalty not exceeding ten pounds, and may be seized and detained by such • inspector or other person or by any person or persona whom he may call to his assistance Penalty for until such offender can be conveniently taken before some justice of the peace or other Sispectorsln officer having proper jurisdiction. the execution of their duty. PAET II. BRITISH SHIPS : THEIR OWNERSHIP, MEASUREMENT, AND REGISTRY. Application, 17. The second part of this Act shall apply to the whole of Her Majesty's dominions. Application of Desa-iption and, Ownership of British Ships. 18. No ship shall be deemed to be a British ship unless she belongs wholly to owners of Description and the following description ; (that is to say,) Britfsh''il?i°s (1.) Natural-born British subjects : Provided that no natural-born subject who has taken the oath of allegiance to any foreign sovereign or state shall be entitled to be such owner as aforesaid, unless he has subsequently to taking such last-mentioned oath taken the oath of allegiance to Her Majesty, and is and continues to be during the whole period of his so being an owner resident in some place within Her Majesty's dominions, or if not so resident, member of a British factory, or partner iu a House actually carrying on business in the United Kingdom or in some other place within Her Majesty's dominions ; (2.) Persons made denizens by letters of denization, or naturalized by or pursuant to any Act of the Imperial Legislature, or by or pursuant to any act or ordinance of the proper legislative authority in any British possession : Provided that such persons are and continue to be during the whole period of their so being owners resident iu some place within Her Majesty's dominions, or if not so resident, members of a British factory, or partners in a House actually carrying on business in the United Kingdom or in some other place within Her Majesty's dominions, and have taken the oath of allegiance to Her Majesty subsequently to the period of their being so made denizens or naturalized : (3.) Bodies corporate established under, subject to the laws of, and having their principal place of business in the United Kingdom or some British possession. 19. Every British ship must be registered in manner hereinafter mentioned, except, British ships (1.) Ships duly registered before this Act comes into operation : with certain (2.) Ships not exceeding fifteen tons burden employed solely in navigation on the ^e're'^Hstered'"^* rivers or coasts of the United Kingdom, or on the rivers or coasts of some British ° possession within which the managing owners of such ships are resident : (3.) Ships not exceeding thirty 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 Brunswick as lie bordering on such gulf : And no ship hereby required to be registered shall, unless registered, be recognised as a British ship; and no officer 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 ofiicer may detain such ship until such certificate is produced to him. Measiircment of Tonnage. 20. Throughout the following rules the tonnage deck shall be taken to be the upper Tonnage deck deck in ships which have less than three decks, and to be the second deck from below in feet; decimals, all other ships ; and in carrying such rules into efiect all measurement shall be taken in feet and fractions of feet, and all fractions of feet shall be expressed in decimals. 716 OF BRITISH SHIPS, THEIR OWNERSHIP AND RESISTRY. [PART II. 17 & 18 Vict. c. 104. Rule I. For ships to be registered and otlier sliips of wliich the hold is clear. Lengths. Transverse areas. Computation from areas. Poop and any other closed in space. 21. The tonnage of every ship to be registered, with the exceptions mentioned in the next section, shall previously to her being registered be ascertained by the following rule, hereinafter called Rule I. ; and the tonnage of every ship to which such rule can be applied, whether she is about to be registered or not, shall be ascertained by the same rule : (1.) Measure the length of the ship in a straight line along the upper side of the tonnage deck from the inside of the inner plank (average thickness) at the side of the stem to the inside of the midship stern timber or plank there, as the case may be, (average thickness,) deducting from this length what is due to the rake of the bow in the thickness of the deck ; and what is due to the rake of the stern timber in the thickness of the deck, and also what is due to the rake of the stern timber in one-third of the round of the beam ; divide the length so taken into the number of equal parts required by the following table according to the class in such table to which the ship belongs : Table. Class 1. Ships of which the tonnage deck is according to the above measurement 50 feet long or under, into 4 equal parts : „ 2. Ships of which the tonnage deck is according to the above measurement above 50 feet long and not exceeding !20, into 6 equal parts : „ 3. Ships of which the tonnage deck is eiccording to the above measurement above 120 feet long and not exceeding 180, into 8 equal parts : „ 4. Sliips of which the tonnage deck is according to the above measurement above 180 feet long and not exceeding 226, into 10 equal parts : ,, 6. Ships of which the tonnage deck is according to the above measurement above 225 feet long, into 12 equal parts. (2.) 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 thereof, to the upper side of the floor timber at the inside of the limber strake, after deducting the average thickness of the ceiling which is between the bilge planks and limber strake; then, if the depth at the midship division of the length do not exceed sixteen feet, divide each depth into four equal parts ; then measiire the inside horizontal breadth at each of the three points of division, and also at the upper and lo«er points of the depth, extending each measurement to the average thick- ness of that part of the ceiling which is between the points of measurement ; number these breadths from above (i.e. numbering the upper breadth one, and so on down to the lowest breadth) ; multiply the second and fourth by four, and the third by two ; add these products together, and to the sum add the first breadth and the 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 sixteen feet, divide each depth into six equal parts instead of four, and measure as before directed the horizontal breadths at the five points of division, and also at the upper and lower points of the depth ; number them from above as before ; multiply the second, fourth, and sixth by four, and the third and fifth by two ; add these products together, and to the sum add the first breadth and the seventh ; multiply the quantity thus obtained by one-third of the common interval between the breadtlis, and the product shall be deemed the transverse area. (3.) Having thus ascertained the transverse area at each point of division of the length of the ship as required by the above table, proceed to ascertain the register tonnage of the ship in the following manner : — Number the areas successively 1 , 2, 3, &c., No. 1 being at the extreme limit of the length at the bow, and the last No. at the extreme limit of the length at the stern ; then whether the length bo divided according to the table into four or twelve parts as in classes 1 and 5, or any intermediate number 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 the first and last) by two ; add these products together, and to the sum add the first and last if they yield anything ; multiply the quantity thus obtained by one- third of the common interval between the areas and the product will be the cubical contents of the space under the tonnage deck ; divide this product by one hundred, and the quotient being the tonnage under the tonnage deck shall be deemed to be the register tonnage of the ship, subject to the additions and deduc- tions hereinafter mentioned. (4.) If there be a break, a poop, or any other permanent olosed-in space on the upper PART II.J OF BRITISH SHIPS, THEIR OWNERSHIP AND REGISTRY. 717 deck, available for cargo oi* stores, or for the berthing or aooommodation of passen- 17 & 18 Vict. gers or crew, the tonnage of such space shall be ascertained as follows : — Measure c. 104. the internal mean length of such space in feet, and divide it into two equal parts ; measure at the middle of its height 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 four times the middle breadth, and multiply the whole sum by one-third of the common interval between the breadths ; the product will give the mean hori- zontal area of such space ; then measure the mean height, and multiply by it the mean horizontal area ; divide the product by one hundred, and the quotient shall be deemed to be the tonnage of such space, and shall be added to the tonnage under the tonnage deck, ascertained as aforesaid, subject to the following pro- visoes ; first, that nothing shall be added for a closed-iu space solely appropri- ated to the berthing 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 be added ; and secondly, that nothing shall be added in respect of any building erected for the shelter of deck passengers, and approved by the Board of Trade. (5. ) If the ship has a third deck, commonly called a spar deck, the tonnage of the In case of two space between it and the tonnage deck shall be ascertained as follows : — Measure "^ ^°^^ decks, 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., commencing 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) by two ; to the sum of these products add the first and last breadths ; multiply the whole sum by one-third of the common interval between the breadths, and the result will give in superficial feet the mean horizontal area of such space ; measure the mean height of such space, and multiply by it the mean horizontal area, and the product will be the cubical contents of the space ; divide this product by one hundred, and the quotient shall be deemed to be the tonnage of such space, and shall be added to the other tonnage of the ship ascer- tained as aforesaid ; and if the ship has more than three decks, the tonnage of each space between declss 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, have Rule ii. cargo on board, and ships which, requiring to be measured for the purpose of registry, p^j. sjilpTnot cannot be measured by the rule above given, shall be measured by the following rule, requiring re- hereinafter called Rule II. : gistry with (1.) Measure the length on the upper deck from the outside of the outer plank at the "^'S" °" l>oard stem to the aftside of the stern post, deducting therefrom the distance between Length. the aftside of the stern post and the rabbet of the stern post at the point where the counter plank crosses it ; measure also the greatest breadth of the ship to the Breadth, outside of the outer planking or wales, and then, having first marked on the out- side of the ship on both sides thereof the height of the upper deck at the ship's sides, girt the ship at the greatest breadth in a direction perpendicular to the keel from the height so marked on the outside of the ship on the one side to the height so marked on the other side by passing a chain under the keel ; to half the girth Girting of the thus taken add half the main breadth ; square the sum ; multiply the result by ship, the length of the ship taken as aforesaid; then multiply this product by the factor '0018 (eighteen ten-thousandths) in the case of ships built of wood, and by •0021 (twenty-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 hereinafter mentioned. (2.) If there be a break, a poop, or other closed-in space on the upper deck the tonnage Poop and other of such space shall be ascertained by multiplying together the mean length, on ^pplj S? breadth, and depth of such space, and dividiiig the product by 100, and the quotient so obtained 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 men- tioned in Rule I., be added to the tonnage of the ship ascertained as aforesaid. 23. In every ship propelled by steam or other power requiring engine room, an allow- Rule III. ance shall be made for the space occupied by the propelling power, and the amount so allowed shall be deducted from the gross tonnage of the ship ascertained as aforesaid, and engine rooiu in steamers 718 OP BRITISH SHIPS, THEIR OWNERSHIP AND REGISTRY. [pART II. 17 & 18 VlOT. C. 104. To "be rateable in ordinary steamera. Maybe measured where the space is un- usually large or small. Mode of measurement. In ease of separate com- partments. Shaft trunk of screw steamer. Alteration of engine room. Penalty for carrying goods in such space. EULE IV. Open ships how measured. Tonnage and number of certificate to be carved on main beam. Tonnage when once ascertained to be ever after deemed the toimage. Remeasurement of ships already ■registered may be made, but the remainder shall be deemed to be the register tonnage of such ship ; and such deduc- tion shall be estimated as follows ; (that is to say), (a.) 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 twenty per cent, and under thirty per cent, of the gross tonnage of the ship, such deduction shall be thirty-seven one-hundredths of such gross tonnage ; and in ships propelled by screws in which the tonnage of such space is above thirteen per cent, and under twenty per cent, of such gross tonnage, such deductions shall be thirty-two one-hundredths of such gross tonnage : (6.) As regards all other ships, the deduction shall, if the Commissioners of Customs and the owner 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 space actually occupied or required to be 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 measure- ment and use of such space shall be governed by the following rules; (that is to (1.) Measure the mean depth of the space from its crown to the ceihng 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 measurements at each end, and another at the middle of the length ; take the mean of such breadths ; 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 required for the proper working of the machinery ; multiply together these three dimensions of length, breadth, and (Jepth, and the product will be the cubical contents of the spice 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 thei-eof ; add such contents to the cubical contents of the space below the crown; divide the sum by 100; and the result shall be deemed to be the tonnage of the said space : (2.) If in 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 space : (3.) In the case of screw steamers in which the space aforesaid is to be measured, the contents of the shaft trunk shall be added to and deemed to form part of such space, and shall be ascertained by multiplying togdther the mean length, breadth, and depth, of the trunk, and dividing the product by 100 : (4.) If in any ship in which the space aforesaid is to be measured any alteration be made in the length or capacity of such space, or if any cabins be fitted in such space, such ship shall be deemed to be a ship not registered until remeasurement: (5.) If in any ship in which the space aforesaid is to be measured any goods or stores aire stowed or carried in such space, the master and owner shall each be liable to a penalty not exceeding one hundred pounds. 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 depths shall be taken from an athwart- ship line, extended from upper edge to upper edge of the said Btrake at each division of the length. 25. [Sepealed hj 34 & 35 Vict. c. 110.] 26. Whenever the tonnage of any ship has been ascertained and registered in accord- ance with the provisions of this Act, the same shall thenceforth be deemed to be the tonnage of such ship, and be repeated in every subsequent registry thereof, unless any alteration is made in the form or capacity of such ship, or unless it is discovered that the tonnage of such ship has been erroneously computed ; and in either of such cases such ship shall be remeasured, and her tonnage determined and registered according to the rules hereinbefore contained in that behalf. 27. The rules for the measurement of tonnage herein contained shall not make it necessary to alter the present registered tonnage of any British ship registered before this Act comes into operation ; but if the owner of any such ship desires to have the same PART II, J OF BRITISH SHIPS, THEIR OWNERSHIP AND REGISTRY, 719 remeasured according to such, rules, he may apply to the Commissioners of Customs for 17 & 18 Vict. the purpose, and such commissioners shall thereupon, aud on payment of such reasonable 0. 104. charge for the expenses of remeasuremeut, not exceeding the sum of seven shillings and ' sixpence for each transverse section, as they may authorize, direct such remeasuremeut to °°' *° ^^ ''"'"" be made, aud such ship shall thereupon be remeasured according to such rules as afore- said, or according to such of them as may be applicable ; and the number denoting the register tonnage s&all be altered accordingly. 28. If it appears to the Commissioners of Customs that in any steam ship measured Power to re- before this Act comes into operation, store rooms or coal bunkers have been introduced measure engine into or thrown across the engine room, so that the deduction from the tonnage on account perly'extBiided. of the engine room is larger than it ought to be, the said commissioners may, if they think fit, direct such engine room to be remeasured according to the rules in force before this Act comes into operation, excluding the space occupied by such store rooms or coal bunkers, or may, if the owners so desire, cause the ship to be remeasured according to the rules hereinbefore contained, aud subject to the conditions contained in the last preceding section ; and after remeasuremeut the said commissioners shall cause the ship to be registered anew, or the registry thereof to be altered, as the case may require. 29. The Commissioners of Customs may, with the sanction of the Treasury, appoint Offlcers may such persons to superintend the survey and admeasurement of ships as they think fit ; be appointed aud may, with the approval of the Board of Trade, make such regulations for that pur- made tor pose as may be necessary ; and also, with the like approval, make such modifications and measurement alterations as from time to time become necessary in the tonnage rules hereby prescribed, of ships. in order to the more accurate and uniform application thereof, and the effectual carrying out of the principle of admeasurement therein adopted. Registry of British Ships. 30. The following persons are required to register British ships, and shall be deemed i^ogistrars of registrars for the purposes of this Act ; (that is to say), ^ ' (1.) At any port or other place in the United Kingdom or Isle of Man approved by the Commissioners of Customs for the registry of ships, the collector, comptroller, or other principal officer of customs for the time being : (2.) In the islands of Guernsey and Jersey, the principal officers of Her Majesty's customs, together with the governor, lieutenant-governor, or other person administer- ing 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 : (4.) At any port or place so approved as aforesaid within 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, Bombay, the master and attendants, and at any other port or place so approved as aforesaid within the limits of the charter and under the government of the East India Company, the collector of duties, or any other person of six years standing in the civil service of the said company who is appointed by any of the governments of the said company to act for this purpose : (6.) At every other port or place so approved as aforesaid within 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 resident at such port or place, the governor, lieutenant-governor, or other person administering the government of the possession in which such port or place is situate. 31. The governor, lieutenant governor, or other person administering the government, Substitution of in any British possession where any ship is registered under the authority of this Act foJoommis-™" shall, with regard to the performance of any act or thing relating to the registry of a ship sioners of or of any interest herein, be considered in all respects as occupying the place of the Com- customs, and missioners of Customs ; and any British consular officer shall, in any place where there is ?„sti"e no justice of the peace, be authorised to take any declaration hereby required or per- ' mitted to be made in the presence of a justice of the peace. 32. Every registrar shall keep a book, to be called "The Register Book," and enter Jglp^Jg^fstgr therein the particulars hereinafter required to be registered. _ books. 33. The port or place at which any British ship is registered for the time being shall p^^^ ^j registry be considered her port of registry or the port to which she belongs. of British ship. 34. [Repealed by Si & 35 Vict. c. 110]. jr^me of ship. 35. Every application for the registry of a ship shall in the case of individuals be made ^-pji^^tju^ by the person requiring to be registered as owner, or by some one or more of such persons fo? registry, if more than one, or by his or their duly authorised agent, and in the case of bodies cor- by whom to be porate by their duly authorised agent ; the authority of such agent, if appointed by indi- made. 720 OF BRITISH SHIPS, THEIR OWNERSHIP AND REGISTRY. fpART II. Eu]es as to entries in re- gister booJc. Declaration of ownersliip by iudividual owner. 17 & 18 ViOT, Tiduals, to be testified by some writing under the hands of the appointers, and if appointed c. 104. by a body corporate, by some instrument under the common seal of such body corporate. ; — 36. Before registry, the ship shall be surveyed by a, person duly appointed under this Survey of ship, j^g^ . ^nd 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 by the Board of Trade ; and such certificate shall be delivered to the registrar before registry, 37. The following rules shall be observed with respect to entries in the register book ; (that is to say,) (1.) The property in a ship shall be divided into sixty-four shares : (2.) Subject to the provisions with respect to joint owners or owners by transmission hereinafter contained, not more than thirty-two 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 or of any company represented by or claiming under or through any registered owner or joint owner : (3.) No 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 five, 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 the foregoing rule relating to the number of persons entitled to be registered 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 respect of which they are registered : (5.) A body corporate may be registered as owner by its corporate name. 38. No person shall be entitled to be registered as owner of a ship or any share therein until he has made and subscribed a declaration in the form marked 33. in the schedule hereto, referring to the ship as described in the certificate of the surveyor, and containing the following particulars ; (that is to say,) (1.) A statement of his qualification to be an owner of a share in 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 building not known.) a statement that she is foreign-built, 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 time, 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 unqualified person or body of persons is entitled as owner to any legal or beneficial interest in such ship or any share therein : The above declaration of ownership shall 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. 39. No body corporate shall be entitled to be registered as owner of a ship or of any share therein until the secretary or other duly appointed public officer of such body cor- porate has made and subscribed in the presence of the registrar of the port of registry a declaration in the form marked C. in the schedule hereto, referring 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 qualified 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 buUding unknown,) a statement that she is foreign-built, 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 time, 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 such body corporate is owner : (5.) A denial that, to the best of his knowledge and belief, any unqualified person or body of persons is entitled as owner to any legal or beneficial interest in such ship or any share therein. 40. Upon the first registry of a ship there shall, in addition to the declaration of owner- ship, 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 Declaration ot ownership by hody corporate. Evidence to be ^ produced on registry. PART n.] OF BEITISH SHIPS, THEIR OWNERSHIP AND REGISTRY. 721 required to grant under his hand) containing a true account of the proper denomina- 17 & 18 ViOT. tiou and of the tonnage of such ship as estimated by him, and of the time when and of c. 104. tlie place where such ship was built, together with the name of the party (if any) on wliose account he lias built the same, and, if any sale or sales have taken place, the bill or bills of sale under which the ship or share therein has become vested iu the party requiring to be registered as owner : (2.) In the case of a foreign-built ship, the same evidence as in the case of a British- built ship, unless the person requiring to be registered as owner, or, in the case of a body corporate, the duly appointed officer, declares that the time or place of her building is unknown, or that the builder's certificate cannot be procured, in which case there shall be required only the bill or bills of sale under which the ship or share therein became vested in the party requiring to be registered as owner thereof: (3.) In the case of a ship condemned by any competent court, an ofSoial copy of the condemnation of such ship. 41. If any builder wilfully makes a false statement in any certificate hereby required Penalty on to be granted by him he shall for every such offence incur a penalty not exceeding one S.^j'^'^^'' 1% ^ hundred pounds. 42. As scon as the foregoing requisites to the due registry of a ship have been complied Particulars of with, the registrar shall enter in the register book the following particulars relating to ™*'jy ™ register 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 certificate hereinbefore directed to be given by the surveyor : (3.) The several particulars as to her origin stated in the declaration or declarations of ownership ; ( J . ) 1'he names and descriptions of her registered owner or owners, and if there is more than one s\icti owner, the proportions in which they are interested in such ship. 43. No notice of any trust, express, implied, or constructive, shall be entered in the No notice register book, or receivable by the registrar; and, subject to any rights and powers t^''^™ °f t^^t^- 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. Certificate of Registry. 44. Upon the completion of the registry of any ship the registrar shall grant a certificate Certificate ol of registry in the form marked D. in the schedule hereto, comprising the following gp|5i'ga '° particulars ; (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 certificate hereinbefore directed to be given by the surveyor : (3.) The name of her master : (4. ) The several particulars as to her origin stated in the declaration or declarations of ownership : (5.) The names and descriptions of her registered owner or owners, and if there is more than one such owner, the proportions iu which they are respectively interested, indorsed upon such certificate. 45. Whenever any change takes place in the registered ownership of any ship, then if Change of such change occurs at a. time when the ship is at her port of registry, the master shall pwiiers to be forthwith deliver the certificate of registry to the registrar, and he shall indorse thereon (.'eitiiicate o£ a memorandum of such change ; but if such change occurs during the absence of the ship registry. from her port of registry, then upon her first return to such port the master shall deliver the certificate of registry to the registrar, and he shall endorse thereon a like memorandum of the change ; or if she previously arrives at any port where there is a British registrar, such registrar shall, upon being advised by the registrar of her port of registry of the change having taken place, indorse a like memorandum thereof on the certificate of registry, and may for that purpose require the certificate to be delivered to him, so that the ship be not thereby detained; and any master who fails to deliver to the registrar the certificate of registry as hereinbefore required shall incur a penalty not exceeding one hundred pounds. 4a. Whenever the master of any British registered ship is changed, the following Change of persons, that is to say, if such change is made in consequence of the sentence of any ™f|^^'^^4^f°^Jj° naval court, the presiding ofificer of such court, but if the change takes place from any ^^.^^^^^^^^ ^f other cause, the registrar, or if there is no registrar, the British consular officer resident registry, 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 722 OF BRITISH SHIPS, THEIR OWNERSHIP AND EEGISTRY. [PART II. 17 & 18 ViOT. C. 104. Power to grant new certificate. Provision In case of loss of certificate. Provisional (certificate to be delivered up. Custody of certificate. Delivery of certificate may be required. Penalty for detention. Mode of pro- ceeding;, if detaining party abscond. Penalty for using improper certificate. Certifieate of ship lost or i-ealiing to be British to be delivered up. report the change of master to the Commissioners of Customs in London ; and the oflacers of customs at any port situate within Her Majesty's dominions may refuse to admit any person to do any act at snch port as master of any British ship, unless his name is inserted in or indorsed 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, upon the delivery up to him of the former certificate of registry, grant a new 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 destroyed, if such event occurs at any port in the United Kingdom, the ship being registered in the United Kingdom, 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 certi- ficate of registry in lieu of and as a substitute for her original certificate of registry ; but if such event occurs elsewhere, the master or some other person having knowledge of the circumstances shall make a declaration before the registrar of any port having a British re^'istrar at which such ship is at the time or first arrives after such mislaying, loss, or destruction; and such declaration shall state the facts of the case, and the names and descriptions of the registered owners of such ship, 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 by this Act as circumstances permit, and shall insert therein a statement of the circumstances under which such provisional certificate is granted. 49. Every such provisional certificate shall, within ten days after the first subsequent arrival of the ship at her port of discharge in the United Kingdom, if registered in the United Kingdom, or if registered elsewhere, at her port of discharge in the British pos- session 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 A ct as circumstances permit ; and if the master neglects to deliver up such certificate within such time he shall incur a penalty not exceeding fifty pounds. 50. The certificate of registry shall be used only for the lawful navigation of the ship, and shall not be subject to detention by reason of any title, lien, charge, or interest what- soever, which any owner, mortgagee, or other person may have or claim to have on or in the ship described in snch certificate ; and if any person whatever, whether interested or not in the ship, refuses on request to deliver up such certificate when in his possession or under his control to the person for the time being entitled to the custody thereof for the purposes of such lawful navigation as aforesaid, or to any registrar, officer of the customs, 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 before him and to be examined touching such refusal ; and unless it is proved to the satisfaction of such justice or court that there was reasonable cause for such refusal the ofiender shall incur a penalty not exceeding one hundred pounds ; but if it is made to appear to such justice of court that the certificate is lost, the party complained of shall be discharged, 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 absconded, so that the warrant of the justice or process of the court cannot be served upon him, or if he persists in his refusal to deliver the certificate, such justice or court shall certify the fact, and the same proceedings may then be taken as in the case of a certificate of registry mislaid, lost, or destroyed, or as near thereto as circumstances permit. 52. If the master or owner of any ship uses or attempts to use for the navigation of such ship a certificate of registry not legally granted in respect of such ship, he shall be guilty of a misdemeanour, and it shall be lawful for any commissioned officer on full pay in the military or naval service of Her Majesty, or any British officer of customs, or any British consular ofiScer, to seize and detain such ship, and to bring her for adjudication before the High Court of Admiralty in England or Ireland or any court having Admiralty jurisdiction in Her Majesty's dominions ; and if such court is of opinion that such use or attempt at use has taken place, it shall pronounce such ship, with her tackle, apparel, and furniture, to be forfeited to Her Majesty, and may award such portion of the proceeds' arising from the sale of such ship 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, burnt, or broken up, or if by reason of a transfer to any persons not qualified to be owners 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 the 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, give such notice to him, and he shall make an entry thereof in his register book; and, except in cases where the certificate of registry is lost or PART II. J OF BRITISH SHIPS, THEIU OWXEESHIP AND REGISTRY. 723 destroyed, the master of every ship so circumstanced as aforesaid shall immediately, if 17 k 18 ViOT. such event occurs in port, but if the same occurs elsewhere, then within ten days after 0. 104. his arrival in port, deliver the certificate of registry of such ship to the registrar, or, if there be no registrar, to the British consular olBoer at such port, and such registrar if he IS not himself the registrar of her port of registry, or such British consular officer, shall forthwith forward the certificate so delivered to him to the registrar of the port of registry of the ship ; and every owner and master who, without reasonable cause, makes default in obeying the provisions of this section shall for each offence incur a penalty not exceeding one hundred poxmds. 54. If any ship becomes the property of persons qualified to be owners of British ships Provisional at any foreign port, the British consular officer resident at such port may grant the master certificate of such ship, upon his application, a provisional certiKcate, stating — f™ ^^'P becom- The name of the ship ; BrS*owners The time and place of her purchase, and the names of her purchasers ; at foreign port. The name of her master ; The best particulars as to her tonnage, build, and description that he is able to obtain ; And he shall forward a copy of such certificate, at the first 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 months, or until such earlier time as the ship arrives at some port where there is a British registrar ; but upon the expiration of such period, or upon arrival at such port, shall be void to all intents. Transfers and Transmisiions. ■^5. A registered ship or any share therein, when disposed of to persons qualified to be Transfer of ships owners of British ships, shall be transferred by bill of sale ; and such bill of sale shall jr scares contain such description of the ship as is contained in the certificate of the surveyor, or ™'^™™- such ether description as may be sufficient to identify the ship to the satisfaction of the registrar, and shall be according to the form marked E. in the schedule hereto, or as near thereto as circumstances permit, and shall be 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 transterree of a ship or any share Declaration to therein until he has made a declaration in the form marked F. in the schedule hereto, l^emacleby stating his qualification to be registered as owner of a share in a British ship, and con- ^"^ orree. taining a denial similar to the denial hereinbefore required to be contained in a declara- tion 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 qualified to owu a British ship, and containing a denial similar to the denial hereinbefore required to be contained in a declaration 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, but if beyond that distance in the presence of any registrar or of any justice of the peace ; in the case of a body corporate the declaration shall be made in the presence of the registrar of the port of registry. 67. Every bill of sale for the transfer of any registered ship, or of any share therein. Registration of when duly executed, shall be produced to the registrar of the port at which the ship is transfer, registered, together with the declaration hereinbefore required to be made by a trans- ferree ; and the registrar shall thereupon enter in the register book the name of the transferree as owner of the ship or share comprised in such bill of sale, and shall indorse 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 ship or shares in a ship shall be entered in the register book in the order of their production to the registrar. 58. If the property in any ship or in any share therein becomes transmitted in conse- Transmission of quence of the death or bankruptcy or insolvency of any registered owner, or in conse- ?^if^ ^I rleath, quence of the marriage of any female registered owner, or by any lawful means other than nf^-riaSe."^' °'^ by a transfer according to the provisions of this Act, such transmission shall be authenti- cated 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 herein- before required to be contained in the declaration of a transferree, or as near thereto as circumstances permit, and, in addition, a statement describing the manner in which and tlje party to whom such property has been transmitted ; and sucli 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. 3 A 2 724 OP BRITISH SHIPS, THEIR OWNERSHIP AND REGISTRY. [pART II. 17 & 18 Vict. 0. 104. Proof of trans- mission "by bankruptcy, marriage, will, or on intestacy. E-egistration of transmitted share. Kegistrar to retain certain evidence. Unqualified owner entitled by transmission may apply to court for sale of ship. Order to be made by court. Limit of time for application. Power of courts to proliibit transfer. 59. If such transmission has taken place by virtue of the bankruptcy or insolvency of any registered owner, the said declaration shall be accompanied by such evidence as may for the time being be receivable in courts of justice as proof of the title of parties claiming under any bankruptcy or insolvency ; and if such transmission has taken place by virtue of the marriage of a female owner, the said declaration shall be accompanied by a copy 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 t^l^en place by 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 therefi-om, and in Scotland or in any British 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 proof of the person entitled upon an intestacy. 60. The regi-trar, upon the receipt of such deolaiation so accompanied a3_ aforesaid, shall eater the name of the person or persons entitled under such transmission in tho register book as owner or owners of the ship or share therein in respect of which such transmission has taken place ; and such persons, if more than one, shall, however nume- rous, be considered as one person only as regards the rule hereinbefore contained relating to the number of persons entitled to be registered as owners. 61. Of the documents hereby required to be produced to the registrar, he shall retain in his possession the following; that is to say, the surveyor's certificate, the builder's certificate, the copy of the condemnation, and all declarations of ownership. 62. Whenever any property in a ship or share in a ship becomes vested by transmission on the death of any owner or on the marriage of any female owner in any person not qualified to be the owner of British ships, it shall be lawful, if such ship is registered in England or Ireland for the Court of Chancery, if in Scotland for the Court of Session, or if in any British possession for any court possessing the principal civil jurisdiction witLiu such possession, upon an application 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 expenses thereof, to be paid to the person entitled under such transmission, 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 applica- tion it may think fit, and generally to act in the premises in such manner as the justice of the case requires. 63. Every order for a sale made by such court as aforesaid shall contain a declaration vesting the right to transfer the ship or share so to be sold in some person or persons named by the court, and such nominee or nominee.s shall thereupon 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 owner 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 requisition of any registered owner or owners of such ship or share. 64. Every such application as aforesaid for sale shall be made within four weeks 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 aforesaid ; 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 directed with respect to interests acquired by unqualified owners in ships using a British flag and assuming the British character. 65. It shall be lawful in England or Ireland for the Court of Chancery, in Scotland for the Court of Session, in any BritL-ih possession for any court possessing the principal civil jurisdiction within such possession, without prejudice to the exercise of any other power such court may possess, upon the summary application of any interested person made either by petition or otherwise, and either ex parte or upon service of notice on any other person, as the court may direct, to issue an order prohibiting for a time to be named in such order any 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 annex thereto any terms or conditions it may think fit, and to discharge such order when granted, with or without costs, and generally to act in the premises in such manner as the justice of the case requires ; and every registrar, without being made a party to the proceedings, upon being served with such order or an official copy thereof, shall obey the same. PART II.] OF BRITISH SHIPS, THEIK OWNERSHIP AND REGISTRY. 725 Mm-tgagcs. 17 & 18 Vict. 66. A registered ship or any share therein may be made a security for a loan or other rrz — ^ — } ' valuable consideration ; and the instrument creating such security, hereinafter termed a shhis^S "shares "mortgage," shall be in the form marked I. in the schedule hereto, or as near thereto as therein. 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 be recorded by the registrar in the order of time in Mortgancs to which the same is produced to him for that purpose ; and the registrar shall, by memo- ^'^ registered iu raudum under his hand, notify on the instrument of mortgage that the same has been *"''?' °f.ti"i'^ "f recorded by him, stating the date and hour of such record. 68. "Whenever any registered mortgage has been discharged, the registrar shall, on the Entry of dis- production of the mortgage deed, with a receipt for the mortgage money indorsed thereon, '^'^'''5F° °^ duly signed and attested, make an entry in the register book to the effect that such mort- ^°^ ^^^'^' gage has- been discharged ; and upon such entry being made, the estate, if any, which j-iiissed to the mortgagee, shall vest in the same person or persons iu 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 therein, the Priority of mortgagees shall, notwithstanding any express, implied, or constructive notice, be entitled iiiortgages. in priority one over the other according to the date at which 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 of a Mortgagee not ship or any share therein, nor shall the mortgagor be deemed to have ceased to be to be deemed owner of such mortgaged ship or share, except in so far as may be necessary for making owner, such ship or share available as a security for the mortgage debt. 71. Erery registered mortgagee shall have power absolutely to dispose of the ship or Mortgagee to share in respect of which he is registered, and to give effectual receipts for the purchase l^ave power ot money ; but if there are more persons than one registered as mortgagees 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 by any Rights of act of bankruptcy committed by the mortgagor after the date of the record of such mortgage, °J?'^?^?f ""* notwithstanding such mortgagor at the time of his becoming bankrupt may have in his act o/bank-""^ possession and disposition and be reputed owner of such ship or share thereof ; and such ruptey of mortgage shall be preferred to any right, claim, or interest in such ship or any share mortgagor, thereof which may belong to the as,signees of such bankrupt. 73. A registered mortgage of any ship or share in a ship may be transferred to any Transfer of person, and the instrument creating such transfer shall be in the form marked K. in the mortgages, schedule hereto, and on the production of such instrument the registrar shall enter in the register book the name of the transferee as mortgagee of the ship or shares therein men- tioned, and shall by memorandum under his hand record on the instrument of transfer that the same has been recorded by him, stating the date and hour of such record. 74. If the interest of any mortgagee iu any ship or in any share therein becomes trans- Transmission of mitted in consequence of death, bankruptcy, or insolvency, or in consequence of the J^ortgagee by marriage of any female mortgagee, or by any lawful means other than by a transfer deatlT, bank- according to the provisions of this Act, such transmission shall be authenticated by a ruptey, or declaration of the person to whom such interest has been transmitted, made in the form °i'u'"''se. marked L. in the schedule hereto, and containing a statement describing the manner iu which and the party to whom such property 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 required 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 such Entiy of evidence as aforesaid, shall enter the name of the person or persons entitled under such ^^j^J^g*'' transmission in the register book as mortgagee or mortgagees of the ship or share in respect ° ° ' of which such transmission has taken place. Certificates of Mortgage and Sale. 76. Any registered owner, if desirous of disposing by way of mortgage or sale of the ^,°™^ f ^^^ ship or share in respect of which he is registered at any place out of the country or pos- ^^j^ ^^^ ^^ session in which the port of registry of such ship is situate, may apply to the registrar, who conferred by shall thereupon enable him to do so by granting such certificates as are hereinafter men- certificate. 726 OP BRITISH SHIPS, THEIR OWNERSHIP AND REGISTRY. [PART n. 17 & 18 Vict. 0. 104 Requisites for certificates of mortgage and sale. Restrictions on certificates of moitgage and sale. Forms of certificates of mortgage and sale. Rules as to certificates of mortgage. Rules as to certificates of tioned, to be called respectively certificates of mortgage or certificates of sale, according as they purport to give a power to mortgage or a power to sell. 77. Previously to any certificate of mortgage or sale being granted, 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 amount 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 which 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 here- inafter contained ; (3.) The limit of time within which such power may be exercised. 78. No certificate of mortgage or sale shall be granted so as to authorise any 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 British possession if the port of registry is situate within a British possession ; or By any person not named in the 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 herein- before- directed to be entered in the register book, and in addition thereto an enumeration of any registered mortgages or certificates of mortgage or sale affecting the ships or shares in respect of which such certificates are given. 80. The following rules 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 British consular officer : (3.) No mortgage bond fide made thereunder shall be impeached by reason of the person by whom the power was given dying before the making of such mortgage : (4.) Whenever the certificate contains a speoi6cation of the place or places at which, and a limit of time not exceeding twelve months within which, the power is to be exercised, no mortgage bond fide made to a mortgagee without notice shall be impeached by reason of the bankruptcy or insolvency of the person by whom the power was given : (5.) Every mortgage which is so registered as aforesaid on the certificates shall have priority over all mortgages of the same ship or share created subsequently to the date of the entry of the certificate in the register book ; and if there be more mortgages than one so indorsed the respective mortgagees claiming thereunder shall, notwithstanding any express, implied, or constructive notice, be entitled one before the other according to the date at which 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 mortgage had been registered in the register book instead of on the certificate : (7.) The discharge of any mortgage so registered on the certificate may be indorsed thereon by any registrar or British consular officer, upon the production of such evidence as is hereby required 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, which passed to the mortgagee shedl 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 been made: (8.) Upon the delivery of any certificate of mortgage to the registrar by whom it was granted he shall, after recording in the register book in such manner as to pre- serve its priority any unsatisfied mortgage registered thereon, cancel such certificate, and enter the fact of such cancellation in the register book ; and every certificate so cancelled shall be void to all intents. 81. The following rules shall be observed as to certificates of sale ; (that is to say,) (1.) No such certificate shall be granted except for the sale of an entire ship : I>AUT II.] OF BRITISH SHIPS, THEIR OWNKRSHIP AND REGISTRY. 727 (2.) The power shall be exercised in conformity with the directions contained in the 17 & 18 ViOT. certificate : o. 104. (3.) No sale bond Jlde Tas.de to a purchaser for valuable consideration shall be impeached by reason of the person by whom the power was given dying before the making of such sale : (4.) Whenever the certiBcate 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, no sale bond fide made to a purchaser for valuable consideration ■ without notice shall be impeached by reason of the bankruptcy or insolvency of the person by whom the power was given : (S.) Auy transfer made to a person qualified to be the owner of British ships shall be by bill of sale in the form hereinbefore mentioned, or as near thereto as circum- stances permit : (6.) 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 ceriificate of sale shall be entered in the register book : (7.) Previously to such registry auew there shall be produced to the registrar required to make the same the bill of sale by which the ship is transferred, the certificate of sale, and the certificate of registry of such ship : (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 be the former port of registry of the ship, and such last-mentioned registrar shall thereupon 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 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 certifi- cate of registry may be transferred to the new register book, without her being re-surveyed, and the declaration to be made by the purchaser shall be the same as would be required to be made by an ordinary transferee : (10.) If the ship is sold to a party not qualified to be the owner of a British ship, the bill of sale by which the ship is transferred, the certificate of sale, and the certificate of registry shall be produeed to some registrar or consular ofTioer, 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, shall forward such certificates to the registrar of the port appear- ing 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 registry book, and the registry of the ship in such book shall be considered as clo-ed, except so far as relates to any unsatisfied mortgages or existing certifi- cates of mort-jage entered therein : (11.) If upon a sale being made to an unqualified person default is made in the pro- duction of such certificates as are mentioned in the last rule, such unqualified person shall be considered by British law as having acquired no title to or interest in the ship ; and further, the party upon whose application such certi- ficate was granted, and the persons exercising the power, shall each incur a penalty not exceeding one hundred pounds : (12.) If no sale is made in conformity with the certificate of sale, such certificate shall be delivered to the registrar by whom the same was granted ; and such registrar shall thereupon cancel it, and enter the fact of such cancellation in the register book ; and every certificate so cancelled shall be void to all intents. 82. Upon proof' at any time to the satisfaction of the Commissioners of Customs that Power of any certificate of mortgage or sale is lost or so obliterated as to be useless, and that the Commissioners powers thereby given have never been exercised, or if they have been exercised then upon ^^g^ „f j^gg ^j proof of the several matters and things that have been done thereunder, it shall be lawful certiflcate of for the registrar, with the sanction of the said commissioners, as circumstances may mortgage or require, 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 ship or share therein in respect of Eevocation of which a certificate of mortgage or sale has been granted, specifying the place or places certificates of where the power thereby given is to be exercised, may, by an instrument under his hand ™ie. made in the form 0. in the schedule hereto, or as near thereto as circumstances permit, authorise the registrar by whom such certificate was granted to give notice to the registrar or consular officer, registrars or consular officers, at such place or places, that such certi- ficate is revoked ; and notice shall be given accordingly ; and all registrars or consular 728 OF BRITISH SHU'S, THEIR OWNERSHIP AND REGISTRY. [PART U. 0. 104, Alteration in sliip to 'be registered. On alteration registiy anew may be requii'ed. 17 & 18 ViOT. officers receiving such notice shall record the same, and shall exhibit the same to all persons who may apply to them for the purpose of effecting 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 far as concerns any mortgage or sale to be thereafter made at such place, be deemed to be revoked and of no efiect ; and every registrar or consular officer recording any such notice shall thereupon state to the registrar by whom the certificate was granted, whether any previous e}^ercise of the power to which such certificate refers has taken place. Registry anew, and Transfer of Registry. 84. Whenever any registered ship is so altered as not to correspond with the particulars relating to her tonnage or description contained in the register book, then, if such altera- tion 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 registrar at which the ship arrives after her alteration, shall, on application made to him, and on the receipt of a certificate from the proper surveyor specifying the nature of such alteration, either retain the old certi- ficate of registry, and grant a new certificate of registry containing a description of the ship as altered, or indorse on the existing certificate a memorandum of such alteration, and subscribe his name to such indorsement ; and the registrar to whom such application as afores.iid 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 alteration so made, and the fact of such new certificate having been granted or indorsement having been made on the existing certificate; but if he is not such last-mentioned registrar, he shall forthwith report such particulars and facts as aforesaid, accompanied by the old certificate of registry in cases where a new one has been granted, to the registrar of the port of registry of the sliip, who shall retain such old certificate (if any), and enter such particulars and facts in his register book accordingly. 85. When the registrar to whom application is made in respect of any such alteration as aforesaid i,3 the registrar of the port of registry, he may, if he thinks fit, instead of registering such alteration, require such ship to be registered anew in manner hereinbefore directed on the first registry of a ship, and if he is not such registrar as lastly hereinbefore mentioned he may nevertheless require such ship to be registered anew, but he shall in such last-mentioned case grant a provisional certificate, or make a provisional indorsement of the alteration made in manner hereinbefore 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, within ten days after the first subsequent arrival of the ship at her port of discharge in the United Kingdom, if registered in the United Kingdom, or, if registered elsewhere, at her port of discharge in the British possession within which her port of registry is situate, be delivered up to the registrar thereof, who shall thereupon cause such ship to be 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 ship so altered as aforesaid, such ship shall be deemed not duly registered, and shall no longer be recognised as a British ship. 88. If upon any change of ownership in any ship the owner or owners desire to have such ship registered anew, although such registry anew is not required by this Act, it shall be lawful for the registrar of the port at which such ship is already registered, on the delivery up to him of the existing certificate of registry, and on the other requisites to registry, or such 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 the application of all parties appearing on the register to be interested in such ship, whether as owners or mortgagees, such application to be expressed by a declaration in writing made and subscribed, if the party so required to make and subscribe 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 port, but if beyond 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 the delivery to him of the certificate of registry, the registrar of the port ah 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 having been made to him, together with 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 Grant of pro- visional certi- fioate in respect of alteration. Consequence of oifiission to register anew. On change of owners, registry anew may be granted, if reqiiii'ed. Registry may be transferred from port to IJort. Manner of trau.st'er of registry. PART II.J OF BRITISH SHIPS, THEIR OAVNERSHIP AND REGISTRY. 729 and names in his book of registry, and grant a fresh certificate of registry, and thenceforth 17 & 18 Vicj" such ship shall be considered as registered at and belonging to such last-mentioned port, o. lOi. and the name of such last-mentioned port shall be substituted on the stern of such ship '■ iu lieu of the name of the port previously appearing thereon. 91. The transfer of the registry of any ship in manner aforesaid shall not iu any way Transfer of afleot the rights of the several persons interested either as owners or mortgagees iu such "^1?'^^''^ ^"^ ^° ship, but such rights shall in all respects be maintained and continue in the same manner owners' °^ as if no such transfer had been effected. Registry, Miscellaneous, 92. Every person may, upon payment of a fee to be fixed by the Commissioners of Inspection of Customs not exceeding one shilling, have access to the register book for the purpose of ri^sister books. ■ inspection at any reasonable time during the hours of ofiicial attendance of the registrar. 93. No registrar shall be liable to damages or otherwi-se for any loss accruing to any Indemnity to person by reason of any act done or default made by him in his character of registrar, registrar, unless the same has happened through his neglect or wilful act. 94. Every registrar in the United Kingdom shall at the expiration of every month, and Return to be every other registrar shall without delay, or at such stated times as may be fixed by the ™ ™'-' *" of the fees hereby made payable in respect of such engagement or discharge, and may, for from'Va''es. 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 hereto : Provided that, if in any cases the sums which the owner is so Proviso as to entitled to deduct exceed the amount of the fee payable by him, such excess shall be paid excess, by him to the shipping master in addition to such fee. 127. Any shipping master, deputy shipping master, or any clerk or servant in any Penalty on shipping office, who demands or receives any remuneration whatever, either directly or shipping masters indirectly, for hiring or supplying any seaman for any merchant ship, excepting the lawful reJ^J^feJation fees payable under this Act, shall for every such oli'ence incur a penalty not exceeding twenty pounds, and shall also be liable to be dismissed from his office by the Board of Trade. _ . 128. The Board of Trade may, with the consent of the Commissioners of Customs, Business of direct that at any place in which no separate shipping office is established the whole or shipping offices any part of the business of the shipping office shall be conducted at the custom house, may be trans- and thereupon the same shall be there conducted accordingly ; and in respect of such ^^f^^. "^^"^ business such custom house shall for all purposes be deemed to be a shipping office, and the officer of customs there to whom such business is committed shall for all purposes be deemed to be a shipping master within the meaning of this Act. 129. The Board of Trade may appoint any superintendent of or other person connected In London with any sailors home in the port of London to be a shipping master, with any necessary ^ay be\°hi'ppin'' deputies, clerks, and servants, and may appoint any office in any such home to be a offices. ' " shipping office; and all shipping masters and shipping offices so appointed shall be subject to the immediate control of the Board of Trade and not of the local marine board of the port. . . 1. • T 1 130. The Board of Trade may from time to time dispense with the transaction before a Dispensation shipping master or in a shipping office of any matters required by this Act to be so with shippmg transacted ; and thereupon such matters shall, if otherwise duly transacted as required by J^tenden™*'''^' law, be as valid as if transacted before a shipping master or in a shipping office. Exaiainaiwns and Certificates of Masters and Mates. 131. Examinations shall be instituted for persons who intend to become masters or Examinations mates'of foreion-going ships, or of home trade passenger ships, or who wish to procure to be instituted certificates of competency hereinafter mentioned ; and, subject as herein mentioned, the ["^'"jj^'lf 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, arid may regulate the same ; and any members of the local marine board of the place where the examination is held may be present and assist at any such esaniiriation. 132. The Board of Trade may from time to time lay down rules as to the conduct of ofTrade over such examinations and as to the qualifications of the applicants, and such rules shall be examinations, striotfy adhered to by all examiners ; and no examiner shall be appointed unless he pos- 736 OF MASTEES AND SEAMEN. [part in. 17 & 18 Vict. c. 104. Fees to be paid by applicants lor examination. Certificates of competency to be granted to those who pass. Certificates of service to be delivered to persons wiio served as masters or mates before 1S61, and to certain naval oflicers ; and certificates of sei'vice for home trade passenger shiijs to be delivered to persons who have served as masters or mates in such sliips before 1st January, 1854. No foreign-going ship or home trade passenger ship to proceed to sea without certificates of the master and mates. Certificates for foreign-going ships available for home trade passenger ships, sessea a certificate of qualification, to be from time to time granted or renewed by the Board of Trade ; and the sanction of the Board of Trade ehall be necessary, so far as regards the number of examiners to be appointed, and the amount of tlieir remuneration ; and the Board of Trade may at any time depute any of its officers to be present and assist at any examination ; and if it appears to the Board of Trade that the examinations for any two or more ports can be conducted without inconvenience by 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 regulating examinations and appointing and removing examiners for such ports. 133. All applicants for examination shall pay such fees not exceeding the sums specified in the table marked R. in the schedule hereto, as the Board of Trade directs ; and such fees shall be paid to such persons as the said board appoints for that purpose. 134. Subject to the proviso hereinafter contained, the Board of Trade shall deliver to every applicant who is duly reported by the local examiners to have passed the exami- nation satisfactorily, and to have given satisfactory evidence of his sobriety, experience, ability, and general good conduct on board ship, a certificate (hereinafter called a " cer- titicate of competency") to the effect that he is competent 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, as the case may be : Provided that in every case in which the Board of Trade has reason to believe such report to have been unduly made, such board may remit the case either to the same or to any other examiners, and may require a re-examination of the applicant, or a further inquiry into his testimonials and character, before granting him a certificate. 135. The certificates of service, differing in form from certificates of competency, shall be granted as follows ; (that is to say,) (1.) Kvery person who before the first day of January one thousand eight hundred and fifty-one served as master in the British merchant service, or who has attained or attains the rank of lieutenant, master, passed mate, or second master, or any higher rank in the service of Her Majesty or of the Kast India Company, shall be entitled to a certificate of service as master for foreign-going ships : (2.) Every person who before the first day of January one thousand eight hundred and fifty-one served as mate in the British merchant service shall be entitled to a cer- tificate of service as mate for foreign-going ships : (3.) Every person who before the first day of January one thousand eight hundred and fifty-four has served as master of a home trade passenger ship shall be entitled to a certificate of service as master for home trade passenger ships : (4.) Every person who before the first day of January one thousand eight hundred and fifty-four 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 : 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 aforesaid, 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 any port in the United Kingdom unless the master thereof, and in the case of a foreign-going ship the first and second mates or only mate (as the case may be), and in the case of a home trade passenger ship the first or only mate (as the ease may be), have obtained and possess valid certificates either of competency or service appropriate to their several stations in such ship, or of a higher grade ; and no such ship, if of one hundred tons burden or upwards, shall go to sea as aforesaid, unless at least one officer besidts 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 and possessed of such a certificate as hereinbefore required or who employs any person as master, or first, second, or only mate of any foreign-go'ing ship, or as master or first or only mate of a home trade passenger ship, without ascer- taining that he is at the time entitled to and possessed of such certificate, shall for each Buch offence incur a penalty not exceeding fifty pounds. 137. Every certificate of competency for a foreign-going ship shall be deemed to be of a higher grade than the corresponding certificate for a home trade passenger ship, and shall entitle the lawful holder thereof to go to sea in the corresponding grade in' such last-mentioned ship ; but no certificate for a home trade passenger ship shall entitle the holder to go to sea as master or mate of a foreign-going ship. PART III.] OF MASTEES AND SEAMEN. 737 13S. All certificates, whether of competency or service, shall be made in duplicate, 17 & 18 ViOT and one part shall be delivered to the person entitled to the certificate, and the other 0. 104. shall be kept and recorded by the registrar-general of seamen or by such other person as - the}' card of Trade appoints for that purpose; and the Board of Trade shall give to such 1'lie resistrarto registrar or such other person immediate notice of all orders made by it for cancelling, record giants, suspending, altering, or otherwise affecting any certificate in pursuance of the powers Sorofcertm-' herein contained ; and the registrar or such other person as aforesaid shall thereupon cat'es. make a corresponding entry in the record of certificates ; and a copy purporting to be Duplicates and certified by such registrar or his assistant or by such person as aforesaid of any certificate entries to be shall be primd facie evidence of such certificate, and a copy purporting to be so certified evidence, as aforesaid of any entry made as aforesaid in respect of any certificate shall be primd facie evidence of the truth of the matters stated in such entry. 139. Whenever any master or mate proves to the satisfaction of the Board of Trade In case of loss that he has, without fault on his part, lost or been deprived of any certificate already " '"opy to be granted to him, the Board of Trade shall, upon payment of such fee (if any) as it directs, srauted. cause a copy of the certificate to which by the record so kept as aforesaid he appears'to be * entitled, to be made out and certified as aforesaid, and to be delivered to him ; and any copy which purports to be so made and certified as aforesaid shall have all the efiect of the original. 140. Every person who makes, or procures to be made, or assists in making any false Penalties for representation for the purpose of obtaining for himself or for any other person a certificate J^'-'e representa- either of competency or service, or who forges, assists in forging, or proc\ires to be forged, "^ ' or fraudulently alters, assists in fraudulently altering, or procures to be fraudulently ^"[g'jj'jl!"^ ""^ altered, any such certificate, or any official copy of any such certificate, or who fraudu- frauduTently lently makes use of any such certificate or any copy of any such certificate \\ hieh is using or lending forged, altered, cancelled, suspended, or to which he is not justly entitled, or who ™^ certificate, fraudulently lends his certificate to or allows the same to be used by any other person, shall for each offence be deemed guilty of a misdemeanor. Apprenticeships to the Sea Service. 141. All shipping masters appointed under this Act shall, if applied to for the purpose, siiinpin" give to any board of guardians, overseers, or other persons desirous of apprenticing boys to masters to assist the sea service, and to masters and owners of ships requiring apprentices, such assist^,noe in binding ap- as is in their power for facilitating the making of such apprenticeships, and may receive jj™y receivel'iies. from persons availing themselves of such assistance such fees as may be determined in that behalf by the Board of Trade, with the concurrence, so far as relates to pauper apprentices in England, of the Poor Law Board in Imgland, and so far as relates to pauper apprentices in Ireland, of the Poor Law Commissioners in Ireland. 142. In the case of every boy bound apprentice to the sea service by any guardians or indentures of overseers of the poor, or other persons having the authority of guardians of the poor, the boys bound indentures shall be executed by the boy and the persou to whom he is bound in the arprentioes to presence of and shall be attested by two ju.stices of the peace, who shall ascertain that the guardi"is''or"^ laoy has consented to be bound, and has attained the age of twelve years, and is of overseers to be sutlicient health and strength, and that the master to whom the boy is to be bound is a witnessed by proper person for the purpose. • twojustu-es. H3. All indentures of apprenticeship to the sea service shall be exempt from stamp indentures of duty ; and all such indentures shall be in duplicate ; and every person to whom any boy apiaenticesliip whatever is bound as an apprentice to the sea service in the United Kingdom shall within j „ -^t^mj, seveii days after the execution of the indentures take or transmit the same to the ,iutj,^ and to be registrar-general of seamen or to some shipping master ; and the said registrar or recorded. shipping master shall retain and record one copy, and shall indorse on the other that the same has been recorded, and shall re-deliver the same to the master of the appi entice ; and whenever any such indenture is assigned or c mcelled, and whenever any such apprentice dies or deserts, the master of the apprentice shall, within seven days after such assign- ment, cancellation, death, or desertion, if the same happens within the United ICingdom, or if the same happens elsewhere, so soon afterwards as circumstances permit, notify the same either to the said registrar of seamen, or to some shipping master, to be recorded ; and every persou who fails to comply with the provisions of this section shall incur a penalty not exceeding ten pounds. ]44. Subject to the provisions hereinbefore contained, all apprenticeships to the sea Rules to govern service made by any guardian or overseers of the poor, or persons having the authority of p['^'™ners^n'''^ guardians of the poor, shall, if made in Great Britain, be made in the same manner and ^..^^t Britain be subject to the same laws and regulations as other apprenticeships made by the same and Ireland persons, and if made in Ireland shall be subject to the following rules ; (that is to say,) respectivcl; , (1.) in every union the guardians of the poor, or other persons duly appelated to carry into execution the Acts for the relief of the destitute poor and having the authority 3 B 738 OP MASTERS AND SEAMEN. [part III. 17 & 18 Vict. c. 104. Apprentices and tlieir indentares to be brought before shipping master before each voyage in a foreign-going shixj. of guardians of the poor, may put out and bind as an apprentice to the sea service any boy who or whose parent or parents is or are receiving relief in such union, and who has attained the age of twelve years, and is of sufBoieut health and strength, and who consents to be so bound : • (2.) If the 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, when possible, indorsed upon the indentures : (3.) The expense incurred in the binding and outfit of any such apprentice shall be charged to the union or electoral division (as the case may 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 by the guardians 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 without the consent of the Irish Poor Law Commissioners : (5.) The amount of the costs incurred in any such action, and not recovered from the defendant therein, may be charged upon the union or electorial division (as the case may be) to which the boy or his parent or parents was or were chargeable at the time of his being apprenticed. 145. The master of every foreign-going ship shall, before carrying any apprentice to sea from any place in the United Kingdom, cause such apprentice to appear before the shipping master before whom the crew is engaged, and shall produce to him the indenture by which such apprentice is bound, and the assignment or assignments thereof (if any) ; and the name of such appreutice, with the date of the indenture and of the assignment or assignments thereof (if any), and the name of the port or ports at which the same have been registered, shall be entered on the agreement ; and for any default in obeying the provisions of this section the master shall for each offence incur a penalty not exceeding five pounds. Board of Trade may license persons to pro- cure seamen. Penalties : for sui^plying seamen without license : for employing unlicensed , persons : for receiving seamen illegally supxjlied. Penalty for receiving re- muneration from seamen for shipping them. Agreements to be made with seamen, con- taining certain particulars. Engagement of Seamen, 146. The Board of Trade may grant to such persons as it thinks fit licences to engage or supply seamen or apprentices for merchant ships in the United Kingdom, to continue for such periods, to be upon such terms, and to be revocable upon such conditions, as such Board thinks proper. 147. The following offences shall be punishable as hereinafter mentioned; (that is to say,) (1.) If any person not licensed as aforesaid, other than the owner or master or a mate of the ship, or some person who is lonS, fide the servant and in the constant employ of the owner, or a shipping master duly appointed as aforesaid, engages, or supplies any seaman or apprentice to be entered on board any ship in the United Kingdom, he shall for each seaman or apprentice so engaged or supplied incur a penalty not exceeding twenty pounds : (2.) If any person employs any unlicensed person, other than persons so excepted as aforesaid, for the purpose of engaging or supplying any seaman or apprentice to be entered on board any ship in the United Kingdom, he shall for each seaman or apprentice so engaged or supplied incur a penalty not exoSeding twenty pounds, and if hcensed shall in addition forfeit his licence : (3.) If any person knowingly receives or accepts to be entered on board any ship any seaman or apprentice who has been engaged or supplied contrary to the provisions of this Act, he shall for every seaman or apprentice so engaged or supplied incur a penalty not exceeding twenty pounds. 148. If any person demands or receives, either directly or indirectly from any seaman or apprentice, or from any person seeking employment as a seaman or apprentice, or from any person on his behalf, any reihuneration whatever, other than the fees hereby authorised, for providing him with employment, he shall for every such offence incur a penalty not exceeding five pounds. 149. The master of every ship, except ships of less than eighty tons registered tonnage exclusively employed in trading between different ports on the coasts of the United Kingdom, shall enter into an agreement with every seaman whom he carries to sea from ^iiyiPO'''' i° ^^^ United Kingdom as one of his crew in the manner hereinafter mentioned • and every such agreement shall be in a form sanctioned by the Board of Trade, and shall be dated at the time of the first signature thereof, and shall be signed by the master before any seaman signs the same, and shall contain the following particulars as terms thereof ; (that is to say,) PAllT III.J OV MAS'XEKS AND SEAMEN. 739 (1.) The nature, and, as far as practicable, the duration of the intended voyage or 17 & 18 Vict. engagement : _ _ c. 104. (2.) The number and description of the crew, specifying how many are engaged as sailors : (3.) The time at which each seaman is to be on board or to begin work : (i.) The capacity in which each seaman is to serve : (5.) The amount of wages which each seaman is to receive : (6.) A scale of the provisions which are to be furnished to each seaman ; (7.) Any regulations as to conduct on board, and as to fines, short allowance of pro- visions, or other lawful punishments for misconduct, which have been sanctioned by the Board of Trade as regulations proper to be adopted, and which the parties agree to adopt : 4ud every such agreement shall be so framed as to admit of stipulations, to be adopted Proviso as to at the will of the master and seaman in each case, as to advance and allotment of wages, forms Inl- and may contain any other stipulations which are not contrary to law : Provided that if ''°1°"'"' sliips. the master of any ship belonging to any British possession has an agreement with his crew made in due form according to the law of the possession to which such ship belongs or in which her crew were engaged, and engages single seamen in the United Kingdom, such seamen may sign the agreement so made, 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 whatever part of Her Majesty's dominions Forfoveign- the same are registered, the following rules shall be observed with respect to agreements ; going sliips such (that is to say,) agreements, (1.) Every agreement made in the United Kingdom (except in such cases of agreements the United with substitutes as are hereinafter specially provided for) shall be signed by each Kingdom, except seaman in the presence of a shipping master : ™ f'l^'^'f^i '"^^^^> <2,) Such shipping master shall cause the agreement to be read over and explained to ^gf^y^ and each seaman, or otherwise ascertain that each seaman understands the same before attested by a he signs it, and shall attest each signature : shipping master (3.) When the crew is first engaged the agreement shall be signed in duplicate, and one To "be in part shall be retained by the shipping master and the other part shall contain a duiilieate : special place or form for the descriptions and signatures of substitutes or persons engaged subsequently to the first departure of the ship, and shall be delivered to the master : (4.) In the case of substitutes engaged in the place of seamen who have duly signed the Provision for agreement, and whose services are lost within twenty-four hours of the ship's substitutes, putting to sea by death, desertion, or other unforeseen cause, the engagement shall, when practicable, be made before some shipping master duly appointed in the manner hereinbefore specified ; and whenever such last-mentioned engage- ment cannot be so made, the master shall, 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 the seamen ; and the seamen shall thereupon sign the same in the presence of a witness, who shall attest their signatures. 151. In the case of foreign-going ships making voyages averaging less than six months poreiim-'»oined before some shipping master or officer of customs. Seamen engaged in foreign ports to be shipped with the sanc- tion and in the presence of the consul. Eules as to production of agreements and certificates of masters and mates of foreign- goinj ' • retained by the shipping; master upon the first engagement of the crews shall either be transmitted to the registrar general of seamen immediately, or be kept by the shipping master until the expiration of the agreement, as the Board of Trade directs. 154. For the purpose of determining the fees to be paid upon the engagement and dis- charge of seamen belonging to foreign-going ships which have running agreements as aforesaid, the crew shall be considered to be engaged when the agreement is first signed, and to be discharged when the agreement finally terminates, and all intermediate engage- ments and discharges shall be considered to be engagements and discharges of single seamen. 155. In the case of home trade ships, crews or single seamen may, if the master r.hinlis fit, be engaged before a shipping master in the mannei- hereinbefore directed with respect to foreign-going ships ; and in every case in which the engagement is not so made, the master shall, 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, and the sea- man shall thereupon sign the same in the presence of a witness, who shall attest his signature. 151'. In cases where several home trade ships belong to the same owner, the agreement with the seamen may, notwithstanding anything herein contained, be made by the owner instead of by the master, and the seamen may be engaged to serve in any two or more uf such ships, provided that the names of the ships and the nature of the service are specified in the agreement ; but with the foregoing exception all provisions herein contained which 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 without entering into an agree- ment with him in the form and manner and at the place and time hereby in such case required, the master in the case of a foreign-going ship, and the master or owner in the case of a home trade ship, shall for each such offence incur a, penalty not exceeding five pounds. 1.58. The master of every foreign-going ship of which the crew has been engaged before a shipping master shall before finally leaving the United Kingdom sign and send to the nearest shipping 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 finally leaving the United Kingdom, and in default shall for each offence incur a penalty not exceeding five pounds ; and such statement shall be admissible in evidence, subject to all just exceptions. 159. Every master of a ship who, if such ship is registered in the United Kingdom, engages any seaman in any British possession, or if such ship belongs to any British pos- session engages any seaman in any British possession other than that to which the ship belongs, shall, if there is at the place where such seaman is engaged any official shipping master or other officer duly appointed for the purpose of shipping seamen, engage such seaman before such shipping master, and if there is no such shipping master or officer, then before some officer of customs : and the same rules, qualifications, and penalties as are hereinbefore specified with respect to the engagement of seamen before shipping masters in the United Kingdom shall apply to such engagements in a British possession ; and upon every such engagement such shipping master or officer as aforesaid shall indorse upon the agreement an attestation to the effect that the same has been signed in his presence, 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 hereby required shall lie upon the master. 160. Every master of a British ship who engages any seaman at any place out of Her Majesty's dominions in which there is a British consular officer shall, before carrying such seaman to sea, procure the sanction of such officer, and shall engage such seaman before such officer; and the same rules as are hereinbefore contained with respect to the engagement of seamen before shipping masters in the United Kingdom shall apply to such engagements made before consular officers ; and upon every such engagement the consular officer shall indorse upon the agreement his sanction thereof, and an attestation to the effect that the same has been signed in his presence, and otherwise made as hereby required ; and every master who engages any seaman in any place in which there is a consular officer, otherwise than as hereinbefore required, shall incur a penalty not exceeding twenty pounds ; and if in any case the indorsement and attestation hereby required is not made upon the agreement, the burden of proving the engagement to have been made as hereinbefore required shall lie upon the master. 161. The following rules shall be observed with respect to the production of agreements and certificates of competency or service for foreign-going ships ; (that is to say,) (1.) The master of every foreign-going ship shall, on signing the agreement with his crew, produce to the shipping master before whom the same is signed the certifi- cates of competency or service which the said master and his first and second mate or only mate, as the case may be, are hereby required to possess ; and upon such PART III.] OF MASTERS AND SEAMEN. 741 production being duly made, and the agreement being duly executed as hereby 17 & 18 Vict. required, the shipping master shall sign and give to the master a certificate to that o. 104. effect : (2.) In the case of running agreements for foreign-going ships the shipping master shall, before the 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 with respect to such agreements, and producing to the shipping master the certificate of competency or service of any first, second, or only mate then first engaged by him, a certificate to that effect : (3.) The master of every foreign-going ship shall, before 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 afore- said is produced : (4.) The master of every foreign-going ship shall, within forty-eight hours after the ship's arrival at her final port of destination in the United Kingdom, or upon the discharge of the crew, whichever first happens, deliver such agreement to a shipping master at the place ; and such shipping master shall thereupon give to the' master a certificate of such delivery ; and 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 agreement to a shipping master at the time and in the manner hereby directed, he shall for every default incur a penalty not exceeding five pounds. 162. The following rules shall be observed with respect to the production of agree- Rules as to prc- ments and certificates of competency or service of home trade ships ; (that is to say, ) duction of (1.) In the case of home trade ships of more than eighty tons burden, no agreement certStes to* shall extend beyond the next following thirtieth day of June or thirty-first day of home trade December, or the first arrival of the ship at her final port of destination in the sliijis. United Kingdom after such date, or the discharge of cargo consequent upon such arrival : (2.) The master or owner of every such ship shall, within twenty-one days after the thirtieth day of June and the thirty-first day of December in every year, transmit or deliver to some shipping master in the United Kingdom every agreement made within the six calendar months next preceding such days respectively, and shall also in the case of home trade passenger ships produce to the shipping master 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 shall thereupon give to the master or owner a certificate of such delivery and production ; and no officer of customs shall grant a clearance or transire for any such ship as last aforesaid without the production of such certifi- cate ; and if any such ship attempts to ply or go to sea without such clearance or transire, any such officer 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 at the time and in the manner hereby directed, such master or owner shall for every default incur a penalty not exceeding five pounds. 16S. Every erasure, interlineation, or alteration in any such agreement with seamen as Alterations to is required by the third part of this Act (except additions so made as hereinbefore directed be void unless for shipping substitutes or persons engaged subsequently to the first departure of the S^een made S ship) shall be whoUy inoperative, unless proved to have been made with the consent of all the consent of the persons interested in such erasure, interlineation, or alteration by the written attesta- all paaties. tion (if made in Her Majesty's dominions) of some shipping master, justice, officer of customs or other public functionary, or (if made out of Her Majesty's dominions) of a British consular officer, or, where there is no such officer, of two respectable British 164 Every person who fraudulently alters, assists in fraudulently altering, or procures i*™i'.lTy "or to be fraudulently altered, or makes, or assists in making, or procures to be made, any ^'^Ijl^St false entry in, or delivers, assists in delivermg, or procures to be delivered, a false copy of any agreement, shall for each such offence be deemed guilty of a misdemeanor. 165 Any seaman may bring forward evidence to prove the contents of any agreement f^f^^™, Jf/o*" or otherwise to support his case, without producing or giving notice to prodace the produce agree- agreement or any copy thereof. rnent. 166 The master shall at the commencement of every voyage or eng>.gement cause a ._ legible copy of the agreement (omitting the signatures) to be placed or posted up in such ^J^^^ ^„ i,» part of the ship as to be accessible to the crew, and m default shall for fach ofience made aecessiWe incur a penalty not exceeding five pounds. to crew. 742 OF MASTERS AND SEAMEN. [part hi. 17 & 18 Vict. c. 104. Seamen dis- charged tefore voyage to'liave compensation. Regulations as to allotment notes. Allotment notes may be sued on suni7narily by cei-tain persons and under cer- tain conditions. 167. Any seaman who has signed an agreement, and is afterwards discharged before the commencement of the voyage, or before one month's wages are earned, without fault on his part justifying such discharge and without his consent, shall be entitled to receiye from the master or owner, in addition to any wages he may have earned, due compensa- tion for the damage thereby caused to him, not exceeding one month's wages, and may, on adducing such evidence as the court hearing the case deems satisfactory of his haviug been so improperly discharged as aforesaid, recover such compensation as ii: it were wages duly earned. Allotment of Wages. 168. All stipulations for the allotment of any part of the wages of a seaman during his absence which are made at the commencement of the voyage shall be inserted in the agreement, and shall state the amounts and times of the payments 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 the grandfather or grandmother, or any child or grandchild, of any brother or sister of any seaman in whose favour an allotment note or 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 subject, as to the wife, to the provision herein- after contained, sue for and recover the sums allotted by the note when and as the same are made payable, with costs, from the owner or any agent who has authorised the draw- ing of the note, either in the county court or in the summary manner in which seamen ai-e by this Act enabled to sue for and recover wages not exceeding fifty pounds ; and in any such proceeding it shall be sufficient for the claimant to prove that he or she is the person mentioned in the note, and that the note was given by the owner or by the master or some other authorised agent; and the seaman shall be presumed to be duly 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 signed by the master, as by this Act is required, or by a duly certified copy of some entry in the official log book to the effect that he has left the ship, or by a credible letter from the master of the ship to the same effect, or by such other evidence, of whatever description, as the court in its absolute discretion- considers sufficient to show satisfactorily that the seaman ijas ceased to be entitled to the wages out of which the allotment is to be paid : Provided 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 pay- ments of any allotment of his wages which has been made in her favour. Pischarge from foreign-going ships to be made before shipping master. Master to de- liver account of wages. On discharge, masters to give seamen certifi- cates of dis- charge, and retmn certifi- cates of com- letency or service lo mates Discharge and Payment of Wages. 170. In the cases of all British foreign-going ships, in whatever part of Her Majesty's dominions the same are registered, all seamen discharged in the United Kingdom shall be discharged and receive their wages in the presence of a shipping master duly appointed under this Act, except in cases where some competent court otherwise directs; sand any master or owner of any such ship who discharges any seaman belonging thereto, or, except as aforesaid, pays his wages within the United Kingdom in any other manner, shall incur a penalty not exceeding ten pounds ; aud in the case of home trade ships seamen may, if the owner or master so desires, be discharged and receive their wagesin like manner. 171. Every master shall, not less thaii twenty-four hours before the paying off or dis- charging any seaman, deliver to him, or, if he is to be discharged before a shipping master, 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 on any account whatever, andin default shall for each offence incur a penalty not exceeding five pouods ; and no deduction from the wages of any seaman (except in respect of any matter happen- ing 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, with 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 payments. _ 172. Upon the discharge of any seaman, or upon payment of his wages, the master shall sign and give him a certificate of his discharge, in a form sanctioned by the Board of Trade specifying the period of his service and the time and place of his discharge ; and if any master fails to sign and give to any such seaman such certificate of discharge he shall for each such offence incur a penalty not exceeding ten pounds ; and the master shall also, upon the discharge of every certificated mate whose certificate of competency or service has been delivered to and retained by him, return such certificate, and shall in default incur a penalty not exceeding twenty pounds. PART ni.] OF MASTERS AND SEAMEN. 743 173. Every shipping master shall hear and decide any question whatever between a 17 & 18 Vict. master or owner and any of his crew which both parties agree in writing to submit to c. 104. him ; and every award so made by him shall be binding on both parties, and shall in any ^ legal proceeding which may be taken in the matter before any court of justice be deemed Shipping master to be conclusive as to the rights of the parties ; and no such subujission or awai-d shall '""y 'l^'^'t'^ require a stamp ; and any document purporting to be such submission or award sball be m'rties' rete to pri'ind facie evidence thereof. him. 174. In any proceeding relatingto the wages, claims, or discharge of any seaman carried Master and on before any shipping master under the provisions of this Act, such shipping master may others to pro- call upon the owner or his agent, or upon the master or any mate or other member of the '5"™ fH^^'^, ■ crew, to produce any log books, papers, or other documents in their respective possession piiig masters^" or power relating to any matter in question in such proceeding, and may call before him and give and examine any of such persons being then at or near the place on any such matter ; ^^'lienee. and every owner, agent, master, mate, or other member of the crew who when called upon by the shipping master does not, produce any such paper or document as aforesaid, if in his pnssession or power, or does not appear and give evidence, shall, unless he shows some reasnnable excuse for such default, for each such oifence incur a penalty not exceed- ing five pounds. 175. The following rules shall be observed with respect to the settlement of wages ; Settlement of (that is to say,) wages. (1 .) Upon the completion before a shipping master of any discharge and settlement, the Kelease to bo master or owner and each seaman shall respectively in the presence of the shipping signed before master sign in a form sanctioned by the Board of Trade a mutual release of all by''tlie sWppi.-ig claims in respect of the past voyage or engagement, and the shipping master shall master ; also sign and attest it, and shall retain and transmit it as herein directed : (2.) Such release so signed and attested shall operate as a mutual discharge and settle- To be discharge ; ment of all demands between the parties thereto in respect of the past voyage or engagement : (3.) A copy of such release certified under the hand of such shipping master to be a and to be true copy shall be given by him to any party thereto requiring the same ; and such evidence, 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 are hereby No other required, no payment, receipt, settlement, or discharge otherwise made shall '■^'^^JP* *" ^^ ^ operate or be admitted as evidence of the release or satisfaction of any claim : i c arg . (5.) Upon any payment being made by a master befoi-e a shipping master, the shipping Voueher to bo master shall, if required, sign and give to such master a statement of the whole gi™" to master amount so paid ; and such statement shall as between the master and his employer evidence, be received as evidence that he has made the payments therein mentioned. 176. Upon every discharge effected before a shipping master the master shall make and Master to make sign in a form sanctioned by the Board of Trade a report of the conduct, character, and cjia°acte° qualifications 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 shall transmit the same to the Register 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 discharge 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 false certificate or report of the service, qualifications, conduct, or character of any seaman, knowing the same to be false, or who forges, assists in forging, or procures to be forged, or fraudulently alters, assists iu fraudulently altering, or procures to be fraudulently 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 which is forged or altered or does not belong to him, shall for each such ofl'ence be deemed guilty of a misdemeanor. Remlitaiice of Wages and Savings Battles for Stamen. 177. Facilities shall, if the Board of Trade so directs, be given for remitting the Facilities may wages and other monies of seamen and apprentices to their relatives or other persons by j|j,§"t|J,'g sea- means of money orders issued by shipping masters ; and the Board of Trade may make lien's wages regulations concerning such orders, and the persons by or to whom, and the mode and time in and at which, 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 bind- ing upon all persons interested or claiming to be interested in such orders, as well as upon the oflicers employed in issuing or paying the same ; and no legal proceeding shall be instituted against the Board of Trade, or against any shipping master or other public 744 OF MASTERS AND SEAMEN. [pAET in. 17 & 18 Vict. c. 104. Power to pay when order is lost. Penalty for issuing money orders with fraudulent intent Pavings banks for seamen may be estaliliftlied. ofacer employed about such orders, on account of any such regulations, or on account of any act done or left undone in pursuance 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 wilful misbehaviour 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 tne amount of any such money order as aforesaid to be paid to the person to whom or m whose favour the same may have been granted, or to his personal representatives, legatees, or nest of kin, notwithstanding that such order may not be m his or tneir possession; and in all such cases from and after such payment the Board of Irade ancl every shipping master or other officer of the Board of Trade shall be freed trom all liability in respect of such order. 179. Every shipping master 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 offence, and shall be liable to be kept in penal servitude for a term not exceeding four years. 180. The Commissioners for the Eeduction of the National Debt, or the comptroller general acting under them, may, on the application and recommendation of the Board of Trade, establish savings banks at such ports and places within the United Kingdom, either in the shipping offices 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 banlts, deposits to an amount not exceeding one hundred and fifty pounds in the whole in respect of any one account, under such regulations as may be prescribed by the said commissioners or comptroller general ; and such regulations shall be binding on all such treasurers and depositors ; and the said commissioners may remove such treasurers, aud appoint others in their place ; and all the provisions of the Acts now in force relating to savings banks, except so lar as relates to the annual amount of deposit, shall apply to all savings banks which may be established under the authority of this Act, and to such treasurers aud depositors as aforesaid. Right to wases •aud xirovisions, wlien to begin. Seamen not to give up certain lights. "Wages not to be do])endent on tlie earning of ircight. In case of death, such wages to be paid as after mentioned. Rights to wages in case of terrai- Tialion of service 1 y wTeclc or illness. Wages not to aecnie during jT^fusal to work or imprison- ment. Period within whieh wages are to be paid. £egal Rights to Wages. 181. A seaman's right to wages and provisions shall be taken to commence either at the time at which he commences work or at the time specified in the agreement for his commencement of work or presence on board, whichever first happens. 182. No seaman shall by any agreement 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 every stipulation in any agreement inconsistent with 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, .shall be wholly inoperative. 1»3. No right to wages shall be dependent on the earning of freight; and every seaman and apprentice who would be entitled to demand and recover any wages if the ship in which be has served had earned freight, shall, subject to all other rules of law and con- ditions 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 preceding enactment dies before the same are paid, they shall be paid and applied in the manner hereinafter specified with regard to the wages of seamen who die during a voyage. 186. In cases where the service of any seaman terminates before the period contem- plated in the agreement by reason of the wreck or loss of the ship, and also in cases where such service terminates before such period as aforesaid by reason of his being left on shore at any place abroad under a certificate of his unfitness or inability to proceed on the voyage granted as hereinafter mentioned, such seaman shall be entitled to wages for the time of service prior to such termination as aforesaid, but not for any further period. 186. No seaman or apprentice shall be 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. 187. The master or owner of every ship shall pay to every seaman his wages within the respective periods following ; (that is to say,) in the case of a home trade ship within two days after the termination of the agreement or at the time when such seaman is dis- PART ni.] OF IVUSTERS AND SEAMEN. 745 charged, whiolieTer first happens ; and in the case of all other ships (except ships 17 & 18 ViOT. employed in the southern whale fishery or on other voyages for which seamen by the ,i. 104. terms of their agreement are wholly compensated by shares in the profit of the adven- ture) 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 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 which payment is delayed beyond the respective periods aforesaid, and such sum shall be recoverable as wages. Mode of Recovering Wages. 188. Any seaman or apprentice, or any person duly authorised on his behalf, may sue Seaman may sue m a summary manner before any two justices of the peace acting in or near to the place foi' wages in a at which the service has terminated, or at which the seaman or apprentice has been dis- nummary charged, |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 county within which any such place is situated, for any amount of wages due to such seaman or apprentice not exceeding fifty pounds 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 recovery of wages under the sum of fifty pounds Eestrictions on shall be instituted by or on behalf of any seaman or apprentice in any Court of Admiralty P'*^ for wages or Vice-Admiralty, or in the Court of Session in Scotland, or in any Superior Court of courts. Record in Her Majesty's dominions, unless the owner of the ship is adjudged bankrupt or declared insolvent, or unless the ship is under arrest or is sold by the authority of any such court as aforesaid, or unless any justices acting under the authority of this Act refer the case to be adjudged by such court, or unless neither the owner nor master is or resides 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 terminate in No seaman to the United Kingdom shall be entitled to sue in any court abroad for wages, unless he is sue for wages discharged with such sanction as herein required and with the written consent of the f^road, except master, or proves such ill-usage on the part of the master or by his authority as to warrant cUai^'e or of " reasonable apprehension of danger to the lil'e of such seaman if he were to remain on danger to life, board ; but if any seaman on his return to the United Kingdom proves that the master or owner has been guilty of any conduct or default which but for this enactment would have entitled the seaman to sue for wages before the termination of the voyage or engage- ment, he shall be entitled to recover in addition to his wages such compensation not exceeding twenty pounds as the court hearing the case thinks reasonable. 191. Every master of a ship shall, so far as the case permits, have the same rights. Masters to have liens, and remedies for the recovery of his wages which by this Act or by any law or same remedy custom any seaman, not being a master, has for the recovery of his wages; and if in any gg'^™"'^^ '^'^ proceedmg in any Court of Admiralty or Vice-Admiralty touching the claim of a master to wages any right of set-off or counterclaim is set up, it shall be lawful for such court to enter into and adjudicate upon all questions and to settle all accounts then arising or out- standing and unsettled between the parties to the proceeding, and to direct payment of any balance which is found to be due. Relief of Seamen's Families out of Poor Rates. 192. Whenever during the absence of any seaman on a voyage his wife, children, and Belief to sea- step-children, or any of them, become or becomes chargeable to any union or parish in the men's families United Kingdom, such union or parish shall be entitled to be reimbursed out of the wages on a certam pro- of such seaman earned during such voyage any sums properly expended during his portion of tlielr absence in the maintenance of his said relations, or any of them, so that such sums do not wages. exceed the following proportions of his said 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-thirds 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 aforesaid shall be limited to the excess (if any) of the proportion of the wages hereinbefore mentioned over the sums so paid. 746 OF MASTERS AND SEAMEN. [part III. enforced on the retui-n of the seaman. 17 & 18 Vict. 193. For the purpose of obtaining such reimbursement as aforesaid, the guardians of c. 104. the union or parish, where the relief of the poor is administered by guardians, and the ; overseers of the poor of any other parish in England, and the guardians or other persons Notice to be having the authority of guardians in any union in Ireland, and the inspector of the poor Mid"hargeto''be ^" Scotland, may give to the owner of the ship in which the seaman is serving a notice in — »- . .. writing stating the proportion of the seaman's wages upon which it is intended to make the claim, and requiring the owner to retain such proportion in his hands for a period to be therein meutioneil, not exceeding twenty-one days from the time 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 intended claim ; and the said guardians, overseers, persons, or inspector may upon the seaman's i-eturn apply in a summary way in England or Ireland to any two justices having jurisdiction in such union or parish as aforesaid, and in Scotlaud to the sheriff of the county, for an order for such reimburse- ment as aforesaid ; and such justices or sheriif 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 circumstances 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 without deduction, be payable to the seaman. Masters to take charge of or sell effects of de- ceased seamen which are on board, and enter the same and wases due in the official log. Such effects and wages to be paid either to consul or to shipping ■ master, with full accounts. Wages and Effects of deceased Seamen. 194. Whenever any seaman or apprentice belonging to or sent home in any British ship, whether a foreign-going ship or a home trade ship, employed on a voyage which is to terminate in the United Kingdom, dies during such voyage, the master shall take charge of all money, clothes, and effects which he leaves on board, and shall, if he thinks fit, cause all or any of the said clothes and effects to be sold by auction at the mast or other public auction, and shall thereupon sign an entry in the of&cial log book containing the following particulars ; (that is to say,) (1.) A statement of the amount of the money and a description of the effects so left by the deceased : (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 shall be observed ; (that is to say,) (1.) If the ship proceeds at once to any port in the United Kingdom without touching on the way at any foreign port, the master shall within forty-eight hours after his arrival deliver any such effects as aforesaid remaining unsold, and pay any money which he has taken charge of or received from such sale as aforesaid, and also the balance of wages due to the deceased, to the shipping master at the port of destination in the United Kingdom : (2.) If the ship touches and remains for forty-eight hours at some foreign port or at some port in Her Majesty's dominions abroad before coming to any port in the United Kingdom, 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 the voyage ; and such officer may thereupon, if he considers it expedient so to do, require the faid effects, money, and wages to be delivered and paid to him, and shall upon such delivery and payment give to the master a receipt, and the master shall within forty-eight houis after his arrival at his port of destination in the United Kingdom produce the same to the shipping master there; and such consular officer or officer of customs shall in svich case indorse and certify upon the agreement with the crew such particulars with respect to such delivery and payment as the Board of Trade requires : (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 forty-eight hours after his arrival at his port of destination in the United Kingdom deliver and pay the same to the shipping master there : PART III.] OF MASTERS AND SEAMEN. 747 (4.) The master shall in all oases in which any seaman or apprentice dies during the 17 & 18 ViOT. progress of a voyage or engagement give to the Board of Trade, or to such ofl&cer c. 104. 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 account 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 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 United Kingdom, the shipping mas>ter 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 Penalties for not apprentice dying during a voyage, or to make such entries in respect thereof, or to taking cliai-ge procure such attestation to such entries, or to make such payment or delivery of any ao'eountiri"'for"' money, wages, or effects of any seaman or apprentice dying during a voyage, or to give such monTes such account in respect thereof as hereinbefore respectively directed, he shall be accountable and etfects. for the money, wages, and effects of the seaman or apprentice to the Board of Trade, and shall pay and dehver the same accordingly ; and such master shall in addition for every such offence incur a penalty not exceeding treble the value of the money or effects not accounted foj-, or, if such value is not ascertained, not exceeding fifty pounds ; 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 shaU, in addition to his liability for the said money and value, incur the same penalty which is hereinbefore mentioned as incurred by the master for the like offence ; and all money, 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 which 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 OfBcers of cus- either in or out of Her Majesty's dominions leaving any money or effects not on board his gS^^totelie™" ship, the chief officer of customs or the British consular officer at or nearest to the place, cliarge of effects as the case may be, shall claim and take charge of such money and effects ; and such left by seamen officer shall, if he thinks fit, sell all or any of such effects, or any effects of any deceased abroad, and to seaman or apprentice delivered to him under the provisions hereinbefore contained ; and and their wa^es every such officer shall, quarterly or at such other times as the Board of Trade directs, to Board of remit to Her Majesty's paymaster general all monies belonging to or arising from the sale Trade. of the effects of or paid as the wages 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 Board of Trade requires. 198. VVhenever any seaman or apprentice dies in the United Kingdom, and is at the wages and time of his death entitled to claim from the master or owner of any ship in which he has effects of seamen served any unpaid wages or effects, such master or owner shall pay and deliver or account J^'^J'^ at home for the same to the shipping master at the port where the seaman or apprentice was dis- certain^oases to charged or was to have been discharged, or to the Board of Trade, or as it directs. Board of Trade. 199. If the money and effects of any deceased seaman or apprentice paid, delivered, or if less than SOi. remitted to the Board of Trade or its agents, including the monies received for any part wages and pro- of the said effects which have been sold either before delivery to the Board of Trade or by perty of deceased its direction, do not exceed in value the sum of fifty pounds, then, subject to the pro- patd'over^mth- visions hereinafter contained, and to all such deductions for expenses incurred in respect out probate or of the seaman or apprentice or of his said money and effects as the said board thinks proper administration to allow, the said board may, if it thinks fit so to do, pay and deliver the said money and en^tf^J"''*""^ 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 be entitled to the effects of the deceased under his will (if any), or under the statutes for the distribution of the effects of intestates, 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 adminis- tration 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 re- presentatives of the deceased ; and all claimants to whom such money or effects are so paid or dehvered shall apply the same in due course of administration ; and if such money and effects exceed in value the sum of fifty pounds, then, subject to the provisions herein- 748 OF MASTERS AND SEAMEN. [part III. 17 & 18 ViOT. c. 104. Mode of pay- ment under ■wills made by seamen. Provision for payment of jnst claims by credi- tors andfor preventing fraudulent claims. Mode of dealing witb unclaimed after contained and to deduction for expenses, the Board of Trade shall pay and deliver the same to the legal personal representatives of the deceased. 200. In oases where the deceased seaman or apprentice has left a will, the Board of Trade shall have the following powers ; (that is to say,) (1.) It may in its discretion refuse to pay or deliver any such wages or efifects as afore- said 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 such master or mate : (2.) It may in its discretion refuse to pay or deliver any such wages or effects as afore- said 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, vmless such wiU is in writing, and is signed or acknowledged by the testator in the presence of two witnesses, one of whom is some shipping master appointed under this Act, or some minister or officiating minister or curate of the place inwhich 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 witnesses : ■Whenever any claim made under a will is rejected by the Board of Trade on account of the said will not being made and attested as hereinbefore required, the wages and effects of the deceased shall be dealt with as if no will had been made. 201. The following rules shall be observed with respecbto creditors of deceased seamen and apprentices ; (that is to say,) (1.) No such creditor shall be entitled to claim from 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 confirmation 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 three years before the death of the deceased, or if the demand is not made within two years after such . death : (3.) Subject as aforesaid, the steps to be taken for procuring payment of such debt shall be as follows (that is to say) : Every person making a demand as creditor sliall deliver to the Board of Trade an account in writing in such form as it requires, subscribed with his name, stating the particulars of his demand and the place of his abode, and verified by his 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 widow or child, or under 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 such 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 allowed, the Board of Trade shall proceed to investigate the creditor's account, and may for that purpose 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 will 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 so satis- fied, or if such books, accounts, vouchers, or papers as aforesaid are not produced, and no sufficient reason is assigned for not producing them, the demand shall be disallowed : (6.) In any case whatever the Board of Trade may delay the investigation of any demand made by 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 hereinbefore required or any person interested therein as a widow or child, or under a will, or under the statutes for the distribution of the effects of intestates, or under any other statute, or at common law, the Board of Trade may pay and deliver 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 the Board of Trade to which no claim is substantiated within six years after the receipt thereof PART III.] OP MASTERS AND SEAMEN. 749 by sucli board, it shall be in the abaolute disoretioa of such board, if any subsequent 17 & 18 VroT. claim is made, either to allow or to refuse the same ; and, subject to the provision herein- 0. 104. after contained, the Board of Trade shall from time to time pay any monies arising from the unclaimed wagea and effects of deceased seamen, which m the opinion of such board ^^o^^* of d^ ;^ . , '=. J. • „ 1 .,.,!. , . . L , 1 • i z' TT ceased seaiiien. It IS not necessary to retain tor the purpose of satistying claims, into the receipt or Her Majesty's exchequer in such manner as the Treasury directs, and such monies shall be carrieil to and form part of the consolidated fund of the United Kingdom. 203. Every person who, for the purpose of obtaining, either for himself or for another, Punishment for any money or effects of any deceased seaman or apprentice, forges, assists in forging, or forgery and fulie procures to be forged, or fraudulently alters, assists in fraudulently altering, or procures representations to be fraudulently altered, any document purporting to show or assist in showing a right taiS'^jg's &e to such wages or effects and every person who for the purpose aforesaid makes use of any of deeeaseci ' such forged or altered document as aforesaid, or who for the purpose aforesaid gives or seamen, 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, knowing the same to be false, shall be punishable with penal servitude for a term not exceeding four years, or with imprison- ment with or without hard labour for any period not exceeding two years, or if sum- marily prosecuted and convicted, by imprisonment, with or without hard labour, for any period not exceeding six months. 201. In the case of seamen invalided or discharged from any of Her Majesty's ships, EOfeots of sea- and sent home in merchant ships, any monies or effects belonging to them which are men discliarged paid, remitted, or delivered to the Board of Trade, or its agents, under the provisions f™™ navy to be hereinbefore contained, shall be paid over and disposed of in such manner as the Accountant- ^ Accountant-General of Her Maje-ity's navy directs. General of Navj', Leaxiruj Seamen Abroad. 205. "Whenever any British ship is transferred or disposed of at any place out of Her On discharge of Majesty's dominions, and any seaman or apprentice belonging thereto does not in the seamen abroad, presence of some British consular officer, or, if there is no such consular officer there, in ^^ ^^^ of ship the presence of one or more respectable British merchants residing at the place, and not certificates of interested in the said ship, signify his consent in writing to complete the voyage if con- discharge to he tinned, and whenever the service of any seaman or apprentice belonging to any British g'™'^> and sea- ship terminates at any place out of Her Majesty's dominions, the master shall give to each ™Q™g °j. Ixpense such seam;m or apprentice a certificate of discharge in the form sanctioned by the Board of owner, of Trade as aforesaid, and in the case of any certificated mate whose 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 with adequate employ- ment on board some other British ship bound to the port in Her Majesty's dominions at which he was originally shipped, or to such other port in the United Kingdom as is agreed upon by him, or furnish the means of sending him back to such port, or provide him with a passage home, or deposit with 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 which the seaman or apprentice is leaving the particulars of such payment, provision, or deposit; and if the master refuses or neglects to comply with the requirements of this section, such expenses as last aforesaid, if defrayed by such consular officer or by any other person, shall, unless such seaman or apprentice has been guilty of barratry, to be a charge upon the ship to which such seaman or apprentice belonged and upon the owner for the time being thereof, and may be recovered against such owners, with costs, at the suit of the consular officer or other person defraying such expenses, or, in case the same has been allowed to the consular officer of the pubho monies, as a debt due to Her 'Majesty either by ordinary process of law, or in the manner in which seamen are hereby enabled to recover wages ; and such expenses, if defrayed by the seaman or apprentice, shall be recoverable as wages due to him. 206. If the master or any other person belonging to any British ship wrongfully forces Forcing seamen on shore and leaves behind, or otherwise wilfully and wrongfully leaves behind, in any on shore a mis- place, on shore or at sea, in or out of Her Majesty's dominions, any seaman or apprentice demeanor. belonging to such ship before the completion of the voyage for which such person was engaged or the return of the ship to the United Kingdom, he shall for each such offence be deemed guilty of a misdemeanor. 207. If the master of any British ship does any of the following things ; {that is to jr,, seaman to be gay \ discharged or (i.) Discharges any seaman or apprentice in any place situate in any British possession ^jjf^^ certin- abroad (except the possession in which he was shipped), without previously obtaining ^.^j^ ^f g„„e functionary. 750 OP MASTERS AND SEAMEN. [PAET m. 17 & 18 Vict. the sanction in writing indorsed on the agreement of some public shipping master c. 104. or other officer duly appointed by the local government in that behalf, or (in the absence of any such functionary) of the chief officer 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 posses- sion abroad on any grouiid whatever, without 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 pro- ceed to sea, or desertion or disappearance; (4.) Leaves behind any seaman or apprentice at any place out of Her Majesty's dominions, on shore or at sea, on any ground whatever, without previously obtain- ing the certificate indorsed in manner and to the effect last aforesaid of the British consular officer there, or (in his absence) of two 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 guilty of a misdemeanor; and the said functionaries shall and the said merchants may examine into the grounds of such pro- posed discharge, or into the allegation of such unfitness, inability, desertion, or disappear- ance as aforesaid, in a summary way, and may for that purpose, if they think fit so to do, administer oaths, and may either grant or refuse such sanction or certificate as appears to them to be just. 208. Upon the trial of any information, indictment, or other proceeding against any person for discharging or leaving behind any seaman or apprentice, contrary to the pro- visions of this A ct, it shall lie upon such person either to produce the sanction or certifi- cate hereby required, or to prove that he had obtained the same previously to havmg dis- charged or left behind such seaman or apprentice, or that it was impracticable for him to obtain such sanction or certificate. 209. Every master of any British ship who leaves any seaman or apprentice on shore at any place abroad in or out of Her Majesty's dominions, under a certificate of his unfit- ness or inability to proceed on the voyage, shall deliver to one of the functionaries afore- said, or (in the absence of such functionaries) to the merchants by 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 seaman or apprentice, such account when delivered to a consular officer to be in duplicate, and shall pay the same either in money or by a bill drawn upon the owner ; and in the case of every bill so drawn, such func- tionary, merchants or merchant as aforesaid, shall by indorsement certify thereon that the same is drawn for 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 requires, upon the agreement of the ship ; and every such master as aforesaid who refuses or neglects to deliver a full account of such wages, and pay the amount thereof in money or by bill, as hereinbefore required, shall for every such offence or default be liable, in addition to the payment of the wages, to a penalty not exceeding ten pounds : and every such master who delivers a false account of such wages shall for every such offence, in addition to the payment of the wages, incur a penalty not exceeding twenty pounds. 210. Kvery such payment as last aforesaid, whether by bill or in money, shall, if made in any British possession, be made to the seaman or apprentice himself, and, if made out of Her Majesty's dominions, to the consular officer, who shall, if satisfied with the account, indorse on one of the duplicates thereof a receipt for the amount paid or bill delivered and shall return the same to the master; and the master shall, within forty-eight hours after his return to his port of destination in the United Kingdom, deliver the same to the shipping master there ; and the consular officer shall retain the other duplicate of the said account, and shall, if the seaman or apprentice 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 apprentice dies before his ship quits the port deal with the same in the manner hereinafter specified in that behalf, and shall, if the seaman or apprentice is sent home at the public expense under the provisions herein con- tained, account for the amount received to the Board of Trade ; and such amount shall after deducting any expenses which have been duly incurred in respect of such seaman or Proof of oertifl- cate to be upon the master. "Wages to be paid when seamen are left behind on ground of inability. Suph wages to be treated as money due to the seamen, subject to pay- ment of expense of their subsis- tence and pas- sage home. PART in.J OP MASTERS ANt) SEAMEIJ. 751 apprentice, except such as the master or owlier of the ship is hereby required to pay, be 17 & 18 Vict. dealt with as wages to which he is entitled, and shall be paid accordingly. C. 104. 211. The governors, consular officers, and other officers of Her Majesty in foreign countries shall, and in places where there are no such' governors or officers any two Distressed sea- resident British merchants may, provide for the subsistence of all seamen or apprentices, "[^° fnunil being subjects of Her Majesty, who have been shipwrecked, discharged, or left behind at reHevedand " any place abroad, whether from any ship employed in the merchant service or from any of sent home at tlie Her Majesty's ships, or who have been engaged by any person acting either as principal or public expense, agent to serve in any ship belonging to any foreign power or to the subject of any foreign state, and who are in distress in any place abroad, until such time as they are able to pro- vide 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 Her Majesty bound to any port of the United Kingdom, or to the British possession to which they belong, (as the case requires, ) which is in want of men to make up its complement, and in default of any such sliip shall provide them with a passage home as soon as possible in some ship belonging to a subject of Her Majesty so bound as aforesaid, and shall indorse on the agreement of any ship on board of which any seamen or apprentice is so taken or sent the name of every person so sent on board thereof, with such particulars concerning the case as the Board of Trade requires, and shall be allowed for the subsistence of any such ."seaman or apprentice such sum per diem as the Board of Trade from time to time appoints ; and the amount due in respect of such allowance shall be paid out of any monies applicable 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 boamd as aforesaid shall receive and afford a t^, j. passage and subsistence to all seamen or apprentices whom he is required to take on British ships board his ship, under the provisions hereinbefore contained, not exceeding one for every compelled to fifty tons burden, and shall during the passage provide every such seaman or apprentice ''''"^ them, with a proper berth or sleeping place effectually protected against sea and weather ; and on the production of a certificate signed by any governor, consular officer, or merchants by whose 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 before a justice, and verified by the Eegistrar-General of Seamen, stating the number of days during which each seaman or apprentice received subsistence and was provided for as aforesaid on board his ship, and stating also the number of men and boys forming the complement 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 provided for by him exceeding the number (if any) wanted to make up the complement of his crew, such sum per diem as the Board of Trade from time to time appoints ; and if any person having charge of any such ship fails or refuses to receive on board his ship, or to give a passage home, 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 one hundred pounds for each seaman or apprentice with respect to whom he makes such default or refusal. 213. If any seaman or apprentice belonging to any British ship is discharged or left Power to sue for behind at any place out of the United Kingdom without full compliance on the part of the the amount ad- master with all the provisions in that behalf in this Act contained, and becomes distressed ™i°|.f ''/'"' ^^'^ and is relieved under the provisions of this Act, or if any subject of Her Majesty, after left ahroad!"^™ 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 subject 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 for his subsistence, necessary clothing, con- veyance home, and burial, in case he should die abroad before reaching home, shall be a charge upon the ship, whether British or foreign, to which he so belonged as aforesaid ; and the Board of Trade may in the name of Her Majesty (besides suing for any penalties which may have been incurred) sue for and recover the said wafes and expenses, with costs, either from the master of such ship as aforesaid, or from the person who is owner thereof for the time being, or, in the case of such engage- ment as aforesaid for service in a, foreign ship, from such master or owner, or from the person by whom such engagement was so made as aforesaid ; and such sum shall be re- coverable either in the same manner as other debts due to Her Majesty, or in the same manner and by the same form and process in which wages due to the seamen would be recoverable by him ; and in any proceedings for that purpose production of the account (if any) to be furnished as hereinbefore is provided in such cases, together with proof o£ 752 OF MASTERS AND SEAIIEN. [part III. 17 & 18 Vict, payment by the Board of Trade or by the Paymaster General of the charges incurred on C. 104. account of any such seaman, apprentice, or other person, shall be sufficient evidence that he was relieved, conveyed home, or buried (as the case may be) at Her Majesty's expense. Seamen allowed to leave their ships in order to enter the navy. Clothes to l)e de- livered at once. Wages to be given to the Queen's otlicer on account of the seamen. Repayment to owner of ad- vance paid and not duly earned. If new seamen are engaged instead of the original seamen, the owner may apply for repay- ment of any extia expense he has been put to. Application how to be decided on, and amount of repayiQent how to be ascer- tained. Volunteenng into the Navy, 214. Any seaman may leave his ship for the purpose of forthwith entering into the naval service of Her Majesty, and such leaving his ship shall not be deemed a desertion therefrom, and shall not render him liable to any punishment or forfeiture whatever ; and all stipulations introduced into any agreement whereby any seaman is declared to incur any forfeiture or be exposed to any loss iu case he enters into Her Majesty's naval service shall be void, and every master or owner who causes any such stipulation to be so introduced shall incur a penalty not exceeding twenty pounds, 215. Whenever any seaman, without having 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 Her Majesty and is received into such service, the master 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 ded;ictions, as follows ; (that is to say,) the master of the said ship shall pay the same to the officer authorised to receive such seaman into Her Majesty's service, either in money or by bill drawn upon the owner and payable at sight to the order of the Accountant General of the Navy ; and the receipt of such officer shall be a discharge for the money or bill so given ; and such bill shall be exempt from stamp duty ; and if such wages are paid iu money, such money shall be credited iu the muster book of the ship to the account of the said seaman ; and if such wages are paid by bill, such bill shall be noted in the said muster book and shall be sent to the said Accountant General, who shall present the same or cause the same to be presented for payment, and shall credit the produce thereof to the account of the said seaman; and such money or produce (as the case may be) shall not be paid to the said seaman until the time at w'liich he would have been entitled to receive the same if he had remained iu the service of the ship which he had so quitted as aforesaid ; and if any such bill is not duly paid when presented, the said Accountant General or the seaman on whose behalf the same is given may sue thereon or may recover the wages due by all or any of the means by which wages due to merchant seamen are recoverable ; and if upon any seaman leaving 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, iu addition to his liability to pay and deliver the same, incur a penalty not exceeding twenty pounds; provided that no officer who receives any such bill as aforesaid shall be 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 service of Her Majesty, the owner or master of such .ship shows to the satisfaction of the Admiralty that he has paid or properly rendered himself liable to pay an advance of wages to or on account of such seaman, and that such seaman has not at the time of quitting his ship duly earned such advance by service therein, and, in the case of such liability as aforesaid, if such owner or master actually satisfies the same, it shall be lawful for the Admiralty to pay to such owner or master so much of 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 iu the nav.il service of Her Majesty. 217. If, in consequence of any seaman so leaving his ship without the consent of tlie master or owner thereof, it becomes necessary for the safety and proper navigation of the said ship to engage a substitute or substitutes, and if the wages or other remuneration paid to such substitute or substitutes for subseqiient service exceed the wages or remunera- tion which would have been payable to the said seaman under his agreement for similar service, the master or owner of the said ship may apply to the Registrar of the Hio-h Court of Admiralty in England for a certificate authorising the repayment of such excess ; and such application shall be in such form, and shall be accompanied by such documents, and by such statements, whether on oath or otherwise, as the judge of the said court from time to time directs. 218. The said registrar shall, upon receiving any such application as aforesaid, give notice thereof in writing, and of the sum claimed, to the secretary to the Admiralty, and shall proceed to examine the said application, and may call upon the registrar general of seamen to produce any papers in his possession relating thereto, and may call for further evidence; and if the whole of the claim appears to him to be just, he shall give a certificate accordingly ; but if he considers that such claim or any part thereof is not just, he shall give notice of such opinion in writing under his hand to the person makini' the said application or his attorney or agent ; and if within sixteen days from the giving of such notice such person does not leave or cause to be left at the of&oe of the registrar- of PART III.J OF MASTERS AND SEAMEN. 753 the said court a written notice demanding that the saidapplioation shall be referred to the 1*/ & 18 Vict. judge of the said court, then the said registrar shall finally decide thereon, and certify c. 104. accordingly ; but it such notice is left as aforesaid, then the said application 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 j udge 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 thinlcs fit, allow for the costs of any proceeding under this Act any sum not exceeding five pounds 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 sliall be sent by post or otherwise to the person making Accountant the application, his attorney or agent, and a copy thereof shall be sent to the accountant General to pa.v general of the navy; and such accountant general shall, upon delivery to him of the said sums when as- original certificate, together with a receipt in writing purporting 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 Her Majesty, and granted by Parliament for the purpose, the amount mentioned in such certificate ; and such certificate and receipt shall absolutely discharge the said accountant general and Her Majesty from all liability in respect of the monies so paid or of the said application. 220. Every person who, in making or supporting any such application as aforesaid to Penalty for for- the JJegistrar of the High Court of Admiralty, forges, assists in forging, or procures to be sery and false forged, or fraudulently alters, assists in fraudulently altering, or procures to be fraudu- i^'support of"'* lently altered, any document, and every person who in making or supporting any such such applica- application presents or makes use of any such forged or altered document, or who in tions. making or supporting any such apphcation makes or gives, or assists in making or giving, or procures to,be made or given, any false evidence or representation, knowing the same to be false, shall be deemed guilty of a misdemeanour. Provisions, Health, and Accommodation. 221. Any three or more of the crew of any British ship may complain to any officer in Survey of provi- command of any of Her Majesty's ships, or any British consular officer, or any shipping sions and -water master, or any chief officer of customs, that the provisions or water for the use of the "" complaint 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 such provisions or water are found to be of bad quality and unfit for use, or to be deficient in quantity, the persou'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 water in lieu of any so signified to be of a bad quahty and unfit for use, or does not procure the requisite quantity of any so signified to be insufficient in quantity, or uses any provisions or water which have 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 exceeding twenty pounds ; and upon every such examination as aforesaid the officers making or directing the same shall enter a statement of the result of the examination in the official log, and shall send a report thereof to the Board of Trade, and such report, if produced out of the custody of such Board or its officers, shall be received in evidence in any legal proceeding. 222. If the officer to whom any such complaint as last aforesaid is made certifies in Forfeiture for such statement as aforesaid that there was no reasonable ground for such complaint, each frivolous com- of the parties so complaining shall be liable to forfeit to the owner out of his wages a Pl^'i^t. sum not exceeding one week's wages. 223. In the following cases, (that is to say,) (1.) If during a voyage the allowance of any of the provisions which any seaman has by Allowance for this agreement stipulated for is reduced (except in accordance with any regulations short or bad for reduction by way of punishment contained in the agreement, and also except Pi°"^io°s. for any time during which such seaman wilfully and without sufficient cause refuses or neglects to perform his duty, or is lawfully under confinement for misconduct, either on board or on shore) ; (2.) If it is shown that any such provisions are or have during 'the voyage been bad in quality and unfit for use ; The seaman shall receive by way of compensation for such reduction or bad quality, according to the time of its continuance, the following sums, to be paid to him in addition to and to be recoverable as wages ; (that is to say,) (1.) If his allowance is reduced by any quantity not exceeding one-third of the quantity specified in the agreement, a sum not exceeding fourpence a day ; 3 c 754 OF MASTERS AND SEAMEN. [PAET in. 17 & 18 Vict. 0. 104. Sledicines, lime or lemon juice, augai- and vine- gar, to be pro- vided and kept on board certain Masters to keep weights and measures on_, board. Board of Trade and local boards may ai)point inspectors of medicines, who are to see that ships are pro- perly provided, Penalty for sell- ing bad drugs for ships. Exj)ense of medical attend^ ance and sub- sistence in case of illness, and of burial in case of death, how to be defrayed. (2.) If his allowance is reduced by more than one-thh-d of such quantity, eightpenoe a (3.) In respect of such bad quality as aforesaid, a sum not exceeding one shimng a day: But if it is shovyrn to the satisfaction of the court before which the case is tried that any provisions the allowance of which haa 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 require. 224. [Repealed ly 30 <£■ 31 Yict. c. 124]. 225.' Every mister shall keep' on board proper weights and measures for the purpose of determining the quantities of the several provisions and articles served out, and shall allow the sariie to be used at the time- of serving out such provisions and articles in the presence' Of a witness whenever any disputes arises about such quantities, and in default shall for every offence incUra peflaltynot exceeding tea pounds 226. Any local marine board may, upon being required by the Board of Trade so to do, appoint and reftiove si medical inspector of ships for the port, and may fix his remunera- tion;'suoh remun^fation to b6 subject to the control of the Board of Trade, and at ports where there are no local marine' boards the Board of Trade may appoint and remove such inspectors, and' fix their remuneration : and it shall be the duty of such inspectors to inspect the medifcines, medical stores, lime or' lemon juice, or other articles, sugar and vinegar; required to be kept on board any such ship 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 boards, shall be made under the direction of the Board of Trade ; and such medical inspectors shall for the purposes of such inspection have the same powers as the inspectors appointed by the Board of Trade under the first part of this Abt ; but every such inspector, if required by timely notice in writing 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 'inspection is satisfactory shall not again make inspection before the commencement 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 (Juantity or qiiality, or are placed in improper vessels, he shall signify the same in vrriting to the chief officer of customs of the port where such ship is lying, and also to the master, ovmer, 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 hand of such medical inspector or of some other medical inspector, to the effect that such deficiency has been supplied or remedied, or that siich improper vessels have been replaced by proper vessels, as the case may require ; and such chief oflicer of customs shall not grant a clearance for siich ship without 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 vidthout the production of such certificate, the owner, master, or consignee thereof shall ihcur a penalty not exceeding twenty pounds. ■ 22r. [Bci)eaUd by 30 & 31 Vid. c. 124.] ■ 228. The following rules shall ■ be observed with respect to expenses attendaijt , on illness a,nd death ; (that is to say,) (1.) 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 subsistence until he is cured, or dies, or is brought back to some port in the United Kingdom, if shipped in the United Kingdom, or if shipped in some British possession 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 owner of such ship, without any deduc- 1 tion on that account from th& wages of such master, seaman, or apprentice : (2.) If the master or any seaman or apprentice is on account of any illness tem- porarily removed from his ship for the purpose of preventing infection , or otherwise for the convenience of the ship, and subsequently returns to his duty, PART m.J OF MASTEKS AND SEAMEN. 755 the expense of such removal and of providing the necessary advice with atten- 17 & 18 Vict. dance and medicines, and of his subsistence whilst away from the ship, shall be c. 104. 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 his ship shall be defrayed in Uke 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 burial of any seaman or apprentice who dies whilst on service, 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 Expenses, If apprentice, as are to be borne by the owner, are paid by any consular ofBoer or other P"',"^ ^J consul, person on behalf of Her Majesty, or if any other expenses in respect of the illness, injury, able from owne or hurt of any seaman or apprentice whose wages are not accounted for to such officer under the provisions hereinbefore contained in that behalf are so paid, such expenses shall be repaid to such officer or other person by the master of the ship, and if not so repaid, the amount thereof, with costs, shall be a charge upon the ship, and be recover- able from the said master or from the owner of the ship for tho time being as a debt due to Her Majesty, and shall be recoverable either by ordinary process of law or in the manner in which seamen are hereby enabled 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 requires, shall be sufficient proof that the said expenses were duly paid by such consular officer or other person as aforesaid. 230. Every foreign-going ship having one hundred persona or upwards on board shall Certain ships to carry on board as part of her complement some person duly authorised by law to practise caiTy medical as physician, surgeon, or apothecary ; and in default the owner shall for every voyage of ^^^'^ ' ionei,>. any such ship made without such medical practitioner incur a penalty not exceeding one hundred pounds : provided that nothing herein contained shall in anywise affect any pro- vision contained in the " Passengers Act, 1852," concerning the carriage of medical practi- tioners by the class of ships therein named passenger ships, nor shall any such passenger ship, if not thereby required to carry a medical practitioner, be hereby required to do so. 2bl. [SepecUed by ZO & Zl Vkf. c. 124.] Place appro- priated to sea- men to have a certain space for each man, and to be properly Power oj makmg complaint. k^^el'^ ""'^ 232. If any seaman or apprentice whilst on board any ship states to the master that he seamen to be desires to make complaint to a justice of the peace, or consular officer, or naval officer in allowed to go command of any of Her Majesty's ships, against the master or any of the crew, the said "o^pJaJ^t^'f master shall, if the ship is then at a place where there is a justice or any such officer as j^gtice. aforesaid, so soon as the service of the ship wiU 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 maybe enabled to make such complaint, and shall, in default, incur a penalty not exceeding ten pounds. , Protection of Seamen from Imposition. 2.33. No wages due or accruing to any seaman or apprentice shall be subject to attach- Sale of and ment or arrestment from any court; and every payment of wages to a seaman or ^^^^^'^''^'^P™ apprentice shall be valid in law, notwithstanding any previous sale or assignment of such i^yalid. wages, or of any attachment, incumbrance, or arrestment thereon ; and no assignment or sale of such wages, or of salvage made prior to the accruing thereof shall bmd the party making the same ; and no power of attorney or authority for the receipt of any such wages or salvage shall be irrevocable. 234. No debt exceeding in amount five shillings, incurred by any seaman after he has jf^ ^j^^t exceed- engaged to serve, shall be recoverable until tho service agreed for is concluded. ing five shiUings 235. If any person demands or receives from any seaman or apprentice to the sea ''^^^^^^^J^'- service payment in respect of his board or lodging in the house of such person tor a -p^^^^^^^^. longer period than such seaman or apprentice has actually resided or boarded therein, he oyj,roharges by shall incur a penalty not exceeding ten pounds. _ lodging-house 236. If any person receives or takes mto his possession or under his control any keepers, monies, documents, or effects of any seaman or apprentice to the sea service, and does not f ^g^seamen- 3 C 2 efTects" 756 OF MASTEES AND SEAMEN. [part ni. 17 & 18 Vict. c. 104. Persons not to go on board before the final anival of ship without per- mission. Penalty for soli- citations by lodging-house keepers. return the same or pay the value thereof, when required hy 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 ten pounds, and any two justices may, besides inflicting such 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 who, not being in Her Majesty's Service, and not being duly authorised by law for the purpose, goes on board any ship about to arrive at the place of her destination, before her actual arrival in dock or at the place of her discharge, without the permission of the master, shall for every such offence incur a penalty not exceeding twenty pounds ; and the master or person in charge of such ship may take any such person so going on board as aforesaid into custody, and deliver him up forthwith to any constable or peace officer, 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 twenty-four hours after the arrival of any ship at any port in the United Kingdom, any person then being on board such ship solicits any seaman to become a lodger at the house of any person letting lodgings for hire, or takes out of such ship any 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 five pounds. Misconduct endangering ship or life or limb a mis- demeanor. Power of Ad- miralty Courts to remove master. Power to inves- tigate cases of alleged incom- petency and misconduct. Discipline, 239. Any master of or any seaman or apprentice belonging to any British ship who 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 tending immediately to endanger the life or limb of any person belonging 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 by him for pre- serving such ship 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' dominions, may, upon application by the owner of any ship being within the jurisdiction of such court, or by the part owner or consignee, or by the agent of the 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, remove him accordingly ; and may also, with the consent of the owner 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 jurisdiction of the court, then without such consent, appoint a new master in his stead; and may also make such order, and may require such security in respect of costs in the matter, as it thinks fit. 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 which it may be convenient for the parties and wit- nesses to attend to institute the same, and thereupon such persons as the Board of Trade may appoint for the^purpose, or, as the case may be, the local marine board, shall, with the assistance of alooal stipendiary magistrate (if any),and if there is no such magistrate of a competent legal assistant to be appointed by the Board of Trade, conduct the investiga- tion, 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 investigation have all the 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 investiga- tion 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 witnesses 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 ma"is- trate ; and thereupon such investigation shall be conducted, and the results thereof reported, in the same manner and with the same powers in and with which formal investigations into wrecks and casualties are directed to be conducted, and the results thereof reported, under the provisions 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 conduct of the case. PART ni.j OF MASTERS AND SEAMEN. 757 242. The Board of Trade may suspend or cancel the certificate (whether of com- 1 & 18 Vict. petsncy or service) of any master or mate in the following cases; (that is to say,) o. 104. (1 If upon any investigation made in pursuance of the last preceding section, he is ■ reported to he incompetent, or to have been guilty of any gross act of misconduct, ^°^'^ of Trade drunkenness, or tyranny : ^ suspend oertifl- (2.) If upon any investigation conducted under the provisions contained in the eighth cates in certain part of this Act, or upon any investigation made by a naval court constituted as "^^es. hereinafter mentioned, 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 : (3.) If he is superseded by the order of any admiralty court or of any naval court constituted as hereinafter mentioned : (4.) If he is shown to have been convicted of any offence : (5,) If upon any investigation made by any court or tribunal authorised or hereafter to be authorised by the legislative authority in any British possession to make inquiry into charges of incompetency or misconduct on the part of masters or mates of ships, or as to shipwrecks or other casualties affecting ships, a report is made by such court or tribunal to the effect that he has been guilty of any gross act of misconduct, drunkenness, or tyranny, or 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, 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 shall deliver it to the Board of Trade or as it directs, and in default shall for each offence incur a penalty not exceeding fifty pounds ; 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. Whenever any seaman who has been lawfully engaged or any apprentice to the Offences of sea- sea service commits any of the following offences he shall be liable to be punished sum- 1°'^° ^"''l ^pP.''™ .]« m ,,,;.,. ° ^ tices and their manly as follows; (that is to say,) punishments. (1.) For desertion he shall be liable " * * [repealed in part by 43 '>fnts and ad- oath, and administer the oaths necessary for that purpose. minister oatlis. 464. If any person is aggrieved by the award made by such justices or such umpire as Appeal to Courts aforesaid, he may in England appeal to the High Court of Admiralty of England, in of Admiralty. Ireland to the High Court of Admiralty of Ireland, and in Scotland to the Court of Session ; but no such appeal shall be allowed unless the sum in dispute exceeds fifty pounds, nor unless within ten days after the date of the awaxd the appellant gives notice to the justices to whom the matter was referred of his intention to appeal, nor unless the appellant proceeds 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 appe.il, within twenty days from the date of the award. 465. Whenever any appeal is made in manner hereinbefore provided, the justices shall fja^'.^ft*? transmit to the proper officer of the court of appeal a copy on unstamped paper certified in-oceedino-s aiid under their hands to be a true copy of the proceedings had before such justices or tbeir certilicate of umpire, if any, and of the award so made by them or him, accompanied with their or his ^5^^® *° Court ceriificate in writinj; of the gross value of the article respecting which salvage is claimed; ° ^^"^^^ ' and such copy and certificate shall be admitted in the court of appeal as evidence in the cause. 466. Whenever the aggregate amount of salvage payable in respect of salvage services I'ayinent of sal- rendered in the United Kingdom has been finally ascertained either by agreeuient or by ™=^ ^° whom the award of such justices or their umpire, but a dispute arises as to the apportionment ^jj^g ^^ dispute thereof amongst several claimants, then, if the amount does not exceed two hundred as to apportioii- pounds, it shall be lawful for the party liable to pay the amount so due to apply to the ment. receiver of the district for liberty to pay the amount so ascertained to him ; and he shall, if he thinks fit, receive the same accordingly, aud giant a certificate under his hand, stating the f.ict of such payment, and the services in respect of which it is made ; and such certificate shall be a full di.-charge and indemnity to the persoQ 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 of the services therein mentioned ; but if the amount exceeds two hundred pounds, it shall be apportioned in manner hereinafter mentioned. 467. Upon the receipt of any such amount as aforesaid the receiver shall with all con- Appoi-tionment venient speed proceed to distribute the same among the several persons entitled thereto, ° ^^ ''^^' upon such evidence and in such shares and proportions as he thinks fit, with power to retain any monies that may appciir 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. 468 Whenever any salvage is due to any person under this Act, the receiver shall act Manner of en- !• m* /1.-L. J. ■ J. , \ forcing payment as follows; (that IS to say,) _ ^ , of salvage. (1.) If the same is due in respect of services rendered m assisting any ship or boat, or in saving the lives of persons belonging to the same, or the cargo or apparel thereof, • iu j. He shall detain such ship or boat and the cargo and apparel belonging thereto until 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, 794 WEECKS, CASUALTIES, AND SALVAGE. [PAET VIII. 17 & 18 ViOT. C. 104. Power of re- ceiver to sell propei'ty salved in cases of non- payment. Subject to pay- ment of ex- penses, fees, and salvage, owner entitled to wreck. Receiver to de- liver up pos- session of un- claimed wreck to lord of manor or other person entitled. Disputed title to wreck how to be decided. Appeal from decision of justices. Power of the Board of Trade on behalf of the Crown to pur- chase rights to wreck. He shall detain suoli 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 two hundred pounds it shall be lawful in England for the High Court of Admiralty of Eugland, in Ireland for the High Court of Admiralty of Ireland, and in Scotland for the Court ot Session, to determine any question that may arise concerning the amount of 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 two hundred pounds 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 adjudi- cated Upon, and the said 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. 4e9. Whenever any ship, boat, cargo, ajiparel, or wreck is detained by any receiver for non-payment of any sums so due as aforesaid, and the parties liable to pay the same are aware of such detention, then, in the following cases, that is to say, (1.) In cases where the amount is not disputed, and payment thereof is not made within twenty days after the same has become due ; (2.) In cases where the amount is disputed, but no appeal lies from the iirst tribunal to which the dispute is referred, and payment thereof is not made within twenty days after the decision of such first tribunal ; (3.) In oases 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 twenty days as last aforesaid, or such monition as hereinbefore mentioned is not taken out within such twenty days, or such other proceedings as are according to the practice of such other tribunal necessary for the prosecution of an appeal are not instituted within sucli twenty 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 respect 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, the owner of any wreck who establishes his claim thereto to the satisfaction of the receiver within one year from the date at which such wreck has come into the possession of the receiver, shall be entitled to have the same delivered up to him. Unclaimed WrecJc in the. United Kingdom. 471. In the event of no owner establishing a claim to wreck found in any place in the United Kingdom before the expiration of a year from the date at which the same has come into the possession of the receiver, then, if any such admiral, vice admiral, lord of any manor, or other person as aforesaid, has given notice to and has proved to the satisfaction ot 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 ease of dispute as to the amount of the sums so payable, and also in case ot default being made in payment thereof, such dispute shall be deiermined and payment enforced in the manner in which such amount and payment is hereby directed to be de- termined and enforced in cases where any owner establishes his claim to wreck. 472. If any dispute arises between the receiver and any such admiral, vice-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 hereinbefore directed to be determined. 473. If any party to such dispute is unwilling to refer the same to two justices, or, having 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 advised in any court of Law, Equity, or Admiralty having jurisdiction in the matter for establishing his title. 474. The Board of Trade shall have power, with the consent of the Treasury, out of the revenue arising under the eighth part of this Act, for and on behalf of Her Majesty, her heirs and successors, to purchase all such rights to wreck as may be possessed by any person or body corporate, other than Her Majesty; and for the purpose of facilitating PART Vm.J WRI5CKS, CASUALTIES, AND SALVAGE. 795 such piiroliases the provisions of the " Lands Clauses Cousolidation Act, 1845," and the 17 & 18 Vict. " Lands Clauses Consolidation (Scotland) Act, 1845," relating to the purchase of lands by C. 104. agreement, shall be incorporated with this Act ; and in the construction of this Act and ' the said iucorporaled Acts this Act shall be considered to bo the '' Special Act ; " and any- such riglits to wreck as aforesaid shall be considered as an interest in lind authorised to be taken by the Special Act, and Her Majesty, her heirs and successors, shall be con- sidered as the promoters of the undertaking. 475. If no owner establish' s his claim to wreck found at any place before the expira- Unclaimeil tion of such period of a year as aforesaid, and if no_ admiral, vice-admiral, lord of any ^^™'''' l" 'Jo manor, or person other than Her Majesty, her heirs and successors, is proved to be ''° '' ' entiiled to such wreck, the recniver 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 liim, and paying to the salvors such amount of salvage as the Board of Trade may in each ease or by any general rule determine, pay the same into the receipt of llur Majesty's Exchequer, in such manner as the Treasury may direct, and the same shall be carried to and form part of the consolidated fund of the United Kingdom. Jimsdiclion of the High Coiii-t of Admiralty. 476. Subject to the provisions of this Act, the High Court of Admiralty shall have jjj„]j court of jurisdiction to decide upon all claims whatsoever rela'ing to salvage, whether the services Admiralty uiay in respect of vi'hich salvage is claimed were performed upon the higli seas, or within the dei'irte on all body of any county, or p;irtly in one place and partly in the other, and whether' the wreck whet£er'^ou''sea is found at sea or cast upon the land, or partly in the sea and partly on land. or land. Offences in respect of Wreck, 477. Whenever any ship or boat is stranded or otherwise in distress on or near the j^ ^^gg gj gj,;,, shore of any sea or tidal water in the United Kingdom, and such ship or boat, or any wrecked teing part of the cargo or apparel thereof, is plundered, damaged, or destroyed by any persons plundered by a riotously and tumultously assembled together, whether on shore or afioat, full compensa- semblase the^" tion shall be made to the owner of such ship, boat, cargo, or apparel, as follows ; (that is hundred to to say,) tie liable for In England by the inhabitants of the hundred, wapentake, ward, or district in the 'damage.'!. nature of a hundred, by whatever name denominated, in or nearest to which the s«id offence is committed, in manner provided by an Act of the eighth year of the reign 7 cfe 8 G. 4, c. 31. of King George the Fourth, Chapter thirty-one, in case of the destruction of churches and other buildings by a riotous assemblage, or as near thereto as circum- stances permit : In Ireland by the inhabitrmts of the countv, county of a city or town, barony, town or towns, parish or parishes, in or neaiest to wliich such offence is committed, in manner provided by an Act of the fourth year of the reign of King William the 3 & 4 W. 4, c. 37, Fourth, chapter thirty-seven, for the recovery of satisfaction and amends for the s. 72. malicious demolitioii of or injury to churches, chapels, and other buildings used for religious worship according to the usage of the United Church of England and Ireland or as near thei-eto as cii cumstances permit : In Scotland, by the inhabitants of the county, city, or borough in or nearest to which such offence is commit'ed, in manner provided by an Act of the first year of King i (j, j^ st. 2, c. 5. George the First, Statute two, chapter five, with respect to prosecutions for repair- ing the damages of any churches and other buildings, or as near thereto as circum- .stauces permit. 478. Every person who 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 or in plundering in danger of being stranded or otherwise in distress on or near the shore of any sea ^"rg^ck" for ob- or tidal water, or any part of the cargo or apparel thereof, or any wreck ; or structing the O \ If'ndeavours in any way to impede or hinder the saving of such ship, boat, cargo, saving of ship- ^•"i , „„i, . n^ Avrecked pro- apparel, or wreck or perty, andibr (3 ) Secretes any wreck, or obliterates or defaces any marks thereon ; secreting the Shall in addition to any other penalty or punishment he may be subject to under this or isame. anv other Act or law, for each such offence incur a penalty not exceeding fifty pounds ; and every person, not being a receiver or a person hereinbefore authorised 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 anv such ship or boat as aforesaid, shall for each offence incur a penalty not exceeding fift V Dounds • and it shall be lawful for the master of such ship or boat to repel by force fifty pounds , » — -.- - -, any such person so attempting to board the same, 796 WKECIvS, CASUALTIES, AND SALVACJE. [PART VIH. 17 & 18 ViOT. C. 104. reualty for sell- in;,' -wi-cck in foieign ports. 479. If any person takes into any foreign port or place any ship or boat stranded, derelict, or otherwise in distress on or near the shore of the sea or of any tidal water situate within the limits of the United Kingdom", or any part of the cargo or apparel thereof, or anything belonging thereto, or any wreck found within such hmits as atore- said, and there sells the same, he shall be guilty of felony, and be subject to penal servi- tude for a term not exceeding four years. Regulations to be observed by dealers in marine stores. Manner of ob- taining pennit to cut up cables, Permit to be .id- vei-tised before dealer proceeds to act thereon. Dealers m Marine Stores and Manufacturers of Anchors. 480. Every person dealing in buying and selling anchors, cables, sails, or old junk, old iron, or marine storfes of any description, shall conform to the following regulations ; (t.iat is to say,) , ' v • > j (1.) He shall have his name, together with the words " dealer in marine stores pamted distinctly in letters of not less than six inches in length on every warehouse or other place of deposit belonging to him ; If he does not he shall incur a penalty not exceeding twenty ponnds : (2.) He shall keep a book or books, fairly written, and shall enter therein an account of all such marine stores as he may from time to time become possessed of, stating, in respect of each article, the time at which and the person from whoni he pur- chased or received the same, adding, in the case of every such last-mentioned per- son, a description of his business and place of abode ; If he does not he shall incur for the first offence a penalty not exceeding twenty pounds, and for every subsequent offence a penalty not exceeding fifty pounds : . . (3.) He shall not, by himself or his agents, purchase marine stores of any description from any person apparently under the age of sixteen years ; If he does so he shall incur for the first offence a penalty not exceeding five pounds, and for every subsequent offence a penalty not exceeding twenty pounds : (4.) He shall not out up any cable, or any similar article, exceeding five fathoms in length, or unlay the same into twine or paper .stuff, on any pretence whatever, without obtaining such permit and publishing such notice of his having so obtained the same as is hereinafter mentioned ; If he does so he shall incur for the first offence a penalty not exceeding twenty pounds, and for every subsequent offence a penalty not exceeding fifty pounds : 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 re&ides containing the 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 unlaid : (2.) A statement that he purchased or otherwise acquired the same hand fide and with- out fraud, and without 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 purchased 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 pro- duction of any such declaration as aforesaid, to giant a permit authorising him to cut up or unlay such cable or other like article. 48'2. No dealer in marine stores who has obtained such permit as aforesaid shall pro- ceed by virtue thereof to cut up or unlay 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 having so oljtained a permit, and specifying the nature 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 unlaid ; and if any person suspects or believes that such cable or other article is his property, he miiy apply to any justice of the peace for a warrant ; and such justice of the peace may, on the applicant m.aking oath, or, if a person entitled to make an afiirmation, making an aflBrmation in support of such his suspicion or belief, grant a warrant by virtue 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 herein-before 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 same ; and if any dealer in marine stores makes default in complying with any of the provisions of this section, he shall for PART Vm.j WRECKS, CASUALTIES, AND SALVAGE. 797 the first oEfence incur a penalty not exceeding twenty pounds, and for every subsequent 17 & 18 ViOT. olience a penalty not exceeding fifty pounds. (!. 104. 4 S3. Every manufacturer of anchors shall, in case of each anchor which he manu- f.ictuiBS, mark in legible characters on the crown and also on the shank under the stock Manufacturers his name or initials, with the addition of a progressive number and the weight of such *° V^^''^ marks anchor ; and if he makes default in doing so he shall for each offence incur a penalty not lixceediug five pounds. Salvar/e hy Her Majesty's ShiiJS. 434. In oases where salvage services are rendered by any ship belonging to her Majesty No claim for or by the commander or crew thereof, no claim shall be made or allowed for any loss, salvage services damage, or risk thereby caused to such ship, or to the stores, tackle, or furniture thereof, resoec^^onoss'" >a- for the use of any stores or other articles belonging to her Majesty supplied in order or risk of Her to eOeot such services, or for any other expense or loss su.stained by her Majesty by rea- Majesty's sliips son of such services. °'' property. 4^5. No claim whatever on account of any salvage services rendered to any ship or claims for snl- cargo or to any appurtenances of any ship by the commander or crew or part of the crew vage by Hci' of any of her Majesty's ships shall be finally adjudicated upon unless the consent of the Majesty s oflieers Admiralty has first been obtained, such consent to be signified by writing under the hand mined witlicmt of the secretary to the Admiralty, and if any person who has origin .ted proceedings in consent of .Vd- respect of any such claim fails to prove such consent to the satisfaction of the court, his miralty. 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 by the secretary to the Admiralty shall he primdjacie evidence of such consent having been given. 486. Whenever services for which salvage is claimed are rendered to any ship or cargo, Stejjs to bo or to any part of any ship or cargo, or to any appurtenances of any ship, at any place out *jl™l,rgei!vices of the United Kingdom and the four seas adjoining thereto, by the commander or crew have been reu- or part of the crew of any of Her Majesty's ships, the property alleged to be salved shall, dered by Her if the salvor is justified by the circumstances of the case in detaining it at all, be taken Majesty's ships to some port where there is either a consular offioer or a vice-admiralty court ; and within ^ ""' ' twenty-four hours after arriving at such port the said salvor and the master or other person in charge of the property alleged to be salved shall each deliver tio the consular officer or vice-admiralty jiidge there a statement verified on oath, specifying, so far as they 1 espectively can, and so far as the particulars required apply to the case, (i.) 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 : And 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 values at which he estimates the said ship, freight, cargo, and property respectively, and the several amounts 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 his 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, affecting the same, and the names and places of business of tJie 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 of residence of the owner of such cargo and of the consignee thereof : (7.) The values at which the said master estimates the said ship, cargo, and property, and the freight respectively, or, if he thinks fit, in lieu of such estimated value of the cargo, a copy of the ship's manifest : (8.) 'i'he amounts which the master thinks should be paid as salvage for the services rendered : (9.) An accurate list of the property saved in cases where the ship is not saved : (li).) An account of the proceeds of ths sale of the said ship, cargo, or property, in cases where the same or any of them are sold at such port as aforesaid : 798 WRECKS, CASUALTIES, AND SALVAGE. [part VIII. Consnlar officer or .judge to fix auKniiit for "wiiich a bond is to Ije given. 17 & 18 ViOT. (11.) The number, capacities, and condition of the crew of the said ship at the time 0. 104. the said services were rendered : (12.) Any other circumstances he thinks relevant to the matters in question : (13.) A statement of his willinguesss to execute a bond, in the form in the table marked W. in the schedule hereto, in such amount as the said consular otticer or vioe-admiialty 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 aufiicient to answer the demand for the salvage services rendered ; but such sum shall not exceed one half of the value which in his estimation the a.iid 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 require the cargo to be unladen ; and the said consular officer may in any proceeding under this Act relating to salvage take affidavits and receive affirmations. 488. The said consular officer or judge shall send notice of the sum which he has so fixed as aforesaid to the said salvor and the eaid 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 ship, cargo, or property, or any of them, in respect of the said snlvage claim, shall cease. 489. If the ship, cargo, or property in respect of which the claim for i--alvage is made is not owned by persous domiciled in Her Majesty's dominions, the right of the salvor to detain or retiiin possession thereof shall not cease unless the master procures, in addition to the said bond, such security fur the due performance of the conditions thereof as the said officer or judge considers sufficieut for the purpose, and places the same in the pos- session or custo jy of the said officer or judge, or, if the salvor so desires, in the possession or custody of the said officer or judge jointly with any other person whom the said salvor appoints for the pui'pose. 490. 'I he 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 court. 491. The said bond shall bind the respective owners of the said ship, freight, and cargo, and their respective heirs, executors, and administrators, for the salvage adjudged to be payable in i espect of the said ship, freight, and cargo respectively. 492. The said bond shall be adjudicated on and enforced by the High Court of Admi- ralty iu England, or if the said salvor and master at the time of the execution 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 under this Act have and exer- cise all powers and authorities whatsoever which the said High Court of Admiralty now has or at auy time may have in any proceeding whatsoever before it ; and in cases where any security for the due performance 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 jointly with any other person, the person or persons having the custody of such security shall respectively deal with the same in such manner as the court that adjudicates on the bond directs, 493. The said High Court of Admiralty shall have power to enforce any bond given in pursuance of this Act in any Vice- Admiralty Court in any part of Her i\iajesty'a dominions; and all courts in Scotland, Ireland, and the islands of Jersey, Guernsey, Alderney, Sark, and Man exercising Admiralty jurisdiction shall, upon application, aid and assist the High Court of Admiralty in enforcing the sidd bonds. 494. Any such salvor as aforesaid of any ship, cargo, or property who elects 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 ; aod 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 in pursuance of the eighth part of this Act shall, if so made or executed out of the United Kingdom, be exempt from stamp duty. Punishment for 496. Every person who, in any proceeding under provisions contained in the eighth forgery and false part of this Act relating to salvage by Her Majesty's ships, forges, assists in forging, or representations, procures to be forged, fraudulently alters, assists iu fraudulently altering, or procures to be fraudulently altered, any docuuieut, 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 On master exe- cuting bond the riglit of deten- tion to cease. Provision for additional secu- rilv in the case of ships owned by persons resi- dent out of Her Majesty's do- nunions. Documents to be sent to England. Whom the bond shall bind. Court in which it is to be adju- dicated on. Power of High Court of Admi- ralty to enforce bonds. Saving clause. Document free from duty. PAET VIII.]- WRECKS, CASUALTIES, AND SALVAGE. 799 forged or altered, or who in any suoli proceeding gives or makes, or assists in giving or 17 & 18 ViCT. making, or procures to be given or made, any false evidence or representation, knowing c. lOi. the same to be false, shall be punishable with imprisonment, with or without hard labour, for any period not exceeding two years, or if summarily prosecuted and convicted, by imprisonment, with or without hard labour, for any period not exceeding six months. Salvage, General. 497. Whenever services for which- salvage is claimed are rendered either by the com- ^"^H."*'"''' *8r^'^' mander or crew or part cf the crew of any of Her Majesty's ships, or of any other ship, made which and the salvor voluntarily agi'ees to abandon his lien upon the ship, cargo, and property shall have the alleged to be salved, upon the master or other person in charge thereof entering into a same efl'ecjt as ■written agreement attested by two witnesses to abide the decision of the said High Court lui?,,!"",^^ ""'" of Admiralty or of any Vioe-Admiraltv Court, and thereby giving security in that behalf to such amount as may be agreed on bj' 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 heirs, executor.^, and administrators, for the salvage which may be adjudged to be payable in respect of the said ship, cargo, and freight respectively to the extent of the security so given as afuresaid, and may be adjudio-ited upon and enforced in the same manner as the bonHs provided for by the eighth part of ihis Act, in the cafe of detention for salvage services rendered by Her Majesty's ships ; aud upon such agree- ment beiug made the salvor and the master or other person in chirge as aforesaid sliiill i-espectively make such statements as are hereinbefore required to be made by them in case of a bond being given, except that su-jh statements need not be made upon oath j aud the salvor shall, us soon as practicable, transmit the said agreement and thfe 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 services Powers for rendered in the United Kingdom has been finally ascertained, and exceeds two hundred courts having pounds, and whenever the aggregate amount of salvage payable in respect of salvage ^jetiou to apuor- services rendered elsewhere has been finally ascertained, whatever such amount may be, tion salvage. 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 carry such apportionment into effect, and may compel any person in whose hands or under whose control such amount may be to distribute the Kame, or to bruig the same into court, to be there dealt with as the court may direct, and may for the purposes aforesaid issue such monitions or other processes as it thinks fit. Miscellaneotis. 499. All wreck, being foreign goods brought or coming into the United Kingdom or Foreign goods the Isle of Man, shall be subject to the same duties as if the same were imported into [o"""^' derelict to the United Kingdom or the Isle of Man respectively; and if any question arises as to the same dutie.Jlis origin of such goods, they shall be deemed to be the produce of such country as the on importation. Commissioners of Customs may upon investigation determine. 600. The Commissioners of Customs and Excise shall permit all goods, wares, and Goods saved merchandise saved from any ship stranded or wrecked on its homeward voyage to be from ships forwarded to the port of its original destination, and all good.s, wares, and merchandise forwarded to saved from any ship stranded or wrecked on its outward voyage to be returned to the the ports of port at which the same were shipped ; but snch commissioners are to take security for tht^jr original the due protection of the revenue in respect of such goods, wares, and merchandise. destination. 501. All matters and things that may in pursuance of the eighth part of this Act be -^^/jjiTn^g*" done by or to any justice, or any two justices, may in Scotland be done also by or to the fj^'^cotia™!. sheriffof the county, including the sheriff substitute; and the expression " lord or lady of a manor " shall in the eighth part of this Act, so far as regards Scotland, include ' heritable proprietor duly infeft," 800 LIABILITY 01" SHIPOWNERS. PART IX. 17 & 18 ViOT. c. 104. PAET IX. LIABILITY OF SHIPOWNERS. Application of Part IX. of Act. Owner not liable in respect of certain articles. Measure of owner's liabi lity. Value of carnage of goods and passage money to be considered as freight. Provision for separate losses. Application. 502. The ninth part of this Act shall apply to the whole of Her Majesty's dominions. Limitation of Liability , 503. No owner of any sea-going sliip or share therein shall be liable to make good any loss or damage that may happen without his actual fault or privity of or to any of the following things, (that is to say,) (I.) 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, silver, diamonds, watches, jewels, or precious stones taken in or put on board any such ship, by reason of any robbex-y, embezzlement, making away with or secreting thereof, unless the owner or shipper thereof has, at the time of shipping the same, inserted in his bills of lading or otherwise declared in writing to the master or owner of such ship the true nature nnd value of such articles. To any extent whatever. 504. [Sepeakd by 25 °" pounds : thereof. (2). The damages found due on any such inquiry as aforesaid shall be the first charge on the aggregate amount for which the owner is liable, and shall be paid thereout in priority to all other claims : (3.) All such damages as aforesaid shall be paid to Her Majesty's paymaster general, and shall be distributed and dealt with by him in such manner as the Board of Trade directs ; and in directing such distribution the Board of Trade 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 pay- ment to each person injured of such compensation, not exceeding in any case the statutory amount, as the said Board thinks fit, and as regards the sums paid in respect of deaths shall direct payment thereof for the benefit of the husband, wife, parent, and child of the 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 surplus remaining under its 8 E 802 LIABILITT OP SHIPOWNEES. [part IX. 17 & 18 Vict. control after making such diatribution aa aforeaaid, and the sum ao refunded shall C. 104. form part of the reaidue hereinafter mentioned • (5.) The Board of Trade shall not, nor ahall any peraon 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 distribution of such damages as aforesaid : (6.) If the amount paid to Her Majesty's paymaster general in manner aforeaaid is insufficient to meet the demands upon it, the several claims thereon shall abate proportionally. 511. After the completion of such inquiry as aforesaid, if any person injured estimates the damages payable in respect of such injury, or if the executor or administrator of any Any person who is dissatisfied with the amount deceased person estimates the damages payable in respect of his death, at a greater sum of statutory damages may tring an action on his own account. than such statutory amount, or, in case of a compromise having been made by the Board of Trade, than the amount accepted by such Board by way of compensation for such injury or death as aforesaid, the person so estimating the same shall, upon repaying or obtaining the repayment by the Board of Trade to the owner of the amount paid by him to the Board of Trade in respect of such injury 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 hereinbefore been given to the Board of Trade, subject to the following pro; vise ; (that ia to say,) that any damages recoverable by such person shall be payable only out of the residue, if any, of the aggregate amount for which the owner is liable, after deducting all auma paid to Her Majesty's paymaster general in munner 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. If Board of ^^^- ^^ cases where loss of life or personal injury has occurred by any accident in Trade decline to respect of which the owner of any such ship as aforesaid is or is alleged to be liable in institute pro- ceedings, indi- viduals may bring actions. damages, no person shall be entitled to bring any action or institute any suit or otiier legal proceeding in the United Kingdom until the completion of the inquiry (if any) instituted by tlie Board of Trade, or until the Board of Trade has refused to institute the same ; and the Board of Trade shall, for the purpose of entitling any person to bring an action or institute a suit or other legal proceeding, be deemed to have refused to insti- tute 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 inquiry is insti- tuted 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 institute any inquiry, afterwards determines to institute the same, the damages and costs (if any) recovered on such inquiry .shall be payable rateably with and not in priority to the coats and damages recovered in any other action, suit, or legal proceeding. 614. In cases where any liability has been or ia alleged to have oeen incurred by any owner in respect of loss of life, personal injury, or loss of ur damage to ships, boats, or goods, and several claims are made or apprehended in respect of such liability, then, subject to the right hereinbefore given to the Board of Trade of recovering damages in the United Kingdom in reapect of loas of life or personal injury, it shall be lawful in Er.gland or Ireland for the High Court of Chancery, and in Scotland for the Court of Session, and in any British poaseaaion for any competent court, to entertain proceedings at the suit of any owner for the purpose of determining the amoimt of such liability, subject as aforesaid, and for the distribution of such amount rateably amongst the several claimants, with power for any such court to stop all actions and suits pending in any other court in relation to the same subject matter ; and any proceeding entertained by such Court of Chancery or Court of Session, or other competent court, may be con- ducted in such manner, and aubject to euch regulations as to making any persons inte- rested parties to the same, and as to the exclusion of any claimants who do not come in within a certain time, and aa to requiring security from the owner, and aa to payment of costs, as the court thinks just. 615. All sums of money paid for or on account of any loss or damage in respect whereof the liability of the owners of any ahip is limited by the ninth part of this Act, to beac'counted and all costs incurred in relation thereto, may be brought into account among part for between part owners of the same ship in the same manner as money disbursed for the use thereof. Proceedings by Board of Trade after refusal. Proceedings in case of several claims being made on owner of ship, r Money paid for damage, how Saving cl.ause. Samng Clause. 516. Nothing in the ninth part of this Act contained shall be construed — To lessen or take away any liability to which any master or seaman, being also PART X.] OF LEGAL PROCEDTJEE. 803 owner or part owner of the ship to which he belongs, is subject in his capacity of 17 & 18 ViOT. master or seaman ; or c. 104. To extend to any Biitish ship not being a recognized British ship within the meaning of this Act. PAET X. LEGAL PROCEDURE. 517. The tenth part of this Act shall in all cases, where no particular country is men- Application of tioned, apply to the whole of Her Majesty's dominions. J'^J* -''■ °' ^^^'^ Legal Procedure {General). 518. In all places witliin Her Majesty's dominions, except Scotland, the offences Punislimeut of liereinafter mentioned shall be punished and penalties recovered in manner following ; "?' "SS', ^ (that 18 to say,) penalties. (1.) Every offence by this Act declared to be a misdemeanor shall be punishable by fine or imprisonment with or without hard labour, and the court before which such offence is tried may in England make the same allowances and order payment of the same costs and expenses as if such misdemeanor had been enumerated in the Act passed in the seventh year of His late Majesty King George tlie Fourth, 7 G. i, c. 64. chapter sixty four, or any other Act that may be passed for the like purpose, and may in any other part of Her Majesty's dominions make such allowances and order payment 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 pay- able 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 exceed- ing six months, with or without hard labour, or by a penalty not exceeding one hundred pounds, 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 exceed- ing six months, with or without hard labour, or by any penalty not exceeding one hundred pounds, 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 eleventh and twelfth years of the reign of Her Majesty Queen Victoria, chapter forty-three, and as to Ireland in the manner directed by the Act of the fourteenth and fifteenth years of the reign of Her Majesty Queen Victoria, chapter ninety- three or in such other manner as m:iy be directed by any Act or Acts that may be passed for like purposes : 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 have 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 five pounds, 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 which is holden not less than twelve days after the day of such conviction for the county, city, borough, liberty, riding, division, or place wherein the case has been tried ; provided that such person shall give to the complainant a notice in writing of such appeal, and of the cause and matter thereof, within three days after such conviction, and seven clear days at the least before such sessions, and shall also either remain in custody until the sessions or enter into a recognizance, with two suflBcient sureties, before a iustice of the peace, conditioned personally to appear at the said sessions, and to try such appeal, and to abide the judgment of the court thereupon, 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 pc rson, if in custody ; and the court at such. 3 F 2 804 OP LEGAL PKOCEDUEfi. [PAET X^ 17 & 18 VioT. sessions shall hear and determine the matter of the appeal, and shall make such c. 104. order therein, with or without costs to either party, as to the court shall^ seem meet, and in case of the dismissal of the appeal, or the affirmance of the conviction, shall order and adjudge the offender to be punished according to the conviction, and to pay such costs as may be awarded, and shall, if necessary, issue process for enforcing such judgment : (5.) All offences under this Act shall in any British possession be punishable in any court or by any justice of the peace or magistrate in which or by whom offences of a like character are ordinarily 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 possession are required to be made in order to have the force of law. , milfstaSo 519. Any stipendiary magistrate shall have full power to do alone whatever two justices have same power of the peace are by this Act authorized to do. as two justices. 520. For the purpose of giving jurisdiction under this Act, every offence shall be deemed Offence where to have been committed, and every cause of complaint to have arisen, either in the place deemed to have in which the same actually was committed or arose, or in any place in which the offender lieen commi e . ^^ person complained against may be. Jni-isdiotion ^ 52I. In all oases where any district within which any court or justice of the peace or offthe coast'^"^ other magistrate has jurisdiction, either under this 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 pro- jecting into any bay, channel, 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 persons 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. Sevvioe to be 522. Service of any summons or other matter in any legal proceeding under this Act good if made shall be good service, if made personally on the person to be served, or at his last place personally, or qJ abode, or if made by leaving such summons for him on board any ship to which he may belong with the person being or appearing to be in command or charge of such ship. Sums ordered to 523. In all cases where any court, justice or justices of the peace, or other magistrate, be paid leviable has or have power to make an order directing payment to be made of any seaman's wages, s?iiij'^ °" 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 they or he may have for the purpose of compelling pay- ment, direct the amount remaining unpaid to be levied by distress or poinding and sale of the said ship, her tackle, furniture, and apparel. Application of 524. Any court, justice, or magistrate imposing any penalty under this Act, for which pena les. ^^ 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 wrong or damage which 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 United King- dom shall be paid into the receipt of Her Majesty's exchequer in such manner as the Treasury may direct, and shall be carried to and form part of the Consolidated Fund of the United Kingdom ; and all penalties recovered in any British possession shall be paid over into the public treasury of such possession, and form part of the public revenue thereof. Limitation of 525. The time for institutin gsummary proceedings under this Act shall be limited as (1.) No conviction for any offence shall be made under this Act in any summary pro- ceeding instituted in the United Kingdom, unless such proceeding is commenced within six months after the oommissiou of the offence ; or, if both or either of the parties to such proceeding happen during such time to be out of the United Kingdom, unless the same is commenced within two months after they both first happen to arrive or to be at one time within the same : (2.) No conviction for any offence shall be made under this Act in any proceeding instituted in any British possession, unless such proceeding is commenced within six months after the commission of the offence ; or if both or either of the parties to the proceeding happen during such time not to be within the jurisdiction of any court capable of deahug with the case, unless the same is commenced within two months after they both first happen to arrive or to be at one time within such jurisdiction : PART X.J OF IjKGAL proceduee. 805 (3.) No order for the payment of money shall be made under this Act in any summary 17 & 18 ViCr. proceeding instituted in the United Kingdom, unless such proceeding is com- c. 104. menced within six months after the cause of complaint arises ; or, if both or either of the parties happen during such time to be out of the United Kingdom, unless the same is commenced within six 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 proceeding is com- menced within six months after the cause of complaint arises ; or, if both or either of the parties to the proceeding happen during such time not to be within the jurisdiction of any court capable of dealing with the case, unless the same is commenced within six months after they both first happen to arrive or be at one time within such jurisdiction : 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 afiect any summary proceeding under this Act. 626. Any document required by this Act to be executed in the presence of or to be Docmnent attested by any witness or witnesses, may be proved by the evidence of any person who ^™i™g *' is able to bear witness to the requisite facts, without calling the attesting witness or attesting wit- witnesses or any of them. •I'^ss. 527. Whenever any injury has, in any part of the world, been caused to any property Power of judge belonging to Her Majesty or to any of Her Majesty's subjects by any foreign ship, if at Kccoraor Admi- any time thereafter such ship is found in any port or river of the United Kingdom or ralty to arrest within three miles of the coast thereof, it shall be lawful for the judge of any Court of foreign ship tliat Record in the United Kingdom, or for the judge of the High Court of Admiralty, or in ^^^ ""f ^'"'^^'^ Scotland the Court of Session, or the sheriff of the county within whose jurisdiction such '""^se. ship may be, upon its being shown to him by any person applying summarily that such injury was probably caused by the misconduct 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 such 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 thereon ; 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 under the Power in certain foregoing section such foreign ship will have departed beyond the limits therein men- gjfp\ef<,re ap^ tioned, it shall be lawful for any commissioned officer on full pay in the military or naval plication made service of Her Majesty, or any British officer of customs, or any British consular officer, to judge. 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 proved to have been made without reasonable grounds. 529. In any action, suit, or other proceeding in relation to such injury, the person so Wlio to be de- giving security as aforesaid shall be made defendant or defender, and shall be stated to be [™'^*^* *°s|™ the owner of the ship that has occasioned such damage ; and 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. Legal Procedure (Scotland). 530. In Scotland every offence which by this Act is described as a felony or mis- °^™°°^?X'''" demeanor may be prosecuted by indictment or criminal letters at the instance of Her meanora. Majesty's advocate before the High Court of Justiciary, or by criminal libel at 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, or with both, as the court 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. _ j j-i,- a t 531 In Scotland, all prosecutions, complaints, actions, or proceedings under this Act, gummaiy other than prosecutions for felonies or misdemeanors, may be brought in a summary proceedings. form before the sheriff of the county, or before any two justices of the peace of the county or burgh where the cause of such prosecution or action arises, or where the offender or defender may be for the time, and when of a criminal nature or for penalties, at the instance of the procurator fiscal of court, or at the instance of any party aggrieved, witn concurrence of the procurator fiscal of the court ; and the court may, if it thmk fit, order payment by the offender or defender of the costs of the prosecution or action. 806 OF LEGAL PROCEDURE. [part X, 17 & 18 VioT. c. 104. Form of comxjlaint. Mode of requir- ing appearance of defender and "Witnesses. Backing arrestments. Compelling attendance of witnesses. Proceedings to 1)6 vivd voce. Power to adjourn. Sentence to be in writing. Imprisonment' to be inflicted in default of pay- ment. 5 & 6 "W. 4, li. 70. Sentence and penalties in default of defender's ajipearance. Warrant to apprehend in default of appearance. 532. In Scotland, all prosecutions, complaints, actions, or other proceedings under this Act may be brought either in -^ written or printed form, or partly written and partly printed, and where such proceedings are brought in a summary form it shall "O* "^ 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 dependence. 533. In Scotland, on any complaint or other proceeding brought in a summary form under this Act being presented to the sheriff clerk or clerk of the peace, he shall grant 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 delivered to him by a sheriff 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 evidence and produce such writs as may be specified in their 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 warrant to arrest upon the dependence in common form : provided always, that where the apprehension of any party, with or without a warrant, ia authorised by this Act, such party may be detained in custody until he can be brought at the earliest opportunity 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 induciEe shall in such case be necessary. 534. When it becomes necessary to execute such arrestment on the dependence against goods or effects of the defender within Scotland, but not locally situated within the jurisdiction of the sheriff or justices of the peace by whom the warrant to arrest has been granted, it shall be competent to carry the warrant into execution on its being indorsed by the sheriff clerk or clerk of the peace of the county or burgh respectively within which such warrant comes to be executed. 635. 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 falling under their ordinary jurisdiction. 53ti. The whole procedure in cases brought in a summary form before the sheriff or justices of the peace in Scotland shall be conducted vivd voce, without written pleadings, and without taking down the evidence in writing, and no record shall be kept of the proceedings other than the complaint, and the sentence or decree pronounced thereon. 537. It shall be in the power of the sheriff or justices of the peace in Scotland to adjourn the procedings 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 necessary. 638. In Scotland all sentences and decrees to be pronounced by the sheriff or justices of the peace upon such summary complaints shall be in writing ; and where there is a decree for payment of any sum or sums of money against a defender, such decree shall contain warrant for arrestment, poinding, and imprisonment in default of payment, 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 the ordinary jurisdiction in the sheriff or justices : provided always, that nothing herein contained shall be taken or construed to repeal or affect an Act of the fifth and sixth years of William the Fourth, intituled " An Act for abolishing, in Scotland, Imprisonment for Civil Debts of small Amount." 539. In all summary complaints and proceedings for recovery of any penalty or sum of money in Scotland, if a defender who has been duly cited shall not appear at the time and place required by the citation, he shall be held as confessed, and sentence or decree shall be pronounced against him in terms of the complaint, with such costs and expenses as to the court shall seem fit : provided always, that he shall be entitled to obtain him- self reponed against any such decree at any time before the same be fully implemented, by lodging with the clerk of court a reponing 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 having been lodged shall operate as a sist of diligence till the cause shaU have been reheard and finally dis- posed of, which shall be on the next sitting of the court, or on any day to which the court shaU then adjourn it. 540. In all summary complaints or other proceedings not brought for the recovery of any penalty or sum of money in Scotland, if a defender, being duly cited, shall fail to appear, the sheriff or justices may grant warrant to apprehend and bring him before the court. 3?ART XI.] OP MISCELLANEOUS. 807 641. In all cases where sentences or decrees of the sheriff or justices required to be 17 & 18 Vict. enforced within Scotland, but beyond the jurisdiction of the sheriff or justices by whom c. 104. such sentences or decrees have been pronounced, it shall be competent to carry the same '- '■ into execution upon the same being indorsed by the sheriff' clerk or clerk of the peace of Backing sea- the county or burgh within which such execution is to take place. tences or decrees. 542. jSTo order, decree, or sentence pronounced by any sheriff or justice of the peace in Orders not to te oootland under the authority of this Act shall be quashed or vacated for any misnomer, quashed for informaUty, or defect of form ; and all orders, decrees, and sentences so pronounced shall ™d to be'toal be final and conclusive, and not subject to suspension, advDoation, reduction, or to any form of review or stay of execution, except on the ground of corruption or malice on the part of the sheriff 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 shall be competent to the effect of preventing immediate execution of such order, decree, or sentence. 543. Such of the general provisions with respect to jurisdiction, procedure, and ''S^^'^^l™?^^' ^" penalties contained in this Act as are not inconsistent with the special rules hereinbefore to"^exteSd to laid down for the conduct of legal proceedings and the recovery of penalties in Scotland, penalties and shall, so far as the same are applicable, extend to such last-mentioned proceedings and proceedings in penalties : provided always, that nothing in this Act contained shall be held in any way Scotland. to annul or restrict the common law of Scotland with regard to the prosecution or punishment of offences 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 jurisdiction in respect of salvage in Scotland which it has not heretofore had or exercised. PAET XI. MISCELLANEOUS. 544. It shall be lawful for any master or owner of a ship, or his agent, to enter into Contracts may- contracts with lasoars or natives of the territories of the East Indian Company, binding ^^f?'^'^°- ''iwiia them to proceed to any port or ports in the Australian colonies either as seamen or as ^nder certain ' passengers, and there to engage themselves as seamen in any ship which may happen to conditions, be there and to be bound to the United Kingdom or to any other part of Her Majesty's binding tliem to dominions; provided that every such contract shall be in such form, and shall contain l^^^^j^^jj^^jg"' such provisions, and shall be executed in such manner^ and under such conditions for serve in securing the return of such lascars or natives to their own country, and for other purposes, otlier sliips to as the Governor General of India in council, or the governors of the respective presi- S'-'^ Hi'ji^j '^ dencies in which the contract is made, in council, may direct ; aud if any lasoar or " other person who has bound himself by any such contract is, on arriving in any of the ' said colonies, required to enter into an agreement to serve as a seaman in any ship bound for the United Kingdom or to any other part of Her .Majesty'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 agreement relates is a proper ship for such lascar or other person to serve in, and is properly supplied with provisions, and that there is not in the opinion of such officer any objection to the full performance of the 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 consequences, and be dealt with 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. 545. Nothing in this Act contained shall be taken to repeal or alter any of the Act not to affect provisions of the " Passengers Act, 185^," or of the Act of the seventeenth year of Her fj^^^^^/vj^t present Majesty, chapter eighty-four. , c. 44. 546. The municipal corporation of any borough, being a seaport in the United 15 & vr Vict. Kingdom, and any body corporate, association, or trustees in any such seaport, existing c. 84. or constituted for any public purposes relating to the government or beueht of persons "'V^^^ "'"''i 808 OF MISCELLANEOUS. [part XI. 17 & 18 VioT. c. 104. (Sec, may grant site for sailors' homes. Power of colonial legislatures to alter provisions of Act. Expenses in- curred by Com- missioners of Customs to be Ijaid out of the consolidated customs. engaged in the British merchant service or to the management of docks and harbours, or for any other public services connected with shipping or navigation, may, with the consent of Her Majesty's Secretary of State for the Home Department, appropriate any 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 retain 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. 647. The legislative authority of any British possession shall have power, by any Act or ordinance, confirmed by Her Majesty in Council, to repeal, wholly or in part, any provisions of this Act relating to ships registered in such possession ; but no such Act or ordinance shall take effect until such approval has been proclaimed in such possession, or until such time thereafter as may be fixed by such Act or ordinance for the purpose. 648. All expenses incurred by the Commissioners of Customs in the conduct of suits or prosecutions, or otherwise in carrying into effect the provisions of this Act, shall be considered as expenses having reference to the revenue of customs, and shall be paid out of the consolidated customs; but the Board of Trade' may, with the consent of the Treasury, repay out of the Mercantile Marine Fund all or any part of such of the expenses so paid as are by the provisions of this Act chargeable on the said fund. MERCHANT SHIPPING ACT, 1854. 809 SCHEDULE to which this Act refers. FOEM A.— (See Section 36.) Cbetificate of Sukvbtok. Name of Ship. British or Foreign Built. Port of Registry. How Propelled By Steam or Sails, and if by Steam, whether hy Paddles or Screw. Number of Decks Build . Numter of Masts . Gallery . . . Rigging Nature of, aind whether standing or iiinning Head . Bowsprit. Framework . . Stem . . . Round, square, or other Description. Carvel or Clincher. Description of. Kind of. Wood or other Ma- terial. Measurements. Length from the Forepart of Stem under the Bowsprit to the Aftside of the Head of the Stempost Main breadth to outside of Plank Depth in Hold from Tonnage-deck to Ceiling at Midships Tenths. Tcmnage. Tonnage under Tonnage-deck Closed-in Spaces above the Tonnage-deck, if any ; viz. , Space or Spaces between Decks Poop . . Koundhouse Other inclosed Spaces, if any, naming them Total No. of Tons. * Additional Particvlars for Steamers. Deductions for Space required for Propelling Power (say whether ^ths or ^ths, or as measured) Length of Engine-room (if measured) . Engines Combined Power (estimated Horse-power) Tons. Feet. Tenths. No. of Engines. No. of Horses-power. Register Tonnage (after making Deductions for Space | for Propelling Power in Steamers)* . • • ) I, the undersigned A.B. of certify that the above Particulars are true. Dated at the day of 18 . , having surveyed the above-named Ship, hereby (Signed) Omit this Part if she has no Steam Power. 810 MERCHANT SHIPPING ACT, 1854. FOEM B.— (See Section 38.) Deoiaratioit op Ownekship Br Individual Owneb. Name of Ship. British or Foreign Built. Port of Eegistry. How Propelled. By Steam or Sails, and if by Steam, whether by Paddle or Screw. Number of Decks Niimber of Masts Rigging Stern Nature of, and wJiether standing or running Bowsprit. Sound, square, or other de- scription. Build . Gallery . Head . Framework Carvel or Clincher. Description of. Kind of. Wood or oilier Ma- terial, Measurements. Length from the Forepart of Stem under the Bowsprit to the Aftside of the Head of the Sternpost Main Breadth to Outside of Plank Depth in Hold from Tonnage-deck to Ceiling at Midships . Tenths. Tonnage. Tonnage under Tormage-deck Closed-in Spaces above the Tonnage-deck, if any ; viz., Space or Spaces between Decks Poop ........ Roundhouse ....... Other inclosed Spaces, if any, naming them Total No. of Tons. * Additional Particulars for Steamers. Deduction for space required for Propelling Power (say whether ^^ths or i^ths, or as measured) Length of Engine-room (if measured) Engines Combined Power (estimated Horse-power ... Feet. No. of Engines. No. of Horses-power. E«gister Tonnage (after making Deduction for Space for Propelling Power in Steamers) * I, the undersigned A.B., of in the County of , declare as follows : (1.) I am a natural-born British Subject, bom at [naming Birth-place], ! and have since I took the Oath of Allegiance to a Foreign and have never taken the Oath] 1 State [naming State], and on the day of , of Allegiance to any Foreign V or { taken the Oath of Allegiance to Her Majesty, and am resi- State. j I dentf at [naming Place], being a Place within her Ma- ( jesty's Dominions. * Omit this Part if she has no Steam Power. t If the Declarant is a natural-bom Subject, who hastaken the OaOi of Allegiance to a Foreign State, or a Denizen or Naturalized Subject, and is resident in a Country not witliin Her Ma,iesty's Dominions^ he must declare in addition that " he is a Member of some Britisli Factory, or Partner in some House actually carrying on Business in the United Kingdom or in some British Possession " [namiiisr the House and also the Flace where it carries 071 its Jiusiness.] MERCHANT SHIPPING ACT, 1854. 811 li naturalized by Act of Par- a Denizen by Letters of] liamentoftheUnited King- Denization, dated the V or J dom oi [cite the Year of the day of j Reiyn in which the Act was passed, its Chapter and [ Title]. and am resident at [naming Place], being a Place within Her Majesty's Dominions. And I have since I so became a Denizen, | or j since the passing of the said Act or Ordinance. and on the Day of taken the Oath of Allegiance to Her Majesty. (2. ) The Ship, the Description of which is prefixed to this my Declaration, was buUt at [naming the Cowniry and ") Place] on the day / of , and her Foreign 1 Name is [these words I to he added if the Ship is \ Foreign]. (3.) CD. of ■ naturalizedbyanOrdinance of theproperlegislatire Au- thority of [naming British Possession], [cite the Year in which the Ordi- nance was passed, its Chap- [.ter and Title], f is Foreign -built, s.nd I do i not know the Time when or -1 the Place where she was I built, and her Foreign name Lis I was condemned by theCourt I of [naming Court] on the day of , at is the Master of the said Ship. (i. ) I am entitled to be registered as *Owner of Shares in the said Ship. (5.) 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 whatever, either legal or beneficial, in the said Ship. And I make this solemn Declaration couscientiously believing the same to be true. Dated at (Signed) the day of , 18 . Made and subscribed by the above-named A.£. in the Presence of me [Name of Registrar or Justice of the Peace, acting in and for FOEM C— (See Section 39.) Deoiabation of Ownership on behale of a Body Coepokate as Owner. Name of Ship. British or Foreign Built. Port of Registry. How propelled. By Steam or Sails, and if by Steam, whether ly Paddle or Screw. Number of Decks . Number of Masts . Rigging . . . Stem . Nature of, and lohether standing or running Bowsprit. Round, squwe, or other de- scription. Build . Gallery . . . Head . Framework . . Carvd or Clincher. Description of. Kind of. Wood or other Ma- terial. Measurements. Length from the Forepart of Stem under the Bowsprit to the Aftside of the Head of the Sternpost Main Breadth to Outside of Plank ' Depth of Hold from Tonnage-deck to Ceiling at Midships Feet. Tenths. If the Declaration is made by a joint Owner add the word ' ' joint " before 0\viier, 812 MERCHANT SHIPPING ACT, 1854, Tonnage. Tonnage under Tonnage-deck Closed-iu-Spaces above the Tonnage-deck, if any ; viz., Space or Spaces between Decks Poop Koundbouse ' . . . . . Other inclosed spaces, if any, naming them No. of Tons. Total * Additional Particulars for Steamers. Deduction for Space required for Propelling Power (say whether ^ths or -^ths, or as measured) No. of Tons. Length of Engine-room (if measured) Peet. Tenths. Engines No. of Engines. No. of Horses-power. Register Tonnage (after making Deduction for Space, 1 for Propelling Power in Steamers)* . . . J I, the undersigned, A.B. of in the County of public Officer] of the Company, declare as follows :' (1.) The said Company was incorporated by or by virtue of [Secretary^ or [duly appointed an Act of Parlia- ment of the United Kingdom [cite the Year of the Reign Ml which the Act was passed, its Chapter and Title.] (2.) The said Company is subject to the Laws a Charter granted by Her "" ^ and dated the day of an Act or Ordinance" of the Legislatulre of [cite the or ■{ Year in which the }■ or Act or Ordinance was passed, its Chapter a/nd Title]. , the Act 7 & 8 Vict. c. 110, from the day of , being the Date of the Oertificateof com- _pleteEegistration of the United Kingdom [ or j of the British Possession of and has its principal Place of Business at (3.) The Ship, the Description of which is prefixed to this my Declaration, was built at [naming the Country and ] Place] on the day / of , and her Foreign \ Name is [these wards I to he added if the Ship is \ is Foreign-built, and I do not know the time when or the place where she was built, and her Foreign name is was condemned bythe Court of [naming Cov/rt] on the day of at (4). CD. of , is the Master of the said Ship. (5. ) The said Company is entitled to be registered as Owner of Shares in the said Ship. (6.) 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, qualiiied to be Owners 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. (Signed) Dated at the day of , 18 . Made and subscribed by the above-named A.B. in the Presence of me (Signed) j [Name of Registrar > Omit this Part it she has no Steam Powe MEBCHANT SHItPING ACT, 1854. 813 [SUBSTITUTED FORM.] FOEM No. 9. Certifioate of British Reoistrt. PARTICULARS OF SHIP. Official No. of Ship. Name of Ship. No., Date, and Port of Registry. No., Date, and Port of pre-vious Eegiatry (if any). Whether British or Foreign Built. Whether a Sailing or Steam Ship, and if a Steam Ship how propelled. Where built. When built. Name and Address of Builders. No. of Decks .... No. of Masts .... Rigged Stem Build Galleries . . ... Head Framework .... Length from fore part of Stem imder the Bowspiit 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 Ships of three decks and upwards Length of Engine-room (if any) . Feet. Tenths. PAUTICULARS OF ENGINES (if any). No. of Engines. Descrip- tion. Whetber Britisli or Foreign made. When made. Name and Address of Makers. Diameter of Cylinders. Length of Stroke. No. of Horses Power (combined). PARQ ICULARS OF TONNAGE. In Regis- In Cubic No. of ter Tons. Metres. Tons. Gross Tonnaoe. Deductions Allowed. Under Tonnage-deck \ On account of Space required for Pro- Closed-in Spaces above the \ pelling Power .... Tonnage-deck (if any) . Space or Spaces between \ On account of Spaces occupied by Sea- Decks .... \ men or Apprentices, and appro- Poop . . . . \ priated to their use, and kept free Forecastle \ from Goods or Stores of every kind, Roundhouse . . . \ not being the personal property of Other Closed-in Spaces, if \ the crew. any, as follows : . \ \ These Spaces are the following, viz. : — Total Deductions . Gross Tonnage . Deductions, as per Contra . Register Tonnage . 814 MERCHANT SHIPPING ACT, 1854. 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 tnat the above Description is true ; that whose Certificate of Competency or bervioe is No. is the Master of the said Ship ; aiid that the Name , Residence, and Description of the Owner and Number of Sixty-fourth Shares held by are as follows : Name, Besidence, and Occupation of the Owner. Number o( Sixty-fourth Share Dated at the day of One thousand eight hundred and Registrar of Shipping. " Notice.— 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 contain an official record of any mortgages affecting the ship. " In case of any change of ovmership 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 £1 00 for default. For further information apply to the Registrar of Shipping, at any Custom House. [SUBSTITUTED FORM.] FORM No. 10. Bill of Sale. Oficial Number of Ship Name of Ship • Port Numhcr-) and Year of V Begistry . ) Port of ) Registry j British or Foreign Built Hhwpro- ) peUed . ) Where ) Built . f When ) Built. ]" 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 DepthinHoldfrom Tonnage-deck to Ceiling at Midships . . Depth in Hold from Upper Deck to Ceiling at Midships in the case of three decks and up- wards Length of Engine-room, if any . Feet. Tenth. No. of Engines. Descrip- tion. Whether British or Foreign made. When made. Name and Address of Makers. Diameter of Cylinders. Length of Stroke. No. of Horses' Power. (combined). Particulars o f Engines (if any) . . . MERCHANT SHIPPING ACT, 1854. No. o( Tons. Gross Tonnage. Deductions Allowed. Under Tonnage-deck On account of Space required for Closed-inSpaeesaboveTonnage-deck, Propelling Power if any, Space or Spaces between Deck On account of Spaces occupied by Poop .;.... Seamen or Apprentices, appro- Forecastle priated to their use, and kept free Roundhouse from Goods and Stores of every Other Closed-ln Spaces, if any, as kind not being the personal pro- follows perty of the Crew. These Spaces are the following, viz. ; Gross Tonnage . Beductions as per Contra Total Deductions . . Registered Tonnage . * " I" or "we." t "Me " or "us." X *' I " or " we." § ' ' Myself and my," or '* ourselves and our." II "His," "her," or "their." ^ " I," or*'we." ** If there be any subsisting Mort- gage, or outstand- ing Certificate of Mortgage, add " save as appears by the re^stry of the said ship." by in consideration of the Sum of paid to t the Receipt whereof is hereby acknowledged, transfer Shares in the Ship above particularly described, and in her boats, guns, ammunition, small arms, and appurtenances, to the said Further + the said for § heirs covenant with the said and || assigns, that IT have power to transfer in manner aforesaid the premises herein-before expressed to be transferred, and that the same are free from incumbrances ** In witness whereof ha hereunto subscribed name and aifixed seal this day of One thousand eight hundred and Executed by the above-named in the presence of FORM F.— (See Section 56.) Deolakation op Ownkkship et Individual Tkansfebeb. No. Date of Registry Name of Ship. British or Foreign Built. Port of Registry. How Propelled. By Steam or Sails, and if hy Steam, whether hy Paddle or Screw. Number of Decks . Number of Masts . Rigging . . . Stem . Nature of, a/nd whether standing or running Bowsprit. Round, square, or other de- scription. Build . Gallery . . . Head . Framework . . Carvel or Clincher. Description of. Kind of. Wood or other Ma- terial. 816 Merchant shipping act, 1854. Measnrermnts. Length from the Fore-part of Stem under the Bowsprit to the Aftside of the Head of the Stempost Main breadth to outside of 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 Koundhouse Other inclosed Spaces, if any, naming them No. of Tons. Total * Additional Particulars jor Simmers. Deduction for Space required for Propelling Power (say whether jjsjths or ^ths, or as measured) Tons. Length of Engine-room (if measured) Feet. ' Tenths. Engines No. of Engines. Combined Power (estimated Horse-power) No. of Horses-Power. Eegister Tonnage (after making Deductions for Space for Propelling Power in Steamers)* I, the undersigned A.B., oi , in the County of declare as follows : (1.) I am a natural-born Subject of her Majesty, born at [naming Place of Birtli], fand have since I took the Oath of Allegiance to a, Foreign I State {naming State'\ and on the day of , -j taken the Oath of Allegiance to Her Majesty, and am resi- I dentt at [naming Place] being a Place within Her (^Majesty's Dominions. and have never taken the Oath of Allegiance to any Foreign State. I am a Denizen by Letters of Denization, dated the day of since I so became a Denizen, and on the day of fnaturalized by Act of Par- I liament of the United | > 01' { Kingdom [cite the Year in\or ) I which the Act was passed, | yits Chapter and Title]. J f naturalized by an Ordinance ' of the proper legislative Au- thority of \naming British Possession] [cite the Year in which the Ordi- nance was passed, its Chap- \ ter and Title]. and am resident at [naming Place], being a Place within Her Majesty's Dominions. And I have J since the passing of the said Act or Ordinance, , taken the Oath of Allegiance to Her Majesty. (2. ) 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 whatever, either legal or beneficial, in the said ship. And I make this solemn Declaration, conscientiously believing the same to be true. Dated at (Signed) the day of , 18 . Made and subscribed by the above-named A.B. in the Presence of me (Signed) \ ■^'*™^ "/ ^^ffisirar or Justice of the Peace \ acting in and for * Omit this Part if she has no Steam Power. t If the Declarant is a natural-boni Sub,iect, who has taken the Oath of Allegiance to a Foreign State, or a Benizen or a naturalized Subject, and is resident in a Country not within Her Majesty's Dominions, he must declare in addition that " he is a Member of some British Factory, Partner in some House actually carrying on Business in the United Kingdom or in some British Possession " liiaming the House and aho the Place where it carries oni' " MERCHANT SHIPPING ACT, 1854. 817 FOEM G.— (See Section 56.) Deolaration of Ownership on behaif of a Body Corporate as Transferee. No. Date of Registry • Name of Ship. British or Foreign Built. Port of Registry. How Propelled. By Steam or Sails, and if by Steam, whether hy Paddle or Screw. Number of Decks . Number of Masts . Rigging . . . Stem . Nature of, and whether standing or running Bowsprit. Hound, square, or other de- scription. BuUd . Gallery . . . Head . Framework . . Carvel or Clincher. Description of. Kind of. Wood or other Ma- terial. Measurements. Length from the Forepart of Stem under the Bowsprit to the Aftside of the Head of the Sternpost Main Breadth to Outside of PJank ....... 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 . . Roundhouse ....... Other inclosed Spaces, if any, naming them . Total No. of Tons. * Additional Particulars for Steamers. Deduction for Space required for Propelling Power (say whether ^^ths or ^gths, or as measured) Length of Engine-room (if measured) Engines ............ Combined Power (estimated Horse-power) Tons.> Feet. Tenths. No. of Engines. No. of Horses-power. Register Tonnage (after making Deduction for Space ) for Propelling Power in Steamers)* . . . j , in the county of Company, declare as follcrtfs ; I, the undersigned A.B., of appointed public Officer], of the (1.) The said Company was incorporated by or by virtue of „ _, ,. Can Act or Oi'dinanoe an Act of Parlia- 1 ment of the United I ( a charter granted Kingdom [cite the I or ) by Her Majesty, Year in which the < \ and dated tlie Act was passed, its ] { day of Chapter and Title. J [Secretai'y], or [duly of the Legislature of Icite Year in which the [or -j being the date of the Act 7 liS Viot, c. 110, from the day of Act or Ordinance was passed, its . Chapter and Title. , I- Omit this Part if she has no Steam Power. the Certificate of I complete Registra- [_tion. 3 O 818 MERCHANT SHIPPING ACT, 1854. Shares in the said (2. ) The said Company is subject to the Laws oftheUnitedEingdom,! or \fJ^^S^:^ and has its principal Place of Business at (3. ) The said Company is entitled to be registered as Transferee of Ship. And I make this solemn Declaration conscientiously believing the same to be true. (Signed) Dated at the day of , 18 . Made and subscribed by the above-named A, B. in the Presence of me (Signed) [Name of Eegistrar.j FOEM H.— (See Section 58.) Declaration by Owner, takins bt Transmission. No. Date of Registry Name of Sliip. British or Foreign Built. Port of Registry. How Propelled. By Steam, or Sails, and if by Steam, whether hy Paddle or Screw. Number of Decks . Number of Masts . Stem Nature of, and whether standing or running Bowsprit. Round, squa/re, or other de- scription. Build . Gallery . Head . Framework Carvel or Clincher. Description of. Kind of. Wood or other Ma- terial. Measurements. length from the Forepart of Stem under the Bowsprit to the Aftside of the Head of the Sternpost ........ Main Breadth to Outside of Plank Depth in Hold from Tonnage-deck to Ceiling at Midships . Tonnage. Tonnage under Tonnage-deck Closed-in Spaces above the Tonnage-deck, if any ; viz.. Space or Spaces between Decks Poop Koundhouse .......... Other inclosed Spaces, if any, naming them ..... Total * Addiitional Particulars for Steamers. Deduction for Space required for Propelling Power (say whether I'o'jths or ^ths, or as measured) Length of Engine-room (if measured) Engines Combined Power (estimated Horse-power) * Omit this Part if she has no Steam Power. Tons. Feet. Tenths. No. of Engines. No. of Horses-power. MEECHAXT SHIPPING ACT, 1854. 819 Register Tonnage (aftei- making Deduction for Space for Propelling Power in Steamers) * . declare as follows : I, + tlie undersigned A.B., oi , in the County of (1.) I am a natural-born Subject of Her Majesty, born at [naming Place of Birth], iand have since I took the Oath of Allegiance to a Foreign State [Naming State] and on the day of taken the Oath of Allegiance to Her Majesty, and am resi- dent J at [naming Place] being a Place within Her ..Majesty's Dominions. and have never taken the Oath of Allegiance to any Foreign State. a Denizen by Letters Denization dated the day of of ("naturalized by Act of Par-' I liament of the United -| Kingdom [cite the Year in I which the Act was parsed, \j,ts Chapter and Title]. I am fnaturalized by an Ordinance of the proper legislative Au- thority of [naming or J. British Possession] [cite the Year in which the Ordi- J nana was passed, its Chap- jter and Title]. and am resident at [naming Place] being a Place within Her Majesty's Dominions. And I have ] since the passing of the said Act or Ordinance, , taken the Oath of Allegiance to Her Majesty. since I so became a Denizen, and on the day of (2.) I declare that the\ Person appearing by the Register Book to be the Owner of Shares in the Ship above described § [died at in the County of having first duly made his Will, dated the day of ^ , whereby he appointed me Executor, and I proved his \ / said Will on the day of in the Court of ] or [died at in the County of on the day of intestate, and that Letters of Administra- tion of his Estate and Effects were on the day of duly granted to i me hy the Court of ]■' (3.) To the best of my Knowledge and Belief no Person or Body of Persons, other than .inch 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 whatever, either legal or beneficial, in the said / We declare that CD., the\ Person appearing on the Ke- gister Book to be the Owner of Shares in the Ship above described, was on the day of § [duly adjudged a Bankrupt] or [declared insolvent], and that we were on the day of appointed assignees of the said C. D. , and we are by Law entitled to be registered as Owners of the said Shares of the said Ship in place of the \said CD. I I I declare that on the day of I inter- married with and am now the husband of CD., the Person appearing on the Re- gister Book to be the Owner of Shares in the said \ or I Ship, and I declare that on such marriage the Interest of the said CD. became by Law vested in me, and that I am entitled to be regis- tered as Owner of the said Shares in place of the said \C.D. Ship. And I make this solemn Declaration conscientiously believing the same to be true. (Signed) Dated at • the day of , 18 . Made and subscribed by the above-named A.B. in the Presence of me . I Name of Registrar or Justice of the Peace (Signed) j acting im. and for * Omit this Part if she has no Steam Power. + Alter accordingly if more than One Person makes the Declaration. „ „ . ± -n -^ ai. >■„ „,. n 1 U the DeclaraSt is a natural-born Subject, who has taken the Oath of Allegiance to a Foreign State, or a riniin or a naturalized Subject, and ia resident in a Country not within Her Majesty's Domimons he mu^t deSare in addition, that " he is a Member of some British Factory, Partner in some House actually rarryingoi BusSess in the United Kingdom or in some British Possession" [naratnj the. House and ako the Place whu, o it carries on its Business]. § Alter according to circumstances. 3 a 2 820 MERCHANT SHU>PING ACT, 1854. \ [SUBSTITUTED FOEM.] FOEM No. 11. MoRTOAGE (to seouke Pmnoipal Som and Interest). 0£idal Number of Ship Name of Ship. Port Number ) and Year of y Registry . ) Port of ^ Eegistry J British or Foreign Built . . , How Pro- \ pelled . j* Where ) BuUt.f When Built . ■ Number of Decks Build . Lengtli from forepart of Stem, underthe Bowsprit ; to the aft- Feet. Tenths. Number of Masts Galleries . . side of the Head of the Stern- post . . . . Main Breadth to outside of Plank Eigged Head . Depth in Hold from Tonnage • deck Stem . . . Framework . . to Ceiling at Midships . . Depth in Hold from Upper Deck to Ceiling at Midships in the case of three Decks and up- wards Length of Engine-room, if any . No, of Descrip- Whether British or When Name and Diameter of Length of No. of Horses' Engines. tion. Foreign made. made. Makers. Cylinders. Stroke. Power combined. Particulars of Engines (if any) . . Gross Tonnage, Under Tonnage-deck . Closed-in Spaces above Tonnage- deck, if any, Space or Spaces be- tween Deck . . ... Poop Forecastle . . ... Eoundhouse .... Other closed-in Spaces, if any, as follows ..... Gross Tonnage . Deductions as per Contract . Eegistered Tonnage No. of Tons, Deductions Allowed. On account of Space required for Propelling Power On account of Space occupied by Seamen or Apprentices, appro- priated to their use, and kept free from Goods and Stores of every kind not being the personal property of the Crew. These Spaces are the following, viz. Total Deductions No. of Tons. the undersigned t "Me" «r *' 1 "Myself" ourselves." § "My"or"o in consideration of this day lent to + by do hereby for { and § heirs, covenant with the said firstly : That * or § Iieirs, executors, or administrators, will jiay to the said the said sum of together with interest thereon at the rate of per cent, per annum on the day of next ■ and secondly, that if the said principal sum is not paid on the said day * or§ heirs, executors, or administrators, will, during such time of the same or any part thereof remain unpaid, pay to the said interest on the whole or such part thereof as may for the time being remain unpaid, at the rate of per cent, per annum, by equal half-yearly payments on the day of _ and day of in every year ; and for better secur- ing to the said the repayment in manner aforesaid of the said principal sum and interest* hereby mortgage to the said shares, of which MERCHANT SHIPPING ACT, 1854. 821 "Iani"or "we IT Insert the day fixed for payment of principal as above. ** If any prior incumbrance add, " save as appears by the Registry of tlie said Ship." II the Owner in the Ship above particularly described, and in her boats, guns, ammunition, small arms, and appurtenances. * declare that this mortgage is made on condition that the power of sale which by the Merchant Shipping Act, 1851, is vested in the said shall not be exercised until the said 1" day of . Lastly, * for J and § heirs, covenant with the said and assigns that * , ha power to mortgage in manner aforesaid the above-mentioned shares, and that the same are free from incumbrances ** In witness whereof * ha hereto subscribed § name and affixed § seal this day of One thousand eight hundred and Executed by the above-named in the presence of 'I" or "we. t ' 'Me" 01 "us. t "Him" ' them." § "I" or II "My" ' our." or "we. or N.B. — In case of Transfer it may be made by Indorsement in tha following form : — TKANSFER OF MOETGAQE. * the within-mentioned in consideration of this day paid to t by the benefit of the within written security. In ha hereunto subscribed || name and , this day of One thousand eight hereby transfer to X witness whereof § affixed II seal hundred and Executed by the above-named in the presence of N.B. — In case a Mortga'je is paid-off the following Memorandum of its Discharge may he used: — Received the sum of in discharge of the within written security. Dated at this day of 18 . Witness of FORM No. 12. MORTGAQE (to SBOUKE ACCOUNT CuKKBNT, &0.). Official Number of Ship Name of Ship • Port Number ■» and Year of S- Registry . ) T) _i „<• 1 British or ) ^ovtoi Foreign y Registry j S= . T How Pro- ) peUed . J Where > ! When ^ Built . ) j Built . j Number of Decks Number of Masts Build . Gralleries . . Length from forepart of Stem, under the bowsprit, to the aft- side of the Head of the Stern- Feet. Tenths. Rigged Stem . . . Head . post ..... Main breadth to outside of Plank Framework . . 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 up- wards ..... Length of Engine-room, if any . 822 liEECHANT SHIPPING ACT, 1854. No. of Engines. Descrip- tion. Whether British or Foreign made. When made. Name and Address of Makers. Diameter of Cylinders. Length of Stroke. No. of Horses' Power combined. artioulars of Engines (if any) . Oross Tonnage. No. of Tons. Deductions Allowed. No. of Tons. Under Tonnage-deck . Closed-in Spaces above Tonnage- deck, if any, Space or Spaces tetween Deck , , . . Poop Forecastle Eoundhoiise .... Other closed-in Spaces, if any, as follows . ... On account of Space required for Propelling Power On account of Spaces occupied by Seamen or Apprentices, appro- piiated to tbeir use, and kept free from Goods and Stores of every kind not being the personal property of the Crew. These Spaces are the following, viz. . Gross Tonnage . Deductions as per Contra Registered Tonnage Total Deductions * Here state by way of recital that there is an account current between the Mortgagor (de- scribing him) and the Mortgagee (de- scribing him) ; and describe the nature of the .transaction, so as to show how the amount of principal and in- terest due at any given time is to be ascei-tained, and the manner and time of payment, t *' 1" or " we." X " Myself" or " ourselves." § "My " or " our." II "His "or " their." 1[ *'I am" or "we are." ** If any prior incumbrance add, "save as appears by the Registry of the said Ship." Whereas * Kow t tlie undersigned in consideration of tlie premises for It: and g heirs, covenant with the said and ll assigns, to pay to him or them the sums for the time being due on this security, -whether by way of principal or interest, at the times and manner aforesaid. And for the purpose of better securing to the said the payment of such sums as last aforesaid, f do hereby mortgage to the said shares, of which IF the Owner in the Ship above particularly described, and in her boats, guns, ammunition, small arms, and appurtenances. Lastly, + for X and § heirs covenant with the said and [| assigns that + ha power to mortgage in manner aforesaid the above-mentioned shares, and that the same are free from incum- brances.** In witness whereof + ha and affixed § seal this hundred and Executed by the above-named in the presence of hereto subscribed § day of name One thousand eight FORM L.— (See Section 74.) Dboiaration bt MomaAGEE takins bt Tbansmissioit. No. Date of Registry. Naine of Ship. British or Foreign BuUt. Port of Registry. How Propelled. By Steam or Sails, and if by Steam, whether by Paddles or Screw. MERCHANT SHIPPING ACT, 1854. 823 Number of Decks Number of Masts Eigging. Stern Nature of, and whether standing or running Bowsprit. Round, square, or other tion. Build. Gallery . Head . Framework Carvel or Clincher. Description of. Kind of. Wood or other Ma- terial. Measurements. Length from the Forepart of Stem under the Bowsprit to the Aftside of the Head of the Stempost ........ Main Breadth to Outside of Plank Depth in Hold from Tonnage-deck to Ceiling at Midships . Tenths. Tonnage. Tonnage under Tonnage-deck Closed-in Spaces above the Tonnage-deck, if any ; Space or Spaces between Decks . Poop Koundhouse ...... Other inclosed Spaces, if any, naming them Total No. of Tons. * Additional Particulars for Steamers. Deduction for Space required for Propelling Power (say whether ^ths or -j^ths, or as measured) ......••• Length of Engine-room (if measured). ...... Engines .... ....... Combined Power (estimated Horse-power) ... . . Feet. Tenths. No. of Engines. No. of Horses-power. Register Tonnage (after making Deduction for Space ) for Propelling Power in Steamers) * . . . ) I, the undersigned A. B. , of I declare that the Person appearing by the Register Book to be the Mortgagee of Shares in the Ship above described + \died at in the County of having first duly made his Will, dated the day of^ whereby he appointed me Executor, and I proved his said WiU on the day of of in the County of / WedeclarethatC.X'.jthe \ Person appearing on the Kegister Book to be the Mortgagee of Shares in the Ship above describedf [was on the day of duly adjudged a Bankrupt]. oi[was duly de- elared insolvent], and that ) we were on the day of appointed Assignees of the said CD., and we are by Law entitled to be regis- tered as Mortgagees of the said Shares of the said Ship in place of l^the said CD. declare as follows : I declare that on the day of I intermarried with and am now the Hus- band of CD., the Person appearing on the Register Book to be the Mortgagee of Shares in the said Ship, and I declare that on such Marriage the Interest of the said C. D. became by Law vested in me, and that I am entitled to be regis- tered as Mortgagee of the said Shares in place of the said CD. in the Court ], or [died at in the County of on the day of intestate, and that Letters of Admi- nistration of his Estate and Effects were on the day of duly granted to me ly the Court of ] And I make this solemn Declaration conscientiously believing the same to be true. (Signed) Made and subscribed by the above-named ^.5. in the Presence of me (Signed) * Omit this Part if she has no Steam Power. Registrar or Justice of the Peace. t Alter according to circumstances. 824 MEECHANT SHIPPING ACT, 1854. FOEM No. 14. Deolahation or Ownership on Interest on Transmission by Bankbuptot. No., Date, and Port of previous Uegistry (if any). ■Whether British or Foreign built* Whether a Sailing or Steam Ship : and if a Steam Ship, how propelled. Where Uuilt. When huilt. 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-deok to ceiling at Mid- ships Depth in Hold from Upper Deck to ceiling at Mid- ships, in the ease of three Decks and upwards Length of Engine-room, if any Feet. Tenths. PAKTICULARS OF ENGINES (if any). No. of Engines. Descrip- tion. "Whetlier British or Foreign made. "When made. Name and Address of Makers. Diameter of Cylinders. Length of Stroke. No. of Horses' Power (combined). PAETICULAKS OF TONNAGE. Gross 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 ; — No. of Tons. BedMCtions Allmiied. On account of Space required for Propelling Power On account of Spaces occupied by Seamen or Apprentices, and ap- propriated 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, viz. ; — Total Deductions . . No. of Tons. Gross Tonnage . . . Deductions as per Contra Registered Tonnage . . * If Foreign built, add " and her Foreign name is ." If British, insert " Beitish.'" "Built at in the county of on the day of , 18 " If Foreign, insert "Foreign*' "Builtat " [naming th&^lace and ccmntry]'^ on ^& day of IS ." or, if Foreign, and time and place of build unknown, insert " FoKEioN." " Time and place of build are unknown to the declarant." or, if a condemned ship, insert "Condemned by the court of " [maminy «ie CQtir{\ " on the day of ." MERCHANT SHIPPING ACT, 1854. 825 tlie undersigned declare as follows : — The person appearing by the Kegister Book to be thef of of and § shares in the Ship above described was on the one thousand eight hundred and duly + "I" or " we." t "Owner" or "Mortgagee." t "Adjudged a liankrupt." § Hero state who has been ap- poiuted. II "Official" or " creditors," or "official and oi-e- ditors." K "I am" or "we are." ** "Owner" or "Mortgagee." It in the pre- sence of a registrar he will add to his signature " Begistrar of the port of ." . If in the presence of a magistrate his description should be added, as, for example, acting in and for" [namiyig the county, city, horough, d'c, asjhe cane may he.] appointed and IT day assignee of the estate and effects of the said entitled to be registered as ** of the said shares of the said Ship. And * make this solemn Declaration con- scientiously believing the same to be true. Made and subscribed by the above-named in the presence of 'Justice of the peace FOEM M.— (See Section 79.) Cebtipioate of Mortoaqe. No. Date of Registry Name of Ship. British or Foreign Built. Port of Eegistry. How Propelled. By Steam or Sails, and if by Steam, whether by Paddles or Screw. Number of Decks Number of Masts 'Kigging. Stem Nature of, and whether standing or running Bowsprit. Round, square, or other tion. Build . Gallery . Head . Framework Mefisurements. Length from the Forepart of Stem under the Bowsprit to the Aftside of the Head of the Stempost Main Breadth to Outside of Plank . Depth in Hold from Tonnage-deck to Ceiling at Midships Tonnage. Tonnage under Tonnage-deck Closed-in spaces above the Tonnage-deck, if any ; viz. , Space or Spaces between Decks Poop Eoundhouse Other inclosed Spaces, if any, naming them Total . . . . Carvel or Clincher. Description of. Kind of. Wood or other Ma- terial. Tenths. No. of Tons. 826 MERCHANT SHIPPING ACT, 1854. * Additional Particulwrs for Steamers. Deduction for Space required for Propelling Power (say wliether -gstlis or ^thB, or as measured) Length of Engine-room (if measured) Engines Combined Power (estimated Horses-power) ..... Tons. Feet. Tenths. No. of Engines. No. of Horses -power. Register Tonnage (after making Deduction for Space for Propelling Power in Steamers) * ACCOUNT OF TITLE CF SUBSCEIBING OWNERS. Names of tlie several subscribing Owners. (Name and Deseription of Owner.) Number of Sixty-fourth Shares held by each of the sub- scribing Owners. Account of Mortgages or Certi- ficates of Mortgage or Sale granted in respect of Shares of subscribing Owners. (1.) + We, the several above-mentioned Persons, whose Names are hereunto subscribed, being Owners of the above Ship in the Proportions set opposite our respective Names in the above Account of Title, [but subject to the several Mortgages above mentioned), hereby appoint A. B. of and CD. of and each of them, our Attornies and Attorney jointly or severally in our Names and on our Behalf to mortgage our Shares in the above Ship, and to execute and do all such Deeds, Matters, and Things as may be necessary for carrying into effect the Power hereby given. (2.) We declare that the Amount of Money to be raised by Mortgage under this Power shall not exceed & and that the Rate of Interest at which the same is raised shall not exceed & for every £100 by the Year. (3. ) We declare that the Power of mortgaging hereby given may be exercised at (4.) We declare that the above Power shall not be exercised after the Expiration of Months from the Date hereof. In witness whereof, we have hereunto subscribed our Names and affixed our Seals, this day of (l.s.) E.F. of (L.3.) G.H. of &C. I, M.N., Registrar of hereby certify, that the above- written Particulars relating to the Ship , and to the Title of the several above-mentioned Owners, are correct ; and I further certify, that the said Owners have executed this Certificate in manner above appearing. Signed , Registrar. N.B.— Mortgages created under this Power must be endorsed on the Certificate in the following Form, or as near thereto as Circumstances permit : The day of The within mentioned Shares in the Ship were this day mortgaged to ^- Y- °f . to secure X & and Interest. Registrar or Consular Oficer, * Omit this Part if she has no Steam Power. t Alter accordingly if there is only One Appointor or One Attorney, t If the Mortgage is to cover Advances, insert "a Sum not exce Account " as the case may be. exceeding £ or "General Balance of MERCHANT SHIPPING ACT, 1854. 827 FORM N.— (See Section 79.) ' Cbrtipioate of Sale. No. Date of Registry. Name of Ship. British or Foreign Built. Port of Registry. How Propelled. By Steam or Sails, and if by Steam, whether hy Paddles or Screw. Number of Decks Number of Masts Stem Nature of, and whether standing or running Bowsprit Round, square, or other Description , Build. Q-allery . Head . Framework Carvel or Clincher. Description of. Kind of. Wood or other Ma- terial. Measurements. Length from the Forepart of Stem under the Bowsprit to the Aftside of the Head of the Sternpost ........ Main Breadth to Outside of Plank Depth in Hold from Tonnage-deck to Ceiling at Midships . Tenths. Tonnage. Tonnage imder Tonnage-deck Closed-in Spaces above the Tonnage-deck, if any ; viz. Space or Spaces between Decks Poop Roundhouse Other inclosed Spaces, if any, naming them No. of Tons. Total + Additional Particulars for Steamers. Deduction for Space required for Propelling Power (say whether ^ths or ^ths, or as measured) Tons. Length of Engine-room (if measured) Feet. Tenths. Engines No. of Engines. Combined Power (estimated Horse-power) No. of Horses-power. Register Tonnage (after making Deduction for Space ) for Propelling Power in Steamers) t . . . ) ACCOUNT OF TITLE TO THE ABOVE-MENTIONED SHIP. Names of the Owners of the Ship above mentioned. (Name.) Number of Sixty-fourth Shares held hy each Owner. Account of Mortgages or Certifleates of Mortgage or Sale granted in respect of Ship. • N.B.— All the Owners of the Ship must be Parties to this Document, t Oiuit this Part if she has no Steam Power. 828 MEECHANT SHIPPING ACT, 1854. (1.) * We, the several above-mentioned Persons, whose names are hereunto subscribed, being Owners of the above Ship, in the Proportions set opposite our respective Names in the above- mentioned Account of Title (but subject to the several Mortgages above mentioned), hereby appoint A. B. of , and CD. of , and each of them, our Attoruies and Attorney jointly or severally in our Names and on our Behalf to sell the above Ship, and to execute and do all such Deeds, Matters, and Things as may be necessary for carrying into effect the Power hereby given. (2. ) We declare that the Ship shall not be sold for a less Sum than £ (3.) We deolai'e that the Ship may be sold at (4.) We declare that the above Power shall not be exercised after the Expiration of Months from the Date hereof. In witness whereof we have hereunto subscribed our Names and aiiixed our Seals, this day of (i.s.) E.F. of (L.S.) G.H. of I, M.N., Registrar of relating to the Ship , hereby certify that the above-written Particulars and to the Title of the several above-mentioned Owners are correct ; and I further certify that the said Owners have executed this Certificate in manner above appearing. Signed Kegistrar. No. FOEM 0.— (See Section 83.) FoKM OF Revooatioit. Date of Registry. Name of Ship. British or IToreign Built. Port of Registry. How Propelled. By Steam or Sails, and if by Steam, whether by Paddles or Screw. Number of Decks . Number of Masts . Eigging . . . Stern . Nature of, and whether standing or running Bowsprit. Sound, square, or other Description. Build . Gallery . . . Head . Framework . . Carvel or Clincher. Description of. Kind of. Wood or other Ma- terial. Length from the Fore the Head of the St Main Breadth to Out Depth in Hold from ' Measurements. part of Stem under th ernpost side of Plank tonnage- deck to Ceiling 3 Bowsp ' at Mi( rit to the Aftsi( ships leof Feet. Tenths. To'a-rmge. Tonnage under Tonnage-deck . . . . , Closed-in Spaces above the Tonnage-deck if any ; viz. Space or Spaces between Decks Poop Bonndhouse ....... Other inclosed Spaces, if any, naming them . Total . No of Tons. * Alter accordingly if only one Appointor or one Attorney. MERCHANT SHIPPING ACT, 1854. 829 * Additional Particulars for Steamers. Deduction for Space required for Propelling Power (say whetlier ^ths or 5||ths, or as measured) Tons. Length of Engine-room (if measured) Feet. Tenths. Engines No. of Engines. Combined Power (estimated Horse-power) No. of Horses-power. Eegister Tonnage (after making Deduction for Space for Propelling Power in Steamers) * . We f Owners of the Ship above described, hereby revoke the Power of mortgaging (or selling) the said Ship given iy us to J by a Certificate of Mortgage (or Sale) dated the day of In witness whereof, we have hereunto subscribed our Names and affixed our Seals, this day of (l.s ) S.F. of (i.s.) G.H. of &c. I, M.N., Registrar of , hereby certify, that the said Owners have executed this Power of Revocation in manner above appearing. (Signed) Registrar. TABLE P.— (See Section 125.) Fees to be charged for matters transacted at Shipping Offices. 1. Engagement of Crews. £ s. d. In ships under 60 tons 60 to 100 ,, 100 to 200 ,, 200 to 300 ,, 300 to 400 „ 400 to 600 „ 500 to 600 ,, 600 to 700 „ 700 to 800 „ 800 to 900 ,, QOOtolOOO „ Above 1000 „ 4 7 15 1 1 5 1 10 1 15 2 2 5 2 10 2 15 3 And so on for Ships of larger Tonnage, adding for every 100 Tons above 1000, Five Shillings. 2. Engagement of seamen separately. Two shillings for each. 3. Discharge of Crewa. £ s. d. In ships under 60 tons 4 60 to 100 „ . 7 100 to 200 ,, 16 200 to 300 „ . 1 300 to 400 ,, 1 5 400 to 500 ,, . 1 10 500 to 600 ,, 1 15 600 to 700 ,, . 2 700 to 800 „ 2 5 800 to 9J0 „ . 2 10 OOOtolOOO ,, 2 15 About 1000 ,, . 3 And so on for Ships of larger Tonnage, adding for every 100 Tons above 1000, Five Shillings. 4. Discharge of seamen separately. Two shillings for each. * Omit this Part if she has no Steam Power. t Alter according to circumstances the Words printed in Italics. t Insert Names of Attomies. 830 MERCHA.NT SHIPPING ACT, 1854. TABLE Q.— (See Section 126.) Sums to be deducted from wages by way of partial repayment of Pees in Table P. In respect of Engagements and Discharges of Crews, upon each Engagement and each Discharge. From Wages of any Mate, Purser, En- gineer, Surgeon, Carpenter, s. d. or Steward . . . .16 „ all others except Apprentices . 1 2. In respect of Engagements and Discharges of Seamen separately, upon each Engagement and each Discharge. One Shilling. TABLE R— (See Section 133.) Pees to be charged on Examinations. For a Certificate as Master For a Certificate as Mate £ s. d. 2 10 MERCHANT SHIPPING ACT, 1854. 831 TABLE S.— (See Section 292.) KcitBER ASD Dimensions of Boats with whioh Sbaqoino Ships are to be provided. Column 2. Column 1. To be carried by Sailing Column 3. Total Eeqisteeed Tonnaqe. To be carried hy Sailing Ships, and by Steam Ships, when they do To be carried by Steam Number Ships and Steam Ships. Ships which do not cany the Boat in Col. 2. OF Boats. the boats in Col. 3. Steam Boats. Boats. Launches. Boats. Life-Boats. ft Sailiug Steam Ships. Ships. ti ri fl a -• ■S S fl fi o n' ^ Ships. B ■a M t B fo -i a -a PI t o, to a Si ft S |> 1 t Z, rt. n ft.in. Q ft,in. Zi ft. ft.in. ft.in. 'A ft. ft.in. H tt.m. 'A (-1 ft. ft.in. H ftin. Z; ft. M H m Tons. Tons. ft.in. ft.in. _ 1,000 and upwards . IS 5 6 2 3 2 24 5 6 av 8 6 2 22 5 6 j 2 28 S 6 3 6 - _ SOO to 1,000 IS 5 6 2 3 2 26 6 6*2 8 26 8 2 22 5 6 2 6 - — — — - 4 or 5 SOO and up- 1 1 wards.. .. 500 to 800 IS 5 6 2 3 2 24 6 6 2 6 26 S 3 S 2 22 b 6 2 6 - — — — >. 600 to 800 360 to SOO 16 5 6 2 3 2 24 5 6 2 6 25 7 3 6 2 22 6 6 2 6 - - - - i 4 or 5 a MO to 600 240 to 360 16 5 6 2 3 1 22 5 6 1 2 6 22 6 6 3 3 2 22 5 6 2 6 - - - - 3 3 or 4 200 to 400 120 to 240 14 5 2 2 - - 20 6 3 2 22 5 6 2 6 - - - - 2 2 or 3 5 100 to 200 60 to 120 14 5 2 2 - - - 16 3 6 2 9 2 18 5 6 2 4 - - - - 2 2 or 3 Under 100 Under 60 14 5 2 2 " ~ — — - — — — - — — — - — — — 1 1 J Note —In Sailing Ships carrying the Number of Boats above specified, and Steam Ships carrying the larger of the Two Numbers above specified, the Boats are to be considered sufflcient, if their aggregate cubic contents are equal to the aggregate cubic contents of the boats specified. . ^, -r, ^ i , In Steam Ships carrying the smaller of the Two Numbers above specified, one of the Boats must be a Launch of the Capacity specified in Col. 2. 4. j <■„„ In Sailing Ships of 200 Tons Burden and under, not carrying Passengers, a Dmgy may be substituted loi In Sailing Ships of 150 Tons Burden and under,.not carrying Passengers, a substantial Boat of Capacity sufHcient to carry the Crew may be substituted for those above specified. In all Steam Ships, Two Paddlebox Boats may be substituted for any two of the Boats m Col. i. TABLE T.— (See Section 314.) Fees to be ohassed eor the Sitrvet oi' Passbnobr Steamers. For Steamers not exceeding 100 Tons .... For Steamers exceeding 100 and not exceeding 300 Tons For Steamers exceeding 300 and not exceeding 600 Tons And for everj' additional 300 Tons an additional £ 2 3 4 1 832 MERCHANT SHIPPING ACT, 1854. (K t/-l ^ — s n CO a CO CO S fl ^ o pS ai S « 0) (5:; P^ Ol U^ ^ M ', -< O P H ft 1-1 pq (^ <1 M H £3 F^ 'So M CD CO CO l_ qioo us S 1 1 rH o SI 1 1 1 1 1 1 1 1 1 i ! 1 I 13 H iH 1 1 r-tt-t 1 1 1 1 1 IfijD £5 Sit: Oi iHCO in Ol m CT r-i CO CO 1— i— 1- o CD Jt> CO CO CO 00 1— ( r-( (M -g TSO CO OCj CO o c^os O O (N CO , o CO CD O co CD en in CO w^ ^ OiO o CO lO CO ■* CQ r-t m CO I— CO CO I- CO m CO in rH I-l r-l CO r-i ctjo tH lOCO i^ .n CO 00 Ol CO in in CD t- in lO Jtr- 1- cq 1- CO 4J 'ti'-S' O coco CO CO OCO O CO en CO m o o CO o CO CO co CO 1 «;«> ■* coco ■* toes I~CO o 00 00 cq CO 00 1^- t- 1- « rH r-l r-l rH rH r-l tH qJCJ S CO-* T}i lO int- CO CNtJ* in CO CO rt< in CD I:- Cd J>- t- H^ •TSffl Ci OCO CO CO OOO o OCD CO CO m m o Ol O CD o CO 1 ,.-* O OCO n J>-CO Tjf CO r-l (M ^ o •* CO o o ,_, o» CO IH rH I-t cftt- Ci OM ::l CO -* o CO cqco •^ o in CO CO in in cq in CO -*i* -^•o CO COCO CO c» OlO o OCO CO o CO CO CO ~m CO Cl CD CD ^ w" cs. 00 cq ^ ,_, tMCJ >n mcq CO cq r-t in Tjl ,_, O o o m iH i-t r-t iH r-t 3 «f!o 00 Ol o o CO Tj(^ in tHCO CO ■* in cq CO in in rH in in ^■ ■So CD OlO CO CO COCO OS coco CO m o o CO o CO CO CO CO &! rf'O >fl Tj CO O CD m o fe O) - '- C-1 cqco ■* >-* r-{ CI CO CO r-t - CO ■* ^ ■«i< -* 1 -^o CO oo CO o coo CO COCO CO m m m o m o iSi o CO .o^ CO 0OI^- CO Jt- ■noo 1^ o eq o rH cj "* ■o CO ■* CO O m CO CO CO in CO CO 00 rH CO CO CO CO r-t CO CO o Ol Cl '- ^ =t!" tH 'J'lO in t-i (M CM CO O rH i~i cq CO O ^ CO CO o CO ■^ ^— * -N ,^J^ . — '- -^■h — — s ^ 'ZZ -, L. -^ . Z3; -^ '^ ZJZ .__ ^ s ^ , S • "a fi o T- rt ' EU 1" § • is o o o h3 ■■s = ill 1 PI o 1^ ^ ^ s o 5 • 11 1 ^ o is go 3 ■ I" IS E S w S §fi|S o c 8 il 1 1 s ■ M -1 CQ s ¥ 1 si BJ'S __o__ 3 o o . il ill 1> e3 « 61 >'^ c: i ■g MERCHANT SHIPPING ACT, 1854. 833 ;2 th ^ c ■* «J CO l-H 1 1 =« 00 o CM CO 1 ^- 'M CO g Co" en CO 1 i CM 00 ^• -8 =■ (M CO s f=. »• o O S 1 CM CM S S ■B ° - tN ■ L- § C^ CM tH -t CO 00 (M (N -tJ ^ " "* in ■* 1 a ■-1 t- >a 00 qj o5 1^ Ci CO rH I-H rH *^- ■8 °> O) Ol rll -* iS » t- o CO E5 >:« o5 XO o t- I-H *s -d = o O CO 1 " s w CO s q! CM CO -* t- i-i i-H -t! ^ " CO tH CO 1 w ^ m o (M US qi ^ (N TfH O m r-< 1 •B <=■ O CO CO < ^ s w o CO ft '-' tH qj r-j rH OI (O Sq r-( r-t 1— * "S •8 => O o CO CO ^ CO iH o S3 qj o ^ (M K) o o ■s ° l-( O o «) ■* fo o> o CI in qj a. s PI ■* "S ■e " o OS (M ^ "• S CI ■^ CO .— I q) 00 Ol o I-I ■^ sfl -s •° CO to o £ls CO ^ CO OS qi i- 00 oo CO 1:- «^' ■«■ =■ o CO CN I! % >o o (M ?D ct! io in ;^ o) .& CO ^ BO ^ CUriH O CO 03 r3 P-gcO d Q P •fi'". C3 4^*^ ^ 1 I-I c^ s s fe5 gj !2i •Co)»g Pcgfi ■g o boo CD O qjo r n ot" m s^l w in ■* CO " 00 To and unde 600. o CO o M ^ §1 ,3 ^ 1 fto p^ ■ o^ ft a s a o ^ fi SO til '^ .pg 3 H 834 MERCHANT SHIPPINa ACT, 1854. TABLE v.— (See Section 455.) Pees and Remuneration op Reoeivbbs. & s. d. 10 For every Examination on oath instituted by a Receiver with respect to any Ship or Boat which may be or may have been in Distress, a fee not exceeding But so that in no case shall a larger fee than two pounds be charged for examinations taken in respect of the same ship and the same occurrence, 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 London the sum of 10 For wreck taken by the Receiver into his custody, a percentage of five per cent, upon the value thereof, But so that in no case shall the whole amount of percentage so payable exceed twenty pounds. In oases where any services are rendered by a Receiver, in respect of any Ship or Boat in distress, not being Wreck, or in respect of the car^o or other articles belonging thereto, the following fees instead of a percentage ; that is to say. If such Ship or Boat with her cargo equals or exceeds in value six hundred pounds, the sum of two pounds for the first, and the sum of one pound for every subsequent day during which the receiver is employed on such service, but if such ship or boat with her cargo is less in value than six hundred pounds, one moiety of the above-mentioned sum. TABLE W— (See Section 486.) Salvage Bond. [iV. B. — Any of the Particulars not Icnown, or not required, hy reason of the Claim being only against the cargo, (he., may be omitted.l Wheeeas certain Salvage Services are alleged to have been rendered by the Ship [insert names of ship and of commander\. Commander, to the Merchant Ship [insert names of ship andviaster} Master, belonging to [name and place of business or residence of owner of sMpI, freighted by [fhe same of the freighter], and to the cargo therein, consisting of [slate very shortly the descriptions and guariiities of goods, and- the 7iames and addresses of their owners and consignees'] : And whereas the said Ship and Cargo have been brought into the port of [insert name and sittmtion 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 fills], 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 pursuance of the Merchant Shipping Act, 1854, bind the several owners for the time being ot the said fehip and of the Cargo therein, and of the freight payable in respect 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 pro- portions and to such persons as [if the parties agree on any other Court substitute the name of it here,] the High Coui-t of Admiralty in England shall adjudge to be payable as Salvage for the services 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.s.) In the presence of [name of Consular officer or Vice-Admiralty judge, and of the office he fills.] MERCHANT SHIPPING ACT, 1854. 835 s >H "S ^ qj w v3 ej_, ■a 1 S3 .2 'S 6 ^S CS'S ?' (=1 "^3 ■n ^ -S L r5^ * S -:§ 8 I -S ^ =g 2" J -^ Mi' o ;g g- 4 § |5 •2 § is- ^ "^ o ^^-^ 6 fei -> ° P^ Q i=i e Ph *H o ^ d 2§s (ji OJ ? n -S 1 ^ M c4 fe|§ 1 I'S ^1^ ^j' ^2 J4S ^ o o -.3- Ph ts d '3 rf 2 1 1^ <1} ^ ll ^ MN .g = 02 5 *t! ■ri s . o o o <= 5 1 o <§ « ■^ MD g 1 gg 1 o 5 H ■= 02 i -1 "as 13 S M "S d 03 1^ g O g 1 E O fcU s ■§ m o O S o "3 EH en 02 N ? fe ^ 1 5 1^ «2 a ro o -^ « ]m ^ '5 g s Q=;S .& & FM IM ^ m o 5 3 i^ o pa o o ^ H S ^ I F^ ■S _o B g i g .a i b„ 8 g^-s I ■a B^-o nj-t^ H-^ ;saa°'5 d Fq ; .3'= a; O _0 rM I ■§ -S J 5 g "S -S, JOQ O (U =8 tj tj S E? 9': -d ij ja ^ s " "^ 1 ^ C. I>> H, m a ^ „ >^U-l « ■ 03 -d ■■S 3 S ^° -■^ bo Sf^ " +3 « ,„ S 5 § t-'d s a "S^ 3>S 03 M a-g GJ „ ,j3 ■" 03 CJ< r^ 03 bDr-H O H2 ■^ o o-d M a 03 t^ " M -3-= a ,^3 a a .o ^ 03 §5 to a -d 60„~ d "=1 sT! ^^ o » EH d a ^ -g g) o 1^ o^-g §3-S| d go ■ ^°«'^|'a:S^^ >, d 03 OI - 3'3'S .t.-^ 4 PtOr d-d J--' g -^ 03 ^^I'SS 2m s^ g g d ^^j d , ^ r« bn n M 03 .^ ■ts S. g^ -g 1 s f^S< Ti g m .a 1 1 ^ ■;3 ^ ■» i? a -o B ^ f^^ d ^ o tt t« -+^* pf 03 a OJ 03 (-1 6JD ^ pi .|o.i -2 *^ H 1 •SgS o o 03 ■Sg3 ^ 111 :;3 03.3 ill d s K K'aa ^ 03 ■B^^ g'1'2 -d ft d.Sg o -*5 g^:g |> ^ Iff >^2 o 1 1 ^^& 2 ^ 03 a»s o ■"S-s o 3 w+= 1 .2 fa 03 ft ^ .23 § ^Ti g s o S;2"i i a i 03 « 03 S 03 >. g i_i g'^e ee w|h MERCHANT SHIPPING ACT, 1854. 837 V o- as H a X o += ■ n3 c3 6 tA fe f~, -+3 CO f^ «*-) o t. £ ■^ o H O © PS ^ iS S ^ s «a o o 03 a) [> ^ s s s .S S s „.3 S m ft ft EU be (D cc I' "^ 3 Oj ^ cS ^ 1^ ™. rf O T3 -I I «3 K ■ £ 2 I ft-" rP W ^ s ■^ -3 1^ g § te a ±M SM ^ a a .s § iTi i» r^ pa -" S 'ti "r* cj S "^ <* 3 s ^J , ^ ■§ -■ O J3 =0 B^■"P^ » ^ ^ «> i 3 o "8 ■^ Tj fe^ C8 O O o c ^ awaw . - O !=S « f= S w oj g Qj ce C3 M ,^ tS ^ a pi H -tj tw'^-' o » E5 o as o p_, rJ=^ S? 1^ d 33 f-^ tc S r^ ^ .S t- oj [5 «3 3 g g oj m to 11 1^ S "P'S •§> g s S S a B ^T,J a ~ . '3 ^ a ■* a 1 :3 » S S .-s li-S"^ a .. ■■ (1) p^ . "^ ^, I 2 -3 -a e '-g r a 3 a aC> :a' « ^ ^ +3 ^ ^ '^ ^^ bo o o'B a >. ca o V. -a „ =s d k^j3 f^ Ph -73 jj ft '3 rS g H « .-3 g .S §"3 n3 Qj Una 9 ° ■4-. ^ H.a a j3 ■^-" o g s| .S S 2= 53 g o a &■! a " B w 0? ■• es EQ ct -« g.jj ^^ C a »S ra « "2 ^3 fi !:§• §°a 03 d a) -« i § — I a o m bO'+' PI ID „ c8,a g 0-* & III 03 t; 0) til .2 T^ Si ft (£ 1 1 1 ■3 ,a ^ S fn g fi ,c| 1 •s 1 1 Tf ^ §> o g. ^ -S -s to .■3 s. s m ■8 .3 s s* ■g S 1 P3 •t . a !3 n « W Q> W-2W sw MERCHANT SHIPPING ACT, 1854. 839 (R.) EEGULATIONS FOE MAINTAINING DISCIPLINE. SANCTIONED BY THE BOABD OP TBADE In PtTKSUANCE OE THE Mbrohant Shippino Aot, s. 149. These "Regulations are distinct from and in addition to tliose 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 Oflfences specified in such of them as are so adopted will be legally punishable by the appropriate Pines or Punishments. These Regulations are all numbered, and the niimbers 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 OflSce, 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 Oilence 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 Oifender, 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 he 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 w-hom the Offender is discharged ; and if he is satisfied that the Offence is proved, and that the entries have been properly made,theFine must be deducted from the Offender's wages, and paid over to the Superintendent. lf,in consequence of subsequent Good Conduct, the Masterthinltsfittoremit or reduce any fine upon any Member of his Crew which has been entered in the Official Log, and signifies the same to the Super- intendent, 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 For- feiture is ascertained in similar cases under Sect. 252. 10 11 12 13 14 15 16 17 18 19 20 21 22 OFFENCE. Not being on board at the time fixed by the agreement . Not returning on board at the expiration of leave Insolence or contemptuous language or behaviour to- wards the Master or any Mate Striking or assaulting any person on board or belonging to the Ship Quarrelling or provoking to quarrel .... Swearing or using improper language .... Bringing or having on board spirituous liquors Carrying a sheath-knife Drunkenness. First Offence .... Two Days' Pay. One Day's Pay. One Day's Pay. Two Days' Pay. One Day's Pay. One Day's Pay. Three Days' Pay. One Day's Pay. Two Days' half allowance of Provisions. Ditto. Second Offence Two Days' Pay. Neglect on the part of the Officer in charge of the watch to place the look-out properly . . . Two Days' Pay. Sleeping or gross negligence while on the look-out . Two Days' Pay. Not extinguishing lights at the times ordered . . One Day's Pay. Smoking below One Day's Pay. Neglecting to bring up, open out, and air bedding, when ordered Half a Day's Pay (For the Cook) — Not having any meal of the Crew ready at the appointed time One Days' Pay. Not attending Divine Service on Sunday, unless pre- vented by sickness or duty of the Ship . . . One Day s Pay. Interrupting Divine Service by indecorous conduct . One Day s Pay. Not being cleaned, shaved, and washed on Sundays . One Day's Pay. Washing clothes on a Sunday One Day's Pay. Secreting contraband goods on board with intent to smuggle One Month's Pay. Destroying or defacing the copy of the agreement which is made accessible to the Crew .... One Day's Pay. If any Officer is guilty of any act or default which is made subject to a Fine, he shall be liable to a Fine of twice the number of Days' Pay which would be exacted for a like aot or default from a Seaman, and such Fme shall be paid aad applied in the same manner as other Fines. Amount of Fine or Puiiislimeiit. Superintendent's Signature or Initials. 840 MERCHANT SHIPPING ACT, 1854, B (rl O 15 !5 E-i « w E-1 M E-I o O 1 ■s "SI (32 CQ 1 1 1 CI ¥ o ■§ 5? P. ^iS H ^" g 1 hJ ■3S CQ P, ■s s & H 33 OQ ... ^ K 00 („ ^ H n to o,- g SS s=> 1 Mil gggas :? -4 m fljg -- in virtue of his office, conform to all lawful directions given for that purpose by the i^enerai lo con 844 MERCHANT SHIPPING REPEAL ACT, 1854. 17 & 18 Vict. c. 120. form to direc- tions of Board of Trade. Powers of Board of Trade as to appointment of receivers. Payment of receivers. Application of fees. Ninth part of Merchant Ship- ping Act, 1854, to come into operation immediately. Board of Trade ; and on a vacancy occurring in his office no successor shall be appointed, but thereupon all powers and privileges vested in such receiver general shall be trans- ferred to the Board of Trade ; and this section shall come into operation immeaiateiy after the passing of this Act. . t, i nti, f 11. Receivers appointed by the said receiver general under the Act of the lUtn year oi the reign of her present Majesty, chapter ninety-nine, shall hold their offices only aunng the pleasure of the Board of Trade ; and the Serjeants of the admiralty ot the Cinque Ports, their deputies or other officers, authorized to perform the duties and to exercise tne powers within the jurisdiction of the Cinque Ports elsewhere performed and exercised Dy such receivers as aforesaid, shall perform and exercise the same only during the pleasure and subject to the directions of the Board of Trade; and all such receivers, Serjeants, deputies, and other officers as aforesaid shaU possess in the several districts withm wmon they have hitherto exercised their duties the same powers, rights, and privileges, ana perform the same duties, as are by the said Merchant Shipping Act, 1854, vested ^,f^^ committed to the receivers therein mentioned, save only that they shall not be entitled to take the command in cases of ships or boats stranded or in distress, unless authorized so to do by the Board of Trade. 12. There shall be payable to such receivers, Serjeants, deputies, and other officers as aforesaid such fees, and other remuneration as are by the suid Merchant Shipping Act, 1854, made payable to receivers appointed thereunder, and payment thereof shall be made by the same persons and in the same manner, and shall be capable of being enforced by the same means, as payment of the fees or other remuneration payable to the receivers appointed under "The Merchant Shipping Act, 1854," are payable or capable of being enforced, or as near thereto as circumstances permit; and, save as aforesaid, and saving also any expenses actually and properly incurred, no such receiver, Serjeant, deputy, or other otBcer as aforesaid shall be entitled to demand or receive from any person any fees or other sums in respect of any services performed by him as receiver, and this section shall come into operation immediately after the passing of this Act. 13. All fees or other remuneration received by any such receiver, Serjeant, deputy, or other officer as aforesaid may be applied by him to his own use. 14. [Repealed hy 38 & 39 Vict. c. 66.] Mode of pro- cedure in criminal cases. 15. All criminal proceedings under " The Seamen's Fund 'Winding-up Act, 1851," "The Pilotage Law Amendment Act, 1853," " The Merchant Shipping Law Amendment Act, 1853," or this Act, shall be carried on in the same manner as similar proceedings under " The Merchant Shipping Act, 1854 ;" and all rules of law, practice, and evidence which are applicable to such last-mentioned proceedings shall be applicable to criminal proceedings under this Act. Penalty on ^^ jg If a native of any country in Asia, Africa, or of any of the islands in the South Sea leavin" certain or the Pacific Ocean, or of any other country not having any consul in the United Kingdom, is brought to the United Kingdom in any ship, British or foreign, as a seaman, and is left in the United Kingdom, and within six months of his being so left becomes chargeable upon the poor 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 con- signee of the ship at the time of the seaman being so left as aforesaid, shall incur a penalty not exceeding thirty pounds, unless he can show that the person so left as aforesaid quitted the ship without the consent of the master, or that due means have been afforded 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 towards the relief or sending home of such person. seamen in distress in this countrj'. SCHEDULE OF REPEALS. 8 Eliz. c. l.S, except s. 5 ; 12 Anne, s. 2. c. 18 , 4 Geo. 1. c. 12 ; 7 Geo. 2. o. 15 ; 20 Geo. 2. c. 38; 26 Geo. 2. o. 19; 2t) Geo. 3. c. 86; 26 Geo. 3. c. 101; 28 Geo. 3. c. 25; 29 Geo. 3. i;. 52 ; 38 Geo. 3. c. 57. (local and personal) ; 46 Geo. 3. c. 106, sects. 75 and 76 ; 46 Geo. 3. c. 132; 48 Geo. 3. c. 130; 50 Geo. 3. c. 95; 61 Geo, 3. ^. 06, so far as relates to MERCHANT SHIPPING ACT AMENDMENT ACT, 1855. 845 S*''3°Tr'^-^',^''' .^"'V ^^ ^'?- ^- "■ ^'^^' ^^ ^«°- 3- =• 159; 5^ Geo. 3. o. 136; 55 17 & 18 Vicr sects l" "■ !mk extended luB 1 oyai navy or to the merchant service, or to any other sea service. to seamen in tlio 18. Any naval Court summoned, under the provisions of the Merchant Shipping Act, navy. 1854, to hear any complaint touching the conduct of the master or any of the crew Additional of any ship, shall, in addition to the powers given to it by the said Act, have power to powers of naval try the said master or any of the said crew for any offences against the Merchant Shipping JS^^*?; v- t Act, 185i, in respect of which two justices would, if the ease were tried in the United jq^ ss. 280 to Kingdom, have power to convict summarily, and by order duly made to inflict the same 26ti.' punishments for such offences which two justices might in the case aforesaid inflict upon summary conviction : Provided, that in cases where an offender is sentenced to im- prisonment 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. 19. Whenever any articles belonging to or forming part of any foreign ship which has Ii} case of vrrock been wrecked on or near the coasts of the United Kmgdom, or belonging to or forming "'j.^jl^'^Bnel-li'*' part of the cargo thereof, are found on or near such coasts, or are brought into any port to iJu aJomod in the United Kingdom, the consul general of the country to which such sliip, or in the agent of owner. case of cargo, to which the owners of such cargo, may have belonged, or any consular officer of such country authorised in that behalf by any treaty or agreement with such country, shall, in the absence 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 services are rendered by officers or men of the coast guard service Bemuneration in watching or protecting shipwrecked property, then, unless it can be shown that such '^"'^g't^ard ' services have been declined by the owner 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 services 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 persona and accounted for and applied in the same manner as fees received by receivers appointed under the Merchant Shipping Act, 1854. 21. If any person being a British subject, charged with having committed any crime Jurisdiction in or offence on board any British ship on the high seas or in any foreign port or harbour, ^Jf board sliip".^ or if any person, not being a British subject, charged with having committed any crime or 12 & 13 Viet. offence on board any British ship on the high seas, is found within the jurisdiction of any 0. 9(i. court of justice in ll er Majesty's dominions which would have had cognisance 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 com- mitted within such limits : Provided that nothing contained in this section shajl be construed to alter or interfere with the Act of the thirteenth year of her present Majesty chaoter ninety-six. •2->. It shall be the duty of the East India Company to take charge of and send home Belief of desti- or otherwise provide for all persons, being Lascars or other natives of the territories under tute Lascars, the government of the said company, who ai-e found destitute in the United Kingdom ; and if any such person is relieved and maintained by any guardians, overseers, or other persons administering the relief of the poor, such overseers, guardians, or other persons may, by letter sent through the post or otherwise, give notice thereof iu writing to the secretary of the Court of the 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 Company of which he professes to be a native : (3.) The name of the ship in which he was was brought to the United Kingdom : (4.) The port or place abroad from which such ship sailed, and the port or place in the United Kingdom at which such ship arrived, when he was so brought to the United Kingdom, and the time of such arrival : And the said East India Company shall repay to the said overseers, guardians, or other 848 BILLS OF LADING. 18 & 19 Vict, persons, out of the revenues of the said company all monies duly expended by them in c. 91. relieving or maintaining such destitute person, after the time at which such notice ■ aforesaid is sent or otherwise given. Smad.e*witl7 ^®- ^^ ^^^^^ ^^ lawiul for any master or owner of a ship or his agent to enter into natives in India, agreements with Lascars or natives of the territories of the East India Company, binding under certain ' them to proceed to any port or ports in the United Kingdom, either as seamen or as conditions, bind- passengers, and there to enter into a further agreement to serve as seamen in any ship to°the United" which may happen to be there, and to be bound to any port in the territories of the Kingdom, and East India Company ; provided that every such original agreement shall be made in such then to serve in form, and shall contain such provisions, and shall be executed in such manner, and under to'liid^''''o^ ^^* ®"°'^ conditions for securing the return of such Lascars or natives to their own country, ■where. ^'^^ f*"-" other purposes, as the Governor General of India in Council, or the governors of the respective presidencies 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 United Kingdom, required to enter into a further agree- ment to serve as a seaman in any ship bound to any port in the territories of the East India Company, 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 ship for such Lascar or other person to serve ia, and that there is not, in the opinion of such officer, any objection to the full performance of the said original agree- ment, such Lascar or other person shall be deemed to be engaged under such further 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 Saving of former appoint, not exceeding ten shillings. enactments. 24. Nothing herein contained shall be deemed to repeal or affect any provisions con- ss 25 to' 31 and tained in the twenty-fifth, twenty-sixth , twenty-seventh, twenty-eighth, twenty-ninth, 34. thirtieth, thirty-first, or thirty-fourth sections of the Act of the fourth year of King 17 & 18 Vict George the fourth, chapter eighty, or in the sixteenth section of the Act of the eighteenth 0. 120, s. 15. ygg^j. qJ j^gj. present Majesty, chapter one hundred and twenty. BILLS OF LADING. 18 & 19 ViOT. c. 111. AN ACT TO AMEND THE LAW RELATING TO BILLS OP LADING. [14th August, 1855.] Wbeebas by the custom of merchants a bill of lading of goods being transferable by endorsement the property in the goods may thereby pass to the endorsee, but neverthe- less all rights in respect of the contract contained iu the bill of lading continue in the original shipper or owner, and it is expedient that such rights should pass with the property : 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 hands of a bond fide holder for value should not be questioned 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 by the. Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Rights under 1. Every consignee of goods named in a bill of lading, and every endorsee of a bill of biUs of lading to lading to whom the property in the goods therein mentioned shall pass, upon or by reason rignee°or°"n- °^ ^'^"'^ consignment or endorsement, shall have transferred to and vested in him all dorsee. 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. Not to affect 2. Nothing herein contained shall prejudice or affect any right of stoppage in transitu,, right of stop- or any right to claim freight against the original shipper or owner, or any liability of the oStailfor consignee or endorsee, by reason or in consequence of his being such consignee or freight endorsee, or of his receipt of the goods by reason or in consequence of such consignment or endorsement. PASSENGERS ACT, 1855. 849 S. Every bill of lading in the hands of a consignee or endorsee for valuable oonsidera- 18 & 13 Vict tion representing goods to have been shipped on board a vessel shall be conclusive c 111 ' evidence of such shipment as against the master or other person signing the same, not- ^ -- ■witlistanding that such goods or some part thereof mav not have been so shipped Bill of lading ia unless such holder of the bill of lading shall have had" actual notice at the time of ^^p-'"^ "tcon- reeeiving the same that the goods had not been in fact laden on board : Provided, that cfu^le fviclen""" me master^ or other person so signing may exonerate himself in respect of suoli mis- of the shipment representation by showing that it was caused without any default on his part, and whollv ^^ ^"i^st by the Jraud of the shipper, or of the holder, or some person under whom the holder "''"""■' '"'■ claims. Proviso. PASSENGEES ACT, 1855. 18 & 19 Vict. c. 119. AN ACT TO AMEND THE LAW RELATING TO THE CAERIAGE OP PASSENGERS BY SEA. [lith. August, 1855.] Whereas it is expedient to amend "The Passengers Act, 1852:" Be it therefore enacted by the Queen's most E cellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. [Repealed by 38 & 39 Vict. c. 66.] • Commencement of this Act, and repeal of former Act. 2. In citing this Act in other Acts of Parliament, or in any instrument, document, or short title of proceeding, it shall be sufficient to use the expression " The Passengers Act, 1 855 ; " and this Act ; and in in any pi ooess for enforcing the remedies or penalties given or imposed by this Act, it legal proceed- shall be sufficient, without specifying more particularly the cause of complaint or offence, 'iigs reference to to refer by number, according to the copies of the Act printed by the Queen's printer, to ^ct by munlier ' the section or sections under which the proceeding is taken. to he sufficient. 3. For the purposes of this Act, the following words and expressions, whenever Definition of they occur, shall respectively have the following significations, if not inconsistent with terms used in the context or subject matter; (that is to say,) words of one number or gender shall "^ •'^'^''' import both numbers and all genders respectively; the expression "Her Majesty" shall include her heirs and successors; the expression "Consular Officer" shall signify and include Her Majesty's Consul General, Consul, and Vice Consul; the expression "United Kingdom," shall signify Great Britain and Ireland, and the islands of Guernsey, Jersey, Alderney, Sark, Scilly, and Man ; the expression " North America " shall signify and include the Bermudas, and ail ports and places on the eastern coast of the continent of North America, or in the islands adjacent or near thereto, or in the Gulf of iVlexico north of the Tropic of Cancer ; the expression " West Indies" shall signify the West India islands, the Bahamas, British Guiana, and Honduras; the expression " overnor " shall signify the person vpho 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 twelve years or upwards, or two persons between the ages of one antl twelve years; the expression "passage" shall include all passages except cabin passages ; the expression " passengers " shall include all passengers except cabin pas- sengers, 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 unless the space allotted to their exclusive use shall be in the proportion of at least thirty-six clear superficial feet to each statute adult, nor unless they shall be messed 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 thirty shillings for every week of the length of the voyage as computed under the provisions of this Act for sailing vessels proceeding from the United Kingdom to any place south of the Equator, and of twenty shillings for such vessels proceeding to any place north of the Equator, nor unless they shall have been furnished 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 passenger.^ and cabin passengers carried m such poop, round house, or 850 PASSENGERS ACT, 1855. 18 & 19 Vict. c. 119. To what vessels anrl voyages this Act extends. Penalty on li-audulently using certificates or using fraudu- lent certificates. Coimnissioners of Emigration to carry tJiis Act into execution. deck house stall exceed one-third of the total number of passengers which such ship can lawfully carry on the deck next below ; the expression ' ' lower passenger deck," the deck next ■ beneath the upper passenger deck, not being an orlop deck ; the expression " ship " shall signify any description of sea-going vessel.whether British or foreign ; * * * [repealed inpart by 26 & 27 Vict. c. 51] * * * 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 expres- sion " emigrant runner" shall signify every person other than a licensed passage broker ' or his bonil. 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 bouse or tavern or 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 the United Kingdom to any place out of Europe, and not being within the Mediterranean Sea, and on every colonial voyage as herein-after described, and, in the particulars men- tioned or referred to in sections one hundred, one hundred and one, and one hundred and two, to every ship bringing passengers into the United Kingdom from any place out of Europe and not being within the Mediterranean Sea ; but shall not extend to any of Her Majesty's ships of war, nor to any ships in the service of the commissioners for executing the oflfice of lord high admiral of the United Kingdom. * * * [repealed in part by 38 cfc 39 Vict. c. 66]. 5. [Repealed by 38 <£• 39 Yict. c. 66.] Emigl-ation Commissioners may sue and be sued in the name of their secretary, &c. Commissioners, &c., exempt from liability. Emigration oflficera and assistants to act under the commissioners, &c., but exist- in* appoint- ments to con- tinue iiutil revoked. Duties of emi- gration officer may be per- 6. And whereas by a warrant under Her Majesty's sign manual, bearing date on the twenty-seventh day of November one thousand 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 lands of the crown of Her Majesty's colonies, and for superintending the emigration of the poorer classes of Her Majesty's subjects to such colonies : And whereas it is expedient that such commis- sioners should be empowered to carry this Act into execution : Be it therefore enacted, That the said commissioners, and their successors for the time being, shall and they are hereby empowered to carry this Act into execution ; and that for all legal and other purposes it shall be sufficient to describe such commissioners by the style of "Ihe Emigration Commissioners." 7. The said emigration commissioners for the time being may sue and be sued in ihe name of their secretary, or of any one of such commissioners for the time being, and legal or equitable proceedings taken by or against the said commissioners 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 ot such commissioners, shall always be deemed to be the plaintiff or defendant (as the case may be) in any such proceedings: Provided always, that the said commissioners and their secretary, and the emigration officers hereinafter mentioned respectively shall m no case be personally liable, 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 equitable proceedings taken against them or any of theui, 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 service. ,*■ ^° i*^^ United Kingdom the said commissioners acting under the sanction of one of Her Majesty s principal secretaries of state, and in Her Majesty's possessions abroad the respective governors thereof, may from time to time appoint, and the said commis- sioners and governors may at pleasure from time to time remove, such emigi-atiou officers and assistant emigration officers as they may respectively think necessarv, for the purpose of carrying this Act into execution, under the direction of the said commissioners or governors, 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 United Kingdoin as m Her Majesty s possessions abroad, shall continue in force under this iict until duly revoked. 9. All powers, functions, and duties to be exercised or performed by any such emigra- tion officer may be exercised and performed respectively by his assistant, or at any |ort PASSENGERS ACT, 1855. 851 where tliere shall be no such emigration officer or assistant, or in their absence, by the 18 & 19 Vict. chief officer of cvistoms for the time being at such port. c. 119. 10. The master of every ship, whether a "passenger ship" or otherwise, fitting or ; intended for the carriage of passengers, or which shall carry passengers upon any voyage formed by his to which this Act extends, shall afford to such emigration officer as aforesaid at any port oJ^erpf ™s7' or place in Her Majesty's dominions, and, in the case of British ships, to Her Majesty's toins. consular officer at any foreign port or place at which such ship shall be or arrive, every Facilities to be facility for inspecting such ship, and for communicating with the passengers, and for given to the ascertaining that the provisions of this Act, so far as the same rany be applicable to s\ioh proper officers ships, have been duly complied with ; the master of any ship who shall omit or fail to t°on of aU ships comply with any of the requirements of this section shall be liable to a penalty not fitting for iias- exoeeding fifty pounds. sengers. 11. Ko ship fitted or intended for the carriage of passengers as a " passenger ship " ^™^''y°.". ^ shall clear out or proceed to sea until the master thereof shall have obtained from the (^ompiy &(.. " emigration officer at the port of clearance a certificate of clearance under his hand that Af„„„,Lno-er all the requirements of this Act, so far as the same can be complied with, before the ^hjp to^cleTir departure of such ship, have been duly complied with, and that such ship is, in his without oerti- opinion, seaworthy, in safe tiim, and in all respects fit for her intended voyage, and that ficate from her passengers and crew are in a fit state to proceed, nor until the master shall have oig'^fp^ „„" jmtii joined in executing such bond to the crown as required by the sixty-third section of this hond be given Act : Provided, that if such emigration officer shall refuse to grant such certificate, and to the Crown, the owner or charterer of such ship shall appeal in writing to the Emigration Commis- sioners, such commissioners shall appoint any two other emigration officers, or any two competent persons, at the expense of the appellant, to examine into the matter, and if the persons so appointed shall grant a certificate under their joint hands to the purport hereiu-before required, such certificate shajl be held to be of the same effect as if granted by the emigration officer of the port of clearance. 12. [Repealed hy 26 <6 27 Vict. c. 51.] Forfeiture of ship if master proceeds to sea without certi- ficate of clear- ance, &c. Such ship to be dealt with as if seized under laws relating to 13. No ship shall carry passengers or cabin passengers on more than two deots, -^^j^g^j. pj,5. pro\ided, that cabin passengers in a proportion not exceeding one cabin passenger for sengers may be every one hundred tons of the ship's registered tonnage, or sioli persons placed in a carried, hospital, as herein-after provided, may be carried in a poop or deck house, notwith- standing that passengers are cairiedontwo other declts, and if passengers are carried under the poop or in any round house or deck house, such poop, round house, or deck house shall be properly 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 five hundred pounds nor less than twenty pounds sterling. 14. For determining the number of passengers to be carried in any " passenger ship" Rule for the following rules shall be observed : number of pas- (1.) [Repealed by 26 & 27 Vict. c. 51.] sengers. (2.) No ship shall carry under the poop, or in the round house or deck house, or on xonnage check, the " upper passenger deck," a greater number o£ passengers than in the proper- Space check, tion of one statute adult to every fifteen clear superficial feet of deck allotted to their use : C3.) No ship shall carry on her lower passenger deck a greater number of passengers than in the proportion of one statute adult to every eighteen clear superficial feet of deck allotted to their use : Provided nevertheless, that if the height between such lower passenger deck and the deck immediately above it shall be less than seven 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 one hundred 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 twenty-five clear superficial feet thereof: j i ., , ii (4 ) No ship, whatever be her tonnage or superficial space of "passenger decks, stiaU carry a greater number o£ passengers on the whole than in the proportion of one statute adult to every five superficial feet, clear for exercise, on the upper deck or poop or (if secured and fitted on the top with a railing or guard to the satisfaction 852 PASSENGKES ACT, 1855. 18 & 19 Vict. c. 119. Penalty. Notliing to extend to repeal 16 & IT Vict, c. 84. Passengers lists to be delivered in duplicate by tae master before clearance. Lists of pas- sengers em- barked after clearance to be delivered by master. Penalty on non complianoe. of the emigration officer at the port of clearance) on any round house or deck house : j i i, (6.) In the measurement of the passenger decks, poop, round house, or deck house, the space for ti)e hospital and that occupied by such portion of the personal luggage of the passengers as the emigration officer may permit to be earned tHere shall be included : , If there shall be on board of any ship at or after the time of clearance a greater number, either of persons or passengers (except by births at sea), than in the proportions respec- tively herein-before mentioned, the master of such ship shall be liable to a penalty not exceeding twenty pounds nor less than five pounds sterling for each passenger or person constituting such excess. , 15. Provided nevertheless, That nothing in this Act contained shall extend to repeal or vary an Act passed in the session of Parliament holden in the sixteenth and^seventeenth years of the reign of Her present Majesty, chapter eighty-four, intituled "An Act to amend the Passengers Act, 185i, 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 liast Indies." 18. The master of every ship whether a " pa'senser ship'' or otherwise, carrying passengers on any voyage to which this Act extends, sh.all, before demanding a oleariince 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 tbe 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 master's list ; " and tbe said master shall note in writing on such last-mentioned list, and on any additional list to be made out as next hereinafter provided, the date and supposed cause of death of any passenger who may die, and the date of birth and sex of any child who may be born on the voyage, and shall exhibit such last-mentioned list, with 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 Her Majesty's possessions, or to Her ilajesty'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 Hnal port or place of discharge, and such officer of oust, .ms or consular officer shall thereupon forthwith transmit the particulars respecting any passenger who 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 Register 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 an Act passed in the session of Parliament held in the sixth and seventh years of the reign of Her present Majesty, intituled " An Act for Registering Births, Deaths, and Marriages in England : " In case of noncompliance with any of the requirements of this section on the part of the master, or if such lists shall be wilfully false, the master shall for each offence be liable to a penalty not exceeding one hundred pounds nor less than five pounds sterling. 17. If at any time after such lists shall have been signed and delivered as aforesaid any additional passenger shall be taken on board, in every such case the master shall, accord- ing to the form aforesaid, add to " the master's list " the 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 paiticulars of every such additional passenger, and such last-mentioned list, when countersigned by the emigration officer, where there is one at the port, shall, together with "the master's list" to which such addition shall have been made, be delivered to the chief officer of customs as aforesaid, and thereupon 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 additional passenger or passengers may be taken on board ; or if no officer of customs shall be stationed at the port or place where such additional passenger or passengei'S may be taken on board, the said lists shall be delivered to the officer of customs at the next port or place at which such vessel shall touch or arrive and where any such officer shall be stationed, to be dealt with as herein-before mentioned : Provided, that when any additional passengers shall be bikeu on board the master shall obtain a fresh certificate from the emigration officer of the port tliat all the lequiiements of this Act have been duly complied with before the ship shall proceed to sea : in case of non- compliance with any of the requirements of this section, the maoter of such ship shall for each offence be liable to a penalty not exceeding fifty pounds nor less than five pounds sterling. PASSENGERS ACT, 1855. 853 18. If any person shall be found on board any passenger ship with intent to obtain a 18 & 19 Vict. passage therein without the consent of the owner, charterer, or master thereof, such o. 119. person and every person aiding and abetting him in such fraudulent intent, shall respeo- tively be lijible to a penalty not exceeding five pounils, and in default of pnyiiient to Penalty on imprisonment, with or without hard laboui-, for a period not exceeding three calendar l^'sons found mouths ; and such peison bo found on board may be taken before any justice of the ™thmt coXit peace, without warrant, aid such justice niiiy summarily hear the case, and on proof of owners, ifec. ot the offence convict such offender as aforesaid. 19. No "passt-nger ship" shall clear out or proceed to sea unless she shall have been 4'? Passenger surveyed, under the direction of the emigration officer at the port of clearance, but at yeyed beforr""" the expense of the owner or charterer thereof, by two or more competent surveyors to clearing out. be appointed by the said Emigration Commissioners for each port at which there may be '""? e'jaigration officer, and f . r other ports by the Commissioners of Customs, nor unless it sha 1 be reported by such surveyors that such " passenger ship" is in their opinion sea- worthy, 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 ship, and such portion of cargo if laden on board shall be shifted, if required by the emigration 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 non- charterer, or master of the ship, or any of them, shall for each ofi'ence be liable to a compliance, penalty not exceeding one hundred pounds nor less than five pounds sterling : Provided Power to owners always, that in ease any " passenger ship " shall be reported by any such surveyors not to *° appeal be seaworthy, or not fit for her said intended voyage, the owner or charterer, if he shall ^yo^ r"p'^^rt of think fit, may require, by writing under his hand, the emigration officer, or in his absence ships not being the chief officer of customs, to appoint three other competent surveyors, of whom two at seaworthy least shall be shipwrights, to survey the said ship, at the expense of the said owner or charterer; and the said officer shall thereupon appoint such surveyors, who shall survey the said ship, and if they shall, by an unanimous report under their hands (but not otherwise), declare the said ship 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. 2U. In every " passenger ship" the beams supporting the " passenger decks " shall form As to the con- part of the permanent structure of the ship : They shall be of adequate strength, in the ^'^g ^nd^ judgment of the emigration officer at the port of clearance, and shall be tirmly secured decks, to the ship to his satisfaction. The " r assenger decks " shall be at least one inch and a half in thickness, and shall be laid and firmly fastened upon the beams continuously from side to side of the compartment in which the passengers are berthed. The height between that part of any deck on which passengers are carried and the deck immediately above it shall not be less than six feet. 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 fifty pounds nor less than five pounds sterling. 21. There shall not be more than two tiers of berths on any one deck in any "passenger Arrangement ship," and the interval between the fluor ot the berths and the deck immediately beneath ^°jt^^^ °^ them shall not be less than six inches, nor the interval between each tier of berths and between the uppermost tier and the deck above it less than two feet six inches : The berths shall be securely constructed, and of dimensions not less than six feet in length and eighteen inches in width for each statute adult, and shall be sufficient in number for the proper accommodation of all the passengers contained in the lists of passengers herein- before required to be delivered by the master of the ship. No part of any berth shall be placed within nine inches of any water-closet erected in the between-decks. In case of noncompliance with any of the requii-ements 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 fifty pounds nor less than five pounds sterling. 22. In every " passenger ship " all the male passengers of the age of fourteen years and single men to lie upwards who shall not occupy berths with their wives shall, to the satisfaction of the berthed in a emigration officer at the port of clearance, be berthed in the fore part of 'he ship, in a separate corn- compartment divided off from the space appropriated to the other passengers by a sub- ^ . stantial and well secured bulk- head, without opening into, or communication with, any ^^ sexe™in^'one adjoining passenger berth, or in serarate rooms if the ship be fitted with enclosed berths: berth. >.'ot more than one passenger, unless husband and wife, or females or children under penalty. twelve years of age, shall be placed in or occupy the same berth. In case of noncompli- ance 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 fifty pounds nor less than live pounds sterling. 23. No berths in a " passenger ship " occupied by passengers during the voyage shall Berths not to be be taken down until forty-eight hours after the arrival of such ship at the port of final 854 PASSENGERS ACT, 1855. 18 & 19 ViOT. c. 119. passengers landed. Space to be allotted as an hospital. Penalty. Regulation as to coustmction of privies. As to light and ventilation. Penalty on non compliance. Kegulations as to the carrying of boats ; of life boats : and of life buoys, anchors, and lire engines. &c. discharge, unless all the passengers shall have voluntarily quitted the ship before the expiration of that time. In case of nonoomplianoe with any of the requirements of this section, the master of such ship shall be liable for each offence to a penalty not exceeding fifty pounds nor less than five pounds steiling. . . , -. , 24. In every " passenger ship " there shall he a siifliicient space properly divided off to the satisfaction of the emigration ofScer 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 m the round house, or in any deck house which shall be properly built and secured to the satisfaction of such emigration oflicer, or on the upper passenger deck, and not elsewhere, and shall in no case be less than eighteen clear superficial feet for every fifty passengers which the ship shall carry. Such hospitals shall be fitted with bed-places, and supplied with proper beds, bedding, and utensils, to the satisfaction of the emigration officer at the port of clearance, and throughout the voyage kept so fitted and supplied. In case of noncompliance with any of the requirements of this section, the owner, charterer, or master of the ship shall for each offence be liable to a penalty not exceeding fifty pounds nor less than five pounds sterling. 25. No " passenger ship " shall clear out or proceed to ssa unless fitted, to the satisfac- tion of the emigration officer at the port of clearance, with at least two privie.s, and with two additional pi ivies on deck for every one hundred passengers on board, and in ships carrying as many as fifty female passengers, with at least two water-closets under the poop, or elsewhere ou tiie upper deck, to' the satisfaction of such emigration otfi'cer, for ,the exclusive use of the women and youhg cbildifen; ill of which privies and water- closets shall be firmly donstructed and maintained in a serviceable and cleanly condition throughout the voyage, and shall not be taken down until the expiration of, forty-eight hours after the at rival of the ship at the port, of final discharge, unless all the passengers sooner quit the ship ; provided that such privies shall be placed in equal numbers on each side of the, ship, and need not in any case exceed twelve 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 fifty pounds nor less than five pounds sterling. 26. No " passenger ship " shall clear out or proceed to sea without such provision for affording light and air to the passenger decks as the circumstances of the case m£i.y, in the judgment of the ' eruigration ofScer at the port of clearance, require ; tior if there are as many as one hundred passengers on boarj, without having an adequate and proper ventilating apparatus, to be approved by such emigration officer and fitted to his satisfaction ; the passengers shall, moreover, have the free and unimpeded use of the whole of each hatchway situated over the space appropriated to their use, and over each such hatcliway there shall be erected such a boobyhatch Or other substantial covering as shall, in the opinion of such emigration officer, afford 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 the ship, or any of them, shall for each offence be liable to a penalty not exceeding fifty pounds nor less than twenty pounds. 27. Every " passenger ship " shall carry throughout the voyage a number of boats according to the following scale ; (that is to say,) Two boats for every ship of less than two hundred tons : Three boats for every ship of two hundred and less than four hundred tons : Four boats for every ship of four hundred and less than six huhdred tons : Five boats for every ship of six hundred and less than ten huhdred tons : Six boats for every ship of ten hundred and less than fifteen hundred tons : Seven boats for every sliip of fifteen hundred tons and upwards : Provided that no " passenger ship " shall be required to c.irry 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 boats shall in all cases be a long boat, and one shall be a properly fitted life boat, which shall be carried in such a manner as to be, in the opinion of the emigra- tion officer, most available for immediate service : Each of such boats shall be of a suitable size and description, ^to be approved by the emigration officer at the port of clearance, and shall be seaworthy and properly supplied with all requisites, and kept clear at all times for immediate' use at sea : There shall likewise be' on board each " passenger ship" if proceeding to a,ny place to the southward of the Equator at least two chrono- meters, and if ,to any place to the northward of the equator at least one chronometer, and on board of all " passenger ships " at least three steering and one azimuth cbmpafeS, four properly fitted life buoys, kept ready at all times for immediate ' use, and some , adequate means, to he approved by the emigration officer at the port of clearance, of ' making signals .by night and in.fogij ;. also a fire engine; in proper working order, and oi such description and power and either with or without such Other apparatus for extiu- lUSSENGEES ACT, 1855. 865 giushing fire as such officer may approve ; and not less than three bower anchors of such weight, and with cables of such length, size, and material, as in the judgment of such emigration officer shall be sufficient for the size of the ship. In case of noncompliance with any of the requirements of this section, the master of the ship shall for each offence be liable to a penalty not exceeding fifty pounds nor less than five pounds sterling. 28. Every '• passenger ship " shall be manned with an efficient crew lor her intended voyage, to the satisfaction of the emigration officer from whom a clearance of such ship 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 writing, or that of the shipping master of the port of clearance, as required by the laws then in force regulating the shipping of seamen on board merchant vessels. Where the consent of the shipping master is obtained, it shall, within twenty-four hours thereafter, be lodged with such emigration officer. In case of noncompliance 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 fifty pounds : Provided, that if the emigration officer shall consider the crew inefficient, and the owner or charterer of the ship shall thereupon appeal in writing to the sad Emigration (Jommissioners, such Commissioners shall, at the expense of the appellant, appoint two other emigration officers or two competent persons to examine into the.niatter, and the unanimous opinion of the persons so appointed, expressed under their hands, .-hall be conclusive on the point. 29. No " passenger ship " shall clear out or proceed to sea if there shall be on board as cargo, horses, cattle, fiurjpowder, vitriol, lucifer matches, guano, or green hides, nor if there shall be on board any other article or number of articles, whether as cargo or ballast, which by reason of the nature or quantity or mode of stowage thereof shall, either singly or collectively, be deemed by the emigration 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 provisiims, water, or stores, whether for the use of the passengers or of the crew, shall be carried on the upper deck or on the "passenger decks," unless in the opinion 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 opinion 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 noncompliance 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 exceeding three hundred pounds npr less than five pounds sterling. 30. For the purposes of this Act, the length of the voyage for a " passenger ship " proceeding from the United Kingdom to the under-mentioned places respectively shall be determined by the following scale; (that is to say,) 18 & 19 ViOT 0. 119. Kegulations as to carrying an efficient crew. Certain articles prohibitscL as - cargo aud ballast. Stowage of cargo, stores, and luggage to be approved by emigration officer. Computation of voyages To North America (except the West Coast thereof) : — For ships clearing out between the sixteenth day of January and the fourteenth day of October, both days inclusive . For ships clearing out between the fifteenth 1 day of October and the seventeenth day of V January, both days inclusive . ■ ^^ • ' To the West Indies, and any part of the Jiast | Coast of Central or South America, north of / the equator . . • •,„■,,,' ■ ' l To any part of the East Coast of South America lying between the equator and the twenty-fifth V degree of south latitude . • • • ) If the Ship be pro- pelled by Sails alone, or by Steam Power not suffi- cient, without the aid of Sails, to propel the Ship after the rate of Five Statute Miles . an Hour. Days. 70 80 70 Si If .the Ship be pro- pelled either wholly or in aid of Sails by Steam Engines of not less power than sufficient, without the aid of Sails, to propel the Ship after the rate of Five Statute Miles an Hour. 40 45 40 50 856 PASSENGERS ACT, 1855. 18 & 19 VioT. c. 119. If the Ship be pvo- pelled by Sails alone, or by Steam Power not' suffi- cient, without the aid of Sails, to propel the Ship after the rate of Five Statute Miles an Hour. To the West Coast of Africa north of the equator. To the Coast of Africa south of the equator, or ' to the Falkland Islands, or to any part of the I East Coa-st of South America southward of the | twenty-fifth degree of south latitude To the Mauritius, and to tho Western Coast of America south of the equator .... To Ceylon ........ To Western Australia ..... To any other of the Australian Colonies To New Zealand and to the Western Coast of America between the equator and the fortieth degree of north latitude ..... To the Western Coast of America north of the fortieth degree of north latitude, and the islands adjacent thereto If the Ship be pro- pelled either wholly or in aid of Sails by Steam Engines of not less power than sufficient, without the aid of Sails, to propel the Ship after the rate of Five Statute Miles an Hour. For the like purposes, the said Emigration Commissioners, acting by and under the authority of one of Her Ma-jesty's principal Secretaries of State, f i cm time to time, by any notice in writing issued under the hands of any two of such commissioners, and published in ihe London Gazelle, ma,j nevertheless declare what shall be deemed to be the length of voyage from the United Kingdom to any of the said hereinbefore mentioned places, or to any other port or place whatsoever, and may fix such different lengths of voyas;e as they may think reasonable for such different descriptions of vessels as aforesaid. Before clear- ^^- Before any " passenger ship" shall be cleared out the emigration officer at the port anoe, provisions of clearance shall survey or cause to be surveyed by some competent persnu the provisions and water to be and water by this Act required to be placed on board for the consumption of the passen- suTveyed. gers, and shall satisfy himself that the same are of a good and wholesome quality, and ia a sweet and good condition, and are in quantities sufficient 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 cooking purposes an additional supply of pure water after the rate of at least ten gallons for every day of the prescribed length of voyage for every one hundred 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, which sljall not be inferior in quahty to the supply of the same articles provided for the consumption of the passengers : All such water, provisions, and stores shall be provided and properly stowed away in accordance with the requirements of the twenty- ninth 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 ship " which 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 ship, or any of them, shall for each offence be liable to a penalty not exceeding three hundred pounds 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, ib shall be lawful for Mm 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 thereupon be forthwith landed to be landed, or emptied, or if, after being landed, the same or any part thereof shall be reshipped parties liable to ^^ ^"'^'^ ^"^'P' ^^^ owner, charterer, or master thereof, or any of them, or if reshipped a penalty. i" any other " passenger ship," the person causing the same to be reshipped, shall for each offence be liable to a penalty not exceeding one hundred pounds 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 by 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 Provisions for the crew not to be inferior to those for the passengers. Penalty. Power to emi- gration otficer to reject and mark bad pro- visions, and direct the same Water tanks or casks to be ap- proved by emi- gration officer. PASSENGERS ACT, 1855. 857 more than three hundred gallons each : The staves of the water casks shall not be made 18 & 19 Vict. of fir, pine, or soft wood. In case of noncompliance with any of the requirements of o. 119. this section, the owner, charterer, or master of such ship, or any of them, shall for each offence be liable to a penalty not exceeding fifty pounds. 34. If any " passenger ship " shall be intended to call at any intermediate port or place Provision for during the voyage, for the purpose of taking in water, and if an engagement to that effect *°t "mediate shall be inserted in the bond mentioned in the sixty-third section of this Act, then it pnrts to fill up shall be sufficient to place on board at the port of clearance such supply of water as may water. 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 arrangement, to be carried amongst the papers of the ship, and exhibited to the chief officer of customs, or to Her Majesty's consular officer, as the case may be. at such interme- diate port or place, and to be delivered to the chief officer of customs, or to Her Majesty's consular officer, as the case may be, on the arrival of the said ship at the final port or place of discharge : Secondly, That if the length of either portion of the voyage, whether to such interme- diate port or place, or from such intermediate port or place to the final port or place of discharge, be not prescribed in or under the provisions of this Act, the emigration officer at the port of clearance shall in every such case declare the same in writing to bt* 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 required for the longest of such portions of the voyage as aforesaid. 35. The master of every "passenger ship " shall during the voyage, including the time Dietary scales of detention at any place befoie the termination thereof, issue tj each passenger, or, of provisions, where tlie passengers are divided into messes, to the head man for the time being of eich mess on behalf and for the use of all the members thereof, an allowance of puie water and sweet aud wholesome provisions, of good quality, according to the following dietary scale ; (that is to say,) if the length of the voyage, computed as hereinbefore mentioned, shall not exceed eighty-four days for ships propelled by sails only, or fifty 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 eighty-four days for ships propelled by sails only, or fifty days for ships propelled by steam^ or steam in aid of sails, then according to the dietary scale marked " B." Water. Three quarts of water daily to each statute adult, exclusive of the quantity hereinbe- fore specified as necessary for cooking the articles hereinafter required to be issued in a cooked state. Provisions. Weekly, per Statute Adult ; — Bread or biscuit, not in: navy biscuit Wheaten flour , Oatmeal Rice Peas . Potatoes Beef . Pork Tea . Sugar Salt . Mustard Black or Vinegar Lime juice . Preserved meat Suet . Raisins . Butter or in quality to white pej)per, gi-oum Scale A. For Voyages not exceeding 84 Days for Sailing Vessels, or 50 Days for Steamers. 11). oz. One gill. Scale B. For Voyages exceeding 84 Days for Sailing Vessels, or 50 Days for Steamers. lb. oz. 3 8 -} 1 8 1 8 2 1 4 1 2 1 2 -i 1 One gill. 6 1 6 8 4 858 PASSENGEBS ACT, 1855. 18 & 19 Vict. c. 119. SUBSTtTUTIOIfS. Substitutions at the following rates may, at the option of the master of any "passenger ship," be made in the above dietary scales, that is to say : — for for 1 lb. of preserved meat . 1 lb. of flonr or of bread or biscuit, or ^ lb. of beef or of pork . 1 lb. of rice. . . ... for i lb. of preserved potatoes . , for iO oz. of currants .... for 3J oz. of cocoa or of coffee, roasted and ground . .... f lb. of treacle .... for 1 gill of mixed pickles . . . for 1 lb. of salt pork or beef. li lb. of oatmeal or 1 lb. of rice or 1 lb. of peas. IJ lb. of oatmeal, or vice vers^, 1 lb. of potatoes. 8 oz. of raisins. for 2 oz. of tea. 4 lb of sugar. 1 gill of vinegar. Penalty on non- compliance. Size of messes. Provisions to tie issued daily, and articles v/hich require cooking to be cooked. Power to enii- ^ation commis- sioners to authorize an alternative dietary scale. Power to com- missioners to alter dietary scale. As to passengers stewards. Penalty on non- compliance. As to passenger cooks and cooking apparatus. Penalty on non- compliance. In what cases interpreters to 'he carried. Provided, that the substituted articles be set forth in the contract tickets of the passen- gers. In case of noncompliance with any of the requirements of this section, the master of the ship shall be liable for each offence to a penalty not exceeding fifty pounds sterling 36. The messes into which the passengers in any passenger shjp mny be divided shall not consist of more than ten statute adults in each mess, and members of the 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 is.sued, 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 sucli i.-aues 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 noncom- pliance with any of the requirements of this section, the master of the ship shall for each offence be liable to a penalty not exceeding fifty pounds. 37. The said Emigration Commissioners for the time being, acting under the authority of one of Her Majesty's piinci[ial Secretaries of State, 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 " passen- ger ship " to issue provisions to his passengers either according to the scale by this Act prescribed, or according to the scale authorized by the said commissioners, whichever may have been set forth in the contract tickets of the passengers : Provided always, that the said commissioners acting under such authority and 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 an many as one hundred 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 provisions 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 noncom- pliance with any of the requirements of this section, the master of the ship shall for each offence be liable to a penalty not exceeding fifty pounds nor less than five pounds sterling. 39. Every " passenger ship " carrying as many as one hundred passengers shall also have on board a seafaring man, or if carrying more than three hundred " statute adults " two seafaring men, to be rated and approved as in the case of passengers stewards, who shall be employed in cooking the food of the passengers : A convenient place for cooking shall also be set apart 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 adequate, in his opinion, for the intended voyage. In case of noncompliance with any of the requirements of this section, the master of the ship shall for each offence be Uable to a penalty not exceeding fifty pounds nor less than five pounds sterling. iO. 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 three of them shall understand and speak intelligibly the English language, there shall be carried, where the number of passengers does not exceed two hundred and fifty, one person, and where it exceeds two hundred and fifty, two persons, who understand and speak intelligibly the language spoken by the master and crew and also the English language, and such persons PASSENGERS ACT, 1855. 859 shall act as interpreters, and be employed exclusively in attendance on the passengers, 18 & 19 Vict. and not in the working of the ship; and no such ship shall clear out or proceed to sea d. 119. withont having 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 inter- Penalty, preters on board :is aforesaid shall for each offence be liable to a penalty not exceeding fifty pounds nor less than five pounds sterling. 41 . livery '' passenger ship " shall in the following cases carry a duly qualified medical In what cases a practitioner, who shall be rated on the ship's articles : medical man First, when the duration of the intended voyage, as hereinbefore computed, exceeds ""^^ " ''^"'""- ■ eighty days in the case of ships propelled by sails, and forty-five days in the case of ships propelled by steam, and the number of passengers on board exceeds fifty : Second, whenever the number of persons on board (including cabin passengers, oificers and crew) exceeds three hundred : In case of noncompliance with any of the requirements of this section, the master shall Penalty. for each ofifeuce be liable to a penalty not exceeding one hundred pounds nor less than twenty pounds sterling. i'-i. iNo medical practitioner shall be considered to be duly qualified for the purposes Qualification of of this Act unless authorized by law to I'ractise in some part of Her IMajesty's dominions, niedical man. 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 instruments to the satisfaction of such officer : Provided neveriheless, that where the majority of the passengers in any " |iassenger ship," or as many as three hundred, are foreigners, any njedical practitioner who may be approved by such emigration ofiicer may be carried therein. In, case any person shall Penalty. pi'oceed or attempt to proceed as medical practitioner in any " passenger ship" without 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 penalty not exceeding one hundred pounds nor less than ten pounds sterling. 43. The owner or charterer of every " passenger ship" shall provide for the use of the jiej;oj„(,g a^d passengers a supply of medicines, medical comforts, instruments, and other things proper medical and necessary for diseases and accidents incident to sea voyages, and for the medical comforts, treatment of the passengers during the voyage, including an adequate supply of disin- fecting fluid or agent, together with printed or written directions for the use of the same respectively ; and such medicines, medical comforts, instruments, and other things shall, in the judgment of the emigi'ation officer at the port 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 chatge of the medical practitioner, when there is one on board, to be used at his discretion, in esse of noncompliance with any of the penalty. requirements of this section, the master of the ship shall for each offence be liable to a penalty not exceeding fifty pounds nor less than five pounds sterling. 44. No " passenger ship," except as hereinafter provided, shall clear out or proceed to jj^djcai inspec- sea until some medical practitioner, to be appointed by the emigration ofiicer at the port tion of passou- of clearance, shall have inspected such medicines, medical comforts, and other articles as ger,s and ^^ are required to be supplied by the last preceding section, and also all the passengers and '"s'"'™'''>' 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, instruments, and other things requisite for the medical treatment of the passengers during the intended voyage, nor until such medical practitioner shall have certified and the said emigration officer shall be satisfied that none of the 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 proceed in such vessel. Such medical inspection of the passengers shall take place either on board the vessel, or, at the discretion of the said emigration officer, at such convenient place on shore before em- barkation 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 twenty shillings for every hundred persons BO examined : Provided also, that in case the emigration officer on any particular occasion shall be unable to obtain the attendance of a medical practitioner, it shall be lawful for the master of any such ship to clear out and proceed to sea, on receiving from the said emigration officer written permission for the purpose. In case any " passenger ship " Penalty, 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 one hundred pounds nor less than five pounds sterling. 45. If the emigration officer at any port shall be satisfied that any person on board or Eelanding of about to proceed in any " passenger ship " is by reason of sickness unfit to proceed, or passengers on is for that or for any other reason likely to endanger the health or safety of the other S™ for puri- persons on board, the said emigration officer shall prohibit the embarkation of such j-yi,ig ships. 860 PASSENGERS ACT, 1855. 18 & 19 ViOT. c. 119. Penalty. As to return of passage money to passeijgers relanded oil account of sick- ness, &c. Subsistence money to be paid to passen- gers relanded. Return of pas- sage money and compensatiou to passengers where imssages not provided for them according to contract. Subsistence in case of deten- tion. pei-Bon, or if embarked shall require him to be relanded ; and i£ 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 require 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 fiom them ; and in case of noncompliance with any of the requirements of this section, the master, owner, or charterer of the ship shall for each offence be liable to a penalty not exceeding two hundred pounds nor less than ten pounds ; and any passenger or person, embarking after such prohibition, or refusmg or neglecting to leave the ship when so directed to be relanded, shall be liable to be summarily removed, and to a penalty not exceeding forty shillings 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 siclsnesa of himself or of any member of his family who may not be re-embarked and finally sail in such ship, or any emigration officer on his behalf, shall be entitled to recover, by summary process, the whole of the monies which may have been paid by or on account of such passenger for his passage, and that of the members of his family so relanded, from the party to whom the same may have been paid, or from the owner, charterer, or master of such ship, or any of them, at the option of such passenger or emigration officer. 47. Ihe master of any "passenger ship," from which the whole or any part of the passengers shall be relanded on account of any of the reasons mentioned in section 45, shall pay to each passenger so relanded (or if he shall be lodged and maintained in any hulk or estabhshment under the superintendence of the said Emigration Commissioners, then to the emigration officer at the port) subsistence 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 forty-sixth section of this Act, be returned to him. 4 8. If any person by whom or on whose behalf any contract shall have been made for a passage in any ship proceeding on any voyage to which this Act extends, shall be at the place of embarkation before six o'clock in the afternoon of the day of embarkation ap- pointed in such contract, and shall, if required, 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 emigration officer, 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 ship to the port at which he may have contriicted to land, or, together with all the immediate members of his family who may be included in such ctmtract, 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 respectively) from such owner, charterer, 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 passengers for such passage, and also such further sum, not exceeding ten pounds 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 compensatiou 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 three 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 offictr, shall pay to every passenger entitled to a passage (or if such passenger shall be lodged and maintained in any establishment under the superintendence of the said Kmigration Com- missioners, then to the emigration officer at the port of embarkation), subsistence money after the rate of one shilling and sixpence for each statute adult in respect of each day of delay for the first ten days, and afterwards three shillings 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 ; provided that if the passengers be maintained on board in the same manner as if the voyage had commenced, no such subsistence money shall be payable 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 unavoidably detained by wind or weather, oi' by any cause not attributable, in the opinion of the emigration officer, to the act or default of the owner, charterer or master. PASSENGEBS ACT, 1855. 861 50. If any " passenger ship" shall, after clearance, be detained in port for more than 18 & 19 Vict. seven days, or shall put into or touch at any port or place in the United Kingdom, she c. 119. shall not put to ^ea again until there shall have been laden on board, at the expense of the owner, charterer, or master of such ship, such further supply of pure vrater, whole- Ships putting some provisions of the requisite kinds and qualities, and medical comforts and stores, as p^enish rjrovi- may be ni^cessary to make up the lull quantities of those articles herein-hefore required sion.s, cSsc. to be laden on board for the intended voyage, nor until any damage she may have sus- tained shall have beeu effectually repaire 1, nor until ttie muster of the said ship shall have obtained froiu the emigration officer or his assistant, or, where there is no such officer, or in his absence, from the officer of customs at such port or place, a certificate to the same effect as the certificate herem-before required to enable the ship to be cleared out ; and in case of any default hereia the said master shall be liable, on conviction, as Penalty on mas- herein-after mentioned, to a penalty not exceeding one hundred pounds nor less than fifty ^^^ '"'' default. pounds sterling : And if the master of any " passenger ship " so putting into or touching sjjjps putting at any p(irt or place as aforesaid shiiU not within twelve hours thereafter report, in bade to be writing, his arrival, and the cause of his putting back, and the condition of his shii^, and reported to of her stores and provisi 'Us, to the emigration officer, or, as the case may be, to the q'^J,^" '"" officer of customs at the port, and shall not produce to such officer the official or " master's list " of passengers, such master shall for each offence be liable to a penalty not exceeding twenty pouudi nor less than two pounds sterling. 51. [Repealed bi/ 2t> ™ !"« rnonperformance of any contract made or entered into between or on behalf of any 862 PASSENGERS ACT, 1855. IS & 19 VioT. C. 119. Hor Majesty- may, ty orders in council, pre- scribe rules for purposes herein described. Gazette and copies printed by Queen's printer to be evidence of orders, &c. Surgeon or master to exact obedience to rules and regu- lations. Penalty on refusal. Emigration commissioners to prepare an^ abstract of Act and orders in council. Such abstract to be posted up in each ship. Penalty on mas- ter lor neglect ; and on person defacing ab- stract. Sale of spirits prohibited on board passenger ships. Penalty. Bond to be given by masters of British and foreign pas- senger ships. Counterpart of bond to be certi- fied, and sent to the colony to -which ship bound, and to be received in evidence -with- out further such passenger or other person, and the master, charterer, or owner of any such ship, or his or their agent, or any passage brolier. 59. It shall be lawful for Her Majesty, by any order in council, to prescribe such rules and regulations as to Her Majesty may seem fit, for the following purposes ; ^that is to say.) 1st. For preserving order, promoting health, and securing cleanliness and ventilation on board of "passenger ships" proceeding from the United Kingdom to any port or place in Her Majesty's possessions abroad. 2d. For permitting the use on board of " passenger ships " of an apparatus for dis- tilling water, and for defining in such case the quantity of freshwater to be carried in tanks or ca-sks for the passengers. 3d. For prohibiting emigration from any port or ports at any time when choleraic or any, epidemic disease may be generally prevalent in the United Kingdom or any part thereof, or for reducing the number of passengers allowed to be carried in " passenger ships " generally, or from any particular ports under the provisions of this Act. 4th. For requiring duly qualified medical practitioners to be carried in " passenger ships," in cases where they would not be required to be carried under the pro- visions of this A ct. 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 Gazette, or purporting to be printed by the Queen's printer, shall throughout Her Majesty's dominions he received in all legal proceedings as good and sufficient evidence of the making and contents of any such order in council. oO. In every such " passenger ship " the medical practitioner on board, aided by the master thereof, or, in the absence of such medical practitioner, the master of such ship, is hereby empowered to exact obedience to all rules and regulations which may be pre- scribed by any such order in council to be observed on board passenger ships 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 master of such ship in the execution of any duty imposed upon him by 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 two pounds sterling, and, in addition thereto, to be confined in the common gaol for any period not ex;ceedin"- one month, at the discretion of ihe justices who shall adjudicate on the complaint. 61. The said Emigi-ation Commissioners shall from time to time prepare such abstracts as they may think proper of the whole or imy part of this Act and of any such order in council as aforesaid; and four copies of such abstracts, together with a copy of this Act shall, on demand, be supplied by the principal oflScer of customs at the port of clearance to the master of every " passenger ship '' proceeding from the United Kingdom to any port or place in Htr Majesty's possessions abroad; and such master shall, on request made to him, produce a copy of this Act to any passenger on board, for hi^ 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 be liable to a penalty not exceeding forty shillings sterliuo- for every day during any part of which by his act or default such abstracts shall fail to be so posted ; and any person displacing or defacing such abstracts so posted shall be liable to a penalty not exceeding forty shillings sterling. ()2. If in any "passenger ship" any person shall during the voyage, directly or indi- rectly, sell or cause to be sold any spirits or strong waters to any passenger, he shall be liable for every such offence to a penalty not exceeding twenty pounds nor less than five pounds sterling. 63. Before any "passenger ship" shall clear out or proceed- to sea, the master, together with the owner or charterer of the ship, or, in the event of the absence of i-uch owner or charterer, or if the master be the owner or charterer, one other good and sufficient person to be approved by the chief officer of customs at the port of clearance, shall enter into a joint and several bond, in the sum of two thousand pounds, to Her Majesty, 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 anv "passenger ship "bound to any of Her Majesty's possessions abroad, to certify on cue part of such bond that it has -been duly executed by the said master of such shin and the other obligor, and to forward the same by post to the colonial secretary of the colony to which such " passenger ship " may be bound ; and such certificate shall in any colonial court of judicature in which the bond may be put in suit, be deemed' conclusive evidence of the due execution of the bond by the said master and the PASSEXGEES ACT, 1855. 863 other obligor, and it shall not be necessary to prove the handwriting of the officer of 18 & 19 Vict. oustoms who may have signed such certidcate, nor that he was at the time of signing it c. 119. chief officer of customs at the port of clearance ; provided that no such bond shall be put in suit in any of Her Majesty's possessions abroad after the expiration of three calendar proof of execu- months next after the arrival therein of the said ship, nor in the United Kingdom after "' the expiration of twelve calendar months next after the return of the said ship and of the said master to the United Kingdom. 65. In the absence of any agreement to the contrary, the owner shall be the party In the aTiscnce viltimately responsible, as between himself and the other persons hereby made liable in of agreement to respect of atiy default in complying with the requirements of this Act ; and that if any ownertnTi? such last-mentioned person shall pay any monies hereby made payable to or on behalf of responsible in any such passengers as aforesaid, the person so paying the same shall be entitled, in the respect of absence of any such agreement as aforesaid, to sue for and recover from the owner the "'^"'•""■ amount so paid, together with coats of suit. 66. No person whatever shall directly or indirectly act as a passage broker in respect No person to act of passages from the United Kingdom to any place out of Europe, and not being within ?^^ ^ passage the Mediterranean Sea, or sliall sell or let, or agree to sell or let, or be in anywise con- ^ Hconce. cerned 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 sufficient sureties to be approved by the emigr.itiun Oitioer at the port nearest to the place of business of such person, shall have previously entered into a joint and several bond in the sum of one thousand pounds to Her Majesty, her heirs and successors, according to the form contained in schedule (D.) hereto annexed? which bond shall be renewed on each occasion of obtaining such licence as herein-after mentioned, and shall be in duplicate, without stamps, and one part thereof shall be deposited at the office in London of the said Emigration Commissioners, and the other part thereof with the emigration officer at the port nearest to the place of business of such person ; nor unless such person shall have obtained a licence, as herein-afier men- tioned, to let or sell passages, nor unless such licence shall then be in force ; and if any person shall offend in any particular against this enactment, every person so offending shall for each offence be liable to a penalty not exceeding fifty pounds nor less than twenty pounds, to be sued for and recovered as hereinafter mentioned : Provided that such bond shall not be required of any person who shall be one of the sworn brokers of the city of London : Provided also, that there shall be excepted from the operation of Emigi'ation this section the said Emigration Commissioners, and any persons contracting with them. Commissioners or acting under their authority and also any person acting as the agent of any passage pasgaS™),rokers broker in pursuance of an appointment made in the form prescribed by schedule (1 ) exempted from hereto annexed, signed by such passage broker, and countersigned by such emigration tliis section. officer as aforesaid : Provided further that the acts aud defaults of any person acting Passage brolters under the authority or as a^ent of any passage broker shall, for the purposes of this Act, for^thdr^^eiits? be deemed to be also the acts and defaults of such passage broker : Provided also, that ° nothing herein before coniained shall be held or construed to prevent the said emigration officer from accepting the bond of a guarantee society, such bond and such guarantee society as shall have been approved by the lords commissioners of Her Majesty's Treasury, in lieu of the bond of two good and sufficient securities as aforesaid. 67. Any person wishing to obtain a licence to act as a passage broker in respect of How passage passages from the United Kingdom to anyplace out of Europe, and not being in the j^™^ ^"jf ^jji'^'^'"' jUediterranean Sea, shall make a|>plication for the same to the justices at the petty tained. sessions held for the district or place in which such person shall have his place of busi- ness ; and such justices are hereby authorized (if they shall think fit) to grant a licence for that purpose, according to the form in the schedule ( iC.) hereunto annexed, which licence shall continue in force until the thirty-first day of December in the year in wh'ch such licence shall be granted, and for thirty-one days afterwards, unless sooner forfeited, ^Jjf^fjf„*^snre as herein mentioned ; and upon granting such licence the justices shall cause a notice g^^^„^ c„,„. thereof according to the form in schedule (P.) hereto annexed to be transmitted forthwith missioners of bv the post to the said Kmigration Commissioners at their office in London: Provided licence granted, always that no such licence shall be granted unless the party applying for the same shall Notice to be show to the satisfaction of the justices that he has given such b.md to Her Majesty, her |Xn Com-" heirs and successors, as herein-before required, and has deposited one part thereof at the missioners of office in London of the said commissioners, or is a sworn broker of the city of London, intended appU- and has in either case given notice to the said commissioners fourteen clear days at least eat.™ for before such application of his intention to apply for the same, which notice shall be transmitted by the post to the office in London of the said com missioners, and shall be aceordinff to the form contained in the schedule (G.) hereto annexed : Provided also, power to justices that any justices of the peace who shall adjudicate on any offence against this Act, or on *» o^^; l^»™<'^ any breLh or nonperformance of any of the requirements thereof, are hereby authorized, t^^^^.^^f^^^f^' if they shall think fit, and the oHender is a passage broker, to order his Ucenoe to be notice of the 864 PASSENGERS ACT, 1855. 18 & 19 Vict, forfeited, and tke same shall thereupon be forfeited accordingly ; and the same justices C. 911. making such order shall forthwith cause notice of such forfeiture, in the form contained in the schedule (H.) hereunto annexed, to be transmitted by the post to the said com- missioners at their office in London ; in Scotland, where any person wishing to obtain such licence shall make application for the same to the sheriff or steward or sheriff Scotland. Passage brokers to employ no agents except those expressly appointed by them. Agents to pro- duce their ap- pointments on demand. Penalty on per- sons fraudu- lently inducing others to engage passages. same to Emi- gration Com- missioners. ~rt — — — • 1 +1, As to application substitute or steward substitute, in place of to such justices of the peace as aforesaid, the for licences in forms giveu in the said schedules (D.), (E.), (F.), (G.), and (H.) respectively, shall still be adhered to, with such alterations as may be necessary. 68. [Eepealed 38 cfc 39 Vict. c. 66.] 69. No passage broker shall employ as an agent in his business of passage broker any person not holding from him the appointment of agent as hereinbefore mentioned ; and every person holding such appointment shall produce the same, on the demand of any emigration officer, or of any person treating for a passage under this Act : For any breach or violation of this enactment in any particular, the offender shall be liable for each offence to a penalty not exceeding fifty pounds nor less than twenty pounds. 70. If any person shall by false representation as to the size of a ship, or otherwise, or by any false pretence or fraud whatsoever, induce any person to engage a passage in any ship, the person so offending shall for each offence be liable to a penalty not exceeding twenty pounds nor less than five pounds sterling. 71. Every person whatever, except the said Emigration Commissioners and persona acting for them and under their direct authority, who shall receive money from any Contract ticlcets mrson for or in respect of a passage in any ship, or of a cabin passage in any " passenger other TOs™'^ ship" proceeding from the United Kingdom to any place out of Europe, and not being sengers. 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 " passenger 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 out in plain and legible characters on a printed form, which in the case of cabin passengers shall be accord- ing to the form contained in schedule (K.) hereto annexed, and in the case of all other passengcis 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 Commissioners in any notice issued under their hands, or the hands of any two of them, and published in the London Gazette : And any divectiims contained on the face of such form uf contract ticket shall be obeyed in the same manner as if herein pet forth. lu case of noncompliance with any of the requirements 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 each offence be liable to a penalty not exceeding fifty pounds, nor less than five pounds sterling : provided always, that such contract tickets shall not be liable to any stamp duty. 1'Z. Any person who shall alter or cause to be altered, after it is once issued, or shall to"mrt with ™duce any per.-^on to part with, render useless, or destroy any such contract ticket, duiing the continuance of the contract which it is intended to evidence (except in the case of cabin passengers who may have consented thereto), shall be liable in each case to a penalty not exceeding twenty pounds sterling. 73. Any question which may arise respecting the breach or nonperformance of any of the stipulations in any such contract ticket, may, at the option of any passenger or cabin passenger interested therein, be heard and determined in a summary way by the justices of the peace, magistrates, sheriffs, or other officers hereinafter authorized to adjudicate on oS'encesand complaints under the Act, who are hereby authorized to try such questions, and if they shall find that a breach of contract has been committed, to award to the complainant such damages and costs as they may think fit, not exceeding in any case the amount of the passage-money specified in such contract ticket and twenty pounds ; and if such damages and costs be not at once paid, payment thereof shall there- upon be enforced, in the same manner and by the same processes as the payment of subsistence money, or the return of passage-money, may be 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 be 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, refuse or omit to procure his contract ticket, or if any owner, charterer, or master of a ship, Penalty for Inducing any one t . ' * contract ticket. Summary remedy for breach of contract. Penalty on cabin passengers and ™,"^'.f to ^rA' shaU on like demand refuse or omit to produce to any emigration officer in the United ""' '"" " ^^"' Kingdom the counterpart of any contract ticket issued by them, or on their behalf, for the inspection of such emigration otlicer, and for the purposes of this Act, every person so offending against the lequirements of this section shall for each offence be liable summarily to a penalty not exceeding ten pounds. 75. Any person who shall act as an "emigrant runner" without having previously been omitting to pro- duce contract tickets. Penalty on per- runners without licensed and registered as hereinafter mentioned, or who -while so acting shall omit to PASSRNGEES ACT, 1855. 8G5 wear conspiouoiisly on his breast such badge as hereinafter mentioned, or who shall IS & 10 Vic;'. employ as an "emigrant runner " any person not duly licensed and registered, shall for c. 119. each offence be liable to a penalty not exceeding five pounds nor less than twenty sniUmgs. licence and 76. The Justices of the peace at any petty sessions held for the district or place within ™Sfie™ro?-" which any person wishing to act as an " emigrant runner " is to carry on his business employing"''"™ may upon the recommendation in writing of an emigration officer or of the chief con- them. stable or other head officer of police of such district or place (but not otherwise) grant, j*?"*-^"."^^, if they shall think fit, to such person wishing to act as runner a licence for that purpose ac- ve^Meiina^''' cording to tke form in schedule (M.) hereto annexed, and such runner shall within forty- runners. eight hours thereafter (under a penalty not exceeding forty shillings for any default) lodge such licence with the nearest emigration officer, who shall register the name and abode of such runner in a book to be kept for that purpose, and shall number each name registered in arithmetical progression, and shall supply to each runner, on his paying a sum not exceeding seven shillings for the same, a badge of such form and description as shall be approved by the said Emigration Commissioners. 77. Every such " emigrant runner's " licence shall continue in force until the thirty- Einigi-aiit nn- first day of December in the year in which it shall be granted, unless sooner revoked by ^'''f 'icome to any justice of the peace for any offence against this Act or for any other misconduct aiinualTy ' 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 runner holding such renewed licence. 7S. If any " emigrant runner " shall refuse or fail to produce, on demand, his badge Penalty on run- for inspection, or to permit any person to take the number thereof, or if he shall fail "''J' ^°^ certain within forty-eight hours to give to the emigration officer of the port or place within which conduct. 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 his badge, or if he shall mutilate or deface his badge or wear the same while unlicensed, or wear any other than the one delivered to him by such emigration officer as aforesaid, or permit any other person to use his badge, he shall for each such offence be liable to a penalty not exceeding forty shillings and to the forfeiture of his licence, if the convicting justices or magistrate shall pCTsons udn" so determine; and any person retaining or using any " emigrant runner's " badge not tadges not law- issued to him under the provisions of this Act, or counterfeiting or forging any such badge, lully issued to shall for each such offence be liable to a penalty not exceeding five pounds. S™''/-. j 79. Such emigi-ation officer as last aforesaid may, if he thinks fit, on payment to him of todies may be the sum of five shillings, deliver a new badge to any licensed "emigrant runner " who obtained in case shall satisfy such officer that he has lost his original badge, or who shall deliver up the the old ones ave same in a mutilated or defaced state. , lated°'^ '"" '" 80. No "emigi-ant runner" shall be entitled to recover from any passage broker any Emiiiers not fee, commission, or reward for or in consideration of any service connected with emigra- entitled to com- tion, unless he shall be acting under the written authority of such passage broker, nor, anTT)ass*a°"' under a penalty for each offence not exceeding five pounds, shall take or demand from ijroker unTo.';s any person about to emigrate any fee or reward for the procuring of his passage, or in any acting with his way relating thereto. authority^ nov 81. Every passage broker shall exhibit and keep constantly exhibited in some con- fo™™™?!)']'" ^ spicuous place in his office or place of business a correct list, in plain and legible their passage. characters, containing the names and addresses in full of every person for the time being List of runiuT.-i holding such authority to act as his agent or as an emigrant runner for him as aforesaid, ^y brokers' aiid and shall on or before the fifth day, or if that day be a Sunday, on or before the fourth ggnt to emigra- day in every month, transmit a true copy of such list, duly signed by him, to the tion offlcer.i, 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 runner " within twenty-four 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 five pounds nor less than two pounds. 82. It shall be lawful for the trustees or other persons charged with the management Tnistees of of any docks or basins in any port within the United Kingdom from which " passenger ^°°Jjj^™f J/'^"'' ships " are despatched to make, and from time to time to alter, amend, or repeal, such regulating the rules and byelaws as may be necessary for prescribing the docks, basins, or other places landing and at which persons arriving by sea at such ports for the purpose of emigrating, or actually f"?^^*^*'™ f^ emigrating therefrom, shall be landed and embarked, and the mode of their landing and ^.^^^^^^ ^^^ j.^^ embarkation, and for licensing porters to carry their luggage and otherwise to attend upon licensing emi- them, and for the storing and safe custody of their luggage, and for admitting persons to grant portera. and excluding persons from access to such docks or basins, and for attaching a penalty not exceeding five pounds for the breach of any of such rules or byelaws, such penalty 3 K 866 PASSENGERS ACT, 1855. 18 & 19 Vict. 0. 119. Byelaws to be approved by Secretary of State, and piib- lislieil in the London Gazette. Penalty fnr falsifying docu- ments to obtain passages from Emigration Commissioners, and for persona- tion. By whom penal- ties are to be recovered. By whom pas- sage, subsist- ence, and com- pensation monies may be recovered. Tribunal for adjudicating on offences and complaints under this Act. 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 lawful for such trustees, by their ofBeers or servants, or by any police officer, to arrest and detain any person charged with the breach of any such rule or byelaw until brought before any justice of the peace, who is hereby authorised to adjudicate on the offence in a summary way : provided that no such rules or byelaws shall take effect until they shall have been approved by one of her Majesty's principal secretai-ies of state, and published by his authority in the London Ga-ette, which publication shall for all purposes be deemed conclusive evidence of such rules and byelaws, and of the approval thereof by such secretary of state. _ • 8:<. And whereas the said Emigration Commissioners and persons acting under their authority issue from time to time certain forma of application and other papers for the use of persons desirous of emigrating by their assistance : and whereas it is expedient to afford additional security against the falsification or misuse of such forms and papers, and of any certificate of marriage or of birth or baptism, or other document or statement adduced in support of any application to the said commissioners for such assistance : Be it therefore enacted, that if any person shall falsely represent himself to be or falsely assume to act as the agent of the said commissioners, or shall sell any such form of application, paper, or embarkation order, or shall wilfully make any false representation iu any such form of application, paper, certificate, 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 abet any person in any such false representation, forgery, alteration, or personation, the person so offending shall be liable for each such offence to a penalty not exceedmg fifty pounds nor less than two pounds sterling. 84. All penalties and forfeitures imposed by this Act shall be sued for in the United Kingdom by any emigration officer or his assistant, or by any person authorised thereto by the said Emigration Commissioners under the hands of any two of them, or by any collector or comptroller of Her Majesty's Customs, or by any other officer of Her Majesty's Customs authorised thereto iu writing by the Commissioners of Her Majesty's Customs, and iu any of Her Majesty'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 authorised as aforesaid, or by any officer authorised to sue for penalties and forfeitures under this Act by writing under the hand and seal of the governor of any such possession ; and the said Emigration Commissioners, and the Commissioners of Her Majesty's Customs, and every such governor, are hereby respectively empowered to grant such authority 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 passenger 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 breach of any stipulation in any contract ticliet, shall and may be sued for and recovered before any two or more justices of the peace acting iu any part of Her Majesty's dominions or possessions in which the offence shall have been committed or the cause of complaint shall have arisen, or in which the oft'ender or party complained against shall happen to be, or acting in any county or borough, or place 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 information or complaint made before anyone justice of the peace acting as aforesaid he shall issue a summons, according to the form in the schedule (N.) hereto annexed, requiring the party offending or complained against to appear at a time and place to be named therein ; and every such summons shall be served on the party offending or complained 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 service 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 aforesaid may either hear and determine the case in the absence of the party, or either of them may issue his warrant for ap- prehending and bringing such party before them or any two j ustices 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 warrant in the first instance, without any previous summons ; 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 PASSENGERS ACT, 1855. 867 any written information or complaint; and upon proof of the offence, or of the com- 18 & 19 VrcT. plainaut's claim (as the case may be,) either by confession of the party offending or c. 119. complained against, or upon the oath of one or more credible witness or witnesses (and tho justices are hereby authorised to summon and swear any witnesses who may be deemed necessary), it shall be lawful for such justices so acting as aforesaid to convict the offender, or to adjudicate upon the complaint, (such conviction or adjudication to be drawn up according to one of the forms of conviction or adjudioatioa contained in schedule (0.) hereto annexed, or as near thereto as the circumstances of the case will admit,) and upon every such conviction to order the offender to pay such penalty as they may think proper, not exceeding the penalties hereiubefore imposed, and upon every such adj udication to order the party complained against to pay to the party suing for the same the sum of money, or damages sued for, or so much thereof as sucli justices shall think the complainant justly entitled to, together with in every case, the costs of the proceed- ings ; and if the monies and costs mentioned in such conviction or adjudication be not paid immediately or witliin the time limited in the order it shall be lawful for any two of such justices so acting as aforesaid, by warrant, (and although the written order of con- viction or adjudication, or any minute thereof, may not have been served,) to cause the party offending to be committed to gaol, there to be imprisoned, with or without hard labour, according to the discretion of such justices, for any term not exceeding three calendar months, unless such monies and costs be sooner paid and satisfied : provided Proviso where always, that in all proceedings taken under this Act for which no form is herein ex- ""'""j?"' pressly provided it shall be lawful to use forms similar, as nearly as circumstances will preserihed by admit, to those contained in the schedule to an Act passed in the session of Parliament this Act. holden in the eleventh and twelfth years of the reign of her present Majesty, chapter forty-three. 86. Every police or stipendiary magistrate, and in Scotland every sheriff or steward Police and and sheriff substitute or steward substitute of a county or stewartry, within his own stipendiary county or stewartry, shall have such and the like powers, privileges, and functions, and be J^i^jn Scotland entitled to exercise such and the like jurisdiction under this Act, as any justice or two sheriff, &c., to justices, or justices at petty sessions, have or is or are entitled to exercise under the pro- have the same visions of this Act; and all acts, matters, and things competent to be done under t^e P°™™ ^^J"^^" provisions of this Act by or before any justice or two justices of the peace, or justices at peace. petty sessions, or otherwise, may be done by and before any police or stipendiary magistrate, and in Scotland by and before any sheriff or steward or sheriff substitute or steward substitute within his own county or stewartry. 87. No objection shall be taken or allowed to any complaint, information, summons, or No objection to warrant under this Act, for any alleged defect therein, either in substance or in form, or jQjS^e^gfg Jn'^ for any variance between such complaint or information and the evidence adduced on ^,3 quashed for the hearing thereof, but if any variance shall appear to the justice or justices present and want of form, acting at such hearing to be such that the party so summoned and appearing has been thereby deceived or misled, it shall be lawful for such justice or justices, upon such terms as he or they shall think fit, to a'i journ 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 justices may think fit, or to discharge him upon his recognizance, with or without sureties, 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 notwithstanding any Application of local Act of Parliament to the contrary, be paid to the emigration officer or officer of penalties. customs at whose suit the same shall have been recovered, for the use of Her Majesty 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 United Kingdom shall be paid over to the said Emigration Commissioners if the party at whose suit the same shall have been recovered be an emigration officer or his assistant, and to Her Majesty's Commissioners of Customs if the party at whose suit the same shall have been recovered be an officer of customs, to be by such Emigration Commissioners and Commissioners of Customs respectively duly accounted for ; and all such penalties as may be recovered in the United Kingdom shall be ap- propriated to such purposes and in such manner as the Lord High Treasurer or the Com- missioners of Her Majesty's Treasury may from time to time direct and appoint : pro- justices may Tided always, that it shall be lawful for the justices of tlie peace who shall impose any award compen- Buch penalty at the same time to direct, if they shall think fit, that a part, not exceeding ^™°J^i°3 (.„ one moiety thereof, be applied to compensate any passenger for any wrong or damage ^^^y aggi-ieved. which 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 any Burden of proof question shall arise whetlier any ship was or was not exempted from the provisions of this to be on persons 3 K 2 868 PASSENGERS ACT, 1855. 18 & 19 ViOT. Act or any of them, the burden of proving that such ship was so exempted shall he on c. 119. 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 pro- tSrom Act!''" visions of this Act; and it shall not be necessary, in any information, complaint, or other process or proceeding, to negative any exemption, proviso, or condition contained m any section of this Act on which such information, complaint, or other process or proceeding shall be framed, neither shall it be necessary for the complainant to prove the negative, but the defendant may prove the affirmative thereof, if he will have advantage of the same. 90. If in any proceeding before any justice or justices of the peace under this Aot,^ or upon any action, suit, 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 officer 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 under this Act for any sum of money made recoverable 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, notwith- standing the same, if recovered, shall be applicable to his own use and benefit. 92. No plaintiff shall recover in any action against any emigration officer, 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 anything done in pursuance of or uuder_ the authority of this Act, until ten 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 brouglit, nor after three calendar months next after the act committed and mentioned in such notice for which such action or suit shall be so brought ; and every such action shall be brought, laid, and tried where the cause of action shall have arisen, and not iu 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 which 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 ten 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 jury shall find a verdict for the defendant therein ; and if a verdict shall be found for such defendant, or if the plaintiff in such action or suit shall become nonsuited, or sufifer a discontinuance of such action, or if upon any demurrer in such action, judgment shall be given for the defendant thereon, then and in any of the cases aforesaid such defendant shall recover full costs of suit as between solicitor and client, and shall have such remedy for recovering the same as any defendant may have for his costs in any other case by law. 94. Where no time is expressly limited within which any complaint or information is to be laid for any breach or nonperformance of any of the requirements of this Act, the complaint shall be made or the information laid within twelve calendar months from the time when the matter of such complaint or information respectively arose, or iu case the master of any ship is the offender or party complained against, within twelve calendar months next after his return to the country in which the matter of complaint or infor- mation arose. Colonial voyages 95. And whereas it is expedient to provide in certain cases for the carriage of passengers defined. by sea from Her Majesty's possessions abroad : Be it therefore enacted as follows : For the purposes of this Act the term " colonial voyage " shall signify any 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 four hundred miles, or the duration of the voyage, to be prescribed as hereinafter mentioned, shall exceed three days. This Act to 9tj. This Act shall apply, so far as the same is applicable, to all ships carrying apply to all colo- passengers on any such " colonial voyage," except as to such parts of the Act as relate to ^^c^tSates tl^e following matters ; (that is to say,) to matters 1- i passage brokers and their licences : herein named. 2. To passeugers contract tickets : 3. To emigrant runners : 4. To the giving bond to Her Majesty : 5. To the keeping on board a copy of this Act : Proof of nega- tives. Proof of a party being an emigra- gration officer. Passengers suing not incompexent mtnesses. Tender of amends. Limitation of actions against officers exe- cuting tlie Act. Defendant may plead the gene- ral issue, &c. Costs. Limitation of legal proceed- ings generally. PASSKNGERS ACT, 1855. 869 6. To orders in council regulating emigration from the United Kingdom, or prescribing 18 & 19 Vict _ rules for promoting health, cleanliness, order, and ventilation : c 119 ' Provided that if the prescribed duration of any " colonial voyage " be less than three '- '- weeks, then, in addition to the matters lastly hereinbefore excepted, the provisions of " ^^ colonial this Act shall not extend or apply, so far as they relate to the following subjects; IhSree ^°%?^'y') weeks, this Act ihe construction or thickness of the decks : not to apply to The berths and berthing : subjects herein 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 forty-eight hours after arrival : Provided also, that in the case of such " colonial voyages " whereof the prescribed dura- tion is less than three weeks, the requirements of this Act respecting the issue of provisions shall not, except as to the issue of water, be applicable to any passenger who may have contracted to furnish his own provisions. 97. it shall be lawful for the governor of each of Her Majesty's possessions abroad, by Governor of any proclamation to be by him from time to time issued for that purpose (which shall p?ociima™on ^^ take effect from the issuing thereof) to declare what shall be deemed for the purposes of declare length this Act to be the length of the voyage of any ship carrying passengers from such posses- "f voyage, and siou to any other place whatsoever, and to prescribe such scale of diet for the use of the ''j ^""^medf "^ passengers during the voyage as he shall think proper, and also to declare what medicines, cines, and medi- medioal comforts, medical instruments, and other matters shall be deemed necessary for cal eomtorts. the medical treatment of the passengers during such " colonial voyage ; " and the pro- visions and requirements of every such proclamation shall be enforced in all Her Majesty'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 Copies of pro- to be under the hand of the governor of the colony wherein the same may have been peJ™*ed"s evi^° issued, and under the public seal of such colony, shall in any part of Her Majesty's dence. dominions wherein the same shall be produced be received as good and suf&cient 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 authorise Provision for such person or parsons as they may think fit to make the like survey and examination of survey of ships "passenger ships" sailing from such possessions respectively as is hereinbefore required to andfor^appoSt- be made by two or more competent surveyors in respect of " passenger ships " sailing incr surgeons from the United Kingdom, and also to authorise in such cases, as to such governors may thereto. 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 government po^gr to the of the East India Company : It shall, however, be lawful for the Governor General of Governor Gene- India in Council, from time to time, by any Act or Acts to be passed for that purpose, r^l of ^?'^1^ ^^ to declare that this Act or any part thereof shall apply to the carriage of passengers upon ^^ t^'^e passJd any voyage from any ports or places within such territories, to be specified in such Act for that purpose, or Acts, to any other places whatsoever, to be also specified in such Act or Acts; and to adopt this Act also in like manner to authorise the substitution, as respects such voyages, of "tl^^r '°''jJ°^J||^|'°^ *° articles of food and provisions for those hereinbefore enumerated ; and to declare the specting food, rule of computation by which the length of any such voyage shall be estimated ; and to passengers, determine the persons or officers who in such territories shall be entitled to exercise or surgeons, &c. perform the powers, functions, or duties hereinbefore given to or imposed upon the emigration officers and officers of customs in the United Kingdom ; and to authorise the employment on board any ship of a medical practitioner duly qualified by law, to practise as a physician, surgeon, or apothecary within such territories ; and to declare for the purposes of this Act the space necessary for passengers, and the age at which two children shall be considered equal to one statute adult, in ships that may clear out from any port or place within such territories ; and also to declare in what manner, and before what And to declare authorities, and by what form of proceedings, the penalties imposed and the sums of in wliat manner money made recoverable by this Act shall be sued for and recovered within such terri- P™y be^fuS'for tories, and to what uses such penalties shall be applied : and on the passing of such ^nd recovered. 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 Buch voyages as in the said Indian Act or Acts shall be specified. The provisions of such * 870 PASSENGERS ACT, 1855. 18 & 19 Vict. Indian Act stall be enforced in all Her Majesty's possessions in like manner as the pro- c. 119. visions of this Act ina^ be eafdroecl : every such IndiaA Act shallbe sujjjeotto disallowance and repeal, and shall in the same manner be' trahstnitted to England, to be laid jaefore be^eXited^*''' ?'°* Houses of Parliament, as in the caseof any other law made by the Governor General the colonies in in Council. ..•,.£■ like manner as 100. The master of every ship bringing passengers into the United Kingdom from any this Act. place out of Europe, and not within the Mediterranean Sea, shall, within twenty-four List of Pissen- hours after arrival, deliver to the emigration officer or his assistant, or in their absence ^to the'united *" ^^^ "^^^^ officer of customs at the port of arrival, a correct list, signed by such master. Kingdom to be and specifying the names, ages, and callings of all the passengers embarked, and also the deliyerpd by the port or ports at which they respectively may have embarked, and showing which, if any ship tothe'mii- °^ *^''™' ""^y ^^^^ ^^^^' ^^'^ ^^^ supposed cause of death, or been born on the voyage, gration officer, ^"^d if any master shall fail so to deliver such list, or if the same shall be wilfully false. Penalty for he shall, on conviction, as hereinbefore mentioned, be liable to a penalty nOt exceeding neglect. fifty pounds. Such emigration or customs officer shall, upon receipt of such list, transmit births and ^^^ particulars respecting any passenger named therein who may have died, with the deaths at sea supposed cause of, death, or been born on the voyage, to the Registrar General of Births, to be made to Deaths, and Marriages, who shall file the same, and enter a copy thereof under his hand General ^'™ in the '' Marine Register Book," which entry shall be dealt with and be of the same value 6 & 7 W. 4, e. 86. '^ evideiice as any other entry made in such book under the provisions of an Act pas.sed in the session of Parliament held in the sixth and seventh years of the reign of H is late Majesty, Will. IV., intituled "An Act for Registering Births, Deaths, and Marriages in England." ' " ' ' Penalty on mas- 101. If any ship bringing passengers into the' United Kingdom from any place out of ters for having Europe shall have on board a greater number Ot passengers or persons than in the pro- greater number P°'^''i''°^ 'respectively prescribed in the fourteenth section of this Act for ships carrying of persons than passengers from the United Kingdom, the master of such ship shall be liable, on such prescribed by conviction as hereinbefore mentioned, to a penilty'not exceeding ten pounds nor less section 14 of than Sve pounds for each such person or statute adult constituting any such excess. p ..' . 10"2! The master of every passenger ship bringing' passengers into the 0nited Kingdom water to be from any place out of Eiirope shall make to each statute adult during the voyage, jssnedtopas- including the time of detention, if any,' at any port' or place Taeforfe the termination .sengers lirought thereof, issues of pure water and of good and wholesotne provisions in a sweet condition, Kingdom "he ^^ quantities not less in amount than is prescribed in the thirty-fifth section of this Act same as in ships fcr passengers proceeding from the United Kingdoin ; and in case of noncompliance with carrying passen- any of the requirements of this sectibn the master of such ship shall, oil such conviction ff'^^t'd'K*'"' ^^ hej-eiubefore mentioned, be liable for each offence to a penalty not exceedihg fifty dom.'' ™^" ?°""^^-i„_, , ■ , ' " ' ' Penalty for , 103. The schedules to this Act shall be deemed to be part of this Act, B,nd all the R°if'ri*i t h "i''®°*i°°^ therein contained shall be duty followed and enforced, under a penalty not pSt of the Act! exceeding ten pounds on the person failing to obey the sakne respectively. SCHEDULES to whieli the foregoing Act refers. SCHEDULE (A.) IRepealed hjZS tfc 39 Vict. o. 66.] PASSENGEES ACT, 1855. 871 18 & 19 Vict. c. 119. SCHEDULE (B.) Form of Passengers List. Ship's Name. Master's Name. Tons per terr Aggregate Number of Supeilicial Feet in the several Compart- ments set apart for Passengers other than Cabin Passengers. Total Number of Statute Adults, exclu- sive of Master, Crew, and Cabin Passengers, which the Ship can legally cany. Where bound. I hereby certify, That the Provisions actually laden on board this ship are sufficient, according to the Kequirements of the Passengers Act, for Statute Adults for a Voyage of Days. (Signature) Master. Date 185 Najies and Descriptions of Passengers. Ports of Em- Names of Passen- gers. Age of each Adult of 12 Tears and upwards. Children between 1 and 12 Infants. Profes- sion, Occu- pation, or Calling of Pas- senger. State whe- ther Eng- lish. Scotch, or Irish. Port at which Passen- gers barka- tion. Married. Single. Yeai's. have con- tracted to land. Male 1 Female Male Female Male Female Male Female Summary. Number of Souls. Equal 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 the Names and Descriptions of all the Passengers who embarked at the Port of (Signed) Master. Emigration Officer. (Countersigned) Officer of Customs at Date 185 N. B. — Lines should be ruled in the same Form, for any Additions to the List after the Ship first clears out ; and similar Certificates he subjoined to such Additions, accordiny to the Recfuirements of the Act. 872 PASSENGERS ACT, 1855. 18 & 19 Vict. c. 119. SCHEDULE (C.) * Insert liere the christian and surnames in full, with oc- cupations and addresses of each ot the two obligors. — Form of Bond to be given by the Master and by the Ownbb or Charterer of a " Passenger Ship." Know all Men by these presents, that we,* i n j are held and firmly 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 Two Thousand Pounds of good and lawful 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 Heu-s, Executors, and Administrators, and every of them, firmly by these presents. Sealed with our Seals. Dated this day of One thousand eighU hundred and fifty Whereas by the "Passengers Act, 1855," it is amongst other things enacted, that before 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 Owner or Charterer, or if the Master be the Owner or Charterer, One other good and sufficient person, to be approved by the Chief Officer of Customs at the Port of Clearance, shall enter into a Bond to Majesty, Heirs and Successors, in the Sum of Two Thousand Pounds : 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,t within brSdS [^'"^ ^^ '''^ ^^'^^ ^"^^P ^^^'1 '^'^^ »* ^'is ^°''' °^ ^^^ *^^™ ^'^^^^ ^^ shipped on is to be inserted board at such Port pure Water for the Use of the Passengers, sufficient in quantity to only when the afford an allowance of Three Quarts daily to each Statute Adult for the Period of Days on the Voyage 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, 1 855, (except such of them as relate exclusively to Passage Brokers and Kunners) and of the Emigration Commissioners acting in the Manner prescribed 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 % [and if the Master for the time being of the said Ship shall submit himself, in like manner 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 pay for or in respect of the Breach or Nonfulfilment 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 this Act shall also be well and truly paid, then this Obligation to be void, otherwise to remain in full force and virtue. SInsertnames Signed, sealed, and delivered by the above bounden and fSl o^the wit" ™ *'^® Presence of § jiesses. II [■'• liereby certify, that the above Bond was duly signed, sealed, and delivered II Certiiioateto according to the Law of Great Britain by the said Master of the said Ship be signed by the and by the said (other o5%isr)] chief officer ot /«;„„„t,„.„\ Chief Officer of Customs for the Customs and ^bignature) t> t * forwarded with ,^ ^ , ^°^ °i the bond to the (Date) 185 . colony, accord- ing to s. 64 of the Act. SCHEDULE (D.) FoEM OF Passage Broker's Annual Bond, -with, two sureties, to be approved by the Emigration Officer, at the nearest port. Know all Men by these Presents, That we, il. ^.* of . . C J), of,. &c. and E. F, of, &c. are held and firmly 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 One Thousand Pounds of good and lawful 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 these presents. Sealed with our Seals. Dated this day of One thousand eight hundred'and fifty Whereas by the " Passengers Act, 1855," it is amongst other things enacted, that no ship is to call at an intermediate port to take in water as pro- vided by s. 34 of the Act. t Tliis clause to be inserted only in the case of a foreign pas- sengers ship pro- ceeding to any of the British colonies. * Insert chris- tian and sur- names in full, with occupa- tions and ad- dress of each of the parties. PASSENGERS ACT, 1855. 873 Person whatever, save as therein excepted, shall directly or indirectly act as a Passage 18 & 19 Vict. Broker in respect of Passages from the United Kingdom to any place out of Europe, and 0. 119. 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 sufficient Sureties, to be approved by the Emi- gration Officer at the Port nearest the Place of Business of such Person, shall have pre- viously entered into a joint and several Bond to Her Majesty, Her Heirs and Successors, in the Sum of One Thousand Pounds : And whereas the said 0. D. and E. P. 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 Eequirements 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 liis 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 .4. i?., C. i>., and E. F., in the * Insert the Presence of* names and ad- ^__ dresses m niU of the witnesses. N.B. — This Bond is to be executed in Duplicate, in the Presence of and to be attested by an Emigration OfScer or his Assistant, or an Officer of Customs, or a Magistrate, or a Notary Public. One Part is to be deposited with the Emigration Commissioners in Londou, and the other Part with the Emigration Officer at the Port nearest to the Place of Business of the Broker. Each Member of a Firm or Partnership who acts as a Passage Broker must give a separate Bond with Two Sureties. [The Bond is exempt from Stamp Duty, but must be renewed annually with the Licence.] SCHEDULE (E.) FoEir OP PiSSAGE Broker's Licence.* A. B.,-\ of in the having shown to the Satisfaction of me {or us) the t The chris- undersigned, that he hath given Bond to Majesty, as by the " Passengers Act, tian ™?^'*^'j- 1855," required, and also given Fourteen Days previous Notice to the Emigration Com- "tth'^thc' address missioners of his Intention to make Application for a Licence to carry on the Business of aixl trade or oc- a Passage Broker in respect of Passages from the United Kingdom to any Place out of cupation oi' the Europe, and not being within the Mediterranean Sea, I (or we), the undersigned, having f^''^ theTcen"e^ had no sufficient Cause shown to me (or us), and seeing no vali(^ Reason why the said „-„ist be cor- A. B. should not receive such Licence, do hereby licence and authorise the said .4. B. to reetly inserted. carry on the Business of a Passage Broker as aforesaid until the End of the present Year, J,j.j'J,™™^hri's- * and Thirty-one Days afterwards, unless this Licence shall be sooner determmed by jj^^'and snr- Forfeiture for Misconduct on the Part of the said A. B. as in the "Passengers Act, 1855," names otaUthe ovided members must Given under my Hand and Seal {or our respective Hands and Seals), this Day ^^ S'ven. of 185 at . ,^ . (■Justices of the Peace, Police or Stipendiary Magistrate, Signature (l-S.)] or Sheriff, or Steward, or Sheriflf or Steward ( Substitute, as the Case may he. * N B —Each Member of a Firm or Partnership who acts as » Passage Broker must have a separate Licence. SCHEDULE (F.) FoBM OF Notice to be given to the Emigration Commissioners by Justices granting a Licence. Gentlemen, , ^, , , . , t, j.i, n„„ „f * Insert the This is to give you Notice, That we {or I), the undersigned, did on the JJay ot ^^^istian and 185 licence A B. ot* to carry on the Business of a Passage Broker surnames in under the Provisions of the " Passengers Act, 1855.'' Tddrel^and oo- Signatures | Justices of the Peace, or as the Case may be. ^P"*^"" "' **'° Place • I5ate To the Emigration Commissioners, London. 874 PASSENGERS ACT, 1855. 18 & 19 Vict. 0. 119. SCHEDULE (G.) * The chris- tian names and surname in full Form of Notice to be given to the Emigration Commiesioners by any Applicant for a Passage Broker's Licence. Gentlemen, . t j. a- I, A. B* of in do hereby give you Notice, That it is my Intention to apply, after the Expiration of Fourteen clear Days from the putting of this Notice into ■with the address thtj Fost, to the Justices to be assembled in Petty Sessions to be heldt K<^^' ^^,}'^^ and trade or oc- Police or Stipendiary Magistrate for the City or Borough or District of or it m Scotland to the Sheriff or Steward of as the Case may be), for a Licence to carry on the Business of a Passage Broker under the Provisions of the " PasseDgers Act, 1855" Signature . Date To the Emigration Commissiouers, London. cupation of the party applying lor a liueuce, must he here correctly in- serted. t The place or district in which the party giving the notice has his place of husiness. * The chris- tian and sur- names in full with the address and trade or oc- cupation of the party, to he here inserted. t Here state generally the reason of for- feiture. Insert in the proper places the christian and surnames iu full, with the correct ad- dresses and de- signations of the constituent and agent respec- tively. SCHEDULE (H.) Form of Notice to be given by the Justices to the Emigration Commissioners of Forfeiture of a Passage Broker's Licence. Gentlemen, This is to give you Notice, That the Licence granted on the Day of 185 to A. £.* of in to act as a Passage Broker, was on the Day of now last past duly declared by me {or us) the undersigned Justices of the Peace in Petty Sessions assembled, to be forfeited.t Signatures . Place and Date 185 . To the Emigration Commissioners, London. SCHEDULE (I.) Form of Appointment of Passage Broker's Agent. I, A. B. of, &o. {or as the Case may he) One of the Partners and on behalf of the Firm of, &c. {name all the Partners and the Style of the Firm) carrying on the Business of at , do hereby nominate and appoint you 0. D. of, &o., to act as my Agent and on my behalf in the Sale or Letting of Passages and otherwise in the Business of a Passage Broker, according to the Provisions of the " Passengers Act, 1866." Signature in full . Place and Date 185 . Counter Signature j Emigration Officer at the Port of PASSENGEES ACT, 1855. 875 B 5J C- bo ra^ 05 MSg ■2 g e g r. _^ gj5 g g-=) ofl g S a " m ° a "^ S" ° ™i- B E H -S ra c3 o Oi 5 ^ J3 ^^ _.S " ^ o o w rf o 0) « P< .9 o o t4 4^ h V cd , . ap 3 W 1-1 *-> ii =« (^ 2 §|g 5^13 -^ :<3n -iS ■^ 2 a ea O . -B P B > O "B B ^ p. S S B « 9 s P ^b: ss^-gt^sa; J ■^ B g « ^ » S S fe 3o 1 PI s « ill Ph i III ■ si s^i g »— 1 tS 1 |£ H-g g OJ re i2 lea ■gl'5^ ■*^ S a ao £.i! " a a C .3i ed B-- . <^ SSm CB'g ■a cj ce pm «f S Qj p! h Bi3 o ft in .to S_ rH O £ o 53 ^-a Sag -e >;•" a o,g III a F g « fl © ■3 §■§ 60 03 a^ 1-5 " ?5 ? ^a til '^■a'aj ° <- a jb op" O O "" «3 o 3 a a SFM „ p,m a S I Ph ! pOSoS-B-H©" BB .ilfl'^s-? 1. yoj-BP^B'SS s „ "S'^' S H'^ 2? B5 a ig--"sS-sass5^p.l 5 p ft a IB p^ s OJ rf H 43 O^O ^ 43 M ^ 'CJ m '^ ^ ,i?^ +3 ■-" ,c^ S ":'^t..^.M3SS).g|a.o->. |°5Ji55-s§«.ggi6 5 WrB r; B^B B ^ S i* g o-g t^ mtJ*^ SSm^ SB'S si" la g? 11^ .,.2^-g l>..B Hsig,s§^-?5ig5ei s p 5> a o ■a M ?Sh ?OP PhPS 00 ^OD .9 * ■* g A d M ^' M ill 1 c3 ^ "^ s PM o d ssi iz; r-l — '^ . to o fl ^ ^g r3 f- r: IS 'A R=^ 9 pp:! 876 PASSENGERS ACT, 1855. SCHEDULE (L.) Ship Coimtoi'part of Passen- ger's Contract Ticket. This Part of the Con- tract Ticket is to be separated from the other, and to he delivered by the Passenger to the Emigration Officer at the Port of Embarkation (or, if no such offlcer, to the Officer of Customs), or to any one appointed by him to receive it, under a penalty not exceeding £10. CS&SDi PASSENGER'S CONTRACT TICKET. These Directions and the " Notices to Passengers" be- low, form part of, and must appear on, each Contract Ticket. 1. A Contract Ticket in this Fonn must be given to every Passenger engaging a Passage from the United Kingdom to any Place out of Europe, and not being within the Mediterranean Sea. 2. The Victualling Scale for the Voyage must be printed in the Body of the Ticket. 3. All the Blanks must be correctly filled in, 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. 6. When once issued, this Ticket must not be with- drawn from the Passenger, nor any Alteration, Addition, or Erasure made in it. CosTEACT Ticket. I engage that the Per- sons mentioned below shall be provided with a Steerage Pass.age 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, including Government Dues, if any, and all Charges of Landing, & ^ Ages. Ship for of on the Equal to Statute Adults. Souls, equal to Statute Adults. To "be signed \ in full by the f Party issuing f the Ticket. ) * Insert Number of Souls and of Statute Adults respectively. Tons Register, to take in Passengers at , day of , 185 . I engage that the Person named in the Margin 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 Termi- nation, accordiug 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 £ ^^ ! part ! Pay^^ent. Deposit £ Balance £ Total £ 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 3 Quarts of Water daily, exclusive of what is necessary for cooking the Articles required by the Passengers Act to be issued in a cooked state ; and a Weekly Allowance of Provisions according to the follow- ing Scale : [Here insert the Victualling Scale intended to be used on the Voyage. This must be either the Scale prescribed in the 35th Section of the Pas- sengers Act, 1855, or that Scale modified by the Introduction of Articles authorized by the Act, to be sutastitnted 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.] to be paid at Notices to Passengers. 1. If Passengers, through no Default of their own, are not received on board on the day named in their Contract Tickets, or fail to obtain a Passage in the Ship, they should apply to the Government Emigration Offlcer at the Port who will assist them in obtaining Redress under the Passengers Act. ' 2. Passengers should carefully keep this part of their Contract Ticket till after the End of the Voyage. N.B.— This Contract Ticket is exempt from Stamp Duty. PASSENGERS ACT, 1855. 877 SCHEDULE (M.) Form of Emigrant Runner's Annual Licence. A. B* o£ in the having made Application in Writing to us, the undersigned Justices of the Peace assembled in Petty Sessions, for tbef of to grant to him a Licence to enable him to be registered as an Emigrant Kunuer in and fort , and the said [A. B.] having also been recommended as a proper Persou to receive such Licence by an Emigration Officer, or by the Chief Constable [or other Head Officer of Police, as the Case may be] of [ihe District^ Tovm^ or Place, in which the said A. B. is to carry on his Business] : We, the under- mentioned Justices, having no sufficient Cause shown to us, and seeing of ourselves no valid Reason why the said A. B. should not receive such Liceoce, do hereby grant to him this Licence for the Purposes aforesaid, subject nevertheless to be revoked for Misconduct on the Part of the said A. B., as in the " Passengers Act, 1855," is provided. 18 & 19 Vict. c. 119. § The chris- tian and sur- names in full, with the afldress of the party ap- plying for the licence, must he here correctly inserted. t City, town, or district in which the emi- grant runner is to carry on his business. SCHEDULE (N.) Form of Summons for a Defekdant or a Witness, A. B. Complainant. O. D. Defendant. County, w City, or Bo- rough, or Police District of (as the Case may be). This is to command you to appear without fail on the Day of instant {or next) at o'Clock in the I noon at before me, or other the Magistrate or Justices of the Peace then and there present* [to answer the » Insert this ■ Complaint of (an Emigration Officer, or Assistant vvlieu the de- I Emigration Officer, or OeBcer of Customs, or in the Colonies a n™, ,ed '^ ™'°" Government Emigration or Immigration Agent, as the Case may he,) for a Breach of the Section (or Sections, as tke Case may he.) of the Passengers Act, 1855,] f [or to give Evidence in the Complaint of A. B. against C. J). for Breach of the Passengers Act, 1855]. I Justice of the Peace, or Police or Stipendiary Magistrate Signed \ or Sheriff, or Steward, or Sheriff Substitute, or . t Insert this ° ) cii. J o 1. L-i L ,1 /I J, in case a witness ( Steward substitute, as the Case may be. ig summoned. Dated this Day of One thousand eight hundred and To SCHEDULE (0.) Form of Conviction andORDEK of Adjudication under the Passengers Act, 1855, when the Defendant appears. A. B. Complainant. C. D. Defendant. County, or City, or Bo- rough,, or Police Dis- trict, or Stewartry of {as the Case may be). Be it remembered, That on the Day of instant, C. D. of personally came before me {or us, as the Case may he.) at to answer the Compliint of A.B.* for a Breach of the Section {or Heotions, as the Case may be,) of the Passengers Act, 1855, in that, &c.+ ' or {as the Case may be) for a Breach of the Contract contained in I a certain Contract Ticket, dated , and issued by to for a Passage to in the Ship "Whereupon I {or we) did proceed to examine into the Complaint so made against the said C. D., and the same having been (admitted to be true by the said C. D., or as the Case may be,) fully proved to my {or our) Satisfaction by the Testimony on Oath of E. F. + s. credible Witness {or Witnesses), I {or we) § [.do convict him the said C. I), of tlie Offence {or Offences) aforesaid ; and I {or we)] do adjudge and order that he shall pay to the said A B. as such (Examination Officer, or Government Emigration Agent, or Officer of Customs, or Passenger of the Ship , as the Case may he) the Sum gf l_ by way of Penalty {or by way of Subsistence Money, or of Return of Passage Money or as Damages for Breach of such Contract as aforesaid as the Case may he,) [|| and shall also pay to the said A. B. the further Sum of l as oompen- . * State whether 'emigration offi- cer, or officer of Customs, or Go- vernment emi- gration agent, or passenger of the ship as the case may be. t Here describe briefly and in general terms the requirement (or require- ments J of the Act which has not been ful- filled. X Name the witness, or wit- nesses if more than one. § Omit these words where there is no con- viction, but only an order of ad- judication. II Insert this 878 PASSENGERS ACT, 1855. 18 & 19 Vict. c. 119. in cases where Gorapensation is awarded. IT Name the passenger or pas- sengers hy or on whose "behalf the oompensatiou is awarded. ** Insert this where the offen- der is a passage hroljer, and his licence is de- clared forfeited, tt Insert this where compen- sation out of the penalty is awarded to any aggi-ieved pas- senger. J J Name the passenger or passengers. §§ State county or district, &c., as the case may he. " State whether emigration offi- cer, or officer of Customs, or Go- vernment Emi- gration agent, or passenger of the ship, as the case may be. t Describe hriefly and in general terms the requirement (or require- ments) of the Act which has not been ful- filled. t Name the witness or wit- nesses. sation for the Loss and Inoouveuienee occasioned to T[ by the loss of Passage in the Ship ' ] ** [And I (or we) do also adjudge and order that the Licence granted to the said C. D. to act as a Passage Broker be forfeited.] ++ [And I (or we) do hereby also adjudge and order that that the Sum of ._ l, being a Part not exceeding One Moiety of the said Penalty of '., be applied to compensate t J for the Wrong or Damage which he (she or they) has (or have) sustained in this Matter. And I {or we) do further adjudge and order, that the said 0. D. shall forthwith pay to the said A. B. the further Sum of I. for the Costs and Charges by him the said A. B. incurred in the Prosecution of this Matter. Given under my Hand and Seal (or our Hands and Seals), this Day of One thousand eight hundred and [Justice of the Peace, Police, of Stipendiary Magis- Signature \ trate, or Slieri6f, or Steward, or Sheriff or Stewards ( Substitute, as tlie Case may be, for §§ Form of Conviction and Oedee oir Adjudication where the Defendant does not appear. A. B. Complainant. \ Bis ib remembered, That C JD. of being duly sum- C. i). Defendaut. ( moned to answer the Complaint of A. B* for a Breach of the Section (or Sections) of the Passengers Act, IS.'lO, in that, &o. f or (as the Cane may be), for a Breach of the Contract contained in a certain Contract Ticket, dated, and issued by to for a Passage to in the Ship , did not appear before me (or us), pursuant to the said Summons. Nevertheless, (I or we) did proceed to examine into "the Complaint so preferred against the said 0. D., and the same having been duly proved to my (or our) Satisfaction by the Testimony on Oath of E. F.X a credible Witness (or Witnesses), I (or we) do, &o. (proceed as in preceding Form of Conviction according to the Circumstances of the Case). County, or City, or Bo- rough, or Police District, I or Stewartry of , I (as the Case may be). ADMIEALTY COUET JUEISDICTION ACT. 24 VioT. 0. 10. AN ACT TO EXTEND THE JURISDICTION AND IMPROVE THE PRACTICE OF THE HIGH COURT OF ADMIRALTY. [17ft May, 1861.] Whereas it is expedient to extend the jurisdiction and improve the practice of the 24 Vict. c. 10. High Court of Admiralty of England : Be it therefore enacted by the Queen's most — ■ lijxoellent Majesty, by and with the advice and consent of the Lords Spiritual and lemporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as " The Admiralty Court Act, 1861." short title. 2 In the interpretation and for the purposes of this Act (if not inconsistent with the interpretation context or subject) the following terms shall have the respective meanings herein-after of terms, assigned to them ; that is to say, " Ship " shall include any description of vessel used in navigation not propelled by oars : " Cause " shall include any cause, suit, action, or other proceeding in the Court of Admiralty. 3. This Act shall come into operation on the first day of June one thousand eight Commencement hundred and sixty-one. . of Aut. 4. The High Court of Admiralty shall have jurisdiction over any claim for the As to claims for building, equipping, or repairing of any ship, if at the time of the institution of the building, eqiiip- cause tlie ship or the proceeds thareof are under arrest of the Court. Sg of°sMps.'*"" 5. The High Court of Admiralty shall have jurisdiction over any claim for necessaries . °, „i„jjj,a fgj supplied to any ship elsewhere than in the port t3 which the ship belongs, unless it is necessaries. shown to the sati.ifaction of the Court tuat at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales : Provided always, that if in any such cause the plaintiff do not recover twenty pounds he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cau-e was a. fit one to be tried in the said court. 6. The High Court of Admiralty shall have jurisdiction over any claim by the owner As to claims for or consignee or assignee of any bill of lading of any goods carried into any port in damage to cargo England or Wales in any ship, for damage done to the goods or any part there6f by the '"'P°''*^'l- 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 always, that if in any such cause the plaintiff do not recover twenty pounds 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. 7. The High Court of Admiralty shall have jurisdiction over any claim for damage as to claims for done by any ship. damage by any 8. The High Court of Admiralty shall have jurisdiction to decide all questions arising ship, between the co-owners, or any of them, touching the ownership, possession, employment, Higli Conrt^ o£ and earnings of any ship registered at any port in England or Wales, or any share thereof, ^^™e questions and may settle all accounts outstanding and unsettled between the parties in relation as to ownersliip, thereto, and may direct the said ship or any share thereof to be sold, and may make such &c. of ships. order in the premises as to it shall seem fit. 9. All the provisions of " The Merchant Shipping Act, 1851," in regard to salvage of Extending lY & life from any ship or boat within the limits of the United Kin^'dom, shall be extended to 18 Vict. c. 104, the salvage of life from any British ship or boat, wheresoever the services may have been ^^° ''1^'"'? f"'' 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 seaman As to claims for of any ship for wages earned by him on board the ship, whether the same be due under Snrsements a special contract or otherwise, and also over any claim by the master of any ship for ty master of a ship. 880 ADMIEALTY COUET JUEISDICTION ACT, 1861. 24 ViOT. 0. 10. In regari to mortgages ex- tended to Coiu't of Admiralty. Sections 62 to 65 of 17 & 18 Vict, c. 104, extended to Court of Ad- miralty. Part 9 of 17 & 18 Vict. c. 104, extended to Court of Ad- miralty. Court to "be a Court of Record. Decrees and orders of Com-t of Admiralty to have effect of judgments at Common Law. As to claims to goods talcen in execution. Powers of snpe- lior courts ex- tended to Coui-t of Admiralty. Party in Court of Admiralty may apply for an order I'or in- spection by Tri- nity Masters. Admission of documents. wages earned by him on board the ship, and for disbursements made by him on account of the ship : Provided always, that if, in any such cause the plaintiff do not recover fifty pounds, 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 respect^ of any mortgage duly registered according to the provisions of " The Merchant Shippmg Act, 1854," whether the ship or the proceeds thereof be under arrest of the said court or not. 12. The High Court of Admiralty shall have the same powers over any British ship, or any share therein, as are conferred upon the High Court of Chancery in England by the sixty-second, sixty-third, sixty-fourth, and sixty-fifth sections of " The Merchant Shipping Act, 1854." 13. VVhenever any ship or vessel, or the proceeds thereof, are under arrest of the High Court of Admiralty, the said court shall have the same powers as are conferred upon the High Court of Chancery in England by the ninth part of "The Merchant Shipping Act, 1854." " 14. The High Court of Admiralty shall be a court of record for all intents and purposes. 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 have the same effect as judgments in the superior courts of common law, and the persons to whom any such monies, or costs, charges, or expenses, shall be payable, shall be deemed judgment creditors, and all powers of enforcing judgments possessed by the superior courts of common law, or any judge thereof, with respect to matters depending in the same courts, as well agaiuut the ships and goods arrested as against the person of the judgment debtor, shall be possessed by the said Court of Admiralty with respect 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 chattels taken in execution under any process of the High Court of Admiralty, or in respect of the seizure thereof, or any act or matter connected therewith, or in respect of the proceeds or value of any such good.s or chattels, by any landlord for rent, or by auy person not being the party against whom 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 summons calling before the said Court both the party issuing such process and the party making the claim, and thereupon any action which shall have been brought in any of Her Majesty's superior courts of record, or in any local or inferior court, ia respect of such claim, seizure, act, or matter as aforesaid, shall be stayed, and the court in which such action shall have been brought, or any judge thereof, on proof of the issue of such summons, and that the goods and chattels were so taken in execution, may order the party bringing the action to pay the costs of all proceedings 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 fit, and such order shall be enforced in like manner as any order made in any suit brought in the said court. Where any such claim shall be made as aforesaid tlie claimant may deposit with the officer charged with the execution of the process either the amount or value of the goods claimed, the value to be 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 judge. 17. The judge of the High Court of Admiralty shall have all such powers as are possessed by any of the superior courts of common law or auy 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 tire trial of the said cause, or by the party himself or his witnesses, of any ship or other personal or real property, the inspection of which may be material to the issue of the cause, and the court may make such order in respect of the costs arising thereout as to.it shall seem fit. 19. Any party in a cause in the High Court of Admiralty may call on any other party in the cause by notice in writing to admit any document, saving all just exceptions, and ADMIRALTY COURT JURISDICTION ACT, 1861. 881 in case of refusal or neglect to admit, the costs of proving the document shall be paid by 24 ViOT c ] me party so neglecting or refusing, whatever the result of the cause may be, unless at 90 w^ J'^'^S® sl^all certify that the refusal to admit was reasonable, thnt ''®°^7®'' •* shall be made to appear to the judge of the High Court of Admiralty Power to Court iQai reasonable efforts have been made to elTect personal service of any citation, monition, "f Admiralty, or other process issued under seal of the said court, and either that the same has come wli^Persoiial to the knowledge of the party thereby cited or monished, or that he wilfully evades tto baa^iiSt service of the same, and has not appeared thereto, the said judge may order that the been effected, to party oa whose bdhalf the citation, monition, or other process was issued be at liberty to ""^""^ parties to proceed as if personal service had been effected, subject to such conditions as to the I"'"'''"'"- ]udge may seem fit, and all proceedings thereon shall be as effectual as if personal service ot such citation, monition, or other process had been effected. , " ■ ■' ^^ service in any part of Great Britain or Ireland of any writ of subposna ad As to the seiTice testificandum or subpoena duces tecum, issued under seal of the High Court of Admiralty, °? 5,'il'P'^nf out shall be as effectual as if the same had been served in England or Wales. ' Wale" , ^"''' -*-°y new writ or other process necessary or expedient for giving effect to any of Power to issue the provisions of this Act may be issued from the High Court of Admiralty in such form u™ ^"ts or as the judge of the said court shall from time to time direct. "*'"'' P™°'''- 23. All the powers possessed by any of the superior courts of common law or any judge to? to have'S" tnereot, unaer the " Common Law Procedure Act, 1854," and otherwise with regard to power as to arbi- reterences to arbitration, proceedings thereon, and the enforcing of awards of arbitrators, tration as Judges shall be possessed by the judge of the High Court of Admiraltv in all causes and matters f,""! "^^'f ^ ** depending in the said court, and the registrar of the said Court 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. J.I, ^^'c!^^^ registrar of the High Court of Admiralty shall have the same powers under Section 15 of 17 the fifteenth section of the Merchant Shipping Act, 1854, as are by the said section & IS Vict. c. 104, conferred oa the masters of Her Majesty's Court of Queen's Bench in England and ^fs't™? "f Com-t o-°^u • St Admiralty. ^n. the registrar of the High Cpurt of Admiralty may exercise, with reference to powers of regis- causes and matters in the said court, the same powers as any surrogate of the judge of trar and of de- the said court sitting in chambers might or could have heretofore lawfully exercised; Puty or assistant aad all powers and authorities by this or any other Act conferred upon or vested in ^g'strar. the registrar of the said High Court of Admiralty 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 oaths False oath or in relation to any cause or matter depending in the said court; and any person who shall affirmation wilfully depose or affirm falsely in any proceeding before the registrar or before any •J^'^msd perjuiy. deputy or assistant registrar of the said court, or before any person authorised to administer oaths in the said court, 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 solictor of ten years standing Appointment of may be appointed registrar or assistant or deputy registrar of the said court. registrar and of 28. Any advocate, barrister-at-law, proctor, attorney, or solicitor may be appointed an tanTregistrar'^' examiner of the High Court of Admiralty. Appointment of 29. Any person who shall have paid oa his admission in any court as a proctor, solicitor, examiners. or attorney the full stamp duty of twenty-five pounds, and who has been or shall here- payaSe^on^suh* after be admitted a proctor, solicitor, or attorney, (if in other respects entitled to be sequent admis- so admitted,) shall be liable to no further stamp duty in respect of such subsequent sions of proctors admission. <"^ solicitors 30. Any proctor of the High Court of Admiralty may act as agent of any attorney or Proctor may act solicitor, and allow him to participate in the profits of and incident to any cause or as a^ent of matter depending in or connected with tlie said court ; and nothing contained in the ^° "^' '"^^' Act of the fifty-fifth year of the reign of King George the Third, chapter one hundred and sixty, shall be construed to extend to prevent any proctor from so doing, or to render him liable to any penalty in respect thereof. 31. The Act passed in the second year of the reign of King Henry the Fourth intituled 2 Hen. 4, c. 11, "A remedy for him who is wrongfully pursued in the Court of Admiralty," is hereby I'^'P'^^l^'^ repealed. 32. Any party aggrieved by any order or decree of the judge of the said Court of Power ot appeal Admiralty, whether made ex parte or otherwise, may, with the permission of the judge, JJ,'a'tt*j,g'°°'^*°'''' appeal therefrom to Her Majesty 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 the ^"'^ 8™" m the judgment as well of the said court as of the Court of Appeal, and the said High Court of ^^-^^ good i "the Admiralty may withhold the release of any property under its arrest until such bail has court of Appeal. been given ; and in any appeal from any decree or order of the High Court of Admiralty 3 L 882 ADMIRALTY COURT JURISDICTION ACT, 1861. of causes and cross causes. 24 Vict. o. 10. the Court of Appeal may make and enforce ita 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 m the Court of Appeal. As to the hearing Si. The High Court of Admiralty may, on the application of the defendant m any cause of damage, and on his in.stitutin? a cross cause for the damage sustained '^y "™ ™ respect of the same collision, direct that the principal cause and the cross cause be heard at the same time and upon the same evidence; and if in the principalcause the ship of the defendant has been arrested or security given by him to answer judgment, and m the cross cause the ship of the plaintiff 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 principal cause, until security has been given to answer judgment in the cross cause. Jurisdiction of 35. The jurisdiction conferred by this Act on the High Court of Admiralty may be ° """^ ' exercised either by proceedings in rem or by proceedings in personam. MEKCHANT SHIPPING ACTS AMENDMENT ACT, 1862. 25 & 26 Vict. o. 63. AN ACT TO AMEND "THE MERCHANT SHIPPING ACT, 1854," "THE MERCHANT SHIPPING ACT AMENDMENT ACT, 1855," AND "THE CUSTOMS CONSOLIDATION ACT, 1S53." [29tt July, 1862.] Whereas it is expedient further to amend " The Merchant Shipping Act, 1854," " The Merchant Shipping Act Amendment Act, 1855," and " The Customs Consolidation Act, 1853 : " Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows : 1. This Act maybe cited as "The Merchant Shipping Act Amendment Act, 1862," and shall be construed with and as part of " The Merchant Shipping Act, 1854," herein- after 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 incurred before sucb repeal. Registry and Measurement of Tonnage {Part II. of Merchant Shipping Act, 1854). 3. It is hereby declared that the expression "beneficial interest " whenever used in the second part of the principal Act, includes iuteiests arising under contract and other equitable interests ; and the intention of the said Act is that, without prejudice to tlie provisions contained in the said Act for preventing notice of trusts from being entered in the register book or received by the registrar, and without prejudice to the powers of disposition and of giving receipts conferred by the said Act 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 may 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. _ „ 4. Anv body corporate or persons having power to levy tonnage rates on ships may, if ™a'T>e°eWed°on *^^7 ^^^"^ ^'' ^^*^ *^® consent of the Board of Trade, levy such tonnage rates upon the tiie'registered registered tonnage of the ships as determined by the rules for the measurement of ton- tonnage, nage for the time being in force under the principal Act, notwithstanding that the local Act or Acts under which such rates are levied provides for levying the same upon some different system of tonnage measurement. Ceriificates for Engineers {Part III. of Merchant Shipping Act, 1854). 5. On and after the first day of June one thousand eight hundred and sixty-three, 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 follows ; that is to say, (1.) Engineers certificates shall be of two grades, viz., " first-class engineers certificates," and " second-class engineers certificates " ; ir & 18 Vict. c. 104. 18 & 19 Viet. c. 91. 16 & 17 Vict. c. 107. Short title. Enactments in Table (A.) re- pealed. Equities not ex- cluded by Mer- chant Shipping Act. Tonnage rates Steam ships to carry certifi- cated engineers. MERCHANT SHIPPING ACTS AMENDJMENT ACT, 1862. 883 (2.) Every foreign-going steam ship of one hundred nominal horse power or upwards 25 & 26 Vict. shall have as its first and second engineers two certificated engineers, the first c. 63. possessing a " first-class engineers certificate," and the second possessing a " second- class engineers oertiScate," or a certificate of the higher grade : (3.) Every foreign-going steam ship of less than one hundred nominal horse power shall have as its only or first engineer an engineer possessing a "second-class engineers certificate " or a certificate of the higher grade : (4) Every sea-going home trade passenger steam ship shall have as its only or first engineer an engineer possessing a "second-class engineers certificate" or a certifi- cate of the higher grade : (5.) Every person who, having heen 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 offence incur a penalty not exceeding fifty pounds. 6. The Board of Trade shall from time to time cause examinations to be held of laminations persons who may be desirous of obtaining certificates of competency as engineers : For c°r(jflf"t|"of the purpose of such examinations the Board of Trade shall from time to time appoint oompetoncy. 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 e.-cpedient in order to carry into effect the examina- tion of such engineers as aforesaid. 7. AH applicants for examination shall pay such fees, not exceeding the sums specified Fees to be paid in the table marked (B.) in the schedule hereto, as the Board of Trade directs ; and such el'^SSn." ' fees shall be paid to such persons as the said board appoints for that purpose, and shall be carried to the account of the Mercantile JViarine Fund. 8. The Board of Trade shall deliver to every applicant who is duly reported to have ^^J,'Sn(,yfo passed the examination satisfactorily, and to have given satisfactory evidence of his ^j,. granted'to sobriety, experience, and ability, a certificate of competency, as first-class engineer or as those who pass, second-class engineer, as the case may be. . 9. Certificates of service for engineers, differing in form from certificates of competency, f^^^^'^of service shall be granted as follows ; that is to say, to be delivered (1.) Every person who before the first day of April one thousand eight hundred and on proof of cer- sixty-two has served as first engineer in any foreign-going steam ship of one tain service, hundred nominal horse power or upwards, or who has attained or attains the rank . of engineer in the service of Her Majesty or of the East India Company, shall he entitled to a " first-class engineers certificate" of service. (2.) Every person who before the first day of April one thousand eight hundred and sixty-two has served as second engineer in any foreign-going steam ship of one hundred 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 first-class assistant engineer in the service of Her Majesty, shall be entitled to a " second-class engineers certi- ficate " of service : , . Each of such certificates of service shall contain particulars of the name, place, and time of birth, and the length and nature of the previous service of the person to whom the same is deUvered ; 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 aforesaid, and upon their giving a full and satis- factory account of the particulars aforesaid. 1 The provisions of the principal Act, with respect to the certificates of competency Certain provi- or service of masters and mates, ccmtained in the one hundred and tl^^'r^is'^'^V"^ cS ShTpptog hundred and thirty-ninth, one hundred and fortieth, one hundred and sixty-hrst, and one ^^^ ^^ ^p^fy ^^ hundred and sixty-second sections of the said Act, shall apply to certiticates of com- engineers' cer- netency or service granted under this Act in the same manner as if certificates of com- tilioates. potency and service to be granted to engineers under this Act were specially mentioned and included in the said sections. ■ ■ , i ^ ■ „ ,-„j 1 1 The newer bv the two hundred and forty-first section of the principal Act given Power of Board to the BoXf Tr Jde or to any Local Marine Board of instituting investigations into the jf^Trad^ -d conduct of anv master or mate whom it has reason to believe to be from incompetency B^^rdto inves- ^^hZr^i^ T*:d^^t;i^:i MS^errdt™^^r?;^:^t ^^fsz ^^^^ TnoZXXfr misl::d:,„ rate (4.) It shall be lawful for the Board of Trade, if they think the justice o^J'^^ ^^'^ require it, to reissue and return any certificate which has ^een cancelled nsus pended, or shorten the time for which it is suspended, or grant a new certihoate of the same or any lower grade in place of any certificate which has been canceiie.i or suspended : (5.) {Reijmkd bij 41 haU be held to apply whether the salvage service has been rendered within the limits of the United Kingdom or not : (3.) It shall be lawful for one of Her Majesty'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 iu salvage cases shall be exercised : (4.) When no such rota is appointed, it shall be lawful for the salvors, by writing addressed to the justice's olerls, 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, in Scotland for the sheriff or sheriff substitute of any county, and in Ireland for the recorder of any borough in which there is a re- corder, or for the chairman of Quarter Sessions in any county, to exercise the same jurisdiction in salvage cases as is given to two justices : (7.) It shall be lawful for one of Her Majesty's principal Secretaries of State to deter- mine a scale of costs to be awarded in salvage cases by any such justices or court OS 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 far as the same are altered by this Act, extend and apply to all such proceedings, whether under the principal Act or this Ace, or both of such Acts. £0. Whenever any salvage question arises the receiver of wreck for the district may, Beceiver may upon application from either of the parties, appoint a valuer to value the property in appoint a valuer respect of which the salvage claim is made, and shall, when the valuation has been '° salvage cases. returned to him, give a copy of the valuation to both parties ; and any copy of such valuation, purporting to be signed by the valuer, and to be attested by the receiver, shall be received in evidence in any subsequent proceeding; 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 four hundred and sixty-eighth section of ^™rtof s™sion the principal Act shall be deemed to mean and include either division of the Court of j^^ salvage cases. Session or the Lord Ordinary officiating on the bill during vacation. 52. Upon delivery of wreck or of the proceeds of wreck by any receiver to any person Delivery of in pursuance of the firovisions of the eighth part of the principal Act such receiver shall ^^'J^J/to be discharged from all liability in' respect thereof, but such delivery shall not be deemed prejudice title. to prejudice or affect any question concerning the right or title to^the said wreck which 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 Whereas by the principal Act it is provided that the proceeds of wreck, if the Crown rights to same is not claimed by the owner within a year, and if no person otlier than Her Majesty, ^ her heirs and successors, is proved to be entitled thereto, shall, subject to certain deduc- tions, be paid into the receipt of Her Majesty's Exchequer in such manner as the Com- missioners of the Treasury may direct, and that the, same shall be carried to and form ijart of the Consolidated Fund of the United Kingdom : And whereas doubts have been entertained whether the said last-reoited provision is 892 MERCHANT SHIPPING ACTS AIVIENDMENT ACT, 1862. 1 Vict. 0. 2. 25 & 26 Vict, consistent with the arrangements concerning the hereditary revenues of the Crown c. 63. effected by the Act of the first year of Her present Majesty, chapter two : And whereas doubts have also been entertained whether due provision is made by the said Act for paying to the revenues of the Duchies of Lancaster and Cornwall respectively such of the said proceeds as may belong to those duchies : It is hereby declared, That such of the said proceeds of wreck as belong to Her Majesty in right of her Grown shall, during the life of Her present Majesty (whom God long preserve), be carried to and form part of the Consolidated Fund of the United Kingdom, and shall after the decease of Her present Majesty (whom God long preserve) be payable and paid to Her Majesty's heirs and successors : And it is hereby further declared, That such of the said proceeds of wreck as belong to Her Majesty in right of her Duchy of Lancaster shall be paid to the Receiver General of the said Duchy or his sufficient deputy or deputies as part of the revenues of the said Duchy, and be dealt with accordingly : And it is hereby further declared and enacted, That the provision in the principal Act contained regarding the sale of unclaimed wreck to which no owner establishes his claim within the period of one year, and to which no admiral, vice-admiral, lord of any manor, or person other than. Her Majesty, her heirs and successors, is proved to be entitled, is intended and shall be construed fo apply to wreck of the sea belonging to Her Majesty, her heirs and successors, in respect of tbe Duchy of Cornwall, or to the Duke of Cornwall for the tine being in respect of his Duchy of Cornwall ; But that the proceeds of such wreck 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. Shipowners liability limited. Limitation of invalidity of insurances. Proof of passen- gers on board lost ship. Liability of Shi/poumers {Part IX. of Merchant Shipping Act, 1854). 54. Tire owners of any ship, whether British or foreign, shall not, in cases where all or any of the following events occur without their actual fault or privity, that is to say, (1.) Where any loss of life or personal injury is caused to any person being carried in such ship ; (2.) Where any 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 personal 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 things whatsoever on board any other ship or boat ; be answerable in damages in respect of loss of life or personal injury, either alone or together with loss or damage to ships, boats, goods, merchandise, or other things, to an aggregate amount exceeding fifteen pounds 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 eight pounds for each ton of the ship's tonnage ; such tonnage to be the 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 purposes of this section, be deemed to be the tonnage of such ship : In the case of any foreign ship which has not been and cannot be measured under British law, the surveyor general of tonnage in the United Kingdom, and the chief measuring officer in any British possession abroad, shall, on receiving from or by direc- tion of the court hearing the case such evidence concerning the dimensions 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. 65. Insurances effected against any or all of the events enumerated in the section last preceding, and occurring without such actual fault or privity as therein mentioned, shall not be invalid by reason of the nature of the risk . . ; 56. In any proceeding under the five hundred and sixth section of the principal Act or any Act amending the satne against the owner of any ship or share therein in respect of loss of life, the master's list or the duplicate list of passengers dehvered to the proper ofBcer of customs under the sixteenth section of "The Passengers Act, 1855 " shall in the absence of proof to the coiitrary, be sufficient proof that the persons in respect of whose death any such prosecution or proceeding is instituted were passengers on board such ship at the time of their deaths. " MERCHANT SHIPPING ACTS AMENDMENT ACT, 1862. 893 Arrangements concerning Lights, Sailing Rules, Salvage, and Measurement of Tonnage in 25 k 26 Yior. the Case of Foreign Ships. o. 63. ^ 5i. Whenever foreign ships are within British jurisdiction, the regulations for prevent- Foreign ships in mg collision contained in Table (C. ) in the schedule to this Act, or such other regulations British jurisdic- for preventing collision as are for the time being in force under this Act, and all pro- t'O" to be sub- visions of this Act relating to such regulations, or otherwise relating to coUisioua, shall jions'in M?e" apply to such foreign ships ; and in any cases arising in any British court of justice (CJ.) in schedule, concerning matters happening within British jurisdiction, foreign ships shall, so far as regards such regulations and provisions, be treated as if they veere British ships. 58. Whenever it is made to appear to Her Majesty tliat the Government of any foreign Regulations, country is wiUing that the regulations for preventing collision contained in Table (C.) in ^y ^fure"!^ the schedule to this Act, or such other regulations for preventing collision as are for the country, may be time being in force under this Act, or any of the said regulations, or any provisions of applied to its this Act relating to collisions, should apply to the ships of such country when beyond S*?^ on the the limits of British jurisdiction. Her Majesty may, by Order in 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 country, whether within British jurisdiction or not. 59. Whenever it is made to appear to Her Majesty that the Government of any foreign I'roX'^'°"^. ''°"' country is willing that salvage shall be awarded by British courts for services rendered gf life may \nth in saving life from any ship belonging to such country when such ship is beyond the the consent ot limits of British jurisdiction. Her Majesty may, by Order in Council, direct that the '^^y foreign provisions of the principal Act and of this Act, with respect to salvage for services pj^^ to'its^slups rendered in saving life from British ships, shall in all British courts be held to apply to on the high seas, services rendered in saving life from the ships of such foreign country, whether such services are rendered within British jurisdiction or not. 60. Whenever it is made to appear to Her Majesty that the rules concerning the Ships of foreign measurement of tonnage of merchant sbips for the time being in force under tbe "'"^Srulesfor principal Act have been adopted by the Government of any foreign country, and are in mMsurement of force in that country, it shall be lawful for Her Majesty by Order in Council to direct tonnage need not that the ships of such foreign country shall be deemed to be of the tonnage denoted in be remeasured in their certificates 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 Her Majesty's dominions, but such ships shall be deemed to be of the tonnage denoted in their certifi- cates 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 certificates 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 pro- ^^'''g°*^°^°™" vision 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 court be deemed to be subject to such provision or regulation, and shall for the purpose of such provision or regulation be treated as if they were British ships. . _ 62. In issuing any Order in Council under this Act, Her Majesty may limit the time gii'j^ay™,, i°JJ,°J during which it is to remain in operation, and may make the same subject to sucli ted as to time, conditions and qualifications, if any, as may be deemed expedient, and thereupon the and qualitied. operation of the said order shall be limited and modified accordingly. 63. Her Majesty may by Order in Council from time to time revoke or alter any order Orders in Coun- previously made under this Act. ^ ^ voked and 64. Kvery Order in Council to be made under this Act shall be published in the London altered. Gazette as soon as may be after making thereof ; and the production of a copy of the Orders in Coun- London Gazette containing such order shall be received in evidence, and shall be proof ^-^^^^^^i^n that the order therein published has been duly made and issued ; and it shall not be Gazette. necessary to plead such order specially. Legal Procedure, 65. Nothing in the third section of the Act passed in the twentieth and twenty-first 20 & 21 Vict, years of the reign of Her present Majesty, chapter forty-three, except so much thereof apply t'o\r"o°' as provides for the payment of any fees that may be due to the clerk of the justices, ceedings under shall be deemed to apply to extend to any proceeding under the direction of the Board Board of Trade of Trade, or under or by virtue of the provisions of the principal Act or this Act, or any t this Act, &c. Act amending the same. Delivery of Goods and Lien for Freight. &Q. The following terms used in the sections of this Act hereinafter contained shall t° mT^***'"" °' 894 MERCHANT SHIPPING ACTS AMENDMENT ACT, 1862. 25 & 26 Vict. 0. 63. " Report." " Entry." *' Goods." "Wharf." " Wareliouse." " "Wharf owner." "Warehouse owner." " Shipowner." " Owner of goods." Power to ship- owner to enter and land goods in default of entry and land- ing by owner of goods. If, when goods are landed, the shipowner give notice for that purpose, the have the respective meauinga hereby assigned to them, if not inconsistent with the context or subj ect matter ; that is to say, The word " report " shall mean the report required by the customs laws to be made by the master of any importing ship : The word " entry" shall mean the entry required by the customs laws to be made for the landing or discharge of goods from an importing ship : The word "goods " shall include every deseription of wares and merchandise : The word " wharf " shall include all wharves, quays, docks, and premises in or upon which any goods when landed from ships may be lawfully 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 occupier of any wharf, as hereinbefore defined : The expression " warehouse owner " shall mean the occupier of any warehouse as hereinbefore defined ; The word "shipowner" shall include the master of the ship and every other person authorised to act as agent for the owner, or entitled to receive the freight, demurrage, or other charges payable in respect of such ship s The expression " owner of goods" shall include every person who is for the time being entitled either as owner or agent for the Owner, to the possession 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 into the United Kingdom fails to make entry thereof, or having made entry thereof to land the same or take delivery thereof and to proceed therewith with all convenient speed, by the times severally hereinafter mentioned, the shipowner may make entry of and land or unship the said goods at the times, in the manner, and subject to the conditions following ; (that is to say,) (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 seventy-two 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 agree- inent, as the wharf or warehouse where the goods are to be placed, and if they can be conveniently there received, the shipowner in landing them by virtue of this enactment shall cause them to be placed on such wharf or iu such warehouse : (4.) In other cases the shipowner in landing goods by virtue of this enactment shall place them in or on some wharf or wai'ehouse on or in which goods of a like nature are usually placed; such wharf or wrarehouse being, if the goods are dutiable, a wharf or warehouse duly approved by the Oonimissionera of Customs for the landing of dutiable goods : (5.) If at any time before the goods are landed or unshipped the owner 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 which may have been made by the shipowner : (6.) If any goods are, for the purpose of convenience in assorting the same, landed 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 delivery thereof and to convey the same to some other wharf or warehouse, such goods shall be assorted at lauding, and shall, if demanded, be delivered to the owner thereof within twenty-four hours after assortment ; and the expense of and consequent on guch landing and assortment shall be borne by the shipowner : (7.) If at any time before the goods are landed or unshipped the owner thereof has made entry for the landing and warehousing thereof at any particular wharf or warehouse other than that at which the ship is discharging, and has ofli'ered and beeu ready to take delivery thereof, and the shipowner 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, before landing or unshipping such goods under the power hereby given to him, give to the owner of the goods or of such wharf or warehouse as last aforesaid twenty-four hours notice in writing of his readiness to deliver the goods, and shall, if be 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 custody of any person as a wharf or warehouse owner, the shipowner gives to the wharf or ware- house owner notice in writing that the goods are to remain subject to a lien for freight or other charges payable to the shipowner to an ambunt to be mentioned in sucli notice, MERCHANT SHIPPINS ACTS AMENDMENT ACT, 1862. 895 the goods so landeiJ shall, ia the hands of the wharf or warehouse owner, continue liable 25 & 26 Vict. to the same lieu, if any, for such charges as they were subject to before the laudiug c. 63. thereof; and the wharf or warehouse owner receiving such goods shall retain them until the lien is discharged as hereinafter mentioued, and shall, if he fail so to do, make good !'™ ^"^ freight to the shipowner any loss thereby ocoasioued to hiui. "* *° continue, ba. Upon the production to the wharf or warehouse owner of a receipt for the amount Lien to be dis- claimed as due, and delivery to the wharf or warehouse owner of a copy thereof or of a charged on proof release of freight from the shipowner, the said lien shhU be discharged. "' payment. 70. The owner of the goods may deposit with the wharf or warehouse owner a sum of Lien to be dis- money equal in amount to the sum so claimed as aforesaid by the shipowner, and there- eliarged on dc- upou the lien shall be discharged; but without prejudice to any other remedy which the house^owneT™" shipowner may have for the recovery of the freight. 71. If such deposit as aforesaid is made with the wharf or warehouse owner, and the Warehouse person making the same does not within fifteen days after making it give to the wharf or owner may at warehouse owner notice in writing to retain it, stating in such notice the sum, if any, which the end of flftoon he admits to be payable to the -shipowner, or, as the case may be, that he does not admit jj'gfveuj'pay ° any sum to be so payable, the wharf or warehouse owner may, at the expiration of such deposit to ship- fifteen days, pay the sum so deposited over to the shipowner, and shall by such payment owner. be discharged from all liability in respect thereof. 72. If such deposit as aforesaid is made with the wharf or warehouse owner, and the Course to bo person making the same does within fifteen days after making it give to the wharf or to'^^^h" is warehouse owner such notice in writing as aforesaid, the wharf or warehouse owner shall given, nnmediarely apprize the shipowner 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 payablu, and shall retain the remainder or balance, or, if no sum is admitted to be payable, the whole, _of the sum deposited, for thirty days from the date of the said notice ; and at the expirajiion of such thirty days, unless legj proceedings have in the meantime been instituted'by the ship- owner 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 proceedings has been served on him, the wharf or warehouse owner shall pay the said balance or sum over to the owner of the goods, and shall by such payment be discharged from all liability in respect thereof. 73. If the lien is not discharged, and no deposit is made as hereinbefore mentioned, the ^j['".,^"gj|ouso wharf or warehouse ovraier may, and, if required by the shipowner, shall, at the expiration „y,ngj. ^^y gpn of ninety days from the time when the goods were placed in his custody, or, if the goods goods by public are of a perishable nature, at such earlier period as he in his discretion thinks fit, sell by auction. public auction, either for home use or exportation, the said goods or so much thereof as may be necessary to satisfy the charges hereinafter mentioned. 74. Before making such sale the wharf or warehouse owner shall give notice thereof by ^"Jg^tivaf ^'° advertisement in two newspapers circulating in the neighbourhood, or in one daily news- ° paper 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 documents which have come into the possession of the wharf or warehouse owner, or is otherwise known to him, give notice of the salo to the owuer of the goods by letter sent by the post ; but the title of a bo7id fide purchaser of such goods shall not be invalidated by reason of the omission to send notice as hereinbefore mentioued, nor shall any such purchaser be bound to inquire whether such notice has been sent. 75. In every case of any such sale as aforesaid the wliarf or warehouse owner shall apply Monies arising the monies received from the sale as follows, and in the following order : ^ ^ _ to°be applied'^ 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 : 3. In the absence of any agreement between the wharf or warehouse owner and the shipowner concerning the priority of their respective charges, in payment of the rent, rates, and other charges due to the wharf or warehouse owner in respect of the said goods : i. 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 ship- owner concerning the priority of their respective charges, then such charges shall have priority according to the terms of such agreement : and the surplus, if any, shall be paid to the owner of the goods. 76 Whenever t'oods are placed in the custody of a wharf or warehouse owner under Warehouse the authority of this Act, the said wharf or warehouse owner shall be entitled to rent in ^^''^'/g™^ ^™ respect of the same, and shall also have power from time to time, at the expense of the owner of the goods, to do all such reasonable acts as in the judgment of the said wharf 896 MERCHANT SHIPPING ACTS AMENDMENT ACT, 1862. 25 & 26 ViOT, or warehouse owner are necessary for the proper custody and preservation of the said o. 63. 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 wharf or warehouse owner to take charge of any goods which he would not be liable to take charge of if this Act had not passed ; nor shall he be bound to see to the validity of any lien claimed by any shipowner unrter this Act. 78. Nothing in this Act contained shall take away or abridge any powers given by any local Act to any harbour trust, body ourporate, or persons whereby they are enabled to expedite the discharge of ships or the laudini; or delivery of goods ; nor shall anything in this Act contained take away or diminish any rights or remedies given to any shipowner or wharf or warehouse owner by any local Act. Warehouse owners pro- tection. Saving powers Tinder local Acts. The SCHEDULE referred to in this Act. TABLE (A.) See Sect. 2. Enactments to ie repealed. Eeference to Act, Extent of Repeal. 8 & 9 Viot. c. 91 16 & 17 Tiot. c. 107 17 & 18 Tict. c. lOi . 19 & 20 Vict. c. 75 An Act for the housing of goods. Customs Consolidation Act, 1853. Merchant Shipping Act, 1854. An Act for the further Alteration and ?Amend- ment of the Laws and Duties of Customs. Section 61 to be repealed im- mediately on the passing of this Act. The last proviso in Section 74, and Sections 170, 171, and 172, to be repealed immediately on the passing of this Act. Sections 295, 296, 297, 298, 299, to be repealed from the date at which the regulations contained in Table C. in this Schedule come into operation. Sections 300, 322, 323, 604, and 605 to be repealed im- mediately on the passing of this Act. Section 8 to be repealed im- mediately on the passing of this Act. TABLE (B.) See Sect. 6. Fees to he charged on Examinaiion of Engineers. For a first class engineer's certificate . For a second class engineer's certificate £2 10 ilEECHANT SHIPPIXG ACTS AMENDatENT ACT, 1862. 897 TABLE (C.) See Sect. 25. c 63 EEQULiTIONS FOB PEEVENTINS COLLISIONS AT ShA. , ^, , Contents. Article 1. Preliminary. Rules concerning Lights. 2. Lights to be carried as follows : — 3. Lights for steam ships. 4. Lights for steam tugs. 5. Lights for sailing ships. 6. Exceptional lights for small sailing vessels. 7. Lights for ships at anchor. 8. Lights for pilot vessels. 9. Lights for fishing vessels and boats. Rules concerning Fog Signal), 10. Fog signals. Steering and Sailing Rules. 11. Two sailing ships meeting. 1 2. Two sailing ships crossing. 13. Two ships under steam meeting. 14. Two ships under steam crossing. 15. Sailing ship and ship under steam. 16. Ships under steam to slacken speed. 1 7. Vessels overtaking other vessels. 18. Construction of Articles 12, 14, 15, and ] 7. 19. Proviso to save special cases. 20. No ship imder any circumstances to neglect proper precautions. PreUminary. Art. 1. In the following rules every steamship which is under sail and not under steam is to be considered a saUmg ship ; and every steamship, which is under steam, whether under sail or not, is to be considered a ship under steam. Rules concerning Lights. Art. 2. The lights mentioned in the following articles, and no others, shall be carried in all weathers between sunset and sunrise. Art. 3. Seagoing steam ships when under weigh shall carry : (a.) A t the foremast head, a bright white light so fixed as to show an uniform and unbroken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the ship, viz., from right ahead to two points abaft the beam on either side, and of such a character as to be visible on a dark night with a clear atmosphere at a distance of at least five miles. (i.) On the Starboard Side, a green light so constructed as to throw an uniform and unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two 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 distance of at least two miles : (c.) On the Port Side, a red light so constructed as to show an uniform unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port 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, (rf. ) The said green and red side lights shall be fitted with inboard screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow : Art. 4. Steam ships when towing other ships shall carry two bright white mast-head lights vertically, in addition to their side lights, so as to distinguish them from other 3 m 898 MERCHANT SHIPPING ACTS AMENDMENT ACT, 1862. 25 & 26 Vict, steam shipa. Each of these mast-head lights shall be of the same oonstruetion and C. 63. character as the mast-head lights which other steam ships are required to carry. Art. 6. SaUing ships under weigh or being towed shall carry the same lights as steam ships under weigh, with the exception of the white mast-head lights, which they shaU never carry. Art. 6. Whenever, as in the case of small vessels during bad weather, the green and red lights cannot be fixed, these lights shall be kept on deck on their respective sides ot the vessel ready for instant exhibition, and shall, on the approach of or to other vessels, be exhibited on their respective sides in sufficient time to prevent colUsion, in such manner as to make them most visible, and so that the green light shall not be seen on the port side, nor the red light on the starboard side. To majke the use of these portable lights more certain and easy, they shall each be painted outside with the colour of the light they respectively contain, and shall be provided with suitable screens. Art. 7. Ships, whether steam ships or sailing ships, when at anchor in roadsteads or fairways, shall between sunrise and sunset exhibit, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a globular lantern of eight inches in diameter, and so constructed as to show a clear uniform and unbroken light visible all round the horizon, and at a distance of at least one mile. Art. 8. Sailing pilot vessels shall not carry the lights required for other sailing vessels, but shall carry a white light at the masthead visible all round the horizon, — and shall also exhibit a flare-up light every fifteen minutes. Art. 9. Open fishing boats and other open boats shall not be required to carry side lights required for other vessels ; but shall, if they do not carry such lights, carry a lantern having a green slide ou the one side and a red slide 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. Fishing vessels and open boats when at anchor or attached to their nets and stationary shall exhibit a bright white light. Fishing vessels and open boats shall, however, not bo prevented from using a flare-up in addition if considered expedient. Etiles concerning Fog Signals. Art. 10. Whenever there is fog, whether by day or night, the fog signals described below shall be carried and used, and shall be sounded at least every five minutes ; viz. — (a.,) Steam ships under weigh shall use a steam whistle placed before the funnel not less than eight feet from the deck. (6.) Sailing ships imder weigh shall use a fog horn. (c.) Steam ships and sailing shipa when not under weigh shall use a bell. Steering and Sailing Rules. ^ Art. 11. If two sailing ships are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port so that each may pass on the port side of the othei-. Art. 12. When two sailing ships are crossing so as to involve risk of collision, then if they have the wmd on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side, except in the case in which the ship with the wind on the port side is close hauled and the other ship free, in which case the latter ship shall keep out of the way ; but if they have the wind on the same side, or if one of them has the wiod aft, the ship which is to windward shall keep out of the way of the ship which is to leeward. . -*-^'- 1?-, I* *^°.^.^ips ™e<-iect to ti„ consequences of any neglect to carry lights or signals, or of any required LthL^?'°P'' '''°>°"*' °'' °^ *^^ °«S'^<=* °^ any precaution which maybe qun-ed by the ordinary practice of seamen or by the special circumstances of the case. PASSENGEES ACT AMENDMENT ACT, 1863. 26 & 2t Vict. o. 51. AN ACT TO AMEND THE PASSENGERS ACT, 1855. [IZthJuhj, 1863.] Whereas it is expedient to amend "The Passengers Act, 1855," in the particulars is&iovict nereinatter mentioned : be it therefore enacted by the Queen's most Excellent Majesty, c Uii. py and with the .advice and consent of the Lords Spiritual and Temporal, and Commons, ™ *™£,P™sent Parliament assembled, and by the authority of the same, as follows : 18fi^ ■' ^'^^ ^^^ ^^ '^'^^^^ ^°'' ^'^ Purposes as " The Passengers Act Amendment Act, Shurt title. 2. This Act shall come into operation on the iirst day of October one thousand eight Commencement hundred and sixty-three. ofAst. ^^ 3. The definition in the third section of "The Passengers Act, 1855," of the term Definition of " passenger ship," is hereby repealed, and for the purposes of the said Act and of this "passenger Act the term "passenger ship" shall signify every description of sea-going vessel, whether nf '^ "• j"/"."'; ^ British or foreign, carrying, upon any voyage to which the provisions of the said " Pas- repS, ami sengers Act, 1855," shall extend, more than fifty passengers, or a greater number of other provisions passengers than in the proportion of one statute adult to every thirty-three tons of the ™'"1'=- registered tonnage of such ships, if propelled by sails, or than one statute adult to every twenty tons, if propelled by steam. 4. So much of the fourth section of the said "Passengers Act, 1855," as exempts from Mail steamera the operation of the Act any steam vessel carrying mails under contract with the govern- carrying other ment of the state or colony to which such vessel may belong, is hereby repealed, and seu"ere'to'be'^" every steam vessel, whether British, foreign, or colonial, which shall carry passengers snbject to tlie other than cabin passengers in sufficient number to bring such vessel within the defini- Act. tion of a passenger ship, as set forth in the third 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 first rule of the fourteenth 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 tonnage, JJufnber'of ma- together with so much of the concluding portion of the same sections as relates to such sengers to be rule, is hereby repealed, except so far as relates to any penalty incurred or legal proceed- earned in a pas- ings taken thereunder. ^""Ser sliip. 6. In the passenger lists required by the sixteenth and seventeenth sections of " The Cabin passen- Passengers Act, 185.5," to be delivered by the master of every ship before demanding agerstobein- clearance, there shall be set forth, in addition to the other particulars required by " The <=luded in pas- Passengers Act, 1855," the names of all cabin passengers on board such ships, specifying ° ■whether they are respectively under or over twelve 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 eighteenth section of the said "Passengers Limit of penaltj- Act, 1865," on persons convicted of getting on board any passenger ship with intent to on stowaways obtain a passage therein without the consent of the owner, charterer, or master thereof, jj^^^'gw^ '""" and on persons aiding or abetting in such fraudulent attempt, shall be extended from five pounds to twenty pounds. 8. Notwithstanding the prohibition contained! n the twenty-ninth section of the said '^}°^^J' ™'^ha 900 PASSENGERS ACT AJMENDMENT ACT, 1863. 26 & 27 Vict. c. 51. carried in pas- senger ships, under conditions herein named. Deiinition of the term "large cattle." Dogs and pigs. Issue of lime juice. Substitution of soft bread for other bread stuff's. Sect. 46 of re- cited Act to apply to cabin passengers, and passage money made recover- able immediate- ly on relanding. Sections 12, 61, 53, and 54 of recited Act re- pealed, and other provisions sub- stituted. Forfeiture of ship if master proceeds to sea without certifi- cate of clear- ance, &c. Such ship to be dealt with as if seized under ■ customs laws. Power to Secre- tary of State to release ships on I Act, 1855," horses and cattle may be carried as cargo in passenger ships, subject to the following conditions : , i. • u (1.) That the animals be not carried on any deck below the deck on which passengers are berthed' nor in any compartment in which passengers are berthed, nor m any adjoining compartment, except in a ship built of iron, and of which the compart- ments 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 ot the passengers, at the rate of at least ten superficial feet for each statute adult : (3.) That no greater number of passengers be carried than in the proportion of ttteen to every one hundred tons of the ship's registered tonnage : (4.) That in passenger ships of less than five hundred tons registered tonnage not more than two head of large cattle be carriecl, nor in passenger ships of larger tonnage more than one additional head of such cattle for every additional two hundred tons of the ships registered tonnage, nor more in all in any passenger ship than ten head of such cattle : the term " large cattle " shall include both sexes of horned cattle, deer, horses, and asses ; four sheep of either sex, or four female goats, shall be equivalent to, and may, subject to the same conditions, be carried in lieu of one head of large cattle : (5.) That proper arrangements be made, to the satisfaction of the emigration ofBoer at the port of clearance, for the housing, maintenance, and cleanliness of the animals and for the stowage of their fodder : (6.) Not more than six 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 » penalty not exceeding three hundred pounds nor less than five pounds. ^, 9. The requirements of the thirty-fifth section of the said "Passengers Act, 1855,' that six ounces of lime juice should be issued weekly to each statute adult on voyages exceed- ing eighty-four days in duration for sailing vessels, or fifty days for steamers, shall be confined 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 inedioal practitioner on board ; or, if there be no such practitioner on board, at the discretion of the master of the ship. 10. In addition to the substitutions in the dietary scales specified in the thirty-fifth section of the said " Passengers Act, 1855," soft bread baked on board may be issued, at the option of 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 quarter of a pound of such soft bread may be issued in heu of one pound 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 pound of peas. 11. The forty-sixth 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 out in the said Act, upon 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 landed one half only of their passage money shall be recoverable. 12. The twelfth, fifty -first, fifty-third, and fifty-fourth sections of the said "Passengers Act, 1855," shall be and the same are hereby repealed, except as to the recovery and application 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 thereunder ; and in lieu of the enactments contained in such sections the enactments in the four next following sections shall respectively be sub- stituted; (that is to say,) 13. If any passenger ship shall clear out or proceed to sea without the master having first obtained such certificate of clearance, or without his having joined in executing such bond to the Crown as by 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 United Kingdom in a damaged state, and shall leave or attempt to leave such port or place with passengers on board without the master having first obtained such certificate of clearance as is required by section fifty of the said " Passengers Act, 1855," such ship shall be forfeited to the use of Her Majesty, and may be seized by any officer of customs, if found, within two years from the commission of the offence, in any port or place in Her Majesty'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 : provided that it shall be lawful for one of Her Majesty's principal secretaries of ■ state to release, if he shall think fit, any such forfeited ship from seizure and forfeiture, . on payment, by the owner, charterer, or master thereof, to the use of Her Majesty, of PASSENGERS ACT AMENDMENT ACT, 1863. 901 such sum not exceeding two tliouaa,ncl pounds as such secretary of statu may by any 26 & 27 Vict writing under his hand specify. o. 51. ■14. if any passenger ship shall be wrecked, or otherwise rendered unfit to proceed on uer intended voyage, while in any port of the United Kingdom, or after the commence- payment of a ment of the voyage, and if the passengers, or any of them shall be brought back to the ™'" "' '"™^^- United Kingdom, or if any passenger ship shall put into any port or place in the United J" (lama"! kf o? vmgdom in a damaged state, the master, charterer, or owner shall, within forty-eight neai™nitecl nours thereafter, give to the nearest emigration officer, or in the absence of such officer Kingdom, pas- te the chief officer of Customs, a written undertaking to the following effect; that is to sengers to be say, if the ship shall have been wrecked, or rendered unBt as aforesaid to proceed on her ^^Jage ty some voyage, that the owner, charterer, or ma.ster thereof shall embark and convey the other vessel, and passengers in some other eligible ship, to sail within six weeks from the date thereof, to maintained in the port or place for which their passages respectively had been previously taken ; and if *•"* meantime, the ship shall have put into port in a damaged state, then that she shall be made sea- worthy, and fit in all respects for her intended voyage, and shall, within six 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 pi-oceed 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 superintendence of the emigration commissioners 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 require- ments of this section, such passengers respectively, or any emigration officer on their behalf, shall be entitled to recover, by summary process, as in the said Passengers Act, 1855, 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 party 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 option of such passenger or emigration officer : Provided that the Power to remove said emigration officer may, if he shall think it necessary, direct that the passengers shall J^^aged'sUipT be removed from such damaged "passenger ship," at the expense of the master thereof; and if after such direction any passenger shall refuse to leave such ship, he shall be liable Penalty on pas- to a penalty not exceeding forty shillings, or to imprisonment not exceeding one calendar sengers refnsing. month. 15. If any passenger or cabin passenger of any passenger ship shall, without any ^"^^^""'^ ""^ neglect or default of his own, find himself within any colonial or foreign port or place ^^^^ ^^ passen- other than that for which the ship was originally bound, or at which he or the emigra- gers if the mas- tion commissioners, or any public officer or other person on his behalf may have contracted ter of the ship that he should land, it shall be lawful for the governor of such colony, or for any person '^" *° '^° ^°- authorised by him for the purpose, or for Her Majesty'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 forty-eight hours of the arrival of such passenger, give to the governor or consular officer, as the case may be, a written under- taking to forward or cai-ry on, within six 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. Id. All expenses incurred under the last preceding section or under the fifty-second Expenses in- sectiou of " The Passengers Act, 1855," or either of them, by or by the authority of such ™'™j;™j{?1,J''"^ secretary of state, governor, or consular officer, or other person, as therein respectively g^j!^i^„s'to i,'e a mentioned, including the cost of maintaining the passengers until forwarded to their (j^^jt ii„e to the destination, and of all necessary bedding, provisions, and stores, shall become a debt to Crown. Her Majesty and her successors from the owner, charterer, and master of such ship, and shall be recoverable from them, or from any one or more. of them, at the suit and for the use of Her Majesty, in like manner as in the case of other crown debts; and a certificate in the form in schedule (A.) hereto annexed, or as near thereto as the circumstances of the case will admit, purporting to be under the hand of any such secretary of state, governor, or consular officer, (as the case may be,) stating the total a^nount 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 ot 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 Her Majesty any other evidence in support of the claim but judgment shall pass for the crown with costs of suit, unless the defendant shall specially plead and duly prove that such certificate is false or fraudulent, or sHall specially plead and prove any facts showing that such expenses were not duly incurrecl under the provisions of this Act, and of the said "Passengers Act, 1855, or either ot P02 PASSENGERS ACT AMEND TiIENT ACT, 1863. 26 & 27 Vict, them : provided nevertheless that in no case shall any larger sum be recovered on 0. 51. account of such expenses than a sum equal to twice the total amount of passage money — received or due to and recoverable by or on account of the owner, charterer, or master of such passenger ship, or any of them, for or in respect of the whole number of passengers and oabiu passengers who may have embarked in such ship, which total amount of passage money shall be proved by the defendant, if he will have the advantage of this Passengers for- limitation of the debt ; but if any such passengers are forwarded or conveyed to their ■warded by go- intended destination under the provisions of the last preceding section, they shall not be ™™o'^-,*c., not entitled to the return of their passage money, or to any compensation for loss of passage entitled to re- j j.u • • j j.i •, .. -n a ,. iocej) tm-n of passa"o ^°der the provisions of the said' ' Passengers Act, 1855. money. " 17. In the case of a passenger'ship, of which neither the owners nor charterers reside Bond to repay ™ ^^^ United Kingdom, the bond required to be given to the Crown by the sixty-third expenses of res- section of the " Passengers Act, 185.^," shall be for the sum of iive thousand pounds cuing and for- instead of two thousand pounds ; and an additional condition shall be inserted in such wi-ed™a pa?-" ^"'^^ *° '^^ ^^®'=* ^^^'^ *'^® obligors therein shall, subject to the provisions and limitations, sengers, where hereinbefore contained, be liable for and shall pay to Her Majesty and her successors, as owners and char- a Crown debt, all expenses which maybe incurred under the provisions hereinbefore r'"^id^ "vj^T' ""'' '° *^° " Passengers Act, 1855," contained, in rescuing, maintaining, and forwarding to their destination any passengers 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 desti- nation by or on behalf of the owner, charterer, or master of such ship. TleoitedAotand 18. The said "Passengers Act, 1855," and this Act, shall be construed together as thistobeasone. o„g^j,t_ SCHEDULE (A.) Form of Governor's or OonsuVs Certificate of Expenditure in the Case of Passengers shipwrecked, vnt Shipping Act, 1871, shall miSnli^ot'""' be read and construed as if the Board of Trade were therein named instead of the Customs with Commissioners of Customs. respect to mea- „ , , surement of RsgiHti-y. ships. 4. The forty-sixth, fifty-fourth, ninety-second, and ninety-fourth sections of the Transfer to Ke- Merohaut Shipping Act, 1854, shall be read and construed as if the Registrar General of 8J,strar^«™OTal Seamen were therein named instead of the Commissioners of Customs, and the returns duties'of'com- required to be transmitted by the said ninety-fourth section of the Merchant Shipping missioners of Act, 1854, shall be transmitted to the Registrar General of Seamen, and not to the Customs mth Custom House in London, and the Registrar General of Seamen shall be called the Ji-isS-v of sMps Registrar General of Shipping and Seamen. " Passenger Ships. 5. The sixth and seventh sections of the Passengers Act, 1855, except so much of the Transfer to latter section as provides for the immunity of emigration officers, shall be repealed, and all ^ "p^'^er/aiicl powers and duties vested in or imposed on the Emigration Commissioners by the Pas- duties of Erai- sengers Act, 1S55, and the Passengers Act Amendment Act, 1863, shall be traasferred to gration Commis- and imposed on the Board of Trade. sioners. In the construction and for the purposes 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 which might, if this Act had not passed, have been done by the Emigration Commissioners, whether acting independently or under the sanction or authority of one of Her Majesty'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 eighty-third section of the Passengers Act, 1855, Extension of shall extend to any forms of application or other papers issued by or under the authority ^ffg^^gg ^oj^- of one of Her Majesty's principal Secretaries of State, for the use of persons desirous of nected with emigrating by his assistance, and to any certificate, document, or statement adduced in applications for support of any application to such secretary for such assistance. emSratkin"^ 7. The powers conferred by the thirteenth section of the Passengers Act Amendment Act, 1863, on one of Her Majesty's principal Secretaries of State shall be transferred to B™d of Trade the Board of Trade. of certain powers Annual Survey of Passenger Steamers. State under Pas- 8. The three hundred and fourth section of the Merchant Shipping Act, 1854, shall be pj^gg^j^^gj, repealed, and every passenger steamer shall be surveyed once at the least in every year in steamers to he the manner mentioned in the fourth part of that Act. The fees to be charged for certifi- surveyed ouco cates issued in respect of such survey shall not exceed for a yearly certificate twice the i" every y<^?-^ sum named in the table marked T. in the schedule to the said Act as chargeable for a six l^i^yict. °. 104. months certificate. Pilotage. 9. Notwithstanding anything in the three hundred and fifty-eighth section of the ^™'''^fi2"''i;,„ Merchant Shipping Act, 1854, the Trinity House may, by bye-law made with the sanction ™Yo"pilotage of Her Majesty in Council, repeal or relax the provisions of that section within the whole rates. or any part of their district so far as to allow any pUot 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 Alteration of funds then belonging to the Cinque Ports pilots were merged into the common fund [0^^^^^ goufe called the Trinity House Pilotage Fund, and by the same Act power was given to the pnotage fund by Trinity House of Deptford Strond, with the approval of the Board of Trade, from time to cinque Port time to make regulations for altering and determining the payments and contributions pilots. 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 3 N 2 916 MERCHANT SHIPPING AND PASSENGER ACTS AMENDMENT ACT, 187 i. 35 & 36 Vict. c. 73. Pilotage autho- rity may gi'ant special sea licences. the said fund eleven shillings 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 irmity 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 upon which the said regulation was based : And whereas it is expedient that in lieu of the said sum of eleven shillings per turn the fixed annual sum of thirteen pounds four shillingB should for the future be paw by or in respect of each of the said pilots so long as he remains unsuperannuatert, aua that the excess of the sum heretofore paid iu each year by each pilot over the sum ot thirteen pounds four shillings should be returned : And whereas doubts have been enter- tained whether the purposes aforesaid can be effected without the authority oti'arlia- ment : Be it enacted, that the Trinity House of Deptford Strond shall, out of the Irinity House Pilotage Fund, repay to each of the Cinque Porta pilots licensed before tie 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 eleven shillings per turn heretofore paid by him exceeds the sum which he would have paid if he had pa,id thirteen pounds four shillings 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 eleven shilhngs per turn as heretofore, from the first day of January in each year, until the sums contri- buted in the same year amount to an aggregate sum equal to the product of thirteen pounds four shillings multiplied by the number of pilots licensed as above who are then surviving and uusuperannuated, and that when such aggregate sum is made up no further contributions shall be required from the said pilots until after the thirty-first day of December in the same year ; and if the said contributions during any one year fall short of the said aggregate sum, the said pilots then surviving and unSuperannuated shall, at such time and in such manner as the Trinity House may direct, make good such deficiency by payment of an additional contribution per man, to be calculated pl-o rata upon the number of turns which each may have carried during the said year, and any such pilot failing to pay such additional contribution shall, in default of such payment, become liable to immediate removal from active service and superannuation 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, grant special licences qualifying the persons to whom they are granted to act as pilots for any part of the sea or channels beyond the limits of any pilotage 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. Ohain Cables. Fees and ex- 12. In the event of a licence for the testing of chain cables and anchors being granted tto to testing *° *''® Trinity House under the Chain Cable and Anchor Act, 1871, all fees and other ot chain caloles sums received by the Trinity House in respect of such testing shall be carried to the and anchors by Mercantile Marine Fund, and all expenses incurred by the Trinity House in respect of ??p^cl toTnd*" ^^°^ testing shall be chargeable on the Mercantile Marine Fund, charged on Mer- cantile Marine Fund. Duties of sur- veyors. General. 13. All duties in relation to the survey and measurement of ships under this Act or the Acts amended hereby shall be performed by the surveyors appointed under the fourth part of the Merchant Shipping Act, 1854, in accordance with such regulations as may be from time to time made by the Board of Trade. Fees and salaries 14. [Repealed hy Z9 & M Vict.c.iO.'] of surveyors and emigration officers. Penalty on ser- 15. If any surveyor, or any person employed under the authority of the Passengers ceMnEf™tutty ■^''*' ^^^'^' ^^''^'°^^ °^ receives directly or indirectly, otherwise than by the direction of &c., for duties the Board of Trade, any fee, remuneration, or gratuity whatever in respect of any of the performed under duties performed by him under this Act or the Acts amended hereby, he shall for every this Act. such offence incur a penalty not exceeding fifty pounds. Owner or agent 16. The owner of home trade ships or his agent may enter into time agreements, in of home trade forms to be sanctioned by the Board of Trade, with individual seamen to serve in any into time^a^ee- ""^ "^ more ships belonging to him, which agreements need not expire on either the ments which thirtieth day of June or the thirty-first day of December, anything in the Merchant need not expire Shipping Act to the contrary notwithstanding : Provided always, that a duplicate of half-yearly. gj^,^ agreement entered into under the provisions of the section be forwarded to the Registrar-General of Shipping within forty-eight hours after it has been entered into. MERCHANT SHIPPING ACTS AMENDMENT ACT, 1873. 917 !'• It shall be lawful for Her Majesty to accept from time to time the offers of any 35 & 36 Vict. person whom the Jjord High Admiral or the commissioners for executing his office may c. 73. recommead, to serve as oificera of reserve in the Royal Navy, upon such terms and con- Mtions as to Her Majesty may from time to time seem fit, and the " Officers of the Eoyal Her Majesty JNaval Reserve Act, 1863," shaU be read and construed as if this clause formed part of the Sfpersons re- ^™ Act. commended by the Admiralty to serve as ofli- . cers of the Royal Naval Reserve. MERCHANT SHIPPING ACTS AMENDMENT ACT, 1873. 36 & 37 Vict. c. 85. AN" ACT TO AMEND THE MERCHANT SHIPPING ACTS. [5th August, 1873.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and 36 & 37 Vict. consent of the Lords Spiritual and Temporal, and Commons, in this present Parhameut c. 85. assembled, and by the authority of the same, as follows : Pi-eliminary. 1. This Act may be cited as " The Merchant Shipping Act, 1873." Short title. 2. This Act shall be construed as one with the Merchant Shipping Act, 1854, and the constiuction of Acts amending the same, and the said Acts and this Act may be cited collectively as the Act. Merchant Shipping Acts, 1854 to 1873. Registry {Part II. of Merchant Shipping Act, 1854). 3. Every British ship registered after the passing of this Act shall before registry, and Particulars to every British ship registered before the passing of this Act shall, on or before the first ^^^^- °" day of January one thousand eight hundred and seventy-four, be permanently and ^™^^"- ^ 'P^- conspicuously 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 stern, 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 four inches, and of proportionate breadth : Her official number and the number denoting her registered tonnage shall be cut in on her main 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 Roman capital letters or iu figures, not less than six inches in length, the lower line of such letters or figures to coincide with the draught Une denoted thereby. Such letters or figures shall be marked by being cut in and painted 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 from the requirements of this section or any of them. If the scale of feet showing the ship's draught of water is in any respect inaccurate, 60 as to be likely to mislead, the owner of the ship shall incur a penalty not exceeding one hundred pounds. 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 Merchant Shipping 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 suffers any person under his control to conceal, remove, alter, deface, or obliterate any of the said marks, except in the event aforesaid, or except for the purpose of escaping capture by an enemy, shall for each oflTence incur a penalty not exceeding one hundred pounds, 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 inaccu- rately marked may detain the same until the insufficiency or inaccuracy has been remedied. Provided that ho fishing vessel duly registered, lettered, and numbered in pursuance 918 MERCHANT SHIPPING ACTS AMENDMENT ACT, 1873. 36 & 37 Vict, of the Sea Fisheries Act, 1868, shall be required to have her name and port of registry c. 85. Partioulars to "be entered in re- cord of draught of water. marked under this section. . Provided also, that if any registered British ship is not within a port of the United Kingdom at any time before the first day of January one thousand eight hundred and seventy-four, she shall be marked as by this section required within one month after ner next return to a British port of registry subsequent to that date. 4. The record of the draught of water of any sea-going ship required under section five of the Merchant Shipping Act, 1871_, shall, in addition to the partioulars thereby required, specify the extent of her clear side in feet and inches. The term " clear side " means the height from the water to the upper side of the 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 draught of water, permit such person to enter the ship and 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 under his control to impede any person so appointed in the execution of his duty, shall for each offence incur a penalty not exceeding five pounds. nanws rf for=isn ^" ^^^''^ ^ foreign ship, not having at any previous time been registered as a British ships placed on. ship, becomes a British ship, no person shall apply to register, and no registrar shall British register, knowingly register such ship, except by the name which she bore as a foreign ship immediately before becoming a British ship, unless with the permission of the Board of Trade granted in manner directed by section six of the Merchant Shipping Act, 1871. Any person who acts or suffers any person under his control to act in contravention of this section shall for each offence incur a penalty not exceeding one hundred pounds. 6. Where a ship has ceased to be registered as a British ship by reason of having been wrecked or abandoned, or for any reason other than capture by the enemy or transfer to a person not qualified to own a British ship, such ship shall not be re-registered until she has, at the expense of the applicant for registration, been surveyed by one of the surveyors .^appointed by the Board of Trade and certified by him to be seaworthy. Restrictions on re-registration of ahandoned ships. Agreements "With seamen. Agreements with fisliennen. Compensation to seamen for Tinneceasary detention on charge of deser- tion. Power for Board of Trade to esta- blish mercantile marine offices and to hold exa- minations at certain ports. Mooters and Seamen {Part III. of Merchant Shipping Act, 1854). 7. Any agreement with a seaman made under section one hundred and forty-nine of the Merchant Shipping Act, 1854, may, instead of stating the nature and duration of the intended voyage or engagement as by that section required, state the maximum 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 off the coast of the United Kingdom may enter into an agreement with any person employed on such vessel that such person shall be remunerated wholly by a share in the profit of the fishing 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 superinten- dent or deputy superintendent of a mercantile marine office. The superintendent or deputy superintendent shall, before such agreement 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 by the contracting parties. Any such agreement, if made in the manner by this section required, shall be valid and binding on all the contracting parties, notwithstanding anything contained in section one hundred and eighty-two of the Merchant Shipping Act, 1854. 9. If a seaman or apprentice 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 seven of the Merchant Shipping Act, 1871, it is proved that she is not in a fit condition to proceed to sea, or that her accommodation is insufficient, the owner or master of the ship shall he liable to pay to such seaman or apprentice such compensation for his deten- tion as the court having cognisance of the proceedings may award. 10. In any case where the business of a mercantile marine office is conducted otherwise than under a.looal marine board, the Board of Trade may, if they think fit, instead of conducting such business at a custom house or otherwise', establish a mercantile marine office, and for that purpose procure the requisite buildings and property, and from time to time appoint and remove all the requisite superintendents, 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 obtaiuino- the same, as might have been made or exercised by a local marine board. MERCHANT SHIPMNtt ACTS AMENDMENT ACT, 1873. 919 11. [Repealed hj 39 <& 40 Vict. o. 80.] 36 & 37 Vict. 0. 85. Power for Her Majesty, by order in council, to apply certain provisions of „ . . , _ , , . . Merchant Ship- bafety and Prevention of Accidents (Part IV. of Merchant Shipping Act, 1854). ping Acts to foreign ships. 12. [Repealed ly 39 & 40 Vict. c. 80.] Survey of ships suspected of being unsea- worthy. 13. [Rqiealed by 39 <& 40 Vict. c. 80.] j ' Costs of survey. 14. [Repealed by 39 tb 40 Fict. c. 80.] Appeal from decision of Board of Trade. 15. In the case of any ship surveyed under the fourth part of the Merchant Shipping Power for Board Act, 1854, the Board of Trade may at the request of the owner authorise the reduction of Trade to vary of the number and the variation of the dimensions of the boats required for the ship by ^'^boat™ ""^ section two hundred and ninety-two of that Act, and also the substitution of rafts or other appliances for saving life for any such boats, so nevertheless that the boats so reduced or varied and the rafts or other appliances so substituted be sufficient for the persons carried on board the ship. Section two hundred and ninety-three 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 Duties of mas- or person in charge of each vessel, if and so far as he can do so without danger to his go^iiston"^'' own vessel, crew, and passengers (if any), to stay by the other vessel until he has ascer- tained that she has no need of further assistance, and to render to the other vessel, her master, crew, and the passengers (if any), such assistance as may be 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 plaee to which she belongs, and also the names of the ports and places from which and to which she is bound. If he fails so to do, and no reasonable cause for such failure is shown, the collision 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 British vessel who fails, without reasonable 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 his conduct may be held and his ceitificate may be cancelled or suspended. 17. If in any case of collision it is proved to the court before which the case is tried Liability for that any of the regulations for preventing collision contained in or made under the infringement of Merchant Shipping Acts, 1854 to 1873, has been infringed, the ship by which such regu- J^I^XoUis'iou. lation has been infringed shall be deemed to be in fault, unless it is shown to the i-atis- faction of the court that the circumstances of the case made departure from the regulation necessary. 18. The signals specified in the first schedule to this Act shaU be deemed to be signals Signals of i. J. J. distress. of distress. 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, shall 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 prejudice 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 displayed Signals for shall be those specified in the second schedule to this Act. pi s. 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, his authority to use any other signal for a pilot, shall incur a penalty not exceeding twenty pounds. 20. Her Majesty 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 addition thereto, If^^^ ™ 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 qf a. private code, any Private signals. 920 MEECHA.NT SHIPPING ACTS AMENDMENT ACT, 1873. 36 & 37 ViOT. 0. 85. Notice to "be given of appre- hended loss or ship. Restrictions on carriage of dan- gerous goods. Penalty for mis- description of dangerous goods. Power to refuse to caiTy goods suspected of being dangerous. Power to throw overboard dan- gerous goods. Forfeiture of dangerous goods impro- perly sent. Saving as to Dangerous Goods Acts. Her Majesty ' may liy order rockets, lights, or other similar sigualB, 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 the use or display thereof by any 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 upon persons using or displaying signals improperly. 22. Jf the managing owner, or, in the event of there being no managing owner, the ship's husband of any British ship have reason, owing to the nonappearance of such ship, or to any other circumstance, to apprehend that such ship has been wholly lost, he shall, as soon as conveniently may be, send to the Board of Trade notice in writing of such loss and of the probable occasion thereof, stating the name of the ship and her official number (if any), and the port to which she belongs, and if he neglects to do so within a reasonable time he shall incur a penalty not exceeding fifty pounds. 23. If any person sends or attempts to send by, or not being the master or owner of the vessel carries- or attempts to carry in any vessel, British or foreign, any dangerous goods ; (that is to say), aquafortis, vitriol, naphtha, benzine, gunpowder, lucifer inatches, 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 one hundred pounds : 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 had no reason to suspect that the goods shipped by him were of a dangerous nature, the penalty which he incurs shall not exceed ten pounds. 24. If any person knowingly sends or attempts to send by, or carries or attempts to carry in any vessel, British or foreign, any dangerous goods or goods of a dangerous nature, under a false description, or falsely describes the sender or carrier thereof, he shall incur a penalty not exceeding five hundred pounds. 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 may require 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 without such notice having 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 throwing overboard, be subject to any liability, civil or criminal, in any court. 27. Where any dangerous goods have been sent or carried, or attempted to be sent or ca,rried, 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 for- feited 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 offence 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 are 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 any other enactment for the like object, so nevertheless that nothing in the said provisions shall be deemed to authorise that any person be sued or prosecuted twice in the same matter. Miscellaneous and Repeal. 29. Where, in accordance with the Foreign Jurisdiction Acts, Her Majesty exercises MERCHANT SHIPPING ACTS AMENDMENT ACT, 1873. 921 jurisdiction within any port out of Her Majesty's dominions, it shall be lawful for Her 36 & 37 Vict. Majesty, by Order in Council, to declare such port a port of registry (in this Act referred C. 85. to as a foreign port of registry), and by the same or any subsequent Order in Council to , declare the description of persons who are to be the registrars of Uritish ships at such ^'jaje'certein ' foreign port of registry, and to make regulations with respect to the registry of British foreign ports ships thereat. ports of registry. Upon such order coming into operation it shall have effect as if it were enacted in the Merchant Shipping Acts, 1S54 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 Fees in respect surveys mentioned in the third schedule hereto such fees, not exceeding those specified °^ surveys, &c. 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 Merchant Shipping Acts, 1854 to 1873, the Board of Trade Board of Trade may take proceedings in the name of any of their officers. may sue in name 32. The following sections of this Act, that is to say, sections sixteen, eighteen, nine- of its officers, teen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, ^o[*t"go^e i^to twenty-seven, twenty-eight, shall not come into operation until the first day of November f^roe until 1st one thousand eight hundred and seventy-three. November, 1873. 33. Section twenty-nine of the Merchant Shipping Act Amendment Act, 1862, and Repeal of certain sections four and ten of the Merchant Shipping Act, 1871, are hereby repealed ; and on |?"''?"' f gt*^^ and after the first day of November one thousand eight hundred and seventy -three, j^^g(.gjgg2 sections three hundred and twenty-seven and three hundred and twenty-nine of the and 1871 ; and Merchant Shipping Act, 1854, sections thirty-three and thirty-eight of the Merchant of certain other Shipping Act Amendment Act, 1862, and section nine of the Merchant Shipping Act, gh^°^h?pping' 1871, shall be repealed; but this repeal shall not affect — ■ Acts, 1864, 1862, (1.) Anything duly done before this Act comes into operation ; and 1871. (2.) Any right acquired or liability accrued before this Act comes into operation ; (3.) Any penalty, forfeiture, or other punishment incurred or to be incurred in respect of any offence committed before this Act comes into operation ; or (4.) The institution of any legal proceeding or any other remedy for ascertaining, enforcing, or recovering any such liability, penalty, forfeiture, or punishment as aforesaid. . SCHEDULES. SCHEDULE I. Signals of Distress. In the Daytime.— The following signal, numbered 1, 2, and 3, when used or displayed together or separately, shall be deemed to be signals of distress in the daytime :— 1. A gun fired at intervals of about a minute ; _ 2. The international 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 displayed 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, &o.) ; Rockets or shells, of any colour or description, fired one at a time, at short intervals. 922 MERCHANT SHIPPING ACTS AMENDMENT ACT, 1873. 36 & 37 Vict. . °-L^ SCHEDULE II. SlONAlS TO BE MADE BY SmPS WANTINQ A PiLOT. In the Saytime.—The following signals, numbered 1 and 2, when used or displayed together or separately, shall be deemed to be signals for a pilot in the daytirne, 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 pyrotechnic 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. SCHEDULE III. Table of Maximum Fees to be paid fob the Measurement, Survey and Inspection op Mekohant Ships. 1. For measurement of tonnage. £, s. d. For a ship under 50 tons register tonnage 10 „ from 50 to 100 tons „ 1 10 „ lOOto 200 ,, „ 2 „ „ 200to 500 „ „ 3 6 „ „ 500to 800 ,, „ . . . .■ . . . .400 „ „ 800 to 1,200 „ „ 5 „ 1,200 to 2,000 „ „ 6 „ 2,000 to 3,000 „ „ 7 „ „ 3,000 to 4,000 „ , 8 „ „ 4,000 to 6,000 „ „ 9 „ „ 5,000 and upwards, 10 2. Foi- the inspection of the ierthing or sleeping accomWiOdation of the crew. £ s. d. 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 (£1) whatever be the number of separate visits. 2. When the accommodation is inspected at the same time with the measurement of the tonnage, no separate fee shall be charged for such inspection. 3. For the survey of emigrant ships. £ s. d. a. For an ordinary survey of the ship, and of her equipments, accommoda- tion, stores, light, ventilation, sanitary arrangements, and medical stores 10 J. For a special survey 15 u. In respect of the medical examination of passengers and crew, for every hundred persons or fraction of a hundred persons examined . .10 4. For the inspection 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 that the aggregate amount of fees for any such inspection shall not exceed one pound (£1) whatever be the number of separate visits. MKRCHANT SHIPPING ACT AMENDMENT ACT, 1876. 923 MERCHANT SHIPPING ACT AMENDMENT ACT, 1876. 39 & 40 ViOT. C. 80. AN ACT TO AMEND THE MERCHANT SHIPPINa ACTS. [15th August, 187 6.] Be it enacted by the Queen's most Excellent Majesty, by and witli the advice and 39 & 40 Vict. consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament c. 80. assembled, and by the authority of the same, as follows : 1. This Act may be cited as " The Merchant Shipping Act, 1876." Short title. 2. This Act shall be construed as one with the Merchant Shipping Act, 1854, and the construction Acts amending the same ; and the said Acts and this Act may be cited collectively as the of Act. Merchant Shipping Acts, 1854 to 1876. 3. This Act shall come into operation on the first day of October, one thousand eight Comnieucemt hundred and seventy-six (which day is in this Act referred to as the commencement of ot Act. 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 commencement of this Act. 4. Every person who sends or attempts to send, or is party to sending or attempting Semiing unsea- to send a British ship to sea in such unseaworthy state that the life of any person is likely ^"^^^^^^^^ to be thereby endangered, shaU be guilty of a misdemeanor, unless he proves that he (demeanor, 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 evidence in the same manner as any other witness. Every master of a British ship who knowingly takes the same to sea in such unsea- worthy 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 unseaworthy 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 every contract of service, express or implied, between the owner of a ship and Obligation of the master or any seaman thereof, and in every instrument of apprenticeship whereby any '^^^P ^.^j^ ^.^ person is bound to serve as an apprentice on board any ship, there shall be implied, not- spe^t to use of withstanding any agreement to the contrary, an obligation on the owner of the ship, that rrasonablo the owner of the ship, and the master, and every agent charged with the loading of the ™°^*oj.Jj°iff ™™ ship, or the preparing thereof for sea, or the sending thereof to sea, shall use all reasonable means 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. Where a British ship, being in any port of the United Kingdom, is, by reason of J°^^^*°j*'™" the defective condition of her hull, equipments, or machinery, or by reason of overload- ^^^^ procedure ing or improper loading, unfit to proceed to sea without serious danger to human life, {„,. ^^^]^ deteu- having regard to the nature of the service for which she is intended, any such ship tion. (hereinafter referred to as "unsafe") maybe provisionally detained for the purpose ot being surveyed, and either finally detained or released, as follows : . i, 4. (1.) The Board of Trade, if they have reason to believe on complaint, or otherwise, that . a British ship is unsafe, may provisionally order the detention of the ship for the purpose of being surveyed. (2.) When a ship has been provisionally detained there shall be'forthwith served on the master of the ship a written statement of the gtounds 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. 924 MERCHANT SHIPPING ACT AMENDMENT ACT, 1876. 39 & 40 ViOT. C. 80. Constitution of court of survey for appeals. Power and procedure of court of survey. (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 fina/liy detained, either absolutely, or until the performance of such conditions witn respect to the execution of repairs or alterations, or the unloading or reloading ot 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 seven days after such 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 ship 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 assessors 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 the 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 consent 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 a,ppoiut- ing a person or persons to survey her ; and if he thinks that a ship so detained by him is not unsafe may order her to be released. (10.) A detainmg officer shall forthwith report to the Board of Trade any order made by him for the detention or release of a ship. 1. A courtof survey for a port or district shall consist of a judge sitting with two assessors. 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 hst (from time to time approved for the port or district by one of her Majesty'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 be such wreck commissioner. The assessors shall be persons of nautical engineering or other special skill and experi- ence ; 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 person 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 Hst. 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 the 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 be published in the prescribed manner. 8. With respect to the court of survey the following provisions shall have effect : (1.) The case shall be heard in open court : (2.) The judge and each assessor may survey the ship, and shall have for the purposes of this Act all the powers of an inspector appointed by the Board of Trade under the Merchant Shipping Act, 1854 ; (3.) The judge may appoint any competent person or persons to survey the ship and report thereon to the court ; (4.) The judge shall have the same power as the Board of Trade have to order the ship MEKCHANT SHIPPING ACT AMENDMENT ACT, 1876. 925 to be released or finally detained, but unless one of the assessors concurs in an 39 & 40 ViOT. order for the detention of the ship, the ship shall be released ; c. 80. (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 pursuance of this section ; (6.) The judge shall send to the Board of Trade the prescribed report, and each assessor shall either sign the report 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 consent of Biiles for the Treasury so far as relates to fees) make, and when made revoke, alter, and add to procedure of general rules to carry into effect the provisions of this Act with respect to a court of ^^ ' ' survey, and in particular with respect to the summoning of and procedure before the court, the requii-ing on an appeal security for costs and damages, the amount and ap- plication 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 ex- pression "presci-ibed " in the provisions of this Act relating to the detention of ships or court of survey means prescribed by such rules. 10. If it appears that there was not reasonable and probable cause, by reason of the Liability of condition of the ship or the act or default, of the owner, for the provisional detention of Board of Trade the ship, the Board of Trade shall be liable to pay to the owner of the ship his costs of for costs and and incidental to the detention and survey of the ship, and also compensation for any damages, 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 provisionally detained was, at the time of such detention, unsafe within the meaning of this Act, the owner of the ship shall be liable to pay to the Board of Trade their costs of and in- cidental to the detention and survey of the ship, and those costs shall, without prejudice to any other remedy, be recoverable as salvage is recoverable. For the purposes 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 tlie Board of Trade, shall be deemed to be part of the costs of the detention and survey 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 request made to him for that purpose by the Board of Trade, shall ascertain and certify the proper amount of such 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 official 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 law in Ireland in which such action may be commenced to order that the summons or writ may be served on the Crown and Treasury Solicitor for Ireland, in such manner and on such terms as to extension of time and otherwise as to the court shall seem fit, and that such service shall be deemed good and sufficient service of such summons or writ upon the Secretary of the Board of Trade. 11. Where a complaint is made to the Board of Trade or a detaining officer that a Power to require British ship is unsafe, the Board or officer may, if they or he think fit, require the com- pS.™^"security plainant to give security to the satisfaction of the Board for the costs and compensation for costs, which he may become Uable to pay aa hereinafter mentioned. Provided that where the complaint is made by one' fourth, being not less than three, of the seamen belonging to the ship, and is not in the opinion of the Board or officer frivolous or vexatious, such security shall not be required, 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 ship ought to be detained under this Act. Where a ship is detained in consequence of any complaint, and the circumstances 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^f^the^ship.^^^^^ shaU have for the purpose of his duties under this Act the ^^P?',X,ts to same powers as an inspector appointed by the Board of Trade under the detention of Merchant Shipping Act, 1854. . ship f 2 ) An order for the detention of a ship, provisional or final, and an order varymg the same, shall be served as soon as may be on the master of the ship. f3 ) When a ship has been detained under this Act she shall not be released by reason of her British register being subsequently closed. (i ) For the purposes of a survey of a ship under 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 un- loading or removal of any cargo, ballast, or tackle. Application to foreign sliips of provisions as to detention. 926 MERCHANT SHIPPING ACT AMENDMENT ACT, 1876. 39 & 40 Vict. (5.) The provisions of the Merchant Shipping Act, 1864, with respect to persons who o. 80. wilfully impede an inspector, or disobey a requisition or order of an inspector, ~ shall apply as if those proyisions were herein enacted, with the substitution tor 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^ Ships, Overloading. ' ■ 13. Where a foreign ship has taken on board all or any part of her cargo at a port in the: United Kingdom, and is whilst at that port unsafe by reason of overloadinK or im- proper loading, the provisions of this Act with respect to the detention of ships shall apply to that foreign ship as if she were a British ship, with the following modifications : (1.) A copy of the order for the provisional detention of the ship ishall be forthwith served on the consular ofacer for the' state to which the ship belongs at or nearest to the pUce where the ship is detained : (2.) Where a ship lias 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 to be detained or released accord- ingly, 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 appeal to the court of siirvey touching the report of the surveyor which is before provided by this Act : and (3.) Where the owner or master of tbe ship appeals to the court of survey, the consular officer, on the request of such owner or master, niay appoint' any competent person who shall be assessor in such case in lieu of the assessor who, if the ship were a British ship, would be appointed otherwise 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 State as a consular officer of a foreign state. "^ . , Appeal on Refusal ofcertai/n Oertijicates to Ships. Appeal on re- 14. Whereas by section three hundred and nine of the Merchant Shipping Act, 1854, fusal of certain and enaottaents amending the same, the owner of a passenger steamer as defined in that nnaer'Merohant -*-°* ^^ required to cause the same to be surveyed by a shipwright surveyor and an Shipping and engineer surveyor, and those surveyors are required to give declarations of certain par- Passengers Acts, ticulars with respect to the sufficiency or conformity with the Act of the ship and equip- ments, 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 off other particulars in the said section mentioned, and the Board of Trade, under section three hundred and twelve of the sami Act, issue a certificate upon such declarations, and the passenger steamer cannot lawfully proceed to sea without obtaining such certificate ; And whereas under sections eleven and fifty 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 men- tioned, 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 otherwise as therein mentioned ; And whereas by section thirty of the Merchant Shipping Act Amendment Act, 1862, provision is made for preventing a ship from proceeding to sea in certain cases without a certificate from a surveyor or person appointed by the Board of Trade to the effect 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 men- tioned : 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 give 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 port or district where the ship for the time being is.j' ' MKECHANT SHIPPING ACT AMENDMENT ACT, 1876. 927 On such appeal the Judge of the court of survey shall report to the Board of Trade on 39 & 40 Vict. the question raised by the appeal, and the Board of Trade, when satisfied that the re- c. 80. quirements of the report and the other provisions of the said enactments have been complied with, may, — (1.; In the case of a passenger steamer give their certificate under section three hundred and twelve of the Merchant Shipping Act, 185i, 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 enactments, 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 a certificate under section thirty of the Merchant Shipping Act Amendment Act, 1862. Subject to any order made by the judge of the court of survey, the costs of and incidental to au 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 tenor thereof, shall apply to the court of survey when acting under this section, and to appeals under this section. Where tbe survey of a ship is made for the purpose of a declaration or certificate under the above-recited enactments, the person appointed to make the survey shall, if so re- quired 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. 15. If the Board of Trade are of opinion that an appeal under this Act involves a Befei-ence in question of construction or design or of scientific difBculty or important principle, they '^'?*°?'ic°™i^ ° may refer the matter to such one or more out of a list of scientific referees from time to g^^g time approved by a Secretary of State, as may appear to possess the special qualifications necessary for the particular case, smd 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 by 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 i-eferee 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 amd Emigrant Ships. 16. Any steamship may carry passengers not exceeding twelve in number although she Exemption of has not been surveyed by the Board of Trade as a passenger steamer, and does not carry fj^^'paSge"^ a Board of Trade certificate as provided by the Merchant Shipping Act, 1854, with respect certificates. ° to passenger steamers. , . , ,.„ 17. "Where the legislature of any British possession provides for the survey of and grant ^"j'^f^/passen of certificates for passenger steamers, and the Board of Trade report to Her Majesty that ^^^ steamers, they are satisfied that the certificates are to the like effect, and are granted after a like survey, and in such manner as to be equally efficient with the certificates granted for the same purpose in the United Kingdom under the Acts relating to Merchant Shipping, it shaU be lawful for Her Majesty 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 which relate to certi- ficates granted for passenger steamers under those Acts shall, either without modification or with such modifications as to Her Majesty 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 Her Majesty may seem fit, and to impose penalties not exceeding fifty pounds for the breach of such conditions and regulations. , , ^■, „ ■ ■ 18. In every case where a passenger certificate has been granted to any steamer by ijhe f'°™" Board of Trade under the provisions of the Merchant Shipping Act, 1654, and remams l^^^^^ ^^se of still in force it shall not be requisite for the pui-poses of the employment of such passenger steamer under the Passengers Acts that she shaU be again surveyed in her hull and |teain^;^and machinery in order to qualify her for service under the Passengers Act 1855 and the emigmnt ships. Acts amending the same ; but for the, purposes of employment under those Acts such Board of Trade certificate shall be deemed to satisfy the requirements of the Passengers 928 MERCHANT SHIPPING ACT AMENDMENT ACT, 1876. 39 & 40 Vict. Acts with respect to such survey, and any further survey of the hull and machinery ahall 0. 80. be dispensed with, and so long as a steamship ij an emigrant ship that is a passenger ship within the meaning of the Passengers Act, 1856, and the Acts amending the same, and the provisions contained in the said Passengers Acta as to the survey of her "'^1^' machinery, and equipments have been complied with, she shall not be subject to the provisions of the Merchant Shipping Act, 1864, with respect to the survey of and certi- ficate for passenger steamers, or to the enactments amending the same. Provision as to 19. Where a foreign ship is a passenger steamer subject to the Merchant Shipping Act, SSIe^ of foreign i854, and the Acts amending the same, or an emigi-ant ship subject to the Passengers steam"? OT Act, 1855, and the Acts amending the same, and the Board of Trade are satisfied, by the emigrant ship, production of a foreign certificate of survey attested by a British consular officer at the port of survey, that such ship has been officially surveyed at a foreign port, and are satisfied that the requirements 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 effect as if given upon survey under the said Acts or any of them : Provided that Her Majesty may by Order in Council direct that this section shall not apply in the case of an official survey at any foreign port at which it appears to Her Majesty that corresponding provisions are not extended to British ships. Power to modify 20. It shall be lawful for the Board of Trade, if satisfied that the food, space, acoom- Passengers Acts modation, or any other particular or thing provided in an emigrant ship for any class of and acoraimodal Passengers is superior to the food, space, accommodation, or other particular or thing re- tionin emigrant quired by the Passengers Act, 1866, and the Acts amending the same, to exempt such ships. ship from any of the requirements of those Acts with respect to food, space, or accom- modation, or other particular or thing, in such manner and upon such conditions as the Board of Trade may think fit. Provision of 21. Every sea-going passenger steamer and every emigrant ship shall be provided to signals of dis- t^e satisfaction of the Board of Trade— giSshaWe lights 0-) ^itb means for making the signals of distress at night specified in the first andlifetnoysin " schedule to "The Merchant Shipping Act, 1873," or in any rules substituted passenger "^ therefor, including means of making flames on the ship which are inextinguishable emiSant shh)s ^^ water, or such other means of making signals of distress as the Board of Trade ■ iaay 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 United Kingdom without being so provided as required by this section, for each default in any of the above requisites the owner shall, if he appears to be in fault, incur a penalty not exceeding one hundred pounds, and the master shall, if he appears to be in fault, incur a penalty not exceeding fifty pounds. Gram Cargoes. Stowage of cargo 22. [Repealed by 43 S 44 Vict. c. 43.1 of grain, &c. l i- a j Deck Cargoes. Space occupied 23. If any ship, British or foreign, other than home trade ships as defined by the liy deck cargo to jdgrchant Shipping Act, 1854, carries as deck cargo, that is to say, in any uncovered be liable to dues. ^^^^ upon deck, or in any covered space not included in the cubical contents forming the ship's registered tonnage, timber, stores, or 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 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 four of section twenty-one of the Mer- chant Shipping Act, 1864, and when so ascertained shall be entered by him in the ship's official log book, and also in a memorandum which he shall deliver to the master, and the master shall, when the said dues are demanded, produce such memorandum in like manner as if it were the certificate of registi-y, or, in the case of a foreign ship, the docu- ment equivalent to a certificate of registry, and in default shall be Hable to the same penalty as if he had failed to produce the said certificate or document. Penalty for 24. After the first day of November one thousand eight hundred and seventy-six, if a carrying deck- ghip, British or foreign, arrives between the last day of October and the sixteenth day of MERCHANT SHIPPING ACT AMENDMENT ACT, 1876. 929 April in any year at any port in the United Kingdom from any port out of the United 39 & 40 Vict. Kingdom, carrying as deck cargo, that is to say, in any uncovered space upon deck, or in 0. SO. any covered space not included in the cubical contents forming the ship's registered tonnage, any wood goods coming within the following descriptions ; that is to say, !°'*? of tini^Jor (a.) Any square, round, waney, or other timber, or any pitch pine, mahogany, oak, ' ™ - • teak, or other heavy wood goods whatever ; or (b.) Any more than five 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 three feet above the deck ; the master of the ship, and also the owner, if he ia privy to the oflfence, shall be liable to a penalty not exceeding five pounds for eveiy hundred 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 one hundred pounds (whatever may be the maximum penalty recoverable), on summary conviction. Provided that a master or owner shall not be liable to any penalty under this section — ■ (1.) lu respect of any wood goods which the master has considered it necessary to place or keep on deck during the voj'age on account of the springing of any leak, or of any other damage to the ship received or apprehended ; 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 lasb day of October as allowed a sufficient interval according to the ordinary duration of the voyage for the ship to arrive before that day at the said port in the United Kingdom, but was prevented from so arriving by stress of weather or circumstances 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 sixteenth day of April as allowed a reasonable interval according to the ordinary duration of the voyage for the ship to arrive after that day at the said port in the United Kingdom, and by reason of nu exceptionally favourable voyage arrived before that day. Provided further, that nothing in this section shall affect any ship not bound to any port in the United Kingdom which comes into any port of the United Kingdom 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 eighty tons register employed solely in the Marking of deck coasting trade, ships employed solely in fishing, and pleasure yachts) shall be permanently Hues, and conspicuously marked with lines of not less than twelve inches in length and one inch in breadth, painted longitudinally on each side amidships, or as near thereto as is prac- ticable, and indicating the position of each deck which is above water, i u J 1 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 white or yellow on a dark ground, or black on a light ground. _ _ 2«. With respect to the marking of a load-line on British ships the following provisions M^^Amg^onor.a shall have etfect : . , , ■ j. i j going British (1.) The owner of every British ship (except ships under eighty tons register employed ^^.^^^ solely in the coasting trade, ships employed solely in fishing, and pleasure yachts) shall, before entering his ship outwards from any port in the United Kingdom upon any voyage for which he is required so to enter her, or, if that is not practicable, as sSon after as may be, mark upon each of her sides amidships, or as near thereto as is practicable, in white or yellow on a dark ground, or m bkck on a light ground, a circular disc twelve inches in diameter, with a horizontal Ime eighteen inches in length drawn through its centre : _ (2.) The centre of this disc shall indicate the maximum load-lme m salt water to which the owner intends to load the ship for that voyage : j i'„o^„.q f„ +V,„ (3.) He shall also, upon so entering her, insert in the form of «°*.;? ^/'^.^^f *° *^ ^ collector or other principal officer of customs a statement in ^"'^"g °^ *^^«^f *;°^^ in feet and inchesbetween the centre of this disc and the .) Where the investigation involves, or appears likely to involve, the cancelling or suspension of the certificate of an engineer, one at least of the assessors shall be appointed from Class II. 7. The Board of Trade shall inform the Secretary of State when assessors are required, and shall state from which of the aforesaid classes assessors ought, in their opinion, to be appointed, in order to give due eflFeot to the aforesaid classification and these rules ; but the Board of Trade shall not request the appointment of any individual assessor. 8. An a,ppointment made by the Secretary of State of any assessor or assessors for an investigation shall not be open to question on the ground that it was not in accordance with these rules, or does not give full eCfeot to the requirements of these rules. MEKCHANT SEAMEN (PAYMENT OF WAGES AND EATING) ACT, 1880. 43 & ii VioT. 0. 16. AX ACT TO AMEND THE LAW RELATING TO THE PAYMENT OF WAGES AND RATING OP MERCHANT SEAMEN. I2nd August, 1880.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and 43 & 44 Vjct. consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament c. 16. a>sembled, and by the authority of the same, as follows; that is to say, 1. This Act may be cited as the Merchant Seamen (Payment of Wages and Rating) Short title and Act, 1880. construction. This Act shall be construed as one with the Merchant Shipping; Acts, 1854 to 1876, and 17 & 18 Vict, those Acts and this Act may be cited collectively as the Merchant Shipping Acts, 1854 "■ 1"*' *"• to 1880. 2. (1.) After the first day of August one thousand eight hundred and eighty-one, any ConUitional document authorising or promising, or purporting to authorise or promise, the future ^i^^^e notes payment of money on account of a seaman's wages conditionally on his going to sea from "'^S^'l- any port in the United Kingdom, and made before those wages have been earned, shall be void. (2.) No money 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-off 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 Merchant 17 & 18 Vict. Shipping Act, 1854. "■ !"*• 3. (1.) Every agreement with a seaman which is required by the Merchant Shipping Amendment of Act, 1854, to be made in the form sanctioned by the Board of Trade shall, if the seaman ^ igl^^f,^^ as so require, stipulate for the allotment of any part not exceeding one half of the wages of to allotment' the seaman in favour of one or more of the persons mentioned in section one hundred notes, and sixty-nine of the Merchant Shipping Act, 1854, as amended by this section. c''io4^ ^''°'' (2. ) The allotment may also be made in favour of a savings bank, and in that case shall be in favour of such persons and carried into effect in such manner as may be for the 9-42 MERCHANT SEAJIEN (PAYMENT OF WAGES AND EATING) ACT, 1880. 43 & ii Vict, time being directed by regulations of the Board of Trade, and section one hundred and c. 16. sixty-nine of the Merchant Shipping Act, 1S54, shall be construed as if the said persons were named therein. t, ii i, • j 17 * 18 Vict. (3 ) rpi^y g^m received in pursuance of such allotment by a savings bank shall be paid "' out only on an application made, through a superintendent of a mercantile marine otlice or the Hoard of Trade, by the seaman himself, or, in case of death, by .some person to n & 18 Vict. whom the same might be paid under section one hundred and ninety-nine of the Merchant <^- 1°*- Shipping Act, 1854. . ,, (4.) A payment under an allotment note shah begin at the expiration of one montti, 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 l^e paid at the expiration of every subsequent month, or of such other periods as may be faxed by the agreement, and shall be paid only in respect of wages earned before the date ot payment. i -uv i, .i (5.) For the purposes of this section "savings bank" means a savings bank estabhshed under one of the Acts mentioned in the First Schedule to this Act. Bules as to pay- 4. In the case of foreign-going ships — iiicnt of wages. ^^j rpj^g 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, two pounds, 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 one It & 18 Vict. hundred and seventy-one of the Merchant Shipping Act, 1854, to the seaman himself at '■• 1'*- or before the time when he leaves the ship instead of delivering it to a superintendent of a mercantile marine of&oe. ' (3.) If the seaman consents, the final sattlement of his wages may be left to the super- intendent of a mercantile marine office under 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 17 & 18 Vict. seaman under section one hundred and seventy-five of the Merchant Shipping Act, 1854. c. 104. 'i, ^i_y In tiie 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 the act or default 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 office between the master or owner of a ship, and a seaman or apprentice, if the amount in question does not exceed five pounds, the superintendent 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. Penalty (or being 6. Where a ship is about to arrive, is arriving, or has arrived at the end of her voyage, on Ijoard ship every person, not being in Her Majesty's service or not being duly authorised by law for ^on before™-' the purpose, who— , . , , , ^ ., men leave. (a.) goes on board the ship, without the permission of the master, before the seamen See lawfully leave the ship at the end of their engagement, or are discharged (which- floIVw ever last happens); or, ' (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 oifenoe be liable on summary conviction to a fine not exceeding twenty pounds, 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 up forthwith to a constable to be tali en before a court or magistrate capable of taking cognizance of the offence, and dealt with according to law. Provisions con- ti. Whenever it is made to appear to Her Majesty — taineJ in section ^i_^ That the Government of any foreign country has provided that unauthorised shkirbelonging persons going on board of British ships which are about to arrive or have arrived to foreign within its territorial jurisdiction shall be subject to provisions similar to the pro- countries in visions contained in the last preceding section as applicable to persons going on certain cases. board British ships at the end of their voyages ; and (2.) That the Government of such foreign country is desirous that the provisions of the said section shall apply to unauthorised persons going on board .of ships belonging to such foreign country within the limits of British territorial juris- diction ; ' Her Majesty may, by Order in Council, declare that the provisions of the said last pre- ceding section shall apply to the ships of such country ; and thereupon so long as the MERCHANT SEAMEN (PAYMENT OF WAGES AND EATINg) ACT, 1880. 943 Order remains in force those provisions shall apply and have effect as if the ships of such 43 & 4d "VioT. country were British ships arriving, about to arrive, or which had arrived at the end of o. 16. their voyage. '. 1 7. A seaman shall not be entitled to the rating of A. B., that is to say, of an able- Hating of sea- boditd seaman, unless he has served at sea for four years before the mast, but the employ- n"=u. ment 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 bo 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 Kegistrar shall grant on payment 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 satisfactory 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 dispute Power of court between an owner or master of a ship and a seaman or apprentice to the sea service, *° resdnd con- arising out of or incidental to their relation as such, or is instituted for the purpose of owner or ^master this section, the court, if, having regard to all the circumstances of the ease, they think and seaman or it just so to do, may rescind any contract between the owner or master and the seaman or apprentice, 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 ha vinsf jurisdiction in the matter to which the proceeding relates. 3. It shall be lawful for the sanitary authority of any seaport town to pass byelaws for Licensing of sca- the licensing of seamen's lodging-houses, for the. periodical inspection of the same, for the nien's lodging- 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 breiich of the provisions of the byelaws : Provided alwavs, that no such byelaws shall take effect till they have i-eceived the approval of the Board of Trade. 10. 'J'he following provisions shall from the commencement of this Act have operation Desertion and within the United Kingdom. f^y""^ without 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 twenty-four 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 commencenient 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 absenting liimself 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 pohce 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 first be taken before some court capable of taking cognizance of the matters to be dealt with 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 improper or insufficient grounds, the master, mate, owner, ship's husband, or consignee, as the case may be, shall incur a penalty not exceeding twenty pounds, 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 duty, he may give notice of his intention, either to the owner or to the master of the ■ ship, not less than forty-eight hours before the time at which he ought to be on board his ship; and in the event of suoh notice being given, the court shall not exercise any of the powers conferred on it by section two hundred and forty-seven of the Merchant 17 & 18 Vict. Shipping Act, 1854. "■ ^"''• Subject to the foregoing provision of this section, the powers conferred by section two Imndred and forty-sevep of the Merchant Shipping Act, 1854, may be exercised, notwith- 11 & IS Vict, standing the abolition of imprisonment for desertion and similar offences, and of appre- <=• I"*- hension without warrant. Nothing in this section shall affect section two hundred and thirty-nme of the Merchant ir & 18 Virt. 11. The thirteenth section of the Employers and Workmen Act, 1875, shall be repealed Extension to in so far as it operates to exclude seamen and apprentices to the sea service from the ||™i™ ot^^^ said Act, and the said Act shall apply to seamen and apprentices to the sea service „ gj 944 MERCHANT SEAMEN (pAYMENT OF WAOES AND EATING) ACT, 1880. 43 & a YlCT. accordingly; but such repeal shall not, in the absence of any enactment to the contrary, c- 16- extend to or affect any provision contained in any other Act of Parliament passed, or to 38 & 39 Vict ^® passed, whereby workman is defined by reference to the persons to whom tli,e i^m- c 90 ' ployers and Workmen Act, 1875, applies. , , Kepeal of eract- ^^- "^^^ enactments described in the Second Schedule to this Act shall be repealea as ments in Second from the commencement of this Act within the United Kingdom. Schedule. Provided that this repeal shall not affect — (1.) Anything duly done or suffered before the commencement of this Act under any enactment hereby repealed ; or ■ (2.) Any right or privilege acquired or any liability incurred before the commence- ment 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 commencement of thi.=! Act, under any enactment hereby repealed ; or (4.) The institution or prosecution to its termination of any investigation or legal proceeding, or any other remedy for prosecuting any such offence, or ascertaining, enforcing, or recovering any such liability, imprisonment, fine, forfeiture, or punishment as aforesaid, and any such investigation, legal proceeding, and remedy may be carried on as if this repeal had not been enacted. FIRST SCHEDULE. Chapter. Savings Banks. 24 & 25 Vict. c. 14 Post Office Savings Banks. ?S '!' ?1 1'°': "■ f.-/ r.n • ■ 1 Trustee Savings Banks. }l f in ^-"J- "■ I".*- '• ^^^ ■ • • Seamen's Savings Banks. 19 & 20 Vict. u. 41 ) SECOND SCHEDULE. (17 & 18 Vict. c. 104, in part.) The Merchant Shipping Act, 1854, in part : namely. In section two hundred and forty -three, sub-section (li, the words "to imprisonment for " any period not exceeding twelve weeks with or without hard labour ; and also." In section two hundred and forty three, sub-section (2), the words "to imprisonment for " any period not exceeding ten weeks with or without hard labour, and also at the dis- " cretion of the court." Section two hundred and forty-six. In section two hundred and forty-seven the words " instead of committing the offender "to prison;" And section two hundred and forty-eight. MERCHANT SHIPPING (CARRIAGE OP GRAIn) icT, ' 1880. 945 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. I7th September, 1880.] Be it enacted by the Queen's moat Excellent Majesty, by and with the advice and 43 & 44 Vict. consent of the Lords Spiritual and Temporal, and Commons in this present Parliament c. 43. assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Merchant Shipping (Carriage of Grain) Act, 1880, and ghort title and shall be construed as one with the Merchant Shipping Act, 1854, and the Acts amending construction. the same, and together with those Acts may be cited as the Merchant Shipping Acts, 17 & 18 Vict. 1854 to 1880. c- 104, &c. 2. This Act shall come into operation on the first day of January, one thousand eight Commencement hundred and eighty-one (which day is in this Act referred to as the commencement of "f ■'^''*- this Act). 3. Where a grain cargo is laden on any British ship all necessary and reasonable pre- Obligation to cautions (whether prescribed by this Act or not) shall be taken in order to prevent the take precautions gram cargo from shifting. ' _ _ ^"arSwla^'"" If such precautious have not been taken in the case of any such ship, the master of shifting. the ship and any agent of the owner who was charged with the loading of the ship or the sending her to sea, shall each be liable to a penalty not exceeding three hundred pounds, and the owner of the ship shall also be liable to the same penalty, unless he shows that he took aU 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 or Precautions Black Sea is bound to ports outside the Straits of Gibraltar, or where a British ship is ofgjjjin^'^'a'"'" ^ laden with a grain cargo on the coast of North America, the following precautions to jaden in jiort in prevent the grain cargo from shifting shall be adopted ; that is to say, Mediterranean (a.) There shall not be carried between the decks, or, if the ship has more than two or Bkok Sea, or decks, between the main and upper decks, any grain in bulk, except such as may be jf5,i™|'\u"erica. necessary for feeding the cargo in the hold, and is carried in properly constructed feeders. (h.) Where grain (except such as may be carried in properly constructed feeders) is carried in bulk in any hold or compartment, and proper provision for filling up the same by feeders is not made, not less than one fourth of the grain carried in the hold or com- partment (as the case may be) shall be in bags supported on suitable platforms laid upon the grain in bulk : Provided that this regulation with respect to bags shall not apply— (i.) To oatg> 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 boards as hereafter in this section mentioned, and if the ship does not carry more than one-fourth of the grain cargo, and not more than one thousand five hundred 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-half 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 m bags or bulk, the hold or the space between the decks shall be divided by a longitudinal bulkhead or bv sufficient shifting boards which extend from deck to deck or from the deck to the keelson and are properly secured, and if the grain is in bulk are fitted grain-tight with proper fillings between the beams. . , j , (d ) In loading, the grain shall be properly stowed, trimmed, and secured. In the event of the contravention of this section in the case of any ship, reasonable 3 P 9iG MERCHANT SHIPPING (CARRIAGE OF GRAIn) ACT, 1880. 1, i 43 & 44 Vicx. precautions to prevent the grain cargo of that ship from shifting shall be deemed not to c. 43. have been taken, and the owner and master of the ship and any agent charged witti loaa- ing her or sending her to sea shall be liable accordingly to a penalty under this Act. Provided that nothing in this section shaU exempt a person from any hability, civu or criminal, to which he would otherwise be subject for faiUng to adopt any reasoname precautions which, although not mentioned in this section, are reasonably requirea lo prevent grain cargo from shifting. . , . Exemption from 5. The precautions required by this Act to be adopted by ships laden with a grain precautions ^argo at a port in the Mediterranean or Black Sea, or on the coast of North America, snail AH for shte not apply to ships loaded in accordance with regulations for the time bemg approved by the laden in Meditcr- Board of Trade; nor to any ship constructed and loaded in accordance with any plan ranean or Black approved by the Board of Trade. ,, ,.^ *^f J"^"" """"^ 6. Before a British ship laden with grain cargo at any port in the Mediterranean or tnferica Black Sea, bound to ports outside the Straits of Gibraltar, or laden with grain cargo on Notice bV master the coast of North America, leaves her Bnal port of loading, or within forty-eight hours of kind and after leaving such port, the master shall deUver or cause to be deUvered to the Uritish (mantity of grain consular officer, or, if it is in Her Majesty's dominions, to the principal officer ot Customs eaigo. j^j, ^y^^ port, a notice stating — . . ir i, * 34 & 36 Vict. (1.) The draught of water and clear side, as defined by section five of the Merchant ' ■ ll»- Shipping Act, 1871, and section four of the Merchant Shipping Act, 1873, of the said ship 36 & 37 Vict. after the loading of her cargo has been completed at the said last port of loading ; •=• *5- (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 (6.) The mode in which the grain cargo is stowed ; and (c.) The precautions taken against shifting. The master shall also (ieliver a similar notice to the principal collector or other proper officer of Customs in the United Kingdom, together with the report required to be made c^s^^sVsoM ''y tl>« Customs Consolidation Act, 1876, on the arrival of the ship in the United ■ ' ' .'■ 'LKingdom.f , ^. ,, , ., •tH^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 particular port or any class of such ships from the provisions of this section. Penalty for false 7. Any master of a ship, who in any notice required by this Act wilfully makes any statement in false statement or wilfully omits any material particular, shall be liable to a penalty not notice. exceeding one hundred pounds. Power of Board 8. For the purpose of securing the observance of this Act, any officer having authority of Trade for en- in that behalf from the Board of Trade, either general or special, shall have the same forcing of Act. p^^gj. jg an inspector appointed under the Merchant Shipping Act, 1854, and shall also ^^104 ^ have power to inspect any grain cargo, and the mode in which the same is stowed. ' ■ . . 9. Every offence punishable under this Act may be prosecuted summarily and every offences .and penalty under this Act may be recovered and enforced summarily in like manner as recovery of offences and penalties under the Merchant Shipping Act, 1854, and the Acts amending penalties. the same. 17 & 18 Vict. 10. For the purposes of this Act— "■ ^***; . The expression "grain" means any com, rice, paddy, pulse, seeds, nuts, or nut kernels. Definitions. ipj^g expression "ship laden with a grain cargo " means a ship carrying a cargo of which the portion 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 one hundred 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. -a 1 f 00 * !!• Section twenty-two of the Merchant Shipping Act, 1876, is hereby repealed as from M Vict. c. "so, the commencement of this Act :_ s. 22. Provided that any offence against that section committed before the commencement of this Act may be prosecuted, and the penalty recovered and enforced, in like manner as if the said section had continued to remain in force. FOEMS FOE BOTTOMEY AND EESPONDENTIA. BOTTOMRY BOND ON SHIP AND FREIGHT. Know all men by these presents, that I, A. B., master of the ship "Albany," of London, am held and firmly bound imto C. D., of Bombay, merchant, in the sum of lawful British money, to be paid to the said C. D., or his certain attorney, executors, administrators, or assigns, for which payment weU andtruly to be made, X bind myself, my heirs, executors, and administrators, and also the said ship, her tackle, apparel, and furniture, and the freight to be earned by her on the voyage aftel- men- tioned, firmly by these presents. Sealed with my seal. Dated this day of one thousand eight hundred and Whereas the said ship is lately arrived in the roadstead of Bombay from London, having on her said voyage sustained damage [describe the damage'], and being in want of repaiis and provisions to enaWe be'r to proceed on her voyage from Bombay to London, for which port she is now bound and aboutto return, and the said A. B., in order to be enabled to procure the said repairs and provisions, and to pay for the same and for the lawful and necessary disbursements and expenses of the said ship at the said port of Bombay, hath requested the said C. D. to lend the sum of for the aforesaid purposes ; and the said C. D. hath accordingly lent the said sum for the aforesaid pur- poses, on the hazard and adventure of the said vessel on her said intended voyage from Bombay to London. Now the condition of the above obligation is such, that if the said ship do and shall with all reasonable and convenient speed, sail from the port of Bombay aforesaid, on the said intended voyage to London, and that without deviation (the perils, damages, acci- dents and casualties of the seas and navigation excepted) ; and if the above bounden A.B., his heirs, executors, or administrators, or the owners of the said ship, do and shall within ten days after the said vessel shall arrive at London aforesaid, well and truly pay or cause to be paid unto the said C. D., his agent, attorney, executors, administrators, or assigns, the said sum of lawful British money, together with pounds per centum, bottomry premium thereon ; or if on the said voyage the said vessel shall be utterly lost, cast away, or destroyed, in consequence of fire, enemies, pirates, storms, or other the unavoidable perils, dangers, accidents, or casualties of the seas and navigation, to be sufficiently shown or proved by the said A. B., his executors or administrators, or by the owners of the said ship, their executors or administrators : then the above written bond or obligation to be void : otherwise to remain in full force and virtue. ^ A. B. (Seal). Signed, sealed, and delivered, where no stamped ) paper is to be had, in the presence of ) BOTTOMRY BILL, ON SHIP, FREIGHT [AND CARGO]. To aU men to whom these presents shall come. I, A. B., of Bengal [part owner and], master of the ship called the "Exeter," of the burden 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 provisions and other supplies necessary for the continuation and performance of the voyage aforesaid, am at this time necessitated to take up upon the adventure of the said ship called the "Exeter, the sum of 1000 . lawful monies of Great Britain, for setting the said ship to sea, and furnishing her with 3 P 2 >M' BOTTOMRY AND RESPONDENTIA. provisions akfl necessaries for the said voyage, which sum C. D., of the Cape of oo "P''" master attendant, hath at my request lent unto me, and supphed me witfi. at t?ej^«« 12202. sterling for the said lOOOZ., being at the rate of 122Z. for every 1002. advancea as aforesaid, during the voyage of the said ship from Table Bay to London ^°^™°jr^ ' that I, the said A. B.,b/ these presents, do, foif me, my executors and a'J™}"^^*^;*""' covenant and grant to and with the said C. D., that the said ship shall, Lwit^ ine ms convoy that shall offer for England] [or, with all reasonable and convenient spee?J ^"^ the date of these presents, sail and depart for the port of London, there *" ^"'^";, jPf voyage aforesaid, and that, without deviation during the "O""^^? *f^'"®°' ^j .j-Vsaid damages, accidents, and casualties of the seas and navigation excepted). Ana i, A. B., in consideration of the sum of lOOOZ. sterling to me in hand paid by tne M,ia o. j^. at and before the sealing and delivery of these presents, do hereby bind my^e".' '"/.^ Jhp executors and administrators, my goods and chattels, and particularly t'^?,?^''*. °„ /V",, tackle and apparel of the same, and also the freight of the said ship which is or snau become due for the aforesaid voyage from Bengal to the port of London, L™a aiso lue cargo shipped on board the said vesselfor the voyage aforesaid] to pay unto tnesaiu CD., his executors, administrators, or assigns, the sum of 12202. of lawful Britisn t^°P^«J' within thirty days next after the safe arrival of the said ship at the port ot bonaon iroiu the same intended voyage. . „„3 And I, the said A. B., do, for me, my executors and administrators, covenant ana grant to and with the said C. D., his executors and administrators, by these presents tnat I, the said A. B., at the time of sealing and deUvering of these presents, am [a true ana lawful part owner and] master of the said ship, and have power and authority to cnarge and engage the said ship with her freight [and cargo] as aforesaid, and that the saaa amp, with her freight [and cargo], shaU at all times after the said voyage be liable ana chargeable for the payment of the said 12202. according to the true intent and meaning of these presents. . i- j. tv. And lastly, it is hereby declared and agreed by and between the said parties to tnese presents, that in case the said ship shall be utterly lost, miscarry, be cast away, or otner- wise destroyed in consequence of fire, enemies, pirates, and any other penis and aangers of the seas and navigation, before her arrival at the said port of London trom tne saia intended voyage, that then the payment of the said 12202. shall not be demanded, or De 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 U JJ., nis 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. i t f In witness whereof the parties have interchangeably set their hands and seals to lour 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 fifteenth day of November, in the year of our Lord one thousand eight hundred and Witness, \ d. H. A. B. (L. S.) IK. RESPONDENTIA BOND. Know all men by these presents, that I, A. B., master of the ship " Albany," am held and firmly bound unto C. D., of Odessa, merchant, in the sum of lawful British money, to be paid to the said C. D., his certain attorney, or his executors, administrators, or assigns, to which payment I bind myself firmly by these presents. Sealed with my seal. Dated this day of one thousand eight hundred and Whereas the said ship "Albany," having laden on board a cargo of corn, was acci- dentally stranded and suffered great damage, and was taken into the harbour of Odessa by salvors, and her cargo discharged, some being damaged; and whereas, great expense for salvage and other charges were necessarily incurred, and were charged on the said cargo, and which the said master was unable to pay ; and whereas the said C. D. did contract and agree with the said A. B. to advance the sums of money necessary to enable him to pay the same charges and expenses upon the goods and merchandise, lately the cargo of the said ship " Albany," to be re-shipped and forwarded from Odessa to their destination, that is to say, to the port of London in England, it being expressly agreed before any part of such advance was made, that such advance should be by way of respondentia on the said cargo in the voyage last aforesaid ; and whereas under and BOTTOMRY AND RESPONDENTIA. 949 pursuant to the agreement last aforesaid the sum of was advanced as aforesaid, and a part of the said merchandise was laden at Odessa in and on board the ship " Otseonthe," to be carried to London aforesaid, in a voyage to be thereafter commenced and prosecuted by the said ship " Otseonthe ; " and while the process of lading the same was going on, the said ship " Otseonthe" took fire, and together with a part of the said merchandise then on board, was destroyed, and the residue of the said merchandise on board was so damaged as to render a sale thereof necessary. Now in pursuance of the original agreement, and in execution of the same, so far as the execution thereof has not been rendered impossible by the act of God, and without intending to displace or prejudice any claim, right, or lien of the said C. D., in or to what was saved from the merchandise so shipped on board the " Otseonthe," hut on the con- trary, expressly admitting and declaring that according to the understanding of the undersigned A. B., in equity and good conscience, the same is to stand affected and bound unto him the said C. D., in like manner as the residue of the said goods and merchandise which have now been laden at Odessa on board the ship called the " Tempest," and bound for London, are hypothecated and assigned over by way of respondentia security, as the same are hereby declared to be hypothecated and assigned over for that end, and that the same are to be delivered to no other use whatsoever. Now the condition of the above written obligation is such, that if the said ship " Tempest" do and shall depart from Odessa, and sail to and arrive at London, and if the said A. B. shall pay unto the said C. C, or his legal representatives, within ten days after such arrival, the full sum of together with a premium thereon of pounds per centum ; or if in the said voyage an utter loss of the said ship by any perils of the sea which are insured against under policies, a form of which is hereto annexed, shall unavoidably happen, and the said A. B. or those for whom he acts shall well and truly, without delay, account with the said 0. D., or his representatives or assigns, for the just salvage which shall be received from and on account of the said hypothecated merchan- dise, and shall well and truly pay or deliver the same unto him or them, and shall not deliver the said merchandise to any other use whatsoever, without payment of the principal and interest, and premium due on this bond, then this obligation shall be void, otherwise to remain in full force. A. B. (Seal.) Signed, sealed, and delivered, where no stamped ) paper is to had, in the presence of ) INDEX. ABANDONMENT of seamen abroad, a misdemeanor, 263, 264 unless the provisions of the statute are complied with, 263, 264 of ship, to insurers on ship, result of, to insurers on freight, 507 is not presumed of goods jettisoned, 686 ABSENCE OP SEAMEN. (See Seamen, DiseipUne, Desertion, Misconduct.) at any time, not amounting to desertion, 241 ACCIDENTS. (See Collision.) power of the Board of Trade to inquire into causes of, by inspectors sent to the spot or port, 714 duty of the master of any steam-ship to give notice of, to the Boai-d, within 24 hours, or as soon after as possible, otherwise a penalty, 771 duty of owner of steam-ship to give notice of apprehended loss of, otherwise penalty, 771, 920 collisions to be entered, if possible, in the official log, 771 ACCIDENTS, PREVENTION OF. (See Safety, Provisions.) rules imposed on decked vessels leaving United Kingdom to carry certain number of boats, life-boat, life-buoys, 407 n., 766 penalties for neglect of, 407 n., 767 clearance or transire to be refused to ships neglecting these, 407 n., 767 rules as to lights and fog signals, meeting and passing, 296, 299 shelter for deck passengers on home-trade steamers in passenger traffic, 768 penalty for improper weight on safety-valve of steam-ship, 767, 768 regulations for the periodical survey of passenger steamers, 337, 768 definition of passenger steamer, 899 survey once a year by surveyors appointed by Board of Trade, 337, 768 duty imposed on owners to have this done by these surveyors, 768 who are, if satisfied, to give the owners declarations as to the vessels, 768 contents of declarations, 769 to be forwarded by owners to Board of Trade, 769 within 14 days, otherwise a penalty, 769 Board of Trade to give certificates, 769 power to cancel certificates and require fresh declarations, 770 copy of certificate to be put up in a conspicuous part of the ship, so long as it is in force, 770 clearance or transire to be refused to vessel without a certificate, 770 penalty for carrying over the number of passengers certified for, 770 forgery of declaration or certificate a misdemeanor, 770 returns by surveyor, 770 unseaworthiness of ship, 291 crime to send such ship to sea; 291 except when, 291 Tight of the seamen as to, 291 means of preventing, 292 dangerous goods, shipping, 292 grain cargoes, how carried, 293, 416 deck cargo, times and seasons when, 293, 417 deck and load lines, 293 952 INDEX. ACCIDENTS, PREVENTION Of —{amHm(ed.) ship's draught, 294 boats retiuired, 294, 407 anchors and chain cables, 294 signals, 294 duty of master in case of collision, 303, 771 passengers drunk or misconducting themselves on board may be removed, 338 ACCOMMODATION. (See Seamen, Passengers.) to be provided for seamen on board, 260 free from encroachment and in proper condition, 260 common law light thereon, 260 for passengers, 334, 335, 849, 851 ACCOUNT. (See Ship's Husband.) duty of ship's husband to render to the owners, 184 consequences of neglect, 184 ACQUISITION OF SHIP PROPERTY. (See SM2js.) 1st, by construction, 1, 2 when the property vests, 2, 3, 5 the materials, 6 2nd, by pm'chase, 8 maxims of the law as to bargains, 9, 10 what representations are actionable, 9, 10, 11, 12, 13 conditions of sale, 14 employment of puffers at auctions, 14, 15 means to deter bidders illegal, 16 agreements not to bid not illegal, 16 n. what passes under ship, 16, 17 3rd, by capture, 18 (See Capture, Prize of War.) conditions of lawful capture, 18, 19, 21 vesting of property after capture, 20, 21, 22 ACT OF GOD, exception of, what is intended thereby, 535, 537 what is not included therein as being too remote, 536 is only for the protection of the shipowner unless words apply it to the freighter, 542 ACTION. on representations of vendor, when amounting to warranty, 10 when to fraud, H by owners on wrongs, shall all be joined as plaintiffs, 124 after death of a part owner, right of action survives, 125 by owners on contract, if not all joined as plaintiffs, the defendant may take advantage of it by evidence, 125 against owners, 126 proceedings in case of loss of life, 127 for negligence causing damage, 338 for assault by the master on a passenger, 331 proceedings under the Passenger Act, 331, 332 notice of, when against public officers under that statute, 333 limitation to, 334 action following upon summary arrest of foreign ship for damage, 805 summary proceedings by Board of Trade in cases of loss of life or personal injury, 127 action by party dissatisfied therewith, 128 proceedings in uncontested cases of damage, 129 ACTION IN REM must be brought with due diligence, 61. (See Admiralty, High Court of.) for forfeiture, who may bring it, 72 for necessaries to foreign ships, when, 108 for damage, 304. (See CoUisioii.) principles at the foundation of damage causes, 304, 305 diligence must be used in proceeding, 701 priority of suitors, 701 priority of liens, 701, 702 marshalling assets, 706 INDEX. 953 ADJUSTMENT. (See Geiural Average.) of general average, 685 statement of, 688, 689 foreign, 690 place of, 691 ADMINISTRATOE. (See Executor.) ADMINISTRATION, LETTERS OF. (See Prohak, Executor, Wills.) ADMIRALTY, COURT OF, sentence of, the document of title to ships captured, 26, 33 jurisdiction extended by 24 Vict., c. 10, 879 jmisdiction in respect of mortgage, 61 in respect of bottomry — • none, when the contract is not contingent on maritime risk, 56 or where it is given by the owners on a British ship in a British port preparing for a new voyage, 58 or where the contract is not reduced into ivriting, 59 secnis, when by the master under suiiicient necessity, 59 the peculiar jurisdiction when the bond is valid, 60 but it requires diligence in the holder, 61 and no postponement of the original time of payment, 62 gives effect to a bond, if it is good in part, 62 and although given after supply obtained, when, 54 marshals the assets, 62, 706 when freight is not available, 62 what priority it gives to simdry bondholders, 62 when equity will interfere, 63 valid bottomry abroad by an English master is governed by what law, 63, 169-180 in respect of maritime liens — attempt of the civilians to enforce an implied lien as bottomry, 67 what maritime liens are still enforceable by, 68 effect of such liens on ship property, 68 what claims in the nature of such liens it may enforce against foreign ships in this country, 109, 110 in respect of the employment of the ship — to order the majority or moiety of the owners to give security for the value of the dissentients' shares, 100 or to compel a sale, 102, 103 and generally to settle aU questions between co-owners, 102 in respect of damage — in case of admitted liability, and limitation sued for, 129 in respect of affreightment — has no jurisdiction to enforce the contract of affreightment against ship and freight, though pledged thereto by the charter-party, 388 in respect of the master — recognises the authority of the master to hypothecate cargo when necessity requires, 154, 155 how it will marshal the fund liable in that case, 155 may enforce valid respondentia, when the bond given is a proper one, 159 recognises the authority of substituted master, 167 conditions of valid substitution, 167 has jurisdiction in respect of master's wages and disbursements, 210 to remove the master, 208 in respect of seamen's agreements — the equitable jurisdiction it exercised over seamen's agreements, 223, 224 exceptional in its nature, 223 is now extended to all courts, 216, 222, 224 in case of forfeiture by desertion, the court had formerly no power to modify the penalty, 240 when the court will presume there was the amimius re- vertendi, and cast the burthen of proving desertion on the master, 241 954 INDEX. ADMIRALTY, COURT OF— jurisdiction— (continwed) it will not construe quitting to be desertion against the hasty words of the master, 241, 243. the terminus of a seaman's engagement according to the maritime law, 243 rule of the court as to forfeiture by misconduct, 244, 245 in respect of wages — the lien for wages above a certain sum not enforceable in any other court, 248 extent of this lieu, 249 origin of the court's jurisdiction in respect of wages, 249 in what cases it has jurisdiction, 249 wages for a voyage prosecuted, may be enforced here by a seaman dismissed before tlie voyage, 237 limitations on suits in this court, 251, 262 no jurisdiction in respect of wages under 501. in amount, except in excepted cases, 249, 250 when the defendant may appear there under protest, 251 it presumes that owner's property will be exhausted before the master hypothecate cargo, 155 therefore gives effect to a bond on cargo for owners' purposes against ship and freight, 155 in respect of towage, 288 in respect of damage, 301 rules as to, 304 under statute, 310 in respect of salvage, 609 who may be salvors, 609 personal services only regarded, 612 rights of joint salvors, 613 i . in case of derelict, 613 apprentices arid seamen not suffered to. covenant against their rights to salvage, 614 claims of owners of salving vessels, 615 success must attend efforts, 615 claims, how barred, 616 by general agreement, 616 ; specialagreementi 616 this must be proved just, 616 advantage of ignorance not tolerated, 616 by misconduct of salvors, 617 imnecessary delay in proceeding to enforce, 618 what are regarded as salvage services, 618 ingredients in, 618 ,1 principles of the court in remunerating, 619 statutory salvage, 620 ' life salvage, 620 has priority over other salvage, 621 may be rewarded from Marine Fund, 622 cases, 622 principles and cases of derelict, 627 property in derelict, 630' when transhipment is regarded as salvage, 631 various liens for salvage, 633 bail or payment into court, 634 provisions as td the court's jurisdiction, 634 in case of salvage by H.M.S. the court not to adjudicate without certificate from Board of Admiralty, 638 principles as to military salvage, 638 who may be such salvors, 638 • their rights and reward, 639 recovery of salvage under Sue and Labour clause, 639, 644 ' as to wreck of the sea — when it becomes a droit of the Admiralty, 640 as to general average there is Ino jurisdiction, 654 in possession causes, 102 ranking of liens, 701-704 marshalling assets, 706 . : ' INDEX. 955 ADMIRALTY DROITS, when prize becomes, 19 instructions to receivers of, 841 ADULT, STATUTE, who is, within Passenger Act, 322, 334, 335, 849 ADVANCE FREIGHT is not freight at aU within the meaning of that term at common law, 452 no lien attaches for it, 509, 512 except by contract or usage, 512, 513 it is insurable, 519 it is not recoverable back, althongh ship be lost, 519 aecfus if it were a mere loan, 619 the American and French laws differ from the law of England on this, 520 ADVAKCE NOTE illegal and void, 222 ADVANCES to shipowner, distinguished from advance freight, 519 may be recovered back, 519 are not insiu-able, 519 ADVERTISEMENT, PUBLIC may contain a warranty, 389 AFFREIGHTMENT. (See Performance, Freight, Non-perfornuince, Dissolution of Contract, Cargo, Capture) may be by writing, as by charter-party, 341 or without writing, by bailment, 389 the contract in writing differs in legal effect under different instruments, 3^1 classification of, 341 rule of construction considered, 342, 343, 344, 347 348, 349 rights of third parties ignorant of the charter-party, 350 parties to the instrument and to the action, 353 under seal, 353 when by agent not nnder seal, 355 exemptive clauses, 357 rescinding or varying charter-party, 360 form and effect of the instrument, 360 usual stipulations in, 362 conditions precedent, 363 special stipulations, 382 construction of, by usage, 384 penal clause, 388 circumstances out of which affreightment by parol arises, 389 the bailment, 389 warranty in advertisement, 389 seaworthiness implied by law, 390 owner of general ship a common carrier by sea, 390 bill of lading given for mate's receipts, 390 form of, and stamp, 392 effect of, as evidence of a bailment, 393 binds master and owners, 393 to what extent, 394 under the statute, 395 French law as to, 396 clandestine shipment, 396 effect of, as symbol of property, 397 the contract under, transferred by statute only to transferee of property, 397 when the property under, is transferred, 398 performance of (see Performurux), 406 by shipowner, 406 by irefghter, 443 payments under (see Freiglit, Demurrage, Primage, Average), 452 is not dissolved by capture merely, unless that is followed by condemnation or authorised unlivery, 491 may be dissolved by notice under embargo, when, 554 956 INDEX. AFFBKIGHTMENT— (cojrfijiMCfZ. ) when not, 553 is dissolved by declaration of war, when, 567 when not, 559 is illegal, when the port of destination is blockaded, and not very distant, 578 is dissolved by consent, 581 by matter extrinsic, 582 by illegality, 582 measure of damages for breach of, 583 AGENT. (See Principal wnd Agent). Broker, Shipbroker, Insurance Broker AGREEMENT WITH CREW. (See Forms.) to be in the authorised form, 213, 214 containing the statutory particulars, 213, 215 be signed by the master and each seaman, 213, 215 and in case of a foreign-going ship, must be in presence of and be attested by the shipping master, 213 after being explained by him, 213 contents of, provable by seamen without producing or giving notice to produce it, 214 not admissible as evidence for owner or master if not in the authorised form, 214 but admissible against them, 214 alterations and erasures void, unless attested by a shipping master or consular officer, &c., and proved to have been made with consent of all concerned, 214 not to avoid the instrument, 214 this is rct^uired and enacted of all ships above eighty tons, 214 ALLOTMENT NOTE must be stipulated for in articles, 220 ... be in the authorised form, 220 who may sue on, 220 what necessary to be proved in order to recover, 220 in defemse, onus proiandi of what, 221 what conduct of the wife defeats her right to recover, 221 authorised form of, 840 ALTERATIONS of bin of sale after execution of, effect, 36 of seamen's agreement, void, uiiless made with consent of all, and attested, 214 and do not avoid the instrument, 214 in British ship, must be registered, 84 consequences of not being registered, 85, 93 if they alter her identity, must be surveyed anew, 84 provisional certificate may be had in meantime, 90 ANCHORS law as to testing, 294 APPORTIONMENT OF FREIGHT is not known to the common law, 478 freight for partial performance is grounded on a new contract, 478 reason of this, and of the difference made in this by the law maritime, 478 the doctrine of the law maritime, 488 as exhibited in various foreign laws, 488 is not found in the Roman or Khodian laws, 488 applied by the prize court in the case of capture, 490, 491 when captor must complete service to be entitled to freight, 491, 493 when the master need not, 491, 493 capture does not dissolve the contract of affreightment, 491 when part freight is given, 493 Luke V. Lyde considered, 494 APPRENTICES TO THE SEA superintendents to assist in binding, 213 indentures exempt from stamp duty, 213 INDEX. 957 AGREEMENT WITH C]i\i\V-{coiUUued). inilentuves of parish apprentices, by wliom executed, and in whose presence, 213 after what investigation, 213 rules as to, in Great JBritaiu, 214 in Ireland, 214 the boy must be produced, with his indenture, to the shipping master, before being carried to sea, 213 APPROPRIATION of ship in course of construction, 5 ARBITRATION, disputes between master or owner and seamen may be submitted, with consent of both, in writing, to arbitration of shipping master, 226 master and others bound in that case to produce ship's papers to him, 226 his award to be conclusive, and not to require a stamp, 226 salvage claims arising in United Kingdom out of the Cinque Ports, must be submitted to two justices, or one stipendiary magistrate, 635 if under 200J., 635 appeal to superior court, if above 50?., and timely notice be given, 635 claims above 2001. may, with consent, be referred to justices, 636 in the superior court, if more than 200/. is not recovered, costs are in discretion, 636 ARTICLES, SHIP'S. {See Hiring of Seamen, Seamen, Agreement wU!i Crew.) ASSAULT by seaman upon his officers, 256 ASSIGNEE OF FREIGHT, acquires title immediately to, 508 takes subject to the rights of a prior purchaser of the vessel or shares, 504, 508 and to the expense of earning the freight, 106 and to the premiums for insm-ance, when, 106 in case of assignment of shares and of freight .separately, the freight passes to him who has the prior title, 508 ATTESTING "WITNESS necessary to biU of sale and mortgage of ships, 35, 46 and see Forms need not be called to prove any instrument required by the Merchant Shipping Act, 35 what will sufiSce for proof of the instrument, 35, 36 ATTORNEY under certificate of sale or moi-tgage, 27, 50, 85, 86 must be named therein, 27, 50, 85, 86 must pursue the power strictly, 27, 50, 85, 86 otherwise the transfer is void, 27, 50, 85, 86 or proctor in a suit for seaman's wages ia the person to whom payment thereof should be made, 225, n. 3 AUCTION. (See Sale, Purchase, Puffers.) in sales by auction whether puffers may be employed, 14, 15 difference between law and equity, as to, 15 purchaser not allowed to take unfair advantages, 16 when equity will interfere, and when refuse specific performance, 15, 16 intending purchasers may agree not to bid against each other, 16 n. this is no fraud in equity, although so described in Sugden's "Vendors and Purchasers," 16 n. knock out sales, 16 n. all such agreements not to bid, vitiate the sale by the Scotch law, 16 n. AVERAGE, PETTY, what it is, 450, 533 duty of freighter to pay, 533 958 INDEX. BAIL for return of ship, without loss to dissentient owners, 100 Admiralty jurisdiction, as to, 101, 102 extent of its jurisdiction, 102 jurisdiction of Chancery, as to, 102 in salvage causes, 634 BALLAST does not passjiy purchase of ship without express mehtion, 17 but as being no part of the ship, may be transferred by separate instrument, 35 BALLASTAGE. {See Mercantile Marine Fund.) BANKRUPT. shares in his name on the register are in his order and disposition, 37 secus if there be no laches on the part of the transferee, 37 fraudulent preference by, operates no valid transfer, 39 mortgage on the register not in his order and disposition, 43 nor liable to execution creditor, 43 bankruptcy of part-owner, 106 vendee being bankrupt or insolvent, the vendor unpaid ma}' stop the goods in transitu, 603 BAERATRY, what it is, 268 one of the perils insured against, 268 . acts which amount to, 268 cannot be committed with pi-ivity of owners, 268 innocent acts may become barratrous, 268 part owner may commit barratry in respect of his co-owners, 269 the mariners, in respect of him, 269 barratry possible in respect of owner pro hoc vice, 269 foreign idea of barratry, 269 \i. • " ' " BENEFICIAL OWNERS, persona holding shares which are registered in other names, 40 their title recognised by the A«t, 40 means for preserving it, 40 liability of such owners to fiscal burthens, 40 who may not be, 29 Trustees of Liverpool Borough Bank v. Turner, 40, 41 statutory recognition of equitable rights^ 41 BILL OF EXCHANGE • maybe given with bottomry bond for the same debt, the latter by way of collateral security, 60 when it amounts to payment, 618 duty of master to draw and present it for acceptance when that is the stipulated mode of settlement, 519 offer of acceptaaice on these conditions is a good tender, 519 BILL OF LADING. (See AffreigUment, Performance.) election of port determined by, 383 based on contract of bailment, 389 wan'anty by advertisement, 389 seaworthiness implied in, 390 owner of general ship a common carrier, 390 instiTiment signed by the master and given in exchange for the mate's receints. 390 . ^ form of, and stamp, 392, 393 number of, parts, 391 is evidence of a bailment, 393 therefore should not be given but in return for mate's receipts, 393 therefore niastci- should not sign more than one set, 394 effect of his doiiig so, 394 how far it is condusive against owners, 394 ' contents unknown, effect of, 395 how far, by statute, against the master, 395 French law of, 396 INDEX. 959 BILL OP LADmO—ictmtinued). clandestine shipment, 396 is a symbol of property, B97 rights of holder, and mercantile use of, 397 contract under, transferred by statute to transferee of property, 398 property under, when transferred, 398 presumption in the Court of Pri?e as to the transfer of property in cargo, 564 modifications of right under, 400 functions of, after landing cargo, 404 effect of in continuing ,the transit of goods, for the purposes of stoppage in transitu, 594, 595 Mr. Abbot's remark on Hoist v. Pownal, 595 when it gives a title to transferee indefeasible by stoppages in transitu, 604 to what extent, 604 when not, 604 statute, 848 not to affect stoppage m transitu, 848 BILL OF SALE. (See PurcJiasc, Transfer, Transferee, Sale.) the instrument of transfer with ali nations, 32, 33 when executed by the builder of the ship it is called the Grand Bill of Sale, 32 usual contents of the ordinary instrument, 32 form and contents of statutory bill of sale, 32, 33 considered with relation to its functions, 34 objections to the compulsory form, 35 who may give a valid biU of sale, 25-28 must be executed in the presence of attesting witness, 35 execution of, how proved, 35 the statutoiy form requires no stamp, 36 alterations in, without consent, by a stranger, if material, vitiate it, 36 by the owner, though immaterial, vitiate it, 36 registration of, at the port of registiy, 36 it is the transferee's interest to produce it for that purpose, 36 it is the registrar's duty to record it, if in form and correct, 36 and to indorse it with the date and hour of so registering it, 37 if he refuse, an appeal lies to the Commissioners of Customs, 37 the order of registration is the order of production, 37 effect of this rule, 37 operation of unregistered bill of sale, 37 leaves the property in order and disposition of bankrupt, 37 registration of a void bill of sale is a nullity, 27 the actual interests of the parties to a bill of sale may be' shown, 39 BIRTH considered as giving the rights of a British subject, 29 and n. on board gives the owner no right to additional passage money, 326 to be entered in the official log, 765 BLOCKADE, conditions of valid blockade, 569 an effective force, 569 intercourse strictly prohibited to all indifferently, 570 presumption that it continues notwithsta!ndjng accidental interruption, 570 secus, if discontinued in consequence of the presence of a superior force of the enemy, 570 , , blockade with notification is presumed to continue till notification of its dis- continuance, 571, 578 notification to the government is after a time notice to every subject thereof, 571, 573 breach of blockade depends on the lawful existence of blockade, and knowledge of the fact, 571 it is open to show one or both conditions to be absent, 571, 572 acts that amount to breach of blockade, 573 - , sailing for the port, when, 574 to inquire, when, 574 ingress and egress, when, 575 egress, when not, 575 exportation, when not, 575 interposition of lighters does not alter the offence, 570 960 INlJEX. BLOCKADE— (cojiZmMcrf.) seals, if the eominuuication be oveilaml by another port, 576 consequences of tlie offence, 576 exceptions, 576 offence when purged, 577 illegality of a charter-party to sail forthwith to a port known to be blockaded, 578 nature of illegality in view of law of nations, 579 whether such knowledge be by notification or otherwise, 578 opinion of Tindal, C.J., to the contrary, in Medeiros v. Hill, 580 law of France on this point, 580 Law of America, 581 BOAT. {See Shijjs.) said by some not to pass by conveyance of ' ship,' 17 expressly named in policies of insui-ance, 17 number of boats for passenger ships, 336, 854 number of boats to be carried by all decked vessels leaving the United Kingdom, 293, 407, 831 "save risk of boats '' as introduced into the exception in the Bill of Lading, meaning of, 538 BOND to be given by Trinity House pilots, 278 this measures their chief liability, 278 to be given by master and owner of passenger ship, 336 consequences of not giving same, 72, 336 may be taken by receiver of wreck for salvage, 794 to be given by master in case of salvage by H.M.S. abroad, 637 who to fix the amount, 637 and retain possession of, 637 what other security may be required of aliens, 637 release of ship thereon, 637 to be enforced by what court, 637 to be given in cases of general average, 694 consequences of neglect to take such bond, 692 for bottomry, 947. (See Bottomry, Soiulholder. ) BONDHOLDER. (See Bottomry, Lender.) may be owners' agent or consignee of cargo, provided he is not indebted to owners, 57 duty of lender before advancing his money on bottomry, 55 may be assignee of lender, the bond being assignable, 60 is bound to diligence in putting it in suit, 61 loses his remedy by agreement to give time, 62 priority among bondholders, rule as to, 62, 63 when rule departed from, 63, and note. BOTTOMRY, 1. nature of the contract, 61 distinguished from mortgages and pawns, 52 from respondentia, 52 from contracts of contingent personal security, 53 2. conditions of valid bottomry, 53 necessity for supplies, 53 impossibility of obtaining these on personal credit, 54 therefore a bond for prior advances not good, 64 except under peculiar circumstances, 54 not good for what, 55 duty of the master to be sure that both these conditions exist, and to Inquire whether on personal credit he cannot supply his wants 55 148 of lender to make inquiry and satisfy himself that both conditions exist, 55 what that duty does not bind the lender to do, 55 prior consent of the owners satisfies the law as to the necessity, 56, 147 the reason why, 47, 56 therefore a bond is of doubtful validity when given for a voyage undertaken against their desire, 56 INDEX. 961 . BOTTOMRY— {continued). insolvency of owner, excuse for not obtaining his consent to, 56 maritime risk is a condition of validity, 56 effect in law of the absence of this, 56 maiitime premium not essential to a bond, 57 amount may be reduced, if too high, 57 when equity will decree ordinary interest, 57 3. by whom given master or substituted master, 57 but not by owners on a British ship in a British port for a new voyage, 57 civil law, 57 n. 4. to whom given agent of owners or consignee of cargo, 57 uuless he is indebted to the owners, and then it is void pro tanto, 58 American law, 58 n. 5. where given even in the country of the owner's residence, under extraordinary cir- cumstances, 58 6. for what it may be given, 148 may not, 149 7. instrument of bottomry not valid on a British ship unless by writing, 59 no settled form of the instrument, 59 contents of, 59 may be given as collateral security, 60 is negotiable, but not at common law, 60 foims, 947 8. legal effect of the contract — does not transfer the property, but gives a claim enforceable by process, 60 9. condition of the bond the arrival of the ship, 61 her non-arrival does not defeat the right of the bondholder, when, 61 constructive total loss not applicable to this contract, 61 10. defeasance of the bond actual loss of the vessel, 61 by sea perils while on the voyage described, 61 survival of ship in specie, survives the bond, 61 11. enforcement of the bond — diligence required, 61 bond extinguished by a subsequent agreement to give time, 62 mode of enforcing it, 62 when part good and part bad Admiralty enforces it pro tanto, 62 limits to this practice, 62 marshalling of assets, 62 what freight is affected by the bond, 62 12. priority among bondholders, 62 in the inverse order of their dates, 62, 63 except when, 63 n. civil law rule to the same purpose, 63 n. considered in relation to other liens, 701 rule of ranking as to, 701, 702 if subsequent to liens, ex delicto, 703 13. law of the contract — , -„- speculations of Mr. Brodie and Mr. Justice Story, 63, 64, 175 rule of Admiralty Court, according to law of the flag, 64, 175, 176 foreign law to the same effect, 171, 172, 173, 174 recent cases at variance with the principle, 177, 178 settlement of the principle, 178 BRITISH FLAG. (Seem^r.) who may assume it, 25, 29, 71, 72 who may not, 71 . . - »„ forfeiture for unlawfully using it, 70, 72 6 Q 962 INDEX. BRITISH NATIONAL CHARACTER . is carefully guarded against assumption by foreigners and persons disobedient to the law, 25, 26, 29, 70, 71 offence of concealing, or of assuming a foreign character, 71, 72 BRITISH SHIP. (See Register, Registration, Ships.) is what, 25, 29 who may be owners of, 25, 29 duty of disqualified person succeeding to such property to petition for leave to sell, 38 otherwise forfeiture, 29, 38, 70 , ceases to be British ship on accession of foreigner to her proprietary, 29 and if not taken oif register, or afterwards assumes the British flag or character, is forfeited, 29, 70, 71 means of ascertaining (jualification of owners, 29, 30 evidence abroad and at home of her national character, is the certificate of registry, 88, 89 consequences of a ship ceasing to be recognised as a British ship, 29, 70, 71, 124 BROKER. (See Shipbroker, Iitsurance Broker.) stipulations in charter party as to, 190, 191, 382, 383 effect of, 383 BUILDER. (See Shipbuilder.) CABIN, freighter of entire ship not entitled to stow cargo in, 445 if he do, the freight is a question for a jury, 445 6xBIN PASSENGER. (See Passengers.) who is, within Passenger Act, 334 CABLES. (See Marine Store Sealers.) testing of,- 294 rules ftjr marine store dealers as to, 796 CALL FOR ORDERS, duty of masters, 427 what satisfies, 427 CAPTORS, their right of capture limited to the duration of actual hostilities, or the time allowed by treaty, 19 their right of property by capture depends on their being properly com- missioned at the time, 18, 19 it is at best but inchoate until sentence by a competent court, 20, 21 but is before that assignable and descendible, 20 succeed to the rights and niostof the liabilities of ship-owner and freighter, 491 if ship condemned and not cargo, they must complete voyage to obtain freight, 491 if cal-go is prize and not ship, they must pay full freight to the shipmaster, 491 if ship cut out of lading-port, no freight is due, 492 Demerara cases, 492 they pay no freight if the neutral ship is guilty of unneutral conduct, 494 performance prevented, freiglit follows or not as ship or cargo is cause, 496 sufficient grounds of capture, 548, 556, 559, 562, 563, 564, 565, 567, 571 (See War— Declaration of , Capture, Blockade, Non-performance.) evidence of such grounds derivable primarily from the ship, 549 if tliere is no probable ground, captor pays costs, and perhaps damages, if there is merely evidence of bad faith, and no grounds of condem- nation, he pays no costs, and may be entitled to receive costs, 549 if a nfeutral resist the right of search, or show intention to do so, this at least is a ground for capture, 664. (See 2'rize Cowrt, Prize of War.) CAPTURE, as a means of acquisition, is lawful only during hostilities, 18 the right is derived from the Crown by commission, 18 INDEX. 963 ■ CA.PTVRE— (continued).'' and must be expressly against the nation to wliich the prizs belongs, 18 property by capture is vested indefeasibly by what, 19, 20, 21 till then the captor's right is inchoate, 20 a competent court of prizes belongs to the captor's country, 21 and exercises its functions there or in the country of an ally, 21 and has possession of the prize where court is, 21, 22 American and continental doctrine on this point, 22, 23 n. Lord Stowell defended from the charge of surrendering the principles, effect of, on seamen's wages, 235 does not of itself dissolve the contract of affreightment, 491 for this purpose it must be followed by condemnation or authorised un- livery, 491, 493 what property is liable to be captured, 562 the neutral flag covers enemy's goods, 562 but property takes character from the person of the owner, or the soil of which it is the produce, 563 evidence as to ship, 563 evidence as to cargo, 563, 564 resistance to the right of search by a neutral may be the occasion of condem- nation, 564, 565 evidence of this resistance, 565 contraband of war is a ground of capture, 565 offence, how consummated, 665 how purged, 565 articles which are contraband of war, 566 conveyance of military forces, 667 conveyance of official despatches, 568 the caution required of the master against committing this offence, 5S8 CAEGO, the shipowners as common carriers, are in the nature of insurers as to cargo, 115 whether shipowners are common carriers, 115, et seq. limited responsibility of the owners, 121 to what owners of what ships restricted, 121, 122, 124 extent of this liability, 122 the master's relation to the cargo — is primarOy for the purpose of conveying it to its destination, 154 he may under sufficient necessity hypothecate the whole, 154, 155 or sell part, 155 or throw it overboard under the extremest danger, 165 or sell the whole of it when the alternative is complete loss other- wise, 156 to what extent he binds his owners by these acts, and to what extent the proprietors of cargo, 158 he may effectually subject it to respondentia, 159 by a bond enforceable iu the Admiralty Court here, 159 the ship and freight are the primaiy fund when the cargo is liypothe- oated for owner's purposes, 153 readiness to receive, implies what, 41 quantity of cargo to be supplied under affreightment of a whole ship, 369 must not be such as would impede the working of the vessel, 416 no deck-lading against the law, 416. (Bea Deck-lading.) freighter has no right to fill the cabin or to load tlie deck, 416 consequences thereof as to fi-eight, 445 kind of cargo — • should not be of uncustomed or prohibited goods, 416, 445 should not be of destructive goods, at least without notice, 292, 417 statutory right of the shipowner or master as to suspected packages, 417 kind of cargo stipulated for, and supplied with relation to freight, 455, 458, 460 receipt of cargo- state of the ship, tackling, and crew requisite, 413 liability for cargo, on whom it aiitaches, and when, 413 stowage of cargo — dunnage for, duty to provide, 414 964 INDEX. CAEGO — stowage of cargo — {eontinvM). duty to stow, on wliom it falls, 414, 415 consequences of bad stowage, on whom, 415, 416 duty to sign bills of lading for, 390, 417 care of the cargo during voyage, 430 what risks fall upon the owners at common law, 431 what under the usual exceptions in the charter-party and bill of lading, 4dl what the common law liabilities of the common carriers, 431 statutory limitation as to shipowners, 121, 431 contract limitations, 431 exceptions, act of God, 535 fire, 538 dangers of the sea, 538 boats, for the "West Indian trade, 538 injury by rats, 540 theft on the road, not within the term "robbers, ' or "dangers of the roads," 539 Queen's enemies, 537. (See Embargo, War—Deciaratwn of. Convoy, Capture, Blockade.) transhipment of cargo, 428 if necessary, may be done, 428 is compulsory by American law, and perhaps bythe law of France, 429, 430 not decided in English Courts, 428, 430 considered with relation to freight, and salvage, 600, 631 delivery of cargo, to whom, 433 i j- joo consequences of delivery to holder of a second set of bills of lading, 433 what delivery is a complete discharge, 437 liability for imperfect delivery, 438 effect thereof on freight, 439 what satisfies the contract as a right and true delivery, 439 in what condition, 439 consequences of ill coudition upon freight, 469 whether the merchant may abandon for freight, 469 if goods have been sold on the way, what is to be paid for them, 439 are they to be paid for it the ship afterward perish, 440 detention of, under lien for freight, 433 statutory mode of preserving lien, 436, 895 not to be for other charges, unless under contract, 433 but is allowed for general average contribution, 692 not to be for dead freight, or freight agreed to be paid in advance, 435 unless the lien is by contract, 512 of what goods, for what freight, 43.4 under what circumstances detention is improper, 434, 437 goods sold during voyage, price recoverable, 439 what price, 439 whether recoverable when ship afterwards perishes, 440, 441 master's duty if not allowed to land cargo, 443 relanding cargo, only on condition of payment of freight, and a complete indemnity against bills of lading, 449 landing cargo — damaged, cannot be abandoned for freight, 449, 469 may be refused under substituted contract, 449 not for some trivial dispute, 449 refusal must be clear, to be a defence for ship, 449 deck cargo, not to be carried, at what time, 293 under what penalty, 293 capture of, and if cargo be prize, the captor pays freight, 491, 493 but if it is not prize, the captor of ship must carry it to the port of destination if he would earn freight, 491 if neither ship or cargo is prize, and they are not separated, the voyage must be continued, 491, 493 equitable cases where mere suspicion attaches, but ship is to blame, part freight due, the cargo being sent on in other vessels, 494 whether cargo from wrecked ship to be forwarded to its destination, 428 (See Salvage, General Average, Non.-Performance, Performance, Freight, Bill of Lading, Freighter, War — Declaration of, Emhargo, Convoy, Blockade, Capture, Prize of War, Prize Court.) INDEX. 965 CERTIFICATE OF COMPETENCY granted to masters and mates upon personal examination, and testimonials of good conduct, and previous service, 199, 200 classification of, 200 examination before local marine boards, 199 where no such board exists, 884 Board of Trade may order re-examination before other persons, 736 may investigate master or mate's conduct or skill, and cancel or suspend certificate, 208, 209 what courts may cancel, 209, 885 on cancellation to whom to be delivered up, 886 the possession of such certificates, or certificates of service, compulsory, 200 to be recorded, and the entries of grants and cancellations, or copies thereof, to be evidence, 737 copy to be granted in case of loss, 737 forgery of, fraudulently obtaining, using, &e., misdemeanor, 737 penalty for going to sea without, or employing one to do so, 200 fees for, 830 granted to engineers, 882 CERTIFICATE OF MORTGAGE, nature and intention of, 50 conditions on which granted, 50 not usable within the same possession as the port of registry, 50 powers of, must be followed strictly, 60 under what circumstances the mortgage under, is good, notwithstanding death or bankruptcy of the owner, 51 must appear on the register, 50 mortgage under, may be indorsed on, 50 has priority in its order of indorsement, 50 the loss or obliteration of the certificate before or after it is acted on, does not defeat the purpose of the parties, 85 revocation of, in what case, and in what form, 85, 828 CERTIFICATE OF REGISTRY, grant of, 88 former purpose of, 88 present purpose of, 88, 89 contents of, 88 improper detention of, 89 liability for, 89 what changes are to be indorsed on, 89 may be renewed if obliterated, worn out, or damaged, 90 in other cases, 90 a provisional certificate, when given, 90 consequences of illegal use of a certificate, 72, 91 delivery up of certificate, 91 provisional pass may be granted, 90 CERTIFICATE OF SALE, nature and intention of. Si, 85 conditions on which granted, 27, 85 • • i j not usable for the same possession in which the port of registiy is situated, 27, 85 powers of, must be followed sti-ictly, 27 otherwise the sale is a nullity, and all else done under it, 2/ must appear on the home register, 85 sale under, must he indorsed, 85, 86 ^ except when made to unqualified owner, 87 unqualified purchaser acquires no property by our law till he delivers up the certificates of sale, and of registry, and produces the bill of sale, 87 the former register is closed by a sale under certificate to any one, 87 the loss or obliteration of the certificate before or after being acted on does not defeat the object of the parties, 85 revocation of, in what case and in what form, 85, 828 CERTIFICATES OF SERVICE granted, on what grounds, 199 to whom granted, 199 of what effect, when granted, 199 966 INDEX. CERTIFICATE OF SURVEY to be given of passenger steamers, 337 contents of, 337 for foreign sMps, 337 CHAIN CABLES, law as to testing, 293 CHARTERER. (See Freig/iter, Charter-party.) ■when regarded as owner pro hdc vice, 342 CHARTER-PART Y. (See Affreightment, Bill of Lading. ) the instrument of affreightment, 341 differs in legal effect, according to the purpose of the parties; 347 1. classification of, 341 2. when it amounts to a lease, considered, 342 consequences of its being so, 342 governing rule of construction, the intention of the parties, 347 this not always so hitherto, 347 cases upon, 347, 348 3. parties to the instrument and the action upon it, 353 when under seal, 353 when not under seal, 355 4. form of, and stamp, 360, 361 5. usual stipulations in, 362 when one is in the nature of a condition precedent to all the rest, 363 as to description and capacity of ship, 366 and present engagements of, 367 seaworthiness, 368 cargo, full and complete, 369 time, 370 of the essence of contract, 372 non-arrival, 375 to sail, 376 to depart, 376 port, 378 specifying port, 378 proceeding as near to, 379 consignee of ship, 381 6. unusual stipulations in, 382 7. construed by usage, 384 8. penal clause in, 388 9. contract is not dissolved by capture merely, unless followed by condemnation, or authorised unlivery of cargo, 491 10. dissolution of, 491, 493 CINQUE PORTS, jurisdiction of, in respect of salvage, 635 CLANDESTINE SHIPMENT, effect of, 396 CLEARANCES uecessaiy before sailing, 419 COLLISION. (See Mules of the Sea. ) to be entered, if possible, in official log, 771 1. remedies for, 304 in the Court of Admiralty, 304 or the Courts of Common Law, 304, 311 2. maritime law as to damage stated in four propositions, 305 foreign view of the rule that divides the loss, 305, 306 rests on a different basis from the English rule, 307, 308 further consequences of this difference, 308 English view of the same rule, 309 3. common law and statutory law as to damage, 310, 311 ' 4. cases upon damage, 311, 312 unavoidable accident, 312 caution must increase with the circumstances, 312, 313 INDEX. 967 COLLISION— (co»rivateering, 553 free ships, free goods, 553 blockades must be effective, 553 these modifications binding on all who should accede to them, 553 United States excepted to the abolition of privateering, 553 general effect of these modifications on the law as it stood before, 553 n. as to embargo. (See Umiargo. ) is a precautionary measui-e, but may be converted into reprisals, 553 does not meanwhile dissolve the contract of affreightment, 553 wages run on, and so, time freight, 554 except where it is imposed by the sovereign of the freighter, 554 as to declaration of war — is a prohibition of commercial intercourse with the enemy, 555 who is an enemy, 556 to what extent this is enforced, 556 whether a subject in the enemy's country can remove his goods after- wards, 557 American decisions, 557 n. opinion of Court of Queen's Bench, 557 that opinion doubted, 557 all contracts dissolved ipso facto, 558 all claims suspended, 558 all contracts made thereafter are illegal, 557 a war which does not operate these effects, 559 effects may be mitigated by the perogative of the Crown, 558 these effects are operated in respect of allies in the war, and may be enforced against them, 559 transfer of property in transitu on the sea is not effectual, 560 till the property reach the hand of the transferee, 560 courts of prize watch naiTowly any attempts to evade the law, 560 INDEX. 987 LAW OF NATIONS— (co!i«7iM«d). as to declaration of war — {continued). the legal incapacity of the person attaches to his property, 560, 563 the alien character of the soil attaches to its produce, although a neutral he landlord, 561, 563 ambiguous relations of countries become hostile afterwards affect trans- fers, 561 transfer not bad because it is a gift, or part of the consideration money is vmpaid, 561 as to laws of convoy, 561. (See Convoy.) as to capture. (See Capture, Captors, Prize of War, Prize Court. ) what property remains liable to capture since 1856, 562 character of the person impressed on his property, 563 character of the country on its produce, 560, 563 who is owner, the shipper or the consignee ? 563 right of search if resisted gives right of capture, 564 contraband of war, carrying, gives right of capture, 565 offence, how consummated, 565 how purged, 566 what articles are contraband, 566 distinction when the articles are the native produce of the neixtral's own country, 567 right of pre-emption exercised as to, 567 when contraband articles may cease to be, 567 offence of conveying forces, 567 offence of conveying enemy's dispatches, 568 duty of the captain to guard against being imposed on, 568 as to blockade — purpose is to prevent intercourse with the part of the coast enclosed by the hostile squadron, 569 conditions of valid blockade, 569 maintained by force, 569 excepting when accidents intervene, 570 impartially maintained against all, 570 effect of notification of blockade, 571 when this is notice to all the subjects of a government, 571 breach of blockade, 571 in what it consists, 571 evidence of the fact of blockade, 571 knowledge of the fact of blockade, what is a sufficient presumption against the offender, 572 how the charge is to be rebutted, 572 what circumstances will shift the presumption, 572 acts amounting to breach of blockade, 573 acts which are not, although accompanied with intercourse, 575 consequence of breach of blockade, 576 exception, 576 when the offence is purged, 577 illegality of charter-party to sail to a blockaded port,_ 578, 579 when a vessel may sail for the purpose of inquiring, 578 when not, 578 Medeiros v. Hill, doctrine of, considered, 580 how modified by the positive law of France, 580 law of Ainerica, 581 LENDER ON BOTTOMRY. {See SondMder, Bottomry.) is bound first to inquire whether the supplies are necessary, and cannot be furnished on personal credit, 55 not bound to calculate expediency of repairs, 55 or see to the proper application of the loan, 55 or try the money market for the master, 55 he is not discharged from this duty of inquiry by taking a bond at a public auction, 55 who may be, owner's agent or consignee of cargo, 57 unless indebted to owners, and then bond is void^ro ianto, 57, 58 in what country, 58 must secure his money by a bond in writing, 59 a bond from owners, when bad, 57 may take bills also for same debt, 60 988 INDEX. LENDER ON BOTTOMRY— (confeiMefQ. ia bound to diligence in suing, 61 loses his remedy by agreement to give time, 62 bow to proceed, 62 how he ranks against the fund with other bondholders, 62, 701, 702, 703, 705 against what fund, 60, 62, 706 LETTERS OF MARQUE. (See Captms, Captti/re, Prize.) indispensable to the vesting of property in captor, 18 must be issued to the holder against the country whose ship is taken, 18, 19 otherwise it is a droit of the Admiralty if an enemy's ship, 19 privateering is abolished, 18 n., 663 LICENCES to persons to procure seamen, 738 penalties on others interfering or employing without, 738 to pilots, 274 to Trinity House pilots, 274, 281 n. penalty on persons engaging or employing without, 274 to masters or mates to act as pilots, 774 to passage broker and his runners, 337 LIEN. (See Ma/ritime Lien, Freight, Stoppage in transitu, ) lien of shipbuilder for price or repairs, 7, 113 nature of, 7, 8, 113 how enforced, 8, 113 when it does not arise, 8, 113 by the ancient Roman law did not exist without possession, 66 lien for repairs, supplies, &c., 7, 8, 108 limited extent of this relaxation, 109 &r wages of master, 210 and disbursements, 211 for wages of seamen, 248 \yhen enforceable, 249, 251 for damage, 321 for passage i^oney on luggage or property of the passenger, 326 but not on property on his person at the time of quitting, 326 lien for freight is in whom, 509 depends on the nature of the charter-party, 342, 348, 351 for what freight, 433, 434 not for advance freight, 435 not for dead freight or other charges, or unliquidated damages, 435 lien by contract for what, 512 lien on what goods, 434 lien for what amount, 514 who may enforce lieu for freight, 433, 434 how it may be enforced, 433, 435 statutory provisions for, 436, 894, 895 lien when determined, and by what, 518 lien'for what other charges, 358 LIENS, COMPETING, Uens classified, 701 liens, rewards for benefits, 702 liens, reparations for wrongs, 703 1st class rank in the inverse order of their attachment, 702 2nd class in the direct order of their attachment, 703 relatively to each other, how, 703 LIFE-BOAT to be carried by every decked ship sailing from United Kingdom, 407 n. not to be cleared without, 407 n. expenses of, chargeable on Mercantile Marine Fund, 843 LIFE-BUOYS to be carried by ships, 407 n. not to be cleared without, 407 n. LIGHT DUES. (See Idghthmms.) INDEX. 989 LIGHTHOUSES, management of, in whom vested, 782 incorporation of Commissioners of Northern Lighthouses, 782 of whom to consist, 782 power to elect new members, 782 power of Trinity House to inspect northern lighthouses, 782, 890 power of Board of Trade to appoint persons to inspect any lighthouse on com- plaint, 782 power of general authority over local authorities, 782 consequence of failure of duty in local authorities is to transfer the lighthouses from their control to that of the general authority, 782, 783 expenses of establishment, 783 estimate of expenses to be submitted for sanction of Board of Trade, except when matter is urgent, 783 without its sanction, no expenses allowed, 783 dues to be levied, 783 may be revised by Her Majesty in Council, 783 power of general authorities as to, 783 publication of rates and regulations, 783 no clearance or transire for a ship without a receipt for, 783 power of distress for, 783 to he paid over to genei-al authority, who are to keep account, and remit same to Paymaster-General, 783 application of dues, 784 to be accounted for, audited, and accounts laid before Parliament, 787, 788 new lighthouses, erection of, or alteration of old, placing new buoys or removal of old, 784 under whose authority, 784 subject to appeal and to sanction of the Board of Trade, 784 how sanction obtained, 784 compulsory powers of Trinity House subject to Board of Trade, 7Si dues as to new lighthouses, &c., 784 Lands Clauses Consolidation Act applies, 785 dues in Channel Islands only to be levied with consent of the States, 785 local lighthouses and buoys may be accepted in suiTender or purchased by authorities, 785 penalty for damaging lighthouses, &c., 785 abatement^of false lights, 785 LIGHTS. oifence of exhibiting false lights, 270, 271 rules as to lights, 296 cases upon, 311 LIMITATION OF RESPONSIBILITY of owners, 119, 121 in what cases, 121 as to what ships, 121, 122 to what extent, 121, 122 is an individual right and not lost by privity of co-owner to the damage, 123 in case of different losses, what, 123 how far this a municipal privilege, exclusive of foreigners, 121 how far not, 122 proceedings by Board of Trade, 127 LISTS OF CREW, particulars in, 262 to be delivered by master of foreign-going ship, when, 262 by home-tede ship, when, 262 purpose of, 262 must produce same and ship's papers to consuls and customs officers, when, 263 otherwise a penalty, 263 LISTS OF PASSENGERS must be filled up and delivered, 337, 852 990 INDEX. LOAD LINE to be kept marked, 293 under penalty, 293 LOAN. (See Advances.) LOCAL MAEINE BOARDS, their constitution, 732 quorum, how determined, 733 qualification of voters for, 733 lists of voters, how prepared, 733 revision of, 733 means of revision, 733 expenses of, "borne by whom, 734 revised list attests qualification, 734 qualification of members of, 734 errors in election not to vitiate past acts, 734 minutes and business of the boai-d inspected by Board of Trade, 734 Board of Trade may assume the duties of, when, 734 may alter arrangements or appointments, 734 LODGING-HOUSE KEEPERS, penalty on, for overcharging seamen, 265 for detaining or absconding with his effects, 265 going on board before the ship is berthed, 265 soliciting on board within 24 hours afterwards, 265 or taking away seaman's effects without authority, 265 LOG. duty of master to have log regularly kept, 203 and offilcial log, 203, 764 official log, entry of offences in, 257, 765 such entry must be produced, in what cases, or copy thereof, 257 generally what entries to be in official log, 257, 765 how, 257, 764 made evidence, 246, 765 to be delivered to whom, 765 sent home in what oases, 765, 766 penalties in respect of official log, 766 LUNATIC. (See Trustee.) who to transfer ship property, 26 person to make statutory declarations for, 28 committee of lunatic transferee, his power, 28 MANAGING OWNER. (See Ship's Husbaml.) statutory office, 186 and functions, 186, 187 MARINE STORE DEALERS, statutory regulations to be observed by, 796 MARINER. (See Seamen and Master Mariner.) MARITIME LAW, BRITISH, consists of what, 1 as to bottomry, 56, 57, 59, 61, 63 as to maritime liens, 65 as to respondentia, 50 employment of ship by part-owners, 99, 100 in relation to the responsibility of owners for injury by the ship, 122 master's authority to hire out the ship, 131 to bind the owners for necessaries, 138 to hypothecate ship, freight, and cargo, 145 in respect of the cargo generally, 154 purpose of this authority, 154 to sell the cargo, 156 conditions of this authority, 158 to hypothecate cargo on respondentia, 159 INDEX. 991 MARITIME LAW, BRITISH— (cojiCmztcf?). to sell the ship, 159 conditions of such authority, 161 authority of substituted master, 167 governs the master's contracts in foreign countries, 169-180 in relation to the mariners, 198, 212. (See Seamen, Wages.) in relation to pilot, 273 in relation to tug, 286 rales of the sea, 300 lights, fog-signals, 296 in damage causes, 304 implies obligation as to seaworthiness of ship, 216, 407 in respect of performance of the contract of affreightment, 406 in relation to freight, 452 as applied by the British Prize Court in case of capture, in respect of the lia- bility to pay, or right to receive freight, 490 in respect of embargo, 553 in respect of salvage, 608. (See Salvage.) of wreck, 640. (See Wreck.) MARITIME LAW, GENERAL, as to bottomry, 64 as to maritime liens, 65, 67, 68 as to respondentia,' 60 right among part-owners to employ the ship, 97 in relation to responsibility of the owners lor injury done by the ship, 118 master's authority to hire out the ship, 133 to hypothecate ship, freight, and cargo, 145 to sell part of cargo, 165 to sell the whole, 156 to sell the ship, 160 rules of the sea, 295 in damage causes, 305 applied in America to questions on passage-money, 326 n. in respect of deviations during the voyage, 424 ti-anshipment, 429 power of detaining the goods for freight, 433 as to short delivery, 438, 467 payment for goods sold on the voyage, 440 whether in case of imperfect delivery there be no freight due, 467 whether in case of ill-conditioned delivery the merchant may abandon for freight, 469 divisibility of freight, 478, 488 applied in cases of prize, 493 by whom freight is payable in case of transhipment, 500 lien for freight, 509 the ground of the right to freight, 478 inception of freight, and consummation of title to, 491 in respect of embargo, 554 MARITIME LIEN is the original form of bottomry, 65 early history of, 65 in the Roman law, 65, 67, and notes that law modified by way of necessary concession to modern commerce, 66 continental doctrine, 66, and note American law, 67 n. conflict in England with the civilians, 67 English law, 68 _ admits of maritime liens in certain cases, 68 writing or possession not essential to their existence, 68 not defeasible by purchase, 68 interest therefore of purchaser to take indemnity against such incum- brances, 68 French law, 68 ranking of liens, 701 classification of, 701 rule of priority as to first class, 702 rule as to second class, 703 rule as affecting both classes mutually, 703, 704 992 INDEX. MARITIME PEEMIUM not essential to a bottomry bond, 57 is lawful though high, 57 if too high may be reduced by Admiralty Com-t, 57 ordinary interest will be substituted, when no risk has been encountered, 57 civil law rule is to the same effect, 57 n. must appear in the bond, in order to be recoverable, 57 ordinary interest only payable from the time the bond is due, 57 n. MARITIME RISK essential to the validity of a bottomry bond, 56 consequences of its absence, 66 MARRIAGE of female owner, transmits ship property to the husband, 38 necessity for registering this transmission, 38 evidence requisite to be produced to the registrar, 82, 83 in case husband be disqualified to be owner of British ship, must apply for leave to sell, 38 marriages on board to be entered in official log, 765 MARSHALLING OF ASSETS. under what circumstances the Court of Admiralty does so, 706 MASTER. {?,&& Master Mariner.) 1. his appointment, importance of, 130 considered as a duty of the owners to others, 131 2. his authority to contract with regard to the usual employment of the ship, 131 implied in his appointment, 131 binds the owners thereby, 131 and himself, 131 limit to this, 132 so it was by the Roman law, 132 even in respect of substituted masters contrary to the orders of the owners, 183 binds the ship by the maritime law, 133 by the French law, 134 cases under the English law, 134, 135 conclusion upon them, 137 his warranty binding on the owners, 137 owners not responsible on a contract which he substitutes for one made by themselves, 138 or on a contract to carry freight free, 138 or to meet a bill of exchange drawn by the master on another, 138 3. his authority to contract for repairs and necessaries, 138 depends on the same principles as the preceding, 139 implied in his appointment, 139 oases under the early English law, 139, 140, 141 he is personally responsible thereon, 139 limit to this, 132 n.', 141 4. his authority to pledge the owners' credit, 141 general rule as to, 141, 142 whether he was in that position which constituted him the agent of the owners for the purpose is a question for the jury, 142 for what supplies he may pledge their credit, 142 such as a prudent man would deem necessary, 142 what money is included, 143 right and duty of the lender in such a case, 143, 144 when his authority to borrow ceases, 145 5. his authority to borrow on bottomry, 145. (See Bottomry.) general rule regarding, 145, 150 early law as to, 146 does not exist except when wants are inexorable, and personal credit fails him, 145, 147 purpose of this strictness of the law, 147 previous communication with the owners required, 147 duty of the lender, 55 duly of the master, 148 what may be included in the bond, 148, 149 INDEX. 993 M.AS1ER— {continued. ) 5. his authority to borrow on hoitomry— {continued.) what not, 149 underwhat oircumstances an English master may hypothecate in England, when British owners may not, 152 this power extends to ship, freight, and cargo, 153 he has no implied authority to mortgage ship or assign fi eight, 154 6. his relation to the cargo — when he may hypothecate the whole, 155 when he may sell part, 155, 156 when he may sell the whole, 156, 158 when he may subject it to respondentia, 159 7. his authority to sell the ship, 159 early foreign law, 160 early English law as to, 160 present English law, 161 the condition of such authority, 161 considered, 162, 163 illustrated, 164 pui'chaser's duty, 165 jurisdiction of foreign courts herein, 166 8. in case of substituted master, 167 conditions of valid appointment, 167 instances of such authority sustained, 167, 168 9. in case of change of owners, 169 while at sea, he is agent till superseded or confirmed, 169 10. the law of the master's contracts of necessity, 63, 64, 169 the law of his flag, 170 is binding on the foreigner, 170 proved in various ways, 171-175 opinions of Mr. Brodie and Mr. Justice Story, 175 English law, 176 decision of Dr. Lushington, 177 decision of the Exchequer Chamber, 178 the received law of England, 179, 180 11. his duty to the owners, 180, 201 to give his whole time, 181 to have no interest against his duty, 181 12. his rights against them, 181, 201 for his disbursements lien on the ship, 181, 210 and for his wages, 210, 211 13. his liability to third persons on his contracts with regard to the ship, 113 14. his duties, authority, and liability in relation to passengers, considered, 330, 331. (See Passengers. ) 15. his duties and liabilities xmder the contract of affreightment, considered, 389, 406. (See Charter-party, Bill of Lading, Performance, Cargo.) 16. his right to primage, 450, 532 MASTER MARIlSrER. (See Master, Seamen.) the variety of duty and function combined in his office, 198 his qualification, how ascertained and certified, 199 certificate of qualification must be had, 199 such certificates to be registered, and also the cancellation of them, 200 n. what court may cancel, 885 evidence thereof, 737, 886 duplicate to be granted in case of loss, 737 penalties for fraud or forgery in procuring, 737 his appointment, 130. (See Jfasier. ) his duties in respect of the corpus of the ship, 201 to communicate with the owners respecting injury received, 202 to keep log and render account, 203 to deliver lists of crew, 262, 763 his authority on board — measured by the pui-pose and the necessity, 203 in respect of discipline, 204 general principles, 204 he is responsible for what use he makes of this authority on board, 205 what justification he must make, 206 n. 3 s 994 INDEX. MASTER UA.m'S'ER— {continued.) . i,- ■ i circumstances proper to be taken account of by him and by ms judge, 206 his duty in respect of necessaries and medical stores, 207 his discharge, 208 by his owners, 208 by any Court of Admiralty, upon complaint of whom, 208 pov/er of what court to investigate charges of incompetency, and cancel or suspend certificate of, 208 power of naval court to investigate charges and remove master, 208, 209, 210 master's duty, on removal to hand over papers, &o., to the incoming master, 209 duty of incoming master to receive and enter receipt of same in log, 209 his wages and disbursements, 210 his duty in respect of stores, 258, 262 medicines, 258 accommodation, 260 his duty in respect of discharging seamen abroad, 263 his duty to allow seamen to go ashore for the purpose of laying complaint, 261, 262 and to remove the ground of complaint, 261, 262 his duty to make returns of the crew and passengers, 262, 337 barratry by, 268 oii'ences with regard to ships, 270 non-resistance to enemies, 271 his relation to the pilot, 277 his duty to engage one, 276 how far he may interfere, 277 his duties in case of collision, 303 his relation to the passengers in matters of discipline, 330 liable to action for excess of authority, 331 may be required to deliver up certificate of competency, to Court of Inquiry into wrecks and casualties, 789 MATB, ^ ' , , certificate of competency or service for, indispensable, 200 his receipt for goods to be given up before delivering bills of lading, 390, 393, Sdi is binding on the owners, 393 improper detention of, operates no effect to change possession of the goods, 392 MEASUREMENT OF SHIPS, rules for, 716, 846 to be marked on main beam, 917 MEDICAL INSPECTORS. (See Inspectors.) MEDICAL PRACTITIONER, what ships to cany, 259 MEDICINES, duty of owners to provide on board for the crew, according to authorised scale, 259 a duly qualified practitioner must be carried, when, 259 duty of owners to provide for medical advice and comforts ashore, 259 inspection of medical stores abroad, 259 penalty for supplying in)proper medicines, 259 duty of owners with regard to, in passenger ships, 328 MERCANTILE MARINE EUND, ' what monies are payable into, 786 provisions as to ballastage, under 6 & 7 Vict. c. Ivii., 786 application of the fund, 786 establishments for lighthouses and ballastage, 786 superannuation allowances, 787 estimates to be submitted beforehand for approval of the Board of Trade as to expenses requisite under general lighthouse authorities, 787 except where the matter is urgent, 787 INDEX. 995 MERCANTILE MARINE fUND—{conHmuid). no expense except with sanctioirof the board, 787 credit funds for the erection of new lighthouses, 787 dues, &e,, to bo accounted lor, 787 aceounts to be audited and laid before Parliament, 787, 788 property exempt from taxes, and tolls, &c., 788 expenses of Commissioners of Customs in giving effect to tlie Merchant Shipping _ Act, may be defrayed out of, 808 life boat, expenses chargeable to, 843 MERCANTILE MARINE OFFICES, establishment of, 734, 884 control of, by Board of Trade, 734 , business of, 735 fees payable to, 735 by whom, 735 excess in, 735 business of, may be transacted where, 735 MILITARY FORCES of the enemy, offence of conveying, 567 regarded as a most noxious offence by the Prize Court, 567 MILITARY STORES, Act authorising carriage of, in passenger ships, 912 MISCONDUCT may be the legal occasion of forfeiture of wages, 244 rule as to what misconduct will have this effect, 244 in the case of officers, 244 in the case of seamen, 245 when occasion of penalties, 266 statutory evidence requisite, 246, 257 " ■ waiver of forfeiture, 245 limitation on declaration of penalties, 557 when it amounts to a misdemeanor, 766 of passengers on steamers, 338 MORTGAGE. (See Certificate of Mortgage. ) no special form of instrument under previous Acts, 41 statutory form, 42, 45, 48, 820, 821 statutory effect of, 42, 43 rules under former statutes as to operation and priority of, 46, 47 under the present Act, passes the property inter partes, 46 and when registered, .as against third persons, 48 but registration does not appear to be compulsory, 46 entitles mortgagee in possession to the accruing freight, 43 the priority of, determined by the order on the register, 46, 47, 48 this order not affected by notice, 46, 48 or by any power of tacking, 46, 48 thiJ register notice of all it contains, nothing else binding, 47 the ship registry compared with Irish Land Registry, 46, 48 effect of mortgage unregistered, 48 priority of advances under mortgage to secure account current, 48 equitable mortgages, 42 when under a certificate of mortgage, how it ranks, 50 the pui-pose, conditions of validity, and effect of certificates of mortgage, 50 the statutory power of sale attaches to every registered mortgage, 49 conditions and consequences of the exercise of the power of sale, 49 the transmission and transfer of mortgages may be registered, 49 discharge of mortgages may be registered, 49 mortgage distinguished from bottomry, 52 the master's power to mortgage must be express, 154 MORTGAGEE cannot defeat the builder's lien for repairs, 8 is not to be deemed owner of the property under the registry provisions, 43 has property vested in him notwithstanding 42 under unregistered deed, inter paries, 42 8 s 2 996 INDEX. MORTGAGEE— (conimwti. ) under registered deed, against third parties, 43 is therefore protected against mortgagor's execution creditor or trustee in bankruptcy, 43 how far restrained as against third parties, 43, 45 how far third parties restrained as against hiui, 49, 113, 504 entitled to accruing freight on taking possession, or doing what is equivalent, 43 and then is not liable to any debts contracted before that time, 43 he takes the freight, as against whom, 112, 504 and cannot be ousted by whom, 112, 504 he is not obliged to register, 46, but by registering he secures his right to the shares against other creditors and among other mortgagees, 49 his priority is according to ms place in the order of registration, 48 this priority not affected by notice, express, implied, or constructive, 46, 49, nor by the power of tacking, 46, 49 his rank under a certificate of mortgage is according to the order of indorsement thereon of his and other mortgages, 50 and before all other dispositions of the property placed on the register after entry thereon of the certificate of mortgage, 50 ' he has a power of sale by statute, 49 he may arrest the ship by Admiralty process, 51 he has a right to appear before the Admiralty to protect his interests if the property be abeady there, 51 there may be equitable' mortgagee of ship property, 42 MORTGAGOR is still deemed owner of the shares, 43, 44 the reason assigned for this statutory provision, 44 may not do aught to prejudice the security, 45 his execution creditor or bankrupt trustee can do nothing to the prejudice of a registered mortgagee, 43, 49, 113 is in the nature of cestui que trust of the surplus proceeds of a sale, after pay- ing off the mortgage, 49 MUTINY, authority of master to suppress, 256 operates as forfeiture of wages, 244, 245 the quelling of, by H.M.S., gives no title to salvage,, 612 unless the service be very splendid, 612 NAME AND NUMBER of ship, means of registration, 77 not to be changed, 78 exemption from painting name on stern, 77 NATIONAL CHARACTER. (See British National Character.) must be declared by any ship in order to obtain a clearance, 419 n. , 730 NATIONS, LAW OF. (See Law of Nations.) NATURAL-BORN BRITISH SUBJECTS, who are, 29 n., 30 n. NATURALISATION. (See Denizens.) statutes as to, 30 n. how effected, 30 n. consequences thereof, 30 n. NAVAL COURT, by whom summoned, 208 on what occasion, 208 •with what powers, 208 orders of, to be entered in log, if practicable, 761 report to be made of proceedings to Board of Trade, 761 penalty for preventing or obstructing investigation by, or complaint as ground for, 761 additional powers of, 847 INDEX. 997 NAVAL STORES. _ (See Contraband of War.) Act authorising carriage of, in passenger ships, 912 NECESSARIES, what are, 142, and n. » the master's contract for, binds the owners, 139 and himself, 139 source of such authority, 139 power to borrow for, 141, 143 to what extent, 143, 144 when the power is exhausted, 145 power to hypothecate for, 145 or sell part of the cargo for, 155 the onus prohandi is on the lender, 144 NECESSITY for supplies, and the impossibility of obtaining them on personal credit, prime conditions of valid bottomry, 53 NEGLECT. (See Discipline, Disobedience, Seamen.) of master or seamen, when it endahgers property, life or limb, a misdemeanor, 756 of seamen to join ship or proceed to sea, how punished, 757 NEGLIGENCE. (See Collision.) of pilot, who answerable for consequences, 278, 279 of tug, who answerable, 287, 288 on the part of seamen, 260 rules of the sea, 300 lights and fog signals, 296 maritime law as to negligence, 305 difference of Continental and British law in one of the rules, 307, 309 statutory modification of the British law maritime as to negligence, 310 English common law agrees with, 311 remedy for, 304 cases upon, 312, 313 unavoidable accident, 313 when it is negligence not to use additional caution, 313 when it is so, notwithstanding caution, 314 right of the seamen to presume the rules wiU be observed on board the other ship, 315 onus probandi on whom, 317 measure of damages, 319 consequential damage, 319 lien for, 321 extent of, 319. (See Owners — LiabilUyof.) where enforceable, 304 damage by ships of war, 321 NEUTRALS, who are, defined by Lord Ellenborough, 21 n. entitled to full freight if the cargo is prize, 491 provided the voyage was begun, 491 and there be no fault in the ship, 491 when only part freight may be awarded, 494 or none at all, in case of un-neutral conduct, 494 take enemy character in enemy country, 555, 556 NON-ARRIVAL, meaning of, 375 NON-PERFORMANCE UNDER AFFREIGHTMENT does not necessarily give damages, 534 unless the parties have so bound themselves, 534 by the shipowner — is excused at common law, as in case of a common carrier, in what event, 535 exemptions stipulated by him usually in charter-party and bill of lading, 535 1. act of God, contemplates the immediate action of spontaneous forces of nature, 535 damage resulting from their prior action on other objects is too remote to be within the exemption, 536 998 INDEX. NON-PERFORMAITCE UNDER AFFREIGHTMENT— (cojiiMmcii.) by the shipowner — {cmitiwued.) 2. the Queen's enemies, 637 3. fire, common carrier is liable at common law for damage by, 538 fire, stipulation against, and statutory exemption from liability in consequence of it, 538 i. dangers of the sea, what is included, 538 want of water on a bar at the mouth of a river not included, 538 5. exemption in the West India trade, meaning of, 538 6. other occasions of non-peifovmance — the shipowner is excused if his ship be reasonably sulficient, although a stouter ship would have survived the peril, 539 exception of robbers, or of dangers of the road, does not include theft, 539 injury by rats is not within the terms of the usual exception, 540 in case of confiscation of cargo abroad, what must be averred and proved to be an excuse for the shipowner, 540 7. of non-performance which gives damages only, 541 which is an answer to the action on the charter party, 542 by the freighter — 8. non-performance giving damages only, 540, 543 non-performance giving complete answer to the action, 542 9. illegality if in contemplation of both parties is no excuse for either, 543 subsequent impossibility no good plea when the contract is silent thereon, 543 unless the contract is dissolved thereby, 544 or the parties have expressly stipulated with regard thereto, 544 subsequent illegality a complete defence, 545 what performance suffices, 545 10. voyage, for the purpose of exemptions dui'ing it, when shall it ,be said to have commenced, 546 accidents, meaning of, 540 during hostilities— 11. the Law of Nations as stated in 1753, 547 prize from the enemy is a right of war, 548 there is no prize fi'om a friend, provided he observe his neutrality, 548 goods of an enemy on board the ship of a friend may be taken, 548 the lawful goods of a friend on board of an enemy to be restored, 548 contrahand of war is lawful prize on board a friend, 548 procedure to condemnation or acquittal, 548, 549, 550, 551 opposition to England induced a difference on these points in 1778 and 1780, 551, 552 the Congress of Paris, 1856, established among the contracting powers, and all who should assent, what principles, 552 United States accept all hut the abolition of privateering, 553 12. imder embargo — this, although not one of the operations of war, may yet be converted into reprisals, 553 meanwhile it operates no dissolution of the contract with the seamen or the freighters, 553 but if the detention is by the sovereign of the freighter, the latter may by notice determine the contract without liability to damages, 554 this is also the French law, 555 what, in case the cargo be perishable, 555 13. after declaration of war — this .imports a prohibition of commercial intei-course with the enemy, 555 a natural-born subject or neutral friend who is remorant in the enemy's country is imjiressed with the enemy character, 555, 656 property acquired bj' commercial intercourse with such a person is liable to be made prize, 556 instances of this stated by Lord Stowell, 556 qucere, whether goods purchased before the declaration of war may be brought away from the enemy's country after, 557 or whether goods may be lawfully acquired alter this from British subjects or allies about to leave the country and brought away from it, 557 there is reason to doubt it, 557 American law unfavourable to such a proceeding, 557, and note but a subject may quit the enemy's country with his goods, if he do so without delay, 557 contracts made after this with an enemy, or one who is remorant in his country, illegal, 557 INDEX. NON-PERFORMANCE UNDER AFFREIGHTMENT— (rantojMcrf). 13. after declaration of war — [continued). claims due before to enemy are suspended, 557 executory contracts dissolved, 558 partnership with one who hecomcs an enemy thereby, is dissolved, 658 a policy on enemy's goods is a nullity, 558 n. if the declaration of war reach the port of loading before the expiration of the lie-days, and the freighter till then has neglected to furnisli a cargo, that is no ground of action against him, 558 if the parties to the contract are neutrals to the war, the contract remains bind- ing, notwithstanding any difficulty or impossibility of performing it, 559 unless they have expressly provided for the events which have occurred, 559 or unless the consequences of war declared are avoided by express au- thority of the Crown before the contract is dissolved, 569 afterwards it is too late, 559 those rules touching commercial intercourse bind allies in the war, 559 and may be enforced by one . sovereign against the subject of the other, 559 after declaration of war there can be no transfer of property iii transitu, in fraud of the belligerent right of capture, 560 until such transfer is made eft'ectual by possession of the transferee, 560 this may be at any point in the voyage, 660 - prize courts narrowly watch these proceedings, 660 property in such times follows the rights of the person, 560 was the owner at the time of seizure entitled to restitution — is he at the time of adjudication in a capacity to claim ? 560 declaration of war may have a retro-active effect when the relations of two coun- tries before that were ambiguous, 560 property is easily impressed with the character of the country of which it is produce, although derived from the estate of a neutral, 561, 563 14. convoy — is a necessity and a statutory duty in time of war, 561 by a warranty to sail with, the shipowner contracts an obligation, neglect of which involves damages, 562 what will satisfy the warranty, 562 (See Convoy.) 15. capture — enemy's ships exposed to, 562 enemy's goods in neutral bottoms are now protected, 562 the law of personalty, 663 the produce of a country affected with its character, 561, 563 the colours and pass the ship sails under are conclusive against her, 563 not for her, 563 circumstances of, unfavourable presumption against her, 563 rule of prize court, property shipped to enemy vests in captor, unless clear evidence of its being property of shipper, 564 property shipped ■ by enemy vests in captor, unless an order for the goods, or acceptance of them by consignee before capture, 564 16. right of search — still belongs to the belligerent power, 564 if resisted, with notice of the war, it entails condemnation, 565 a clear intention to resist is enough, 565 17. contraband of war — carrying contraband is unneutral, 565 the offence is consummated by leaving the port, 565 it is purged by the discharge of the contraband articles, 565 capture is confiscation of all property on board, of owner of contraband, 565 the ship too, so fax as she belongs to him, 565 she at least loses freight and incurs expenses, 565 by malignant circumstances, she may be liable to condemnation, 566 what articles are contraband of war, 566 conveyance offerees or despatches for the enemy is noxious offence, 5G7, 568 the master is with great difficulty allowed to aver ignorance, 568 18. blockade — must be constituted and maintained by an effective force, 569 it is not ended by an accidental interraption due to the wind, 670 neutrals are bound in such a case to presume a? much, 670 1000 INDEX. NON-PEB,FORMANCE UNDER AmUmGRTUENT— {continued.) 18. blockade — {continued.} secus, if the interruption is by a superior force" of the enemy, the blockade is thereby ended, 570 the prohibition of intercourse must be impartial towards all, 570 a relaxation in favour of one party extends to all, 570 may be constituted legally without notification, 571 without notification of the commencement there is an end in law at the same time with the raising of the blockade, 571 with notification, blockade presumed to continue till repealed bynotifioation, 571 notification to a goTemment is notice to all its subjects, 571 evidence requisite to prove a breach of blockade, 571, 572 existence of the fact, 571 knowledge of its existence, 572 what amounts in law to notice, 572 the presumption in law and the circumstances that change it, 572, 573 what acts amount to breach of blockade, 573, 574, 575 interposition of lighters changes not the nature of the offence, 576 what acts are not breach of blockade, although there is commimication, 576 the consequence of breach of blockade is confiscation of the ship, 576 generally also of the cargo, 576 the presumption of law is to the prejudice of the cargo, 576 circumstances which alter this in respect of the cai'go, S76, 577 offence of breach not laid aside till vessel have terminated her voyage, 577 unless the blockade terminates before, 577 charter-party for, to a port known to be blockaded, how far illegal, 578 the sailing from the port is the commission of the offence, 678 as to inquiry by the way, 578 difference as to blockade with and without notification, 578 exception only in favour of distant ports, 578 illegality described as viewed by the law of nations, 579 Medeiros v. HUl stated, 580 opinion of Tindal, C. J., 580 law of France is express, blockade does not dissolve the contract, 580 the American law seems to agree with that of this country, it operates a dis- solution of the contract, 681 limitation of prize suits, 581 19. dissolution of the contract — by voluntary act of the parties, 581 by matter extrinsic, already referred to above, 582 illegality affects both' parties when subjects of the same government, whose act renders their contract iUegal, 582 a mere prohibition to export by the government to which neither is subject leaves the contract binding, 582 unless it provides for such an event, 582, 583 20. measure of damages — is the loss arising from the breach of contract, 683 this loss to shipowner from non-performance by the freighter is the freight that would have been earned, less the expense of earning it and any freight earned in the same time, 683 unless his conduct was unreasonable, 584 qy. whether the shipowner is bound to seek freight elsewhere, in order to reduce the amount, 584 if the charter-party substitutes a sum certain in case of breach, he is entitle d to that without deduction, 584 if the provision for dispensing with performance is neglected by him, for whose benefit it was inserted, it is as though no such provision ever were there, 685 oases, 586, 686 NORTHEEN LIGHTHOUSES, COMMISSIONERS OF. (See Lighthouses.) incorporation of, 782 to manage what, 782 to consist of whom, 782 powers of, 782 NOTICE of trusts, excluded from the register, 40 not receivable by the registrar, 40 INDEX. 1001 'SOIIOE— {continued) . of mortgages not registered, does not afifect the priority of registered mortgages, 46, 48 secus as between unregistered mortgages, 48 notice of dissent to employment of ship indispensable to save from loss by it, 100 of the arrival of the ship, freighter not entitled to, 433 of readiness to receive cargo, 411 OFFENCES, PUNISHMENT OF. (See Orivics on the High Seas.) statutory provisions as to, 262, 730, 847 legal procedure as to, 803 OFFICIAL LOG. (See Log.) OWNERS. (See Acquisition, Transfer, Register, Ship, Master, Managing Oumer.) 1. how become so — by construction of ship, 1 by purchase of, 8 by capture of, 18 evidence of property vesting, 2, 3, 5, 20, 21, 32 who may be of British ship, 29 who may not be, 29, 30 3. evidence of who is owner — the register, 26, 76 in case of unregistered bill of sale, 36, 37 for the purpose of the registrar, 77 for the purpose of the creditor, 111, 113, 114, 138 for the purpose of the shipper, 350, 363, 355 4. relation among themselves — as partners in the property, 95 as part owners, 95 in respect of employing the ship, 97 as partner sin the adventure, 103 freight an incident of ownership, 105 effect of this doctrine, 105 in case of bankruptcy of one part owner, 106 5. their relation to third persons, 107 if partners, 107 if part owners, 107 early efforts to substitute the ship for the owners' responsibility, 108 statutory provisions in that direction, 108, 109 otherwise the owners' authority must be proved. 111 the master is their agent. 111 how far the mortgagee in possession is liable, 112 the shipwright — his rights against them, 112, 113 the creditor's remedy, 113 the master's agency abroad, 114 to what extent, 114, 800 6. their relation to the ship's husband, 113, 114, 182, 183 as theii- agent, 113, 114, 182, 183, 185 extent of his authority, 183 his duty, 183 his functions, 182 and appointment, 183 7. their relation to the managing owner — in his statutory office, 186, 187 8. their relation to the ship-broker, 187 as agent, 187 et seq. 9. their relation to the insurance-broker— as agent, 193, 195 as principal, 195, 197 10. their relation to the ship-master— as agent, 130 his appointment, 130 his authority, 131 his duty, 201 his rights against them, 210 to the pilot, 278, 279 to the tug and pilot, 287, 288 1002 INDEX. OWNERS- (co)u!iiH( 2(2). 11. rights of — in relation to the mastei-, 201, 208 to the ship's husband, 182, 185 to passenger traffic, 322, 325, 326 under the contract of affreightment, as ascertained by stipulations^ 340, 389 under it, in respect of performance, 406 under it, in respect of payments for freight, 452 in respect of demurrage and average, 521 non-performance in part, a defence, 542 no defence, 541 as to damages for non-performance by freighter, 543 the usual exceptions do not apply to him unless by express words inserted, 542 . when non-perfoi'manoe by ship-owners is a good plea for freighter, 542 when no answer to the action, 543 voyage, when it commences, to be within the exception, 546 measure of damages, 683 12. liability of— to public imposts, 39, 730 to claims under maritime lien, 51, 65 to forfeiture, for what, 70 on what contracts of the master. 111, 131, 137, 138, 145 as to the usual employment of the ship, 131 for repairs and necessaries, 138 ■ through pledging their credit, 138 hypothecating ship, freight, and cargo, 145 selling the ship, 159 in case of substituted master, 167 new owners, how far liable, 169 by what law abroad, 169 on what claims of the master, 210 at common law, for damage by negligence of the pilot, 278 sectis under statute, 279 'how pleaded, onus of proof; 282 in relation to passenger traffic, 332, 892. (See Passengers.) under the contract of affreightment, 353.' (See Affreightment, Cliarter- party, Bill of Lading, Cargo. ) 13. extent of their liability — at common law, 115, 117, 118 whether common carriers, 115 or liable as if such, 115, 117 limitation by statute, 119 French law as to, 120 by Merchant Sbipping Acts, 121, 122, 124, 800 what applies to British sea-going ships only, 121 and to foreigners also, 123 the right is individual, 123 in case of different losses, 123, 800, 892 14. legal proceedings — by owners, on tort, 124 on contract, 125 against owners, 126 under Merchant Shipping Act, in case of damage, '127 in cases of uncontested liability, 129 PASSAGE BROKER must have a licence, 337, 863 their public duties in respect of their runners, 337 runners to be licensed, registered, and wear badge, 337j 864, 865 PASSAGE MONEY, payment of, a condition precedent under the statute, 325 right to return of, when, 323, 324, 325 this right may be given up for advantages under statute, 327 general propositions with regard to, in American law, 326 n. INDEX. 1003 PASSENGER SHIPS, definition of, 334 what ships are so within the Passengers Act, 335 how to be fitted up and made seawottliy, 336 ballasted, stored, and loaded, 336 provisioned, 336 number of crew and passengers, 336, 337 these are conditions of certilicate being granted, 336, 337 passenger steamers to be snrvoyed and certified, 337 powers to prevent over-crowd ing of steamers, and to exclude improper persons, 338 to suppress disorderly conduct, 338 PASSENGER STEAMERS to be surveyed at least once a year by surveyors appointed by the Board of Trade, 337, 768, 887, 915 duty of owners to require such surveys, 768 duty of surveyors, if satisfied, to make declaration, and give same to owners, 768, 769 duty of owners to forward these within fourteen days to Board of Trade, 769 Board may then issue certificate, 769 duration of certificate, if not cancelled meanwhile, 770 to be put up in conspicuous part of the vessel, 770 clearance or transire to he refused to ship without certificate, 770, 851 forfeiture for proceeding without, 900 penalty for carrying over the certificated number, 770 forgery of declaration or of certificate, a misdemeanor, 770 shelter for deck passengers, 768 forfeiture incurred by what acts, 72 conditions as to oai'rying horses and cattle in, 899, 900 PASSENGERS 1. statute and common law applicable to, 323 2. contract with, 323 must be in writing within the statute, and in the prescribed form, 323 requires no stamp, 323 forms, 323 3. time of sailing or embarkation — when time is of the essence of the contract, delay absolves the passenger and gives damages, 323 secus, if it is not, 323 the statutoiy form gives the time of sailing for cabin passengers, time of embarkation for others, 324 statutory rights for not receiving on board on the day mentioned, and for not sailing within a specified time after, 324 4. payment of passage money — if prepaid, when it may he recovered back at common law, 325 when under the statute, 325 6. performance by the owners — under the statute, steerage passengers may be sent by an equally eligible ship, 326, 327 secus at common law, 326 in case of accident by the way, owners bound to repair, if that possible and reasonable, 327 whether they are bound in all events to carry the passengers to their destination depends on the contract, 327 if they do not, they are entitled by American law to no passage money, 326 n. American law as to passage money and performance, 326 n. English law, 326, 327 statutory law, 326, 327 one family not to be separated, unless the emigration ofl[ioer think it proper, 327 6. seaworthiness of the ship, 328 public duty, 328 private right, 328 7. health of passengers, 328 statutoryrules as to accommodation, stores, comforts, and medical practi- tioner, 328, 853, 864, 856, 858, 859, 870, 900 common law duty as to, 329 under what conditions horses and cattle may be carried in passenger ships, 899 1004 INDEX. PASSENGERS— (coTitoiMcri). 8. provisions — statutory scale, 329, 857 common law right, 329 statutory right of steerage passengers when detained in starting, and be- fore landing, 327, 330 9. discipline — right and power of the master as to, 330 excess gives damages, 331 10. legal remedies — special damage, 331 statutoiy rights, 332 loss of passengers, proof of, 892 11. evidence, 333 12. suits against public officers, 333 13. limitationof suits for breach of statutory duties, 334 14. applicability of statute — to persons, 334 who is a cabin passenger, 334 to be included in list of passengers, 334 which is a passenger ship, 334 what voyages are within the statute, 322, 835 provision as to insurances, 336 as to passengers brought into U.K. 870 15. statutory duties and officers, 850 certificate for passenger ship requisite, 336, 851 conditions of obtaining it, 336 passage brokers and their runners must be licensed, 337 survey of passenger steamers, 337 penalty on persons crowding steamers, 338, 887 on persons avoiding to pay fares, 338, 887 and then refusing to give name and address, 338, 887 power to remove improper persons, 338, 887 penalties for misconduct, 887, 888 forfeiture how incurred, 72 16. remedy of passenger for damage received by negligence, 338 17. railway companies' vessels — statutory law as to, 338 18. naval and military stores may be carried in passenger ships, 912 19. Board of Trade substituted for Emigration Commissioners, 915 PAWN, OR PLEDGE distinguished from bottomry, 52 from hypothecation by the civil law, 52 and note of registered mortgage creates an equitable mortgage, 42 PAYMENT o£ freight determines the lien on the cargo, 518 what amounts to payment, 518 preference of a bill to cash, 518 duty of the master to draw and present the bill for acceptance, when a bill is the stipulated mode of settlement, 519 an offer to accept on these conditions is a good tender, 519 PENAL CLAUSE in charter-party, effect of, 388 PERFORMANCE OF PASSENGER CONTRACT with regard to passengers, by the owners — when they are bound to the day named, 323 when such day is matter of representation only, 323, 324 when under the statute, 324 bound at common law as to the particular ship, 223 may send any except cabin passengers by an equally eligible ship, 326 whether at common law they are bound to carry the passengers in all events to their destinations depends on the contract, 326 American law as to this, 826 n. statutory provision on this point, 326 right of one family to be carried together, 327 duty of owners to provide a seaworthy sMp, 828 INDEX. 1005 PERFOEMANCE OF PASSENGKR CONTRACT— (cojt^i/ittcei.) duty of oymera— {continued). to provide for the health of passengers, 328 as to stores and diet, 329, 330 PERFORMANCE UNDER AFFREIGHTMENT by the master and owners — 1. preparing for the voyage — how to initiate performance, 411 their duty to provide a ship seaworthy, 406, 407, 409, 411 rests on a fundamental principle of law, 407 is stipulated in charter-party, 407 implied in bill of lading, 407 and by the law of France there may be action for breach, notwith- standing certificate of official survey, 407 so it would be in English law, 408 n. Pothier however held that this was not just to the owners, 407 as to boats, requirement of the statute on the part of every decked ship proceeding from United Kingdom, 407 seaworthiness as to crew and pilot, 411, 418 under policy of insurance, 418 readiness to receive cargo, 411 place of ship, 411, 412 notice to freighter, 411 receipt of cargo, 412 manner of, and commencement of liability, 411, 413 number of hands to receive and guard, 413 liability in case of theft or robbery, 413 and for accidental damage in taking on board, 414 dunnage, 414 stowage, 414 the place of ballast may be occupied by owner's own goods, notwith- standing entire ship is freighted, 414 liability for the consequences of bad stowage, 414 except when, 415 quantity of cargo, 416 manner of carrying it should not be illegal, 416 cargo should not be of prohibited or uncustomed goods, or contraband of war, 416 ship's papers should be regular, 417 2. commencing the voyage — should not be till the lie-days and if required the demurrage-days are ended, 419 state of the weather, 420 duty to take convoy, 420 what amounts to a satisfaction of warranty to do so, 421 3. pursuing the voyage — there is an implied stipulation in the charter-party and policy of insurance against deviation, 424 consequences of deviating, 425 unless justified by usage or humanity, 425, 426 usage is barred by the express contract, 425 succession of ports, order of, 426 naming a safe port, 426 call for orders, 427 repairs to ship, 427 consequences of continuing without repairs when they are necessary, 427 transhipment, master's power as to, 428 whether compulsory not decided by English Courts, 428, 430 foreign law on this point, 429 duty to take care of cargo, 430 as to damage by rats on board, 431 common law, liability of common carriers, 431, 432 4. ending the voyage- where to place his ship so as to end voyage, 432 notice of arrival not requisite, 433 delivery of cargo, 433 to whom, 433 on payment of freight, 433 1006 INDEX. PERFORMANCE UNDER AFFREIGHTMENT— (corailMMterf). 4. ending the voyage — (continued). lien for freight, 433 other charges against the consignee, 434 what goods may be detained for freight, 434 may be detained on board, 435 may be warelioused under the liea, 436 statutory provisioae for, 436 detention of part after lien is given up improper, 437 what delivery is a discharge of the owners and master, 437 master bound to watch, how long, 438 imperfect delivery may be with fault in the owners or without, 438 they are liable or not accordingly, 439 goods sold for ship's use recoverable, how, 439 if ship perish after such sale, whether goods sold to be paid for, 440 the better opinion seems to be that they must be paid for, 441 by the freighter — J 5. as to ship — if ship be in his possession, what care of her, 443 entitled to notice of ship being ready, 443 must name the place of destination within reasonable time, 443 may not put supercargo aboard for that purpose without stipulation, 443 time for his performance, 444 6. as to cargo — authority or licence for obtaining, must be provided by him, 445 bound to ship no uncustoined or prohibited goods, 445 not entitled to fill unusual parts of ship without stipulation, 445 bound to load a full cargo if he stipulate this, although ship exceeds, 445 may not ship destructive goods without notice, 446 penalty, 446 and loss, 446 statutory licence to open and inspect goods suspected on this ground, 446 or refuse to take them on board, 446 or throw them overboard, 446 what goods he may ship to satisfy the charter-party, 446 ■when he may not load for intermediate voyage, 448 may not re-land cargo, or have other bills of lading executed without offering a complete indemnity, 449 and paying freight, 449 so, the shipowner, if he re-land is not entitled to be reloaded, 449 is not entitled to notice of the arrival of the ship, 449 bound to discharge within the stipulated or a reasonable time, 449 if a new contract is substituted and performed without his authority he may repudiate the transaction, 449 but not if there is merely a dispute about equality of cargo, 441 payment of primage and average, 451 PERILS OF THE SEA. (See Dangers oftU Sea.) PERSONALTY includes ships, 1 personal chattel to be constructed, law as to vesting of property therein, 3, 5 PILOT a local helmsman, 273 early incorporation of such persons, 273 existing powers and jurisdiction confirmed, so far, 274, 772 powers by by-law, 274, 773 appeal in regard to the by-laws, 274, 773 the power of the pilotage authorities over pilots is absolute, 274 n., 776 pilot qualified by registration of licence for a district, 274 is bound to produce his licence to person employing him, 274, 275, 776 and to deliver it up on demand of pilotage authority, 274 n., 776 his rights within his district exclude unqualified pilots, except in distress, 274, 111 the master is bound to engage him, 274, 276 except when, 276, 276 INDEX. 1007 TlLOt—iconlinued). unqualified pilot superseded by a qualified pilot, 274 penalty on unqualified pilot acting within a district, and not under exceptional circumstances, 274, 275 his duty is to take charge of the vessel when required, 276 or lead it if he cannot board, 277 he must not misrepresent the condition of the vessel at the moment, 277 his functions on board make hitn paramount, 277 the master bound to see that he is obeyed, 277 this is in consideration of his responsibility, 277 limit of responsibility of Trinity House pilot, 278 his relation to the owners at common law is that of agent to principal, 278 qucere, whether master in that case is responsible also, 279 how far the master may interfere with the pilot's prerogative, 279 under the statute, his employment compulsory and their liability nil, 279 what words suffice to make it compulsory, 279 review of cases on the Liverpool Act, 280 n. when and where compulsory, and on what ships, 280, 281 where not, 889 irresponsibility of owners, how pleaded, 282 how proved, and by whom, 282 costs in such a case, 280 n. pilotage rates, his title to these and no more, 283, 777 master must not deceive him as to draught of the ship, 284 pilot may earn more as salvor, 284 remedy for, 285 who liable for, 285 to whom payable, 285 relation of pilot to tug, 288 his presence on board is necessary to the seaworthiness of the ship, when, 276, 418 offences by pilots in that capacity, and the penalties and punishments attach- ing, 286, 777 Trinity House pilots, 778, 195 rates, 780, 832, 915 pilot fund, 781 outport districts, 779 PILOT BOAT must be approved and licensed, 772, 775 how distinguished in hull and flag, 772, 775 pilot to hoist his flag, though not in his own boat, 775 penalty on any other boat displaying pilot flag, 775 PILOT LICENCE to be given to qualified pilot on his appointment, 274, 775 registered for the district, before whom, 274, 775 produced to person employing him, on request, 274, 776 penalty for default, and for refusal, 776 delivered up to pilotage authority on demand, 274 n., 776 PILOTAGE AUTHORITIES, their jurisdiction, 273, 274, 772, 888, 889 powers, 274, 772, 888, 889, 915 by-laws, 274, 773, 889 appeal against by-laws, 274, 773 returns required of them, 773 upon failure to give such returns, &o. , Her Majesty in Council may order trans- fer of their powers to the Trinity House, 774 power to license the master or mate of any ship submitting to be examined for the purpose, 774 renewal of certificate, 774 appeal to Board of Trade in respect of, 774 fees upon, 774 Trinity House, 778 PLACING OF SHIP to satisfy charter, 411 or as near thereto, 432 1008 INDEX. PLEDGE. (See Pawn.) POLICY P>ROKEE. .(See Insuraim-iroher. ) POOR RELIEF. (See Relief.) PORT . of registry, or home port, 79, 80 may be changed, 80, 84 limits of, under stipulation to sail from or depart, 376 duty of shipper to name port of discharge within a reasonable time, 371, 378 what satisfies stipulation to proceed to,- or as near to, as ship can safely get, 379 election of port determined by bill of lading, 383 port of call under usage, 425 for orders, 427 order of several ports in the course of the voyage, 426 safe, what is, 426 POSSESSION. (See Stoppage in Transitu.) when in law it is ceded, 591 when absolutely, 591 when conditionally, 591 when goods put on board ship are ipso facto out of the possession of the shipper, 592 when still in his possession, 592 possession not ceded in law without intention to do so, 592, 593 possession not gained in law without intention to do so, 593, 594 when the 'agent's possession is so adverse as to end the transitus, 594 when not, 595 constructive possession, 594 possession considered with regard to right of capture, 564 PREMIUM. (See Maritime Premium.) PRIMAGE, meaning of, 450, 532 master entitled to, except under express contract to the contrary, 181, 533 and maj' recover it from the owners, 181 duty of freighter to pay, 450, 533 PRINCIPAL AND AGENT. representations of agent binding principal, 12, 13 this is not the usual relation between part owners, unless they be partners, 107 therefore insurance on the ship must be with common consent, 107 n. American law is somewhat diilerent, 107 liability of the owners, on the contracts of the master, depends on this re- lation, 111. (See Master.) in case of ship's husband, 182. (See Ship's-hushand, and see Ship- broker, Insura/nce-broker. ) an agent to execute a deed must be authorised by deed, 353 and if, without this, he profess to execute it for the principal, the latter is not bound by it, 353 form of deed under which principals may sue, although agent not authorised by deed, 355 charter-party not under seal, and agent bound, notwithstanding he is described agent, 355 when evidence admissible to disclose principal, 355 when not, 355 how agent to execute, so as not to be liable on the instrument, 356 exemptive clauses to effect this, 356 if defendant is sued in a different capacity than he appears in by the instru- ment, the onus probandi is on the plaintiff, 359 upon an instrument made without authority no action lies, but only against the alleged agent, on his implied warranty, 359 what is evidence of a general authority, to make the principal liable, 359, 360 PRINTED MATTER not distinguishable from written, in construing a charter-party, 387 INDEX. 1009 PRIORITY among mortgagees of sliip, how regulated, 46, 47, 48 among suitors in actions in rem, 701 among liens, 701, 702, 703 PRIVATEER. (See Capture, Captor, Prhc, Prhe Court. ) makes prize by right of war, 18, 19 the exercise of this right limited to the time of hostilities unless treaty inter- vene, 19 acquires no property in the prize, except by gift of the Crown, 19 must be duly commissioned against the nation whose ships are captured, 18 privateering is abolished, 18 n., 653 this principle not accepted by the United States, 553 volunteering out of privateer into the royal navy, consequences of, on right to prize, 236 rights of a privateer, as a joint claimant with H.M.S. to military salvage re- ward, 638 PRIVILEGE. (See Maritime Lien.) meaning of, 69 n. belongs to the civil law, 69 n. PRIZE COURT of competent jurisdiction, belongs to the captors, 21 exercises its functions in their own country, or in that of an ally in the war, 21 proceeds in rem, and therefore must have possession of the prize, 21 what is not such possession, 21 American and Continental doctrine thereon, 22 n., 23 n. Lord Stowell vindicated against the charge of surrendering the principles, 21, 22 regards freight as the payment due for service done, 490 accepts the doctrine of apportionment of freight,, 491, 494 in case of capture, when it gives freight to the shipmaster, when to the captor, 491 it requires the service to be consummated, unless that is prevented, 491 but the forceable unlivery of the cargo entitles the ship to freight, unless the ship is liable to condemnation, 491 if it is unlivered partly through suspicion of ship's character, part freight awarded, 494 if the voyage is altogether prevented for such a reason, no freight, 491, 494 when the cargo is sole cause of hostile detention, ship is dismissed with full freight, 491 but any unneuti'al conduct deprives the ship of freight, 493 all capture must be followed by judicial investigation in a court of the country of the captor, 548 the evidence for or against is derivable first from the ship, 549 a claim for restitution is upon oath, 549 evidences of bad faith are to tlie prejudice of the claimant, 549 and may have to pay costs, even if property be restored, 549 secus — if the capture is without probable groimd, captor pays costs, and perhaps damages, 549 but if the evidence of property is deJwrs the ship, the captor is at least excused paying costs, and he may receive costs, 550 there is an appeal, 550 this mode of procedure is acknowledged by the law of nations, 550 complaint on the ground of unlawful proceedings in capture should be to the courts of the captor's country, and not avenged by way of reprisals, 551 when alone reprisals are justifiable, 551 PRIZE OF WAR . . ^ ,„ ,„ not acquired,- except by Royal Navy or persons commissioned, 18, 19 must be carried into port of captors, or allj', 20 practice of foreign nations on this point, 21, 22, 23 of this country, 21, 22, 24 prize is of the property of the enemy, 547 of the property of a, friend is not made unless he offend against his neutrality, 547 3 T 1010 INDEX. PRIZE OF Wkft^icontimted). prize might have been of the goods of an enemy in the ship of a friend, 547 but under Treaty, 1856, the neutral flag covers enemy's property, except contraband, 552 prize may be of contraband, 647 the la\vful goods of a friend on board an enemy's ship are not prize, 547 the law of prize is the law of nations, 547 subject however to treaty modifications between particular powers, 548 modifications thereon encouraged by France in opposition to England from 1778 onwards till 1856, 552 the armed neutrality of 1780, 552 the Treaty of Paris, 1856, 552 how far the United States have acceded to the principles of this treaty, 553 PROBATE, OR LETTERS OF ADMINISTRATION not indispensable for sums under 50/., being elfects of deceased seamen, 267 indispensable for sums over that amount, 267 PROVISIONS. (See Seamen, Passengers.) quality and quantity to be specified in ship's articles, 215, 258 means of weighing at time of distribution, 258 common law right for breach of contract, 258 statutoiy compensation for unavoidable deiiciency or deterioration, 258 complaint as to ship's stores, 262 if frivolous is punished by forfeiture, 262 in respect of passengers, 329 when they become a general average loss, 6/7 when they are liable to contribute to general average loss, 684 PUFFERS. (See Purchase, Auction, Sale.) employment of at mictions, 14 doctrine of common law, in regard thereto, IB of equity, 15 of Scotch law, 15 n. PURCHASE mode of acquiring ship property, 2, 8 maxims of the law relating to purchase,, 2,- 9 representations of the seller, when actionable, 9, IQ, 11 when they amount to warranty, 10 must appear in the written contract, 10 when warranty implied, 11 when they amount to fraud, 11, 12 through an agent, 12, 13 may be proved aliimde, 13 conditions of sale, 14 ship arid stores as they lie, effect of, 14 puii'ers invalidate the contract at law, 14, 15 and in equity when more than one, 15, 16 by the law of Scotland, in any case, 15 u. knock-out sales not illegal, 16 n. unfair means to deter bidders, illegal, 16 under "ship," what is bought, 16, 17 PURCHASER. (See Purchase, Sale, Seller.) from a builder — his contract, 2 what he should look to, 2 as to the property vesting, 2, 3, 5 at progressive stages, 5 materials, 6 is bound by law to vigilance, 2, 9, 1 8 when he may sue the seller on his representations, 9, 10, 11 ^ wheji. they are material, 9 ' . when amount to warranty, 10 when warranty implied, 11 when to fraud, 11, 12 by agents, 12, 13 the knowledge of agents, l.'J conditions—" with all faults," 14 INDEX. 1011 PVUCnAmU— (continued). "without allowance for error," li whether he is hound to his contract when puffers have been employed, 14, 15 may not use unfair means to deter bidders without vitiating the contract, 16 may legally agree with another not to bid against him, 16 n. not so in Scotland, 16 n. his right to accruing freight, 105 and liability to expenses in earning it, 105 and to premiums of insurance, when, 105 his right to freight depends on priority of title, when, 508 of a bottomry bond by public auction is not thereby released from the inquiries which he ought to make, 55 caution to be exercised by pxu:chaser of cargo from the master, 157 caution to be exercised by purchaser of ship from the master, 165 law which ratifies the bargain abroad, 170 of ship or property in transitu during war, is liable to be defeated by capture till he gains actual possession, 560, 563, 564 but this he may gain at any point of the voyage, 560 the transfer is then good though it be a gift, or part of the consideration money may remain unpaid, 561 his position in English law with regard to property and possession of goods after sale, 588 when he shall be said to have gained possession, 593 depends on his intention, 593 may involve assent of his agent as essential, 594 constructive possession suffices to end the transit, 594 this he may obtain during the voyage, 594, 595 if he is not bankrupt or insolvent, vendor has no right of stoppage m transitu, 603 QUALIFICATIONS of master and mate, how ascertained, 199 how certified, 199 by whom, 199 examination for certificate of competency, 199 certificate of competency or of seiTice indispensable, 200 QUEEN'S ENEMIES, exception of, applies only in favour of shipowner in the absence of express words, 542 exception of, considered, 537 (See Embargo, War— Declaration of, Capture, Captor, Prize of War, Non- perforraance of Blockade. ) QUITTING SHIP. {See Desertion, Forfeiture, Wages.) before she is placed in security, offence, 243 forfeiture of how much, in consequence, 243 EAILWAY COMPANIES when steam-ship owners, 339 provisions for, in regard to passengers, 339 how they may limit their liabOity, 339, 340 RATS 'injury by, not included within any of the terms in the usual exception in bill of lading, 540 owners not excused for, though they. keep a cat on board, 540 RECEIVERS OF WRECK. (See Wreck.) appointment Of, 642 powers for securing, 642 for rendering aid to distressed ships, 642 duty to give notice of wreck, 642 as to unclaimed wreck, 642 as to salvage, 643 fees of, 834, 844 o T A 1012 INDEX. REGISTER BOOKS , „ , , in London, although themselves transcripts, copies from, to be ot tne sama effect to all intents and pui-poses as originals, 846 this applies to register of ships and of seamen, 846 REGISTER OF SEAMEN to he kept, 763 REGISTER OF SHIPS. (See Certificate o/Megistry, Certificates of Mortgage, of Sale, istrar, Eegistration.) former policy of, restrictive and now ahandoned, 73 early history of, 73 new purpose and policy of the register, 73, 74 summary view of the scheme of, 74, 75 conditions of registration, 75 what ships belonging to what owners must be registered, 74, 75, 76 means of enforcing registration, 76 exceptions to this necessity, 76 means of registration, 77, 78, 79 place of, 79 particulars on the register, 80 functions of hill of sale with regard to, 34, 79 theory of the register, 80 law of the register, 80 integrity of the register, how preserved, 81 order upon the register, 81 evidence on which registration proceeds, 82 what changes must appear on the register, 83, 84 certificates of mortgage and sale, 84, 85 entries on the register regarding, 85 issue of, 85 cancellation of, 85 closing of the register, 87 the register as evidence, 94 REGISTRAR OF SHIPS. (See Megister, Registration, Certificate of Eegistry.) who to be, 92, 719 application for registration to him, by whom and in what way, 77 means of registration required by him, 77 conditions of registration required by him, 75 evidence on which he proceeds to registration, 77 his locality, 79 his duty to record transfers, 36, 81 except when, 34 in what order, 37, 81 indorsement of time of, required of him, 37, 81 appeal from his refusal to Commissioners of Customs, 37 caution against registering improper transfers, 34 his duty not to record trusts, 40, 80 his duty not to receive any notice of trusts, 40, 80 his duty to record mortgages, 46, 47, 49, 81 order ia which he is to do so, 48 indorsement thereon of the time of, 37, 725 to record transfers, transmissions, and cancellations of mortgages, 47, 51, 81, 83 when he may grant certificates. of sale or mortgage, 50, 84, 85 conditions on which he may grant, 50, 85 duty of foreign registrar in respect of dealings under such certificates, 50, 86 duty of home registrar in respect of, 86, 87 what transmissions he may not record, 87 his duty to grant certificate of registry, 88 to indorse what changes thereon, 88, 89 right to require delivery up of, for that purpose, 89 who may so require it, 89 his duty to renew such certificate, when, 90 to grant provisional certificate, 90 his right to have final delivery of, to close the register, 91 what things he may dispense with, in cases of incapacity, 91 INDEX. 1013 REGtSTEAR OF SHIPS— {contin-ued). his duty to allow inspection of register, by anyone who pays the lawful fee, 74 n. indemnity of registrar for mistakes in the course of his duty, 93 returns required of him, 799 to what registrar certificate of registry to be delivered up on loss, &c., 91 REGISTRAR-GENERAL OF SEAMEN. (See Seameti— Registration of.) office in London, 763 to form a register of aU British seamen, 763 by means of lists, agreements, &c. , forwarded to him by shipping-masters and customs officers, 763 REGISTRATION OF SEAMEN. (Sq^ Seaymn- Registration of.) REGISTRATION OF SHIPS. (See Register, Registrar, Certificatn of Registry, Transfer, Bill of Sale, Mortgage, Certificates of Sale, of Mortgage.) policy of, 73, 74 scheme of, 74, 75 conditions of, 74, 75, 76 ship must be British owned, 76 means of identifying the ship, 77 means of identifying the owners, 78 evidence in support, 79 port of registration, 79 application to register, 77 e-\'idenoe in support of registration, 77, 82 the register, 80 the port of registry changed, 84 registration anew, 84 when compulsory, 84 consequences of neglect of this, 84 registration of transfers, compulsory, 36 means of securing this, 37 who to produce for that purpose, 36 unregistered bill of sale, eifect of, 37 in case of bankraptcy, 37 registration of bill of sale which is invalid is a mere nullity, 27 order of registration is the order of production, 37 registration of mortgages is optional in the mortgagee, 46 advantages of registering mortgage, 4 9 order of registration of, 81 doctrine of notice expressly excluded, 46, 47 no right of tacking, 46, 47 certificates of mortgage and sale, 50, 84, 85 registration of what particulars necessary to their issue, 85 what registration follows their execution, 85 registration of transmissions compulsory, 83 evidence in case of, 83 unqualified successors may not be registered as owners, 38, 87 consequences of a British ship not registering, 93 _ and yet proceeding as though a British ship, 93 cases of incapacity, 91 RELANDING CARGO. freighter not entitled to reland cargo without paying the freight, 449 except when, 449 or without giving up all the bills of lading, or an indemnity against, 449 RELEASE, STATUTORY, ^ ,m j o^ for seamen's wages, to be in the form sanctioned by the Board of Trade, 225 signed by owner or master and each seaman, and signed and attested by the shipping-master, 225 . copy of, to be evidence, and is the only evidence of satisfaction, 225 effect of, between the parties, 225 equity will not relieve against, except when, 225 not to be confounded with the voucher from the superintendent to the master for any payment made by the latter at the office of the former, 743 receipt signed by superintendent sufficient, when, 225 1014 INDEX. RELEASE, STATVTORY— {continued). seaman cannot afterwards sue for additional wages claimed for the same voyage, 225 duty in case of dispute, to make such a tender as will save costs and penalties without necessitating a release, 225 RELIEF, POOE, to seaman's family, deductions for, from wages, 745, 846 duty of owners as to, 746 right of overseers as to, 746 EEMITTAITCE OP SEAMAN'S WAGES, faoiUtiea for, 265 EEPAIES. (See Necessaries, Master, Ship's-Jmsband, Owners.) lien for, 7, 8 payment for, 8 master's authority to contract for, 138, 139, 142 ship's-hushand's authority to contract for, 182 what repairs will he allowed, 184 remedy of the shipwright, 113 his remedy in case of foreign ship in this Sountrj', 108, 109 conditions of such latter remedy, 109, 110 the master's fund for the execution of repairs, 138, 145, 427 entitled to deviate when repairs are necessary, 424 must not proceed without, when they are necessary and they may be done, 427 EEPAIES DURING VOYAGE. necessity for and power to, 427 contracts for, 138 means of, 138 et seq. EEPRESENTATIONS ot vendor, 9 wheiv innocent, 9 when npt, 9 when material, effect in law, 9 when they amount to waiTanty, 10 when to fraud, 11, 12 through an agent, 12, 13 knowledge of agent, 13 RESISTANCE TO ENEMIES, offence of not resisting, 271 RESPONDENTIA. (See Bottomry.) nature of the contract, 52 distinguished from bottomry, 52 when effected by the master imder proper circumstances, is within the juris- diction of the Court of Admiralty, 159 but in certain forms of the bond, especially if by the proprietor of. the cargo in a British port, there is no remedy in this country against the goods, 159 form, 948 RISK. (See Maritime Risk. ) ROADS, DANGERS OF, exception of, 539 EOBBERS, exception of, does not include thieves, 539 ROYAL NAVY, volunteering into, when no desertion, 236 effect of, on wages, 236, 237 secus, when it amounts to desertion, 241 ships of, doing damage, liability on whom, 321 competent to be salvors, 612 proceedings to enforce reward under control of tlie Admiralty, 637 statutory provisions as to preliminary inquiry and security, 637, 638 INDEX. 1015 ROYAL ^XVY—icontiimed). in case of military salvage, 638 who have joint rights with them, 638 reward in case of, 639 EULKS OF THE SEA. general rules of the sea, 300 oases upon damage, 311 EUNNER, employed by passsage broker, to be licensed and wear his badge, 337 name of, to be obviously displayed in the office of the broker who employs him, 337 . and to be sent periodically to the emigration officer, 337 RUNNING AGREEMENTS may be made with seamen, 218 in foreign-going ships making short voyages, 218 limit upon, 224 fees on, 741 SAFETY PROVISIONS as to unseaworthiness, 291 ofTence of sending imseaworthy ships to sea, 291, 923 investigation of casualties, 292, 930 seaworthiness a term in seaman's contract, 216, 261, 291, 923 laws to enforce seaworthiness, 292 laws to enforce observance of safety provisions, 292 as to dangerous goods, 292 nature to be declared, 292 if not, what, 292 as to grain cargoes, 293 how carried, 293 as to deck loads, 293, 928 prohibited period, 293 penalty, 293 as to deck and load lines, 293, 929 penalty for not having marked, 294 as to ship's draught, 294, 918 as to boats, 294 as to anchors and chain cables, 294 as to signals, 294, 919, 921, 922 as to lights, 296 fog signals, 297 saUing and steering rules, 300 duties under collision, 303, 919 SAFETY VALVE . of passenger steamer, weight on to be limited, 769 by surveyor, 769 SAIL, TO, meaning of, 376 SAILORS' HOMES, ^ . • t j ^qk business of shipping-master may be transacted at, m Lonaon, /do municipal corporations empowered to grant sites for, 807 SALE. (See Purchase, Mil of Sale, Certificate of Sale. ) condition of, 2, 3, 9, 14 a^ ^ . ^a ship and stores as they he, eflect ot, 14 by auction, 14 , , j, j. i i k employment of puffers vitiates the contract at law, 15 and in equity when more than one, 15, 16 by law of Scotland, when any, 15 n., 16 n. unfair means to deter bidders, vitiates contract, 16^ not illegal to agree not to bid against each other, 16 n. knock-out sales, not illegal, 16 n. they are illegal in Scotland, 16 n. 1016 INDEX. SALE — {continued). what is sold under " ship," 16, 17 sale under certificate of sale, 84 conditions of validity, 85, 86 sale of ship, where owners cannot agree, 102 sale of cargo hy master, 156, 158 of ship by master, 159 conditions of such authority, 161, 162 by what law the validity of his sales abroad is determined, 169 English law of vendor and purchaser, 588 Eoman law, 588 Continental law, 588, 589 SALE — Pendente Lite. no effect on rights of the parties, 44 SALVAGE. what it is, 608 civil salvage, 608 1. who may be salvors, 609 those not under legal obligation to render the same services, 609 when the crew may be, 609 when passengers, 610 when pilot or tug, 284, 610 claims must be founded on personal service, 612 rightsof joint salvors, 613 in case of derelict, 614 apprentices and seamen cannot abandon their right to salvage, 614 except when, 614, 615 owners of the salving vessel considered, 615 Admiralty claims in that capacity abolished, 615 the services must be successful, 615 2. how salvage claims may be barred, 616 by a general agreement for mutual assistance, 616 does not apply to extraordinary events, 616 by a particular agreement for the occasion, 616 not binding on ignorance, although deliberately made, 616 the court requires him who sets up such an agreement to prove it yiSt, 616 by misconduct of the salvors, 617 by unnecessary delay in enforcing the claim, 618 3. the nature of salvage services, 618 4. how remunerated, 619, 792 with a regard for economy, liberality, and encouragement to exertion, 620 5. statutory salvage within the United Kingdom, 620, 792 life salvage, 621, 792 in the high seas, 621 in case of foreign ships, 621 has priority over other salvage, 621 may be rewarded by Board of Trade, 622, 792 6. illustrations, 622 in cases of derelict, 627 7. right of property in derelict, 630 8. transhipment cases, 631 principle of, 631 inquiry whether it amount to salvage, 632 9. salvor's remedy, 633 by lien at common law, 633 statutory lien, 633, 793 maritime lien, 633 ship, &c., may be discharged from arrest by bail or payment into court, 634 procedure to enforce, 634, 635, 636 priority of salvors, 513, 514 of liens, 702, 704 maishaUing assets, 706 10. jurisdiction in salvage cases, 634, 635, 636 of High Court of Admiralty, 634, 798 Cinque Ports, 635 INDEX. 1017 SALVAGE— (cojiiinMsd). 10. jurisdiction in salvage oases— {continued). magistrates, 635, 793, 891 County Courts, 636, 891 11. award, how enforced, 636 sum, how apportioned, 637 12. salvage by H.M. ships— 637 competent to be salvors, 637 proceedings by, under the special control of Admiralty, 638, 797 statutory provision for preliminary statements and security, 638, 797 13. military salvage, 638 who may be, and by what services, 638 rights of, under special act, and by order in council, 639 reward of, 639 14. recovery of salvage under the Sue and Labour clause, 639, Gii Lohre v. Aitchison, considered, 6ii 15. instructions to receivers of Admiralty Droits, 541 SALVOE. (See Salvage, Joint Salvors.) who may be, 609 SAVINGS BANKS for seamen, to provide, 265 payment of money after loss of orders, 265 SCOTLAND, procedure under the law of, in virtue of Merchant Shipping Act, 805 law of, as to visiting, under purchase, 2 under construction, 6 n. as to puffers at auction, 15 n., 16 n. SEA, PERILS OR DANGERS OE, exception of, 538 introduced in favour of shipowner only, 542 SEA, RULES OF. (See Sules of the Sea.) SEAMEN. (See Master, Master Mariner.) favoured objects with parliament, 212 apprenticing of boys to the merchant marine, 212, 213 persons to procure seamen may be licensed, 738 penalty on any other undertaking the duty, or demanding, or receiving a fee for it, 738 and upon any one accepting seamen so supplied, 738 1. hiring of seamen, 212 must be before a superintendent, or consular officer, in case of foreign- going ships, 213 may be so in case of home-trade ships, but not necessarily, 213 need not expire half-yearly, 213 agreement in both instances must be in writing, 214 penalty for the absence of a duly executed agreement, 740 if not in writing, or not in the authorised form, it is not admissible as evidence for the master or owners, 215 secus in favour of the seamen, 215 the seaman may prove his case without the document, or giving notice to produce it, 214 alterations however not attested by superintendent, &c., are of no effect, 214 running agreements, in what case, 218 agreement is in severalty, 215 particulars required in this agreement, 215 as to description of voyage, 216, 918 number of hands, 218 implied undertaking as to the seaworthiness of the ship, 216 wages, 220 allotment notes, 220 who may sue on, 220 by what evidence, 221 how defeated, 221 form of, 840 advance notes, 222 1018 INDEX. SEAMEN— (continued) . 1. hiring of seamen— {contimied). penalty for falsifying, 741 copy of, to be accessible to the seamen on board, 741 additional and void stipulations, 222 occasion for this provision, 223 construction of § 182 in an exceptional case, 224 exceptional principles in favour of seamen, 223, 224 when seamen are free to make new agreements, 219 2. discharge of seamen — should be, in case of foreign-going ships, before a superintendent, 225 what account, and when to be rendered by, the captain, 225 statutory release, effect of, 225 in case matters are in dispute, how both parties should act, 226 3. wages- assignment of, not operative, when, 226 not liable to attachment, 226 a. when payable, 226 consequences of not paying them, 227 legal right to wages, 227 i. what amount is due, 228 when the whole, 228 when part only, 231 when no wages are due, 238 c. forfeiture of wages, 240 by desertion, 240 by misconduct, 244 waiver of forfeiture, 245 evidence on which forfeiture or fines may be declared, 246 amount of forfeiture, how ascertained, 759 before what court, 759 forfeitures, how applied, 247 d. recovery of wages, 248 lien for, 248 enforceable only in the Admiralty Court, 249 jurisdiction of the Admiralty with regard to, 249 statute of limitations there, 251 joind.er of plaintiffs there, 252 limitation in respect of amount, 252 summary procedure for, 254 suits abroad for, 254 savings banks for remittance or deposit of wages, 265 i. discipline — the master's authority aboard, 255 the seaman's duty to obey, 255 necessity for discipline on board, 255 statutory offences and punishments, 256 evidence as to, 257, 758, 762 »; _ jurisdiction as to offences of British seamen on the high seas, 760, 761 limitation on proceedings in courts, 257 5. provisions — legal right to, 258 means of ascertaining, whether he is having his rights, 258 statutory compensation, 258 remedy for injury through deprivation of, 258 6. medicines — duty of master and owners to provide, 259, 903, 904, 905 inspection of, 259 right of seamen in case of sickness, or hurt, 269 no right of action against owners, when, 260 right of action against strangers, 260 right to proper accommodation on board, 260 7. proper accommodation — on board, 260 clean, wholesome, airy, 260 lighted and weather tight, 260 penalty for neglect as to this, 260 power of complaint as to, 261 seaworthiness of the ship, 261 INDKX. 1019 SEAWEJ:!— {continued). 8. protective laws — power of complaining, 261 statutory duty of master to afford opportunity for, 261 complaints as to stores, 262 penalty for frivolous complaints, 262 State of the crew, to be furnished by the master, 262 rights of seamen in case of discharge abroad, 263 facilities for recovering on bill given for wages abroad, 264 penalties for abandoning British seamen abroad, 263 penalties for abandoning Lascars in distress in United Kingdom, Sii duties of master, shipping-master, or other British authorities, in respect of, 263 penalty on seamen going on board any ship without consent of master, 758 effects of deceased seamen, how dealt with, 264 debt above 5s. incurred after articles not payable till the same are served, 265 laws against imposition by lodging-house keepers, 265 disposal of effects of seamen discharged from the navy, 749 9. effects of deceased seamen — who are included in this, 264, 746, 885 how to be accounted for, 264, 746 to whom accountable, 264, 746 10. wills- nuncupative testaments not illegal, but may be ineffective, 266 requisites of a will under the Merchant Shipping Act, 266 limitation as to claim of effects without will in writing, 266 whether probate is necessaiy, 266, 267 always is so, for sums over 50?., 267 claims of creditors on the estate, 267 as to unclaimed effects, 266 forgery of any will, how dealt with, 749 11. conflict of laws, 267 12. barratry, 268 13. destroying ships, &c., 270 14. non-resistancoito enemies, 271 15. poor relief to families of, 745 union or parish entitled to be reimbursed for, 745 to what amount of the wages, 745 notice of the claim to be lodged with the owners, 746 poor law authorities upon return of the seaman may apply summarily to two justices for an order for reimbursement, 746 operation of such order, 746 Board of Trade may order relief to destitute seamen or apprentices, 885 SEAMEN, REGISTRATION OF, establishment of office and officers for, 763 means of registration, lists, agreements, and other papers, 763 list of crews, with particulars, required of the master, 763 such lists delivered, when, and to whom, 763 superintendent and customs' officers to transmit documents to Registrar- General, 764 Registrar-General to permit inspection of documents received, and give copies, 764 effect of copies in evidence, 764 documents to be delivered at a port abroad to consular officer, or chief oflSoer of customs, 764 duties of these officers in respect of them, 764 penalty on master for not delivering them up, 764 SEAWORTHINESS, is implied in a seaman's engagement, 216, 261 is implied in passenger's contract, 328 the master's duty to provide for this, 407 in what it consists, as regards the hull, tackle, crew, and pilot of the ship, 407, 411, 412, 418 , _ ■ this duty rests upon the first principles of law, and is expressed or implied in every contract of afifreightment, 407, 408 1020 INDEX. SEAWORTHINESS— (<:o?rfTOM«(i). public survey does not supersede tlie obligation here, or in France, 407 and it is not to be presumed that private contract dispenses with it, 408 n. statutory provision as to number of boats to be carried by any decked ship, 407 n. general rule as to, 412 statutory provision as to masters' and mates' certificates, qusere, whether it affects the seaworthiness of the ship, 200 the usual stipulation as to, in the charter-party, does not amount to a condition precedent, but only a covenant or agreement, giving damages, 368 in respect of boats, 407 n. SHIP-BROKER, his functions, 187 appointment, 187 title to brokerage, 188 in case of rival claimants, 189 stipulations in charter-parties, 190 amount of brokerage, 192 when payable, 192, 193 SHIP-BUILDER, his contract, 2 how far controlled by statute, 2 when the property vests under it, 2, 3, 5 when at certam stages, 5 whether property in building materials and parts vests, 6 his lien, 7 nature of, 7 how enforced, 8 cannot be defeated by mortgagee, 8, 45 when he may charge rent in enforcing lien, 8 when no lieu, 8 his liability for delay, 8 measure of damages, 8 when he may sue for repairs, 8 when a warranty implied, 11 is the person to transfer a new ship, 25 his remedy for repairs by common law lien, 7, 8, 113, unless deprived of it by a usage of the trade, 8, 113 has a right to proceed against foreign ships in the Admiralty Court for repairs, 109 conditions of such right, 109 SHIP'S-HUSBAND, his ordinary functions, 182 how far he may combine others with them profitably, 182 his appointment, 183 his authority, 114, 183 duty to the owners, 183 owners' liability on his contracts, 113, 185 SHIP-MASTER. (See Master, Master Mariner.) SHIP-OWNER. (See Owners.) SHIPPER. (See Freighter, Jjfreightment, Freight, Cargo, Perforinance, Non-per- formanee.) his contract, when by bailment, 389. (See Charter-party, Bill of Lading.) bill of lading acknowledges receipt of his goods, 390, 394 statutory provision as to, 395 how he may vary the rights under bill of lading, 399 his duties in performing the contract, 443 how he may make himself liable for part performance to pay freight, 476, 478 when by law maritime, 488 is the person primarily liable for freight, 498 liability in case of non- performance, 642 INDEX. 1021 &mFVmi— [continued) . presumption in Prize Court as fo the property being in liim, 564 when involved in the consequences of breach of blockade, 576 when not, 576 dissolution of affreightment contract, 581 when he cedes possession by shipment, 592. (See Stoppage in Transitu.) SHIPS are personal property, 1 subject to the common law and the maritime law, 1 1. how acquired — by construction, 1 requisites of builder's contract, 1, 2 how far the construction is controlled by statute, 2 rule of law as to the vesting of property, 2 in a specific article purchased, 2 in a thing to be made, 3 this rule modified by intention, 3, 4 so as to vest the property of a ship in progress of construction, 5 how far this is applicable to the materials, 6 shipbuilder's lien upon, for repairs, 7 nature of the lien, 7 how enforced, 8 when it does not exist, 8 his liability for detention, 8 measure of damages, 8 when he may sue for repairs, 8 by purchase, 8 rule as to the purchaser's vigilance and the seller's commendations, 9 material representations amounting to warranty, 9, 10 must appear in the written contract, to be the ground of an action, 10 when warranty implied, 11 representations amounting to fraud, 11 actionable, though not in written contract, 12 when through an agent, 12, 13 conditions of sale, 14 "ship and stores as they lie," effect of, 14 puffers at auction invalidate the sale at law, 14 equity allows of one person to bid for the protection of the property, 15 but not more than one, 15 law of Scotland agrees with the common law, 15 n. unfair advantage of the seller by the purchaser equally invalidates the contract, 16 but agreements between purchasers not to bid against each other, not illegal, or contrary to equity, 16 n. knock-out sales, mischief how prevented, 16 n. law of Scotland disallows them, 16 n. "ship," what it comprehends, 16, 17 by capture, 18 conditions of lawful capture, and acquisition of property thereby, 19 right of captui-e derived from the Crown by commission, 18 coeval with hostilities only, 19 when the property vests after capture, 20 conditions of competency in court of prizes, 21, 24 English and American doctrine, 22 n. continental doctrine same as English, 23 n. 2. how transferred, 24 by whom transferred, 25 to whom transferred, 29 persons qualified to be owners of a British ship, 29 what persons are British subjects, 30 instrument of transfer, 31 is a bill of sale everywhere, 32 contents of, 32 form of statutory bill of sale compulsory, 32 n. form considered with regard to its functions, 33, 34 objections to this compulsory form, 35 execution of bill of sale, 35 no stamp, 36 1022 INDEX. SHIPS— (cojitomcd.) 2. how transferred — (continued). registration of transfer, 36 it is the interest of transferee to see to, 36 registrar hound to register it when correct and proper and duly exe- cuted, 36 appeal from his refusal to the commissioners of customs, 37 registrar to indorse the date and hour of registration, 37 the order of registration the order of production for that purpose, 37 effect of that rule, 37 operation of unregistered bill of sale, 37 on death, hankruptcy, or marriage, the property passes by common law, 37, 38 except to person disqualified to be ou the register, 37 qualified interests under absolute bill of salfe may be shown by evidence, 39 3. how dealt with, 39 within the Trustee Act, 1860,-39, id trusts, 40 ' , whether there may be,, of ship property under the statute, 40 quasi trusts by statute, 40 may not, as such, appear on register, 40 , power of Chancery to prohibit dealing with the property, 40 and to enforce trusts and equities, 40, 41 , mortgages — under the prior statutes, 41 under tlie present act, 41, 42 property passes by the execution of the instrument inUr partes, 42 and when registered as against third parties, 43 form of mortgage deed, 45 ■ priority amongniortgages, 46 ; . operation of the statute ,on the doctrine of notice of tacking, 46 effect of unregistered mortgage, 48 mortgages transmissible and transferable, 49 power of sale in the mortgagee by statute, 49 certificate of mortgage, purposes of it, 50 conditions of validity of the instrument .and of mortgage created under it, 50 , ' ■ ' ' when mortgage not prejudiced by prior death or bankruptcy of owner, 51 equitable mortgage by deposit of a registered mortgage valid, 42 bottomry — nature of this contract, 51 distinguished from mortgage, and pawn, 52 from respondentia, 52 from contingent personal security, 53 conditions of vaGd bottomry, 53 first, the necessity for supplies, 53 secondly, the impossibility of obtaining them on personal credit, 54 duty of lender to inquire whether both exist, 55 6f master, wh^thfei- tlie second be operative in his case, 54 owners' prior consent suffices instead, 56 communication with the owners required in what cases, 56 bonds, on voyages undertaken against their intention, of doubtful validity, -56 maritipie risk an essential condition of the bond, 56 maritime premium, not so, 57 by whom may be given, 57 to whom, 57 where, 58 bottomry must be by writing, 59 instrument, form of, 59 contents of, 59 is negotiable, 60 effect of such contract, 60 conditions of the bond, 61 defeasance of the bond, 61 enforcement of bond, 61 principles of the Admiralty Court in regard to, 61, 62 priority among the bondholders, 62 INDKX. 1023 fimVS~(co>Ui)iued). 3. hoiv dealt ■with— (continued). bottomry — (continued). equitable view of, 63 what law governs it, 63, 64 maritime liens, 65 early history of, 65 civil law, in respect of, 65, 66, 67 n. American law, 67 n. English law, 68 French law, 68 4. how forfeited — by a person who succeeds to such jproperty, but disqualified, 70 who, though disqnalitied, acquires registered shipping by false de clarations, 70 by using the British flag, &c., where there is no right, 71 by using a certificate illegally granted, 71 by deceiving the lawful officers as to the British character of ship, 71 by neglecting to comply with the requirements of the Passengers' Act,' 72 5. how registered — policy of registration, 73 scheme of, 74, 80 what ships may and must be registered, 75 ships identified by measurement, description, name, and assigned num- ber, 77, 80 rules as to names of foreign ships, 78, 918 particulars to be marked on ships before registiy, 77, 917 rules as to ship's draught, 77 name, 78, 918 qualified owners identified, 78, 79 alterations registered, 84 change of owners registered, 84 persons who may be registrars, 92 evidence on which ihey proceed, 82 port of registry changed, 84 restriction on re-registration, 84 order of registration of transfers and mortgages, 81 certificate of registry, purpose of, 88 custody and contents oi, 88, 89 provisional certificate for foreign ships purchased abroad, 90 renewal of certificate, 90 improper detention of, 90 illegal use of, 91 delivery up of, 91 duties of Customs Commissioners as to, transferred to Registrar-General of Seamen, 915 rules as to naming, 913 6. in respect of the owners — survey of ships alleged to be uuseaworthy, 291, 292, 923, 924 who may employ the vessel, 97 means of security for the dissentient minority or moiety, 100 Admiralty Court can compel sale, 102 who bear the expense of outfit, 100 who liable for repairs and necessaries. 111 limitation of owner's responsibility, 121 7. in relation to the master — his appointment, 130 his authority to employ, 131 to repair, 138, 139, 427 means for, 142, 143 authority to hypothecate, 145 when he may sell, 159, 161 no implied authority to mortgage, 154 validity of his contracts abroad, 169 his duty in respect of trading ship, 180, 181 8. barratry, as to- by master or seamen, a peril insured against, 268 acts amounting to, 268 1024 INDEX. SHK8 -{continued). 8. barratry, as to — (continued). innocent acts may become barratrous, 268 ^ not if done with privity of owners, 268 but a part-owner may be guilty of barratry in respect of his co- o^vners, 269 and the mariners in respect of him, if not privy, 269 foreign meaning of the term, 269 9. offences in wilfully damaging or destroying, 270 10. in relation to qualified pilot — his functions and powers aboard, 277 responsibility for ship, 279 he may be a salvor, 284, 611 11. in relation to tug and pilot — who liable for damage, 288, 289 12. in relation to safety provisions — unseaworthy ship, 291 dangerous goods, 292 grain cargoes, 293 deck lading, 293 deck and load lines, 293 ship's draught, 294 boats, 294 anchors and cables, 294 passenger steamers, 294 signals, 294 lights and fng signals, 296 steering rules, 800 13. in relation to collision — maritime law of damage, 304 statutory law as to, 310 cases of collision, 311 remedy for damage, 319 maritime lien for, 321 where enforceable, 310, 311 ships of war, 321 14. in relation to passengers — what ships within the statute, 322, 334 how fitted up, 328 must be certificate,!, 336, 337 conditions of obfciiiiing certificate, 336 seaworthiness, 328 stores, 336 15.. for the purposes of affreightment — who is owner under charter-party, 342, 348 description of ship in charter-party, 366 capacity of, in charter-party, 366 engagements and place of, in charter-party, 367 seaworthiness of, 407, 408, 412 readiness to receive cargo, 407 placing of ship, 411 receipt of cargo, 413 stowage of cargo, 414 quantity of cargo, 416 kind of cargo, 417 ship's papers, 417 to sail when, and in what weather, 419, 420 to sail with convoy, how, 420 not to deviate, 426 repairs during voyage, 427 transhipment, 428 delivery of cargo, 433, 437, 468 16. freight if she perform the voyage, 452, 465 if she is prevented by freighter from performing it, 476 if she performs part only, freight at common law must be under a new contract, 478 it may be by law maritime under the old contract, 488 provided always the ship be not the cause of capture and deten- tion, 491, 493 INPEX. 1025 SHIPS — {coiUimuid). 17. considered iii relation to war — principles and procedure in respect of prize of war, 547, 551 under embargo, 553 after declaration of war, 665 in respect of convoy, 561 in case of capture, 563 in relation to blockade, 569 (See Salvage, General Average, War —Declaration f. Prize of. Embargo, Oonvoy, Capture, Captors, Blockade, Non-performance.) SHIP'S ARTICLES to be in writing, 214 to contain what, 215 alterations or interlineations not attested to be inoperative, 214 description of voyage in, 216 number of hands, 218 wages, 220 void stipulations in, 222 occasion of, 222 SHIPS, DESTROYING, offence of, 270 SHIP'S DRAUGHT,. to be seen on stem and stern post, 294 SHIPS OF HER MAJESTY'S NAVY. Iiability__in case they do damage, 321 SHIP'S PAPERS must be regular, 417, 418 SHIPWRIGHT SURVEYOR, for the survey of passenger steamers, 336, 337 appointed by Board of Trade, 768 employed by owners, 768 to make declarations as to ship, if satisfied, 768 fees for survey, 770 may be required to make new declarations, 770 SIGNALS OF DISTRESS ascertained by statute, 294 SMUGGLING, _ or other illegal conduct of master or owners, how affects wages of seamen no privy to, 268, 269 by seamen causing loss to owners, statutory penalty on, and right of owners to reimbursement out of wages, 256 SPECIFIC PERFORMANCE when not enforced of sale by auction, 15 STAMPS not necessary for statutory bill of sale, 36 for statutory mortgage, 46 for seamen's agreement, 214 for sea-apprentice's indenture, 213 for instruments under the 2nd, 3rd, 4th, 6th, or 7th part of the Act in the authorised form, 198 n. for passengers' contract under the statute, 323 necessary for charter-party, 361 for bill of lading, 393 STEAMERS. (See Passenger Steamers.) equipment of, 767 shelter for deck-passengers, 768 weight on safety valve, 768 3 u 1026 IXDEX. STEAMERS— (con