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Cornell University Library 
 KF1112.C75 1857 
 
 V.I 
 
 The admiralty urisdiction, law and prac 
 
 3 1924 018 926 414 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018926414 
 
THE 
 
 ADMIRALTY 
 
 JURISDICTIOI^, LAW MJ) PRACTICE 
 
 OF THE 
 
 COURTS OF THE UNITED STATES: 
 
 WITH AN APPENDIX, 
 
 OONTAINIKO THE 
 
 NEW RULES OF ADMIRALTY PRACTICE PRESCRIBED BY THE SUPREME COURT OF THE 
 
 UNITED STATE?, THOSE OF THE CIRCUIT AND DISTRICT OF THE UNITED 
 
 STATES FOR THE NORTHERN DISTRICT OF NEW-YORK, 
 
 AND NUMEROUS 
 
 PRACTICAL FORMS 
 OS PROCESS, PLEADINGS, STIPTJIATIONS, ETC, 
 
 COMPRISING THE ENTIRE PROGRESS OP A SUIT IN ADMIRALTY J ACCOMPANIED BY 
 
 EXPLANATORY NOTES. 
 
 BY ALFRED CONKLING. 
 
 SECOND EDITIOlir, REVISED AND CORRECTED. 
 
 IN TWO VOLUMES. 
 
 VOL. I 
 
 ALBANY: 
 
 TV. 0. LITTLE & CO., LAW BOOKSELLERS, 
 1857. 
 
Entered according to Act of Congress, in the year 1857, 
 
 By ALFRED CONKLING, 
 
 in the Clerk's office of the District Court of the Northern District of 
 
 New-York. 
 
 WEED, PARSONS & CO, 
 PRINTERS. 
 
 ll 
 
PREFACE TO THE FIRST EDITION. 
 
 The design of the following work is not to supersede 
 other books, but to supply a want. Of the existence of 
 this want, the author became painfully sensible, when, 
 by the passage of a late act of Congress, imposing upon 
 the District Courts of the United States a quasi admiralty 
 jurisdiction over certain causes arising upon the Great 
 Lakes, he became for the first time unexpectedly charged 
 with the duty of making himself intimately acquainted 
 with the limits of the admiralty jurisdiction of the Courts 
 of the United States ; with the principles of maritime 
 law, pertaining to the several subjects falling within the 
 scope of that jurisdiction ; and especially with the forms 
 of Admiralty Procedure. This work has its origin in the 
 pressing necessity under which the author found himself 
 thus placed ; and it is now ofiered to the public, in the 
 earnest hope that it will prove useful to others. 
 
 The foregoing observations, it is true, apply with less 
 cogency to the first than to the second part of the work ; 
 but if the principal subjects of admiralty jurisdiction have 
 been more ably, and some of them more amply treated 
 by others, the author trusts that he has not erred in 
 
iv PREFACE. 
 
 believing that an exact and * methodically arranged 
 summary of the principles which belong to them, embra- 
 cing a much fuller analysis of the ' admiralty decisions 
 of the American Courts than has hitherto been attempted, 
 could not fail to be, at least, highly convenient. Such 
 is the design of the first part of the work. 
 
 With respect to the second part, it is scarcely necessary 
 to observe, that until since the promulgation of the 
 Rules prescribed by the Supreme Court of the United 
 States, in 1845, any attempt to describe the practice of 
 the American Courts of Admiralty must unavoidably have 
 been in a great measure fruitless. These rules were 
 designed to constitute the entire frame-work of our system 
 of Admiralty Practice. The aim of the author has been, 
 first thoroughly to understand, and next to elucidate 
 them. If he has not fully succeeded, it is not for want 
 of strenuous and persevering efibrts to accomplish his 
 design. The difiiculties of the task will be best appre- 
 ciated, and most readily acknowledged, by the few already 
 familiar with the subject. 
 
 With regard to the numerous Precedents of plead- 
 ings, processes, stipulations, bonds, etc., etc., contained 
 in the Appendix, the author can only say that he has 
 taken unwearied pains to render them trustworthy and 
 unexceptionable. Such of them as are not now for the 
 first time published, difier, it will be observed, from those 
 which have heretofore appeared, in some essential particu- 
 lars, as well as in others merely formal ; but the author 
 entertains no apprehension that the attentive reader will 
 see in these difierences any ground for the imputation of a 
 love for unnecessary innovation. Ample collections of 
 
PREFACE. V 
 
 Forms, relating to actions at Law and in Equity, have long 
 since been published ; but with the exception of precedents 
 for the libel and answer, no such collection, pertaining 
 to actions in the Admiralty, has, to the knowledge of 
 the author, hitherto appeared in this country(a) ; and he 
 ventures to indulge the hope, that by this effort on his 
 part to supply the deficiency, and thus tOy contribute, to 
 the extent of his ability, towards the attainment of a 
 greater degree of uniformity and precision in the forms of 
 procedure in the American Courts of Admiralty, he shall 
 not subject himself to the charge of arrogance or presump- 
 tion. 
 
 In conclusion, he cannot refrain from an expression 
 of his sincere regret at the necessity, which his under- 
 taking has unexpectedly imposed upon him, of burthening 
 his professional brethren with so voluminous a work : but 
 he cannot tax himself with any want of a constant desire 
 to compress the numerous subjects and matters, with 
 which he had to deal, within the narrowest limits 
 compatible with his design ; and he trusts the learned 
 reader will meet, in its perusal, with no evidence to the 
 contrary, whatever opinion he may form of the author's 
 success in this respect. 
 
 (a) The only publication of this nature in England (with the excep- 
 tion of a few scarcely intelligible fragments contained in Chitty's 
 General Practice) is believed to be the collection entitled Marriott's 
 Formulary ; a passing notice of which will be found in a note accom- 
 panying chapter second of the second Tolume. Of this work, it is 
 probable but very few copies have found their way to this country. 
 From that in the possession of the author, which he obtained from 
 England several years ago, he has derived invaluable aid. 
 
PREFACE TO THE SECOND EDITION. 
 
 In submitting the* present revised edition of the following 
 work, to his professional brethren, the author deems it 
 proper to preface it by a few explanatory observations 
 relative to the manner in which the revision has been 
 conducted. Those of his readers who have been attentive 
 to the legislation of Congress, and especially to'the adju- 
 dication of the Supreme Court of the United States, during 
 the few years that have elapsed since the original publica- 
 tion of the work, will not require to be reminded of the 
 necessity thereby imposed on the author of largely modi- 
 fying its contents. To have done this exclusively, by 
 means of annotations, would have left the text encumbered 
 with many pages of matter that had become obsolete, and 
 many more that had become erroneous. In most instan- 
 ces of these descriptions, therefore, he has deemed it 
 expedient simply to conform the text to the existing state 
 of the law, while, in a few others he has adopted the 
 easier process of adding notes. 
 
 He has not scrupled, moreover, to avail himself of so 
 favorable an opportunity to endeavor to improve the 
 original by modifications in a few instances, in point of 
 arrangement, the principle of which, however, consists in 
 
viii PREFACE. 
 
 bringing together at the close of the first chapter, and recon- 
 structing, what he desired to say on the kindred subjects 
 of the right of third persons to intervene pendente lite, 
 and the right of demanding paymeiit out of surplus 
 proceeds in the registry of the court, instead of adhering 
 to the arrangement of the former edition where these 
 rights were separately treated. 
 
 The most important of the judicial decisions above 
 
 alluded to is that, in the case of The Gtenesee Chief, 
 
 by which the constitutional grant of admiralty and 
 
 maritime jurisdiction is declared to extend as well to 
 
 inland waters — the great rivers and lakes — as to the high 
 
 seas, and the waters connected therevnth subject to the 
 
 ebb and flow of tide, to which the jurisdiction had before 
 
 been sup'posed and uniformly held to be limited. This 
 
 important decision rendered it necessary to recompose 
 
 the first chapter and to modify the language of many 
 
 other parts of the work. The author, as an act of 
 
 justice to himself, has availed himself of the opportunity 
 
 thus afforded to offer some observations upon the decision 
 
 in the case of The Genesee Chief, to which he begs 
 
 leave to invite the attention of the learned reader, as he 
 
 also has of alike opportunity to comment, at considerable 
 
 length, in the second chapter, upon the decision of the 
 
 presiding judge of the Circuit Court of the Northern 
 
 District of New- York, in the case of The Globe, in a 
 
 manner he would gladly have avoided, but from which he 
 
 did not feel himself at liberty to abstain. The foregoing 
 
 exposition, the author trusts, will, in the estimation of the 
 
 learned reader, furnish a sufficient justification for his 
 
 omitting to preserve the paging of the former edition. 
 
PREFACE. ix 
 
 The first part of the work having been considerably 
 enlarged, it has been deemed advisable to make two sepa- 
 rately bound volumes, which, however, the author , is 
 happy to assure his professional brethren, are to be sold 
 at a lower price than the very high one which, without 
 his assent or approbation, and to his mortification and 
 regret, was exacted, on account, as he understood, of 
 rivalries in which he had no concern, for copies of the 
 first edition in one volume. 
 
ERRATA. 
 
 Page 26, line 6, for " tonnage,'' read towage. 
 231, line 15, for " laws," read losses. 
 233, expunge lines 23, 24, 25, by inadvertence reprinted. 
 252, in 8d side note, for " The," read Its. 
 345, at the end of note (6), for 108, read 142. 
 
CONTENTS. 
 
 JURISDICTION. 
 
 CHAPTER I. 
 
 Page. 
 Extent of the admiralty and maritime jurisdiction of the courts 
 
 of the United States, 1 
 
 CHAPTER II. 
 Claims of material-men, 73 
 
 CHAPTER III. 
 Mariners' wages, 107 
 
 CHAPTER IV. 
 Contracts of affreightment, 161 
 
 CHAPTER T. 
 Bottomry and respondentia bonds, 262 
 
 CHAPTER VI. 
 Pilotage, 296 
 
 CHAPTER Vn. 
 Wharfage, 302 
 
 CHAPTER Vni. 
 Agreements of consortship, 306 
 
 CHAPTER IX. 
 Survey and sale of damaged ships, 311 
 
xii CONTENTS. 
 
 CHAPTER X. 
 
 Faob. 
 
 Disputes between part-owners, 318 
 
 CHAPTER XI. 
 Suits to enforce the right of possession or of property in a ship, 
 
 against an adverse holder, 330 
 
 CHAPTER Xn. 
 Salvage, ." 344 
 
 CHAPTER XIII. 
 Collision, 370 
 
 CHAPTER XIV. 
 Assault, beating, false imprisonment, etc., , 427 
 
 CHAPTER XV. 
 Spoliation and damage, 449 
 
ADMIRALTY JUEISDICTION AND PRACTICE. 
 
 VOLUME I. 
 
 JURISDICTION, 
 
 CHAPTER I. 
 
 Extent of the Admiraltt and Maritime Jurisdiction of the 
 
 United States. 
 
 The Constitution of tlie United States declares that Extent 
 
 of the 
 
 the judicial power shall extend "to all cases of ad- f^JJ^tton 
 miralty and maritime jurisdiction;" and by the Ju- bj^'the"*'' 
 diciary Act of September 24, 1789, it is enacted j^l^ 
 that the District Courts " shall have exclusive origi- ■*^°'" 
 nal cognizance of all civil causes of admiralty and 
 maritime jurisdiction, including all seizures under 
 laws of impost, navigation or trade of the United 
 States, where the seizures are made on waters which 
 are navigable from the sea by vessels of ten or more 
 tons burden, within their respective districts, as well 
 as upon the high seas ; saving to suitors, in all cases, 
 the right of a common law remedy, where the com- 
 mon law is competent to give it." 
 1 
 
2 ADMIRALTY JURISDICTION. 
 
 vOT^i. The jurisdiction conferred by the act with respect 
 to civil causes, it will be observed, is in terms exact- 
 ly coextensive with the constitutional grant. In 
 order, therefore, to determine the limits of the ad- 
 miralty jurisdiction possessed by the District Courts 
 it became necessary to ascertain the just scope of 
 this grant ; or, in other words, to determine the true 
 interpretation of the words " admiralty and mari- 
 time jurisdiction." This inquiry, however, proved 
 to be one of no little difficulty and embarrassment, 
 and it accordingly led to a very marked diversity 
 of opinion, not only among the judges of the District 
 Courts, but also among the justices of the Supreme 
 Court. Recourse was naturally had to the decisions 
 English de- of the English courts, and it was strenuously insist- 
 ed that these decisions were obligatory upon ours. 
 But the jurisdiction of the High Court of Admiralty, 
 invaded and crippled as it had been by prohibitions 
 from the Court of King's Bench, in the time of Lord 
 Coke, was found to be restricted to bounds so narrow, 
 especially in cases arising ecc contractu^ as, in the 
 ultimate judgment of a majority of the judges of the 
 Supreme Court, to render them unfit for unqualified 
 adoption in this country. The departures from 
 them were, however, slight^ and were made with 
 cautious and timorous steps; and in one highly im- 
 portant particular they were by common consent 
 I.S to tide rigidly adhered to. It was a settled principle of 
 adopted. English jurisprudence, that the admiralty jurisdic- 
 tion was limited to cases arising on the ocean or on 
 tide waters, and in the first case, in which it became 
 the duty of the Supreme Court authoritatively to 
 
ADMIRALTY JURISDICTION, 3 
 
 define the limits of the admiralty jurisdiction, so far as ™i£.- 1- 
 it depended on locality, this principle was unanimous- 
 ly adopted. The suit, instituted in the District Court 
 of Kentucky, was for wages earned on a voyage 
 from Shippingport, in that state, up the Mississippi 
 and Missouri and back again to the port of depar- 
 ture. The libel was dismissed by the District Court 
 for want of jurisdiction, and the libelants having 
 appealed from the decree, it was, apparently with- 
 out the slightest hesitation, affirmed by the Supreme 
 Court, " In the great struggles," said Mr. Justice 
 Stoet, in delivering the opinion of the Court, " be- 
 tween the courts of common law and the admiralty, 
 the latter never attempted to assert any jurisdiction 
 except over maritime contracts. In respect to con- 
 tracts for the hire of seamen, the admiralty never 
 pretended to claim, nor could it rightfully exercise 
 any jurisdiction, except in cases where the service 
 was substantially performed or to- be performed 
 upon the sea, or waters within the ebb and flow of 
 tide. This is the prescribed limit which it is not at 
 liberty to transcend. We say the service was to be 
 substantially performed on the sea, or on tide water, 
 because there is no doubt that the jurisdiction exists, 
 although the commencement or termination of the 
 voyage may happen to be at some place beyond the 
 reach of tide. The material consideration is, wheth- 
 er the service is essentially a maritime service. In 
 the present case, the voyage, not only in its com- 
 mencement and termination, but in all its interme- 
 diate progress, was several hundred miles above the 
 ebb and flow of tide, and in no just sense can the 
 
1: ADMIRALTY JURISDICTION. 
 
 voL^i. -wages be considered as earned in a maritime em- 
 ployment (a)." 
 
 This principle was distinctly reaffirmed and en- 
 forced in the subsequeut case of The Steamboat 
 Orleans, v. Phoebus, which, origiaated in a contro- 
 versy between part owners, whose vessel had been 
 employed in navigating between the port of New 
 Orleans and the interior towns on the borders of the 
 Mississippi and its tributary streams; and in accord- 
 ance with the principle established in the case of 
 The Jefferson, the admiralty jurisdiction over the 
 case was denied, although one of the termini of the 
 voyages of the vessel was within tide water(3). 
 
 In the intermediate case of Peyroux v. Howard, 
 which was a suit in admiralty for labor and services 
 in repairing the steamboat Planter, at New Orleans, 
 the jurisdiction was sustained on the grounds alpne 
 that the place where the repairs were made was 
 within the ebb and flow of tide, and that the just 
 inference from the pleadings and evidence, in the 
 opinion of the Court, was, that the Planter was to 
 be considered as a vessel employed in navigating 
 tide waters. In this case the Court also laid down 
 another important principle, viz : that those rivers 
 in which the tides of the ocean occasion a regular 
 rise and fall of the water, although the current may 
 not be turned back, are to be deemed, to that extent, 
 tide waters (c). 
 
 (a) The Steamboat Thomas Jefferson, 10 Wheaton's R., 428 (6 Cur- 
 tis's Decis. S. C, 465). 
 
 (6) 11 Peters's R., 175 (12 Ourtis's Decis. S. C, 391). 
 (c) 7 Peters's R., 324 (10 Curtis's Decis. S. C, 506). 
 
ADMIRALTY JURISDICTION. 6 
 
 This interpretation of tlie language of the Consti- *^^- ^• 
 tution and Judiciary Act, of course, excluded as ierf°exdu- 
 well the great lakes as all navigable streams beyond 
 the influence of the ebb and flow of tide. Nor did 
 this consequence or the gross inconsistency it 
 involved escape the attention of the Court. But 
 the commerce carried on upon these waters, at the 
 date of the decision in the case of The Jefferson^ was 
 trivial, compared with the magnitude it has since 
 attained, and the jealous, not to say hostile spirit 
 towards the admiralty jurisdiction then entertained 
 by many of the legal profession, and from which the 
 Supreme Court itself was not wholly free, discour- 
 aged the desire that could not but have been felt, 
 and restrained any effort that might otherwise have 
 been made, by the Court, to avoid this absurd incon- 
 gruity by a more liberal construction accordant with 
 the spirit of the Constitution and the actual exigen- 
 cies of the case. Had the decision of the question been 
 deferred until our inland navigation and commerce 
 had increased, as it has long since done, more than a 
 hundred-fold, and until the superior adaptability and 
 value of the admiralty remedies had, as they have 
 since, become better understood, it may reasonably be 
 supposed that the Court would have been irresista- 
 bly led to a different conclusion. Nevertheless, the 
 growing importance of this commerce was already 
 suf&cient to awaken solicitude for its prosperity, and 
 it is evident from the language of the Court that its 
 exclusion from the admiralty jurisdiction was contem- 
 plated with regret ; for, while yielding to the sup- 
 posed necessity of this exclusion, the Court seems to 
 
6 ADMIRALTY JUEISDICTION. 
 
 vor^i. iiave been anxious, if possible, to devise an antidote 
 for the evil. This desire is manifested by the fol- 
 lowing observations contained in the judgment of 
 the Court, as delivered by Mr, Justice Stoky: 
 " Whether, under the power to regulate commerce 
 among the states. Congress may extend the remedy 
 by the summary *process of the admiralty, to the 
 case of voyages on the western waters, it is unneces- 
 sary for us to consider. If the public inconvenience, 
 from the want of a process of an analogous nature, 
 shall be extensively felt, the attention of the Legis- 
 lature will doubtless be drawn to the subject." 
 
 This was said in 1825, and just twenty years later 
 Congress saw fit to pass the act entitled ^'■An act 
 extending the jurisdiction of the Dist/rict Courts to 
 certain cases upon the lakes, and navigable waters 
 connecting the sameP 
 
 The act consists of a single section, and is as fol- 
 lows: 
 
 Act of Feb. " ^^ it enacted hy the Senate and House of Representatives of 
 26, 845. ^^^ United States of America, in Congress assembled, That the 
 District Courts of the United States shall have, possess and exer- 
 cise the same jurisdiction, in matters of contract and tort arising 
 iu, upon or concerning steamboats and other vessels of twenty 
 tons burden and upwards, enrolled and licensed for the coasting 
 trade, and at the time employed in the business of commerce and 
 navigation between ports and places in different states and terri- 
 tories upon the lakes and navigable waters connecting the said 
 lakes, as is now possessed and exercised by the said courts in 
 cases of the like steamboats and other vessels employed in navi- 
 gation and commerce upon the high seas, or tide waters, within 
 the admiralty and maritime jurisdiction of the United States; 
 and in all suits brought in such courts, in all such matters of 
 contract or tort, the remedies, and the forms of process, and the 
 
ADMIRALTY JUKISDICTION. 7 
 
 modes of proceeding, shall be the same as are or may be used by OHAP. i. 
 such courts in cases of admiralty and maritime jurisdiction ; and 
 tae maritime law of the United States, so far as the same is or 
 nay be applicable thereto, shall constitute the rule of decision in 
 such suits, in the same manner, and to the same extent, and with 
 ihe same equities, as it now does in cases of admiralty and mari- 
 , time jurisdiction ; saving, however, to the parties the right of 
 trial by jury, of all facts put in issue in such suits, where either 
 party shall require it ; and saving also to the parties the right of 
 a concurrent remedy at the common law, where it is competent 
 to give it, and any concurrent remedy which maybe given by the 
 state laws, where such steamer or other vessel is employed in such 
 business of commerce and navigation"( a ). 
 
 In the first case that arose under this act, very its ooMtitu- 
 
 ' *' tjonahty 
 
 soon after its passage, in the District Court for the ?n NoSm 
 
 Northern District of New- York, its constitutionality New-York. 
 
 was strenuously controverted at bar, and was doubt- 
 
 ingly assumed rather than formally adjudicated by 
 
 the Court. In cases subsequently occurring in that 
 
 court during the next year or two, the validity of 
 
 the act was tacitly conceded. It was under these Notice of u 
 
 •' _ in the first 
 
 circumstances, and before any light had been shed pfaSf*" 
 on the subject from any external source, that the 
 first edition of this work was prepared for the press 
 and published. The act was too important not to 
 require a particular notice, and as the author, at that 
 time holding the office of District Judge, was actually 
 engaged in carrying it into effect, he deemed it 
 incumbent on him to undertake the embarrassing 
 task of discussing its constitutionality. Any attempt 
 to vindicate it on the ground that the constitutional 
 grant of admiralty jurisdiction comprised other than 
 
 (a) Act of February 26, 1845; 5 Stet. at Large, 726, ch. 20. 
 
3 ADMIRALTY JUEISDICTION. 
 
 voL^i. tide waters, was forbidden to Mm by tbe decisiol^s 
 of the supreme judicial tribunal of the nation ; and 
 to have argued, nevertheless, that Congress, in reality^ 
 looked to this grant as the source of its authority tc 
 pass the act, would have been, according to thos0 
 decisions, equivalent to a charge of intentional usur^ 
 pation. But in truth the circumstances under which 
 the act was passed, its title, its obvious intent, and 
 the very nature of its provisions, appeared to the 
 author wholly inconsistent with this hypothesis. 
 In organizing the judicial department of the gov- 
 ernment. Congress possessed a discretionary author- 
 ity to suffer any portion of the mass of judicial pow- 
 er confided to the nation, except the original 
 jurisdiction vested in the Supreme Court by the 
 Constitution itself, to remain dormant, either by ex- 
 press exceptions, or by omitting to provide for its 
 exercise. And assuming the admiralty jurisdiction 
 conferred by the Constitution to have extended as 
 well to interior as ocean navigation dnd commerce, 
 it might in this manner, nevertheless, have been ex- 
 pressly restricted to the latter. K this had been 
 done, and so remained until the passage of the act 
 of 1846, the natural inference would have been that 
 it was designed, though by no means aptly framed, 
 for the purpose, partially to supply the deficiency. 
 But the actual predicament of the case was the re- 
 verse of this. The power vested in Congress by the 
 constitutional grant of admiralty jurisdiction in civil 
 fuSdktfon ^^^^ ^^^ already been exercised and exhausted by 
 thfrnSricT conferring on the District Courts jurisdiction of " all 
 judioiary civil causes of admiralty and maritime jurisdiction." 
 
ADMIRALTY JURISDICTION. '9 
 
 Such was tlie disposition tliat had been made of this ^^^ ^• 
 branch of the judicial power, by the Congress of 
 1789, in the organic Judiciary Act, and the law in 
 this respect remained unchanged until the passage 
 of the act of 1845. If therefore the admiralty ^„\^„*LT?r 
 jurisdiction, as defined in the Constitution, extended therelom. 
 to controversies arising " on the lakes and navigable 
 waters connecting the same," it had already been 
 conferred in more ample terms on the District Courts, 
 and the new act, instead of being entitled "An act 
 extending the jurisdiction of the District Courts," 
 should have been denominated an act cv/rtailing 
 the admiralty jurisdiction of these courts, in " cases 
 arising," &c. 
 
 It was unquestionably the intention of Congress, Legiaiatiye 
 however, as the title of the act imports, to enlarge 
 the jurisdiction of the District Courts by extending 
 it, for the first time, to the cases specified, and 
 authorizing the use of the admiralty forms of pro- 
 cess in its exercise. But to suppose that it was in- 
 tended to extend the admiralty jurisdiction of these 
 courts, would be to impute to Congress not only very 
 gross inconsistency, but a defiance of the decisions 
 of the Supreme Court. Such a hypothesis did not 
 seem to the author to be admissible, and the only 
 remaining alternative was to refer the act to the 
 authority conferred by the Constitution on Congress, 
 to regulate commerce among the several states. 
 That it was no easy matter to maintain the consti- 
 tutionality of the act on this ground, the author was 
 but too well aware ; but it seemed to him, never- 
 theless, sufficiently manifest that this was in fact the 
 
10 ADMIRALTY JURISDICTION. 
 
 voL^i. ground on which, the Legislature had proceeded. In 
 the first place it was, in the opinion of the author, a 
 circumstance of no trivial importance that the Su- 
 preme Court, when in the act of unequivocally deny- 
 ing the applicability of the grant of admiralty 
 jurisdiction to inland commerce, had, as already 
 stated, indicated the power to regulate commerce 
 between the states as the source from which the 
 authority to pass precisely such an act as this might 
 be drawn; for it seemed highly improbable that 
 either the decision or the intimation that accompa- 
 nied it had been overlooked by Congress. The act, 
 upon its face, moreover, appeared to infer a dis- 
 claimer of the power to confer admiralty jurisdic- 
 tion. It is true, it ordains that " the District Courts 
 of the United States shall have, possess and exercise 
 the same jurisdiction," in the cases specified, "as is 
 now possessed and exercised by the said courts" 
 in cases arising out of navigation and commerce 
 " upon the high seas, or tide waters within the ad- 
 miralty and maritime jurisdiction of the United 
 States ;" but it directs also that " in all suits brought 
 in such courts, and in all matters of contract or tort, 
 the remedies and the forms of process, and the mode 
 of proceeding, shall be the same as are or may be 
 used by such courts in cases of admiralty and mari- 
 time jurisdiction ; and the maritime law of the 
 United States, so far as the same is or may be ap- 
 plicable thereto, shall constitute the rule of decision 
 in such suits." These latter provisions, so pertinent 
 in such an act passed in virtue of the power to regu- 
 late commerce, were clearly supererogatory in an 
 
ADMIRALTY JURISDICTION. 11 
 
 act extending the admiralty jurisdiction proper, •'^jil-i- 
 Nor will the attentive reader fail to observe that 
 they are in striking accordance with the suggestions 
 of the Supreme Court in the case of The Jefferson. 
 
 The act presented another feature also, of no light 
 significance, tending to the same conclusion. The 
 suggestions of the Supreme Court were limited to ■ 
 "the power to regulate commerce between the 
 states ;" and the jurisdiction which the act purports 
 to confer is studiously restricted to matters relating to 
 vessels " of twenty tons burden and upwards, enroll- 
 ed and licensed for the coasting trade, and at the 
 time employed in the business of commerce and 
 navigation between ports and places in different 
 states and territories." Why were these limitations 
 imposed, unless for the express purpose of confin- 
 ing the new jurisdiction within the scope of the pow- 
 er to regulate commerce, and that, too, the one par- 
 ticular branch of it indicated by the Supreme Court? 
 To say nothing of commerce with the British • 
 dominions, the extension of the admiralty remedies 
 to voyages between places in the same state — Dun- 
 kirk, Buffalo, Lewiston, Oswego, Sacketts Harbor 
 and Ogdensburgh, in the State of New- York, for 
 example — was as much needed, and would have 
 been as useful, as to voyages between places in dif- 
 ferent states. 
 
 It was under these circumstances and these views 
 of the subject that, in the first edition of this work, 
 the author felt himself constrained to speak of the 
 act in the terms he did, and to denominate the ju- 
 risdiction conferred by it a quasi admiralty juris- 
 
12 ADMIRALTY JURISDICTION. 
 
 Toi" 1- diction(ffl). Nor was he singular in Ms views of 
 the subject. In The New Jersey Steam Navigation 
 
 (a) The following is the passage here referred to, preceded by a 
 recital of the act : " In the first case which arose in the Northern Dis- 
 trict of New- York, under this act, its constitutionality was strenuous- 
 ly denied ; and if, as was insisted by the counsel who urged the ob- 
 jection, the act is to be congjdered as assuming to confer admiralty 
 jurisdiction, as such, it is evident from what has already been stated, 
 that Congress had no authority to pass it. But the terms of the act 
 are not such as necessarily to require this construction ; nor does its 
 language imply a reliance on the constitutional grant of admiralty and 
 maritime jurisdiction, as the source of the power exercised in its enact- 
 ment. On the contrary, Congress seems to have had an eye rather to 
 those provisions of the Constitution which confer upon the national 
 Legislature power " to regulate commerce with foreign nations, among 
 the several states, and with the Indian tribes ;" and upon the judiciary, 
 jurisdiction of "all cases arising under ttie laws of the United States :" 
 and to have intended merely to subject the descriptions of cases speci- 
 fied in the act to the practical operation of these constitutional pro- 
 visions, and, sub modo, to the admiralty forms of procedure. 
 
 The want of power in Congress to regulate commerce was one of 
 the chief defects in the Articles of Confederation ; and this power is 
 among the most important aad necessary of the legislative powers con- 
 ferred by the present Constitution. It is held to be exclusive. There 
 are cogent reasons why it should be so; and the term regulate — a 
 word of very comprehensive import — clearly indicates the intention of 
 its framers to make it so. (Gibbons v. Ogden, 9 Wheaton's R., 1. ; 5 
 Cond. R., 562.) 
 
 In virtue of this ample power, Congress may doubtless define the 
 force and effect of commercial contracts, and, independently of state 
 laws, devise and prescribe remedies for their violation, and for torts 
 and injuries committed in the prosecution of commerce ; subject only 
 to the constitutional restriction requiring the right of trial by jury to 
 be preserved in suits at conMion law, where the value in controversy 
 shall exceed twenty dollars. And this, in effect, is what Congress 
 may be supposed to have designed to do by the above recited act, so 
 far as one of the branches of commerce specified in the Constitution is 
 concerned, viz : that " among the several states." 
 
 The cases designated in the act are, in their nature, of common law ju- 
 risdiction ; and as such, they were cognizable in the state courts, and, 
 
ADMIRALTY JUEISDICTION. 13 
 
 Oompany v. The Merchants^ Bank of Boston (6 o=[f£-i- 
 
 Howard's E., 344), decided at the next term of the 
 
 Supreme Court, Mr. Webstee, as counsel for the 
 
 respondents, without any professional motives for 
 
 misinterpreting the act, took occasion to observe 
 
 that '■'■ it pitched the power wpon the, wrong location^ 
 
 Its proper home was in the admiralty and maritime 
 
 grant, as in all reason, and in the common sense 
 
 of all mankind out of England, admiralty and mari- Be/chiir 
 
 time jurisdiction ought to extend, and does extend, 
 
 to all navigable waters, fresh or salt." But in totidew^r 
 
 . - , . .^. repudiated. 
 
 a late case which arose m the JNorthern Dis- 
 trict of New- York, in which the plaintiff sought 
 to recover the value of a schooner and her cargo, 
 sunk by a collision on Lake Ontario, the act 
 was held by the Supreme Court, on appeal, to 
 be wholly indefensible as an exercise of the power 
 of Congress to regulate commerce ; but it was ad- 
 
 concurrently, in the national courts, where the citizenship of the par- 
 ties was such as to confer jurisdiction. 
 
 When prosecuted in the state tribunals, they were of course to be 
 governed by the state laws, both as concerned the rights of the parties 
 and the forms of judicial proceeding: and such was also the case in the 
 national courts ; the Judiciary Act of 1789 having adopted the state 
 laws as rules of decision in trials at common law, and the process acts 
 of 1789 and 1792 having adopted the state forms of procedure. The 
 object of this act appears to be, first, to bring these cases within the 
 cognizance of the District Courts, without regard to the citizenship of 
 the parties, as cases arising under a law of the United States (that is 
 to say, under the act itself) ; and, secondly, as far as it could consti- 
 tutionally be done, to apply to them the same rules, both of procedure 
 and of decision, as if they had pertained to ocean instead of inland 
 navigation, and so been strictly of admiralty jurisdiction ; or, in other 
 words, to subject them to the operation of the maritime law of the 
 United States. 
 
14 ADMIRALTY JURISDICTION. 
 
 vOT^i. judged nevertheless to be valid " on the ground that 
 the lakes and the navigable waters connecting them 
 are within the scope of the admiralty and maritime 
 jurisdiction, as known and understood in the United 
 States when the Constitution was adopted." " If," 
 said Chief Justice Tanet, in pronouncing the judg- 
 ment of the Court, "the meaning of these terms 
 was now for the first time brought before the Court 
 for consideration, there would, we think, be no hesi- 
 tation in saying that the lakes and their connecting 
 waters were embraced in them. These lakes are in 
 truth inland seas. Different states border on them 
 on one side, and a foreign nation on the other. A 
 great and growing commerce is carried on upon 
 them between different states and a foreign nation, 
 which is subject to all the incidents and hazards 
 that attend commerce on the ocean. Hostile fleets 
 have encountered on them, and prizes have been 
 made ; and every reason which existed for the grant 
 of admiralty jurisdiction to the general govern- 
 ment on the Atlantic, applies with equal force to 
 the lakes. There is equal necessity for the instance 
 and the prize power of the admirality court to ad- 
 minister international law, and if the one cannot be 
 abolished neither can the other." Regarding the 
 subject under this aspect, the Court was led to the 
 conclusion that the dogma restricting the admiralty 
 jurisdiction to tide waters, borrowed from the juris- 
 prudence of England, where all public waters, with a 
 few small and unimportant exceptions, were of this 
 description, was inapplicable to this country, differing, 
 in this respect, so widely in its physical features, and 
 
ADMIRALTY JURISDICTION. 15 
 
 that it ouglit to be discarded as unreasonable and '^^^- ^• 
 fallacious. The reasons for this decision extend as 
 well to all public rivers and other waters where 
 commerce is carried on between states, or with 
 foreign nations, as to the lakes, and the former 
 as well as the latter were expressly declared 
 to be embraced by the newly established prin- 
 ciple. The judgment is elaborate, and is strongly 
 marked by the remarkable perspicacity and vigor 
 that uniformly characterize the judicial opin- 
 ions of the eminent Judge by whom it was pro- 
 nounced. The Court was by no means insensible to 
 the high respect due to the decision in the case of 
 The Thomas Jefferson^ and yielded only to a sense 
 of imperative duty in overruling it. That case, it 
 was observed, " did not decide any question of pro- 
 perty, or lay down any rule by which the right of 
 property should be determined. If it had, we 
 should have felt ourselves bound to follow it, not- 
 withstanding the opinion we have expressed. * * 
 * * In such a case, stare decisis is the safe and 
 established rule of judicial policy, and should always 
 be adhered to. * * * * But the decision re- 
 ferred to has no relation to rights of property. It was 
 a question of jurisdiction only, and the judgment we 
 give can disturb no right of property nor interfere 
 with any contracts heretofore made. And as we 
 are convinced that the former decision was founded 
 in error, and that the error, if not corrected, must 
 produce serious public inconvenience and loss, it 
 becomes our duty not to perpetuate it(o)." 
 
 (ffl) The PropeUer Genesee Chief, 12 Howard's R., 443 (19 Curtis's 
 Decis. S. 0., 233). 
 
16 ADMIRALTY JURISDICTION. 
 
 vOTj^i. n ^jiay be presumed that this interpretation of 
 the Constitution will generally be regarded with 
 favor. If adhered to, as it doubtless will be, it will 
 constitute an important epoch in the history of our 
 national jurisprudence. For myself, believing it to 
 be sound and beneficent, I rejoice that it has at 
 length been adopted and authoritatively proclaimed. 
 But I am obliged, nevertheless, to withhold my 
 assent from much of what is said by the Court of 
 the act of 1845. Cheerfully conceding, as I do, the 
 sufficiency of the reasons assigned for deciding that 
 its constitutionality cannot be maintained in virtue 
 of the power to regulate commerce, I cannot acqui- 
 esce in the conclusion of the Court that "it is evi- 
 dent from the title as well as the body of the law, 
 that Congress, in passing it, did not intend to exer- 
 cise their power to regulate commerce ; nor to de- 
 rive their authority from that article of the Consti- 
 tution." The reasons given by the Court for this 
 conclusion appear to me wholly unsatisfactory, and 
 I cannot but think that I have already shown them 
 to be fallacious, 
 qu^oeof The act of 1845 having led to the correction of 
 in the case of au unfortuuate mistake, the practical evils of which 
 
 The Genesee ' ■*■ 
 
 *''"'*'■ would probably otherwise have been of long continu- 
 ance, its passage ought not, perhaps, to be regarded 
 as a misfortune. But its complication with the great 
 question decided by the Court is much to be regret- 
 ted. It was a disturbing and embarrassing element. 
 The assumed necessity of maintaining its validity, 
 and, for that purpose, of referring it to the grant of 
 admiralty jurisdiction, has imparted a false coloring 
 
ADMIRALTY JURISDICTION. 17 
 
 to tte decision; and tlie act now stands an incon- chap. i. 
 gruous and miscliievous excrescence upon our judicial 
 system. If tlie court had come to the conclusion 
 that it ought to be regarded and treated as a regu- 
 lation of commerce, and consequently void, thus 
 leaving the jurisdiction of the district court to rest 
 simply on the authority of the Constitution and the 
 Judiciary Act of 11S9, the newly discovered juris- 
 diction would have been placed in harmony with 
 the old, and would have more than effectuated the 
 policy of the act of 1845. While this act remains, 
 if it is to be operative at all, it can only be in direct 
 opposition to the actual legislative intent, as an act 
 arbitrarily and injuriously curtailing a jurisdiction 
 existing independently of it. It becomes a serious 
 judicial question, therefore, whether it is not super- 
 seded and rendered nugatory by the late decision 
 of the Supreme Court. If not, few, probably, will 
 doubt that it ought to be repealed. While it is 
 suffered to remain, the district courts, it may be 
 presumed, will consider themselves bound, according 
 to the maxim, eocpressio unius exclusio est alterius^ 
 to restrict themselves, with respect to the lakes and 
 their connecting straits, to the jurisdiction it de- 
 fines(a). Elsewhere it can, of course, have no influ- 
 ence ; so that, upon all the great navigable inland 
 rivers of the country, the admiralty jurisdiction is 
 now to be regarded as in full force, to the same 
 
 (a) Since this was written, the author has been informed that in 
 one, at least, of the inland districts, admiralty suits are entertained 
 without regard to the limitations imposed by the act, subject, however, 
 to the privilege for which it provides, of a trial by jury. 
 
 3 
 
18 ADMIRALTY JURISDICTION. 
 
 TOL^i. extent, and under tlie like conditions, as on the 
 oceanic tide waters (a). 
 Se"uri8dio- "^^^ ^'^^ ^^ 1845, in imitation of the Judiciary Act 
 the°a"tof of 1789, expressly reserves to tlie parties seeking 
 redress for the breach of any contract, or for any 
 injury cognizable in the admiralty, "the right of a 
 concurrent remedy at the common law, where it is 
 competent to give it, and any concurrent remedy 
 which may be given by the state laws." And even 
 where a suit in admiralty is resorted to, the act 
 contains a saving " to the parties of the right of a 
 trial by jury, of all facts put in issue in such suits, 
 where either party shall require it :" so that in no 
 case can the civU law mode of trial be followed 
 without the tacit consent of both parties. It is be- 
 lieved, however, that in no instance in the Northern 
 District of New- York has this privilege been asserted 
 
 (a) I have now completed all that I think it necessary here to say 
 of the act of February 26, 1845, considered in connection with the 
 decision of the Supreme Court in the case of The Genesee Chief. I 
 trust that'I shall not appear to have been wanting in the respect so 
 eminently due, and which I. habitually cherish, towards the high court 
 by which that decision was pronounced. 
 
 I could not reasonably be expected to forego this opportunity, the 
 only one I was likely ever to have, to explain and vindicate the 
 remarks contained in the first edition of this work relative to the con- 
 stitutionality of the act. My observations upon it are alluded to in the 
 judgment of the Supreme Court; and if, in proceeding to express its 
 dissent from them, the court had seen fit simply to acknowledge that 
 the view I took of the question was the only one compatible with its 
 antecedent decisions and the circumstances in which I was placed, 
 I might well have contented myself with a somewhat less ex- 
 tended notice of the subject. I do not complain of this omission, 
 however, and I refer to it only as an apology for what might other- 
 wise provoke the charge of undue prolixity. 
 
ADMIRALTY JURISDICTION. 19 
 
 With respect to the subjects of litigation brought *'hap. i. 
 by this act under the cognizance of the district 
 courts as courts of admiralty, the act declares the 
 jurisdiction defined by it to be "the <?ame jurisdic- 
 tion in all matters of contract and tort, as is now- 
 possessed and exercised by the said courts " in cases 
 arising out of the prosecution of "navigation and 
 commerce upon the high seas or tide waters." No 
 further separate inquiry, therefore, concerning the 
 nature of the controversies embraced by the act, is 
 necessary ; for the inquiry would but resolve itself 
 into an examination of the limits of the admiralty 
 and maritime jurisdiction of the district courts 
 of the United States, in civil cases, exclusive of 
 questions of prize : and to this examination it is 
 proposed now to proceed. 
 
 I. As to matters of conteact. 
 
 The admiralty jurisdiction in cases of contract, 
 depends, primarily, upon the nature of the contract ; 
 and is limited to contracts, claims and services purely 
 maritime, and touching rights and duties appertain- 
 ing to commerce and navigation (a). 
 
 The correctness of this definition has never been 
 denied(5) ; but the actual limits of the jurisdiction 
 
 (a) Peyroux et al. v. Howard et al., 7 Peters's R., 324 (10 Curtis's 
 Decis. S. C, 506) ; The Steamboat Orkatis v. Phabus, 11 Peters's R., 
 175 (12 Curtis's Decis. S. C, 391) ; Thackery et al. v. The Farmer, 
 Gilpin's R., 524; TTie Thorns Jefferson, 10 Wheaton's R., 428 (6 Cur- 
 tis's Decis. S. C, 465) ; Story's Commentaries on the Constitution, 527- 
 
 (6) By the decision of the Supreme Court in the case of The Genesee 
 Chief, however, the word "maritime" in its ordinary acceptation, can- 
 not, with strict propriety, be any longer employed as descriptive of the 
 
20 ADMIRALTY JURISDICTION. 
 
 TOLL it concedes, have, nevertheless, been a subject of 
 earnest and protracted controversy in our courts. 
 
 The late Mr. Justice Stoet, who had devoted 
 much attention, with his accustomed ardor and suc- 
 cess, to the study of maritime law, in his celebrated 
 judgment in the case of De Lovio v. Boit^a)^ entered 
 into a comprehensive and minute survey and exami- 
 nation of the whole subject. His conclusion was, 
 that national policy, as well as judicial logic, required 
 the clause of the Constitution, extending the judi- 
 cial power of the United States "to all cases of 
 admiralty and maritime jurisdiction," to be so con- 
 strued as to embrace all maritime contracts, torts 
 and inj uries. He was of opinion that the word mari- 
 time was superadded by the framers of the Consti- 
 tution, ex indust?-ia, to remove every latent doubt. 
 The disputes and discussions respecting the limits of 
 the admiralty jurisdiction could not but have been 
 well known to them. It was wise, therefore, to 
 dissipate all question, by giving cognizance of all 
 cases of maritime jurisdiction, or, what is precisely 
 equivalent, of all maritime causes. 
 
 species of contracts cognizable in the American admiralty, the juris- 
 diction of our courts being held to embrace, not only the lakes, which 
 may not very inaptly be denominated seas, but all public navigable 
 rivers used as channels of commerce between the states, or with foreign 
 nations, though unaffected by the ebb and flow of tide. The frequent 
 occurrence of the term "maritime" in the reports of the decisions 
 of our courts relating to this branch of our jurisprudence, renders 
 it necessary not to lose sight of this great innovation. For the same 
 reason it will be impossible for the author, without inconvenient 
 circumlocution, altogether to avoid the use of this word where it has 
 ceased to be strictly proper. 
 (a) 2 Gallison's R., 398. 
 
ADMIRALTY JUKIStHCTION. 21 
 
 With regard to wliat may properly be denomi- ^^^ ^• 
 nated maritime contracts, the learned judge was of 
 opinion that " in this particular there is little room 
 for controversy. All civilians and jurists/ agree, 
 that in this appellation are included, among other 
 things, charter-parties, affreightments, marine hy- 
 pothecations, contracts for marine service in building, 
 repairing, supplying and navigating ships ; contracts 
 between part owners of ships ; contracts and quasi 
 contracts respecting averages, contributions and 
 jettisons, and policies of insurance." And he adds, 
 that "in point of fact, the admiralty courts of 
 other foreign countries have exercised jurisdiction 
 over policies of insurance as marine contracts ; and 
 a similar claim has uniformly been asserted on the 
 part of the admiralty of England." His judgment 
 accordingly was, that "policies of insurance are 
 within (though'not exclusively within) the admiralty 
 and maritime jurisdiction of the United States." 
 This decision was pronounced in 1815. 
 
 During the period of thirty years which elapsed 
 between that date and the titnfe of his decease, 
 the doctrines of that case were repeatedly reiterated 
 and firmly adhered to by him, in the Circuit Court 
 for the First Circuit, both as respects the general 
 principles which form the basis of these doctrines, 
 and as to the particular point adjudicated(a). In 
 the last of the cases here referred to, which was 
 
 (a) Andrews et cd. v. The Essex Fire and Marine Insurance 
 CoTKpany, 3 Mason's R., 6 ; Peele et al. v. The Merchants' Insurance 
 Company, id., 27 ; The Schooner Tilton, 5 Mason's K., 465 ; Hale et 
 al. V. The Washington Insurance Company, 2 Story's R., 176. 
 
22 admieaLty jurisdiction. 
 
 "^2L^ a libel on a policy of insurance, decided in 1842, 
 referring to the case of De Lovio v. Boite, as one 
 in which, nearly twenty-seven years before, he had 
 occasion to consider and to affirm the jurisdiction 
 of the district courts of the. United States, as 
 courts of admiralty, over policies of insurance, he 
 remarked, that "having not unfrequently been called 
 upon in the intermediate period to reexamine the 
 same subject, he deliberately adhered to the doc- 
 trine therein stated : that in the various discussions 
 which had. since taken place in his circuit and 
 elsewhere, he had found nothing to retract, and 
 nothing to qualify, in that opinion, in respect to the 
 true nature and extent of that jurisdiction, and its 
 importance to the commercial and maritime world : 
 that to no nation was it of more importance and 
 value to have it preserved in its full vigor and acti- 
 vity, than to America, as one of the best protections 
 to its maritime interests and enterprises : that it had 
 been his hope and expectation, many years ago, that 
 the jurisdiction of the admiralty over policies of 
 insurance would have been finally settled in the 
 Supreme Court of the United States, in a cause 
 from his circuit, which, however, went off without 
 a decision ; but that he had reason to believe that, 
 at that time, his learned brothers, Mr. Chief Justice 
 Mabshall and Mr. Justice WASHiNGHOiir, were 
 prepared to maintain the jurisdiction, and that he 
 had no reason to believe that a majority of the 
 other judges were opposed to it." 
 c^^oting But the opinions of Mr. Justice Stoet, with 
 opinioD.. respect to the scope of the admiralty jurisdiction of 
 
ADMIRALTY JUEI8DICTI0N. 23 
 
 the American courts, were warmly contested by ohap.i. 
 two of tis associates on the bench, of the Supreme 
 Court — by Mr. Justice Johnson, in a learned and 
 able opinion in the case of Ramsay v. Allgre{a) ; 
 and by Mr. Justice Baldwin, soon after he took 
 his seat upon the bench, in a tone of undoubting 
 confidence, in the case oi Bains v. Tlie Schooner 
 James and GaiherineQ)). It would be inconsistent 
 with the design of this brief summary, to enter into 
 a detailed examination of the grounds of these 
 conflicting opinions(c). 
 
 The question on which the controversy mainly 
 turns, is, whether or not in giving a practical con- 
 struction to the constitutional grant of jurisdiction 
 over all cases of admiralty and maritime jurisdiction, 
 the decisions of the English courts of common law, 
 since the statutes of Eichard II., constitute the test 
 by which the extent of the grant is to be deter- 
 mined. The doctrines of these decisions were 
 advanced and established during a protracted and 
 angry contest between the common law courts 
 and the Court of Admiralty, in which the former, 
 being armed with the power of issuing writs of pro- 
 hibition to the latter, of course, came off victorious. 
 Mr. Justice Stoey, and those who concur with him, 
 
 (a) 12 Wheaton's R., 611 (7 Curtis's Decis. S. C, 395). 
 
 (6) 1 Baldwin's R., 544. 
 
 (c) This subject is canvassed by Chancellor Kent, with his accus- 
 tomed ability and acuteness, in the third volume of his Commentaries, 
 3d edition, p. 364 et seq. See also Oonkling's Treatise on the organi- 
 zation, jurisdiction and practice of the Courts of the United States, 
 3d edition, p. 260 et seq., where the opposite views taken of the ques- 
 tion by Mr. Justice Story and Mr. Justice Johnson are summarily 
 stated. 
 
24 ADMIRALTY JURISDICTION, 
 
 voL^i. denied the authority of these decisions altogether; 
 while his opponents insisted that they were obliga- 
 tory upon us. The course of decision, not only in the 
 courts of the districts composing the First Circuit, 
 but in the Circuit Court for the Southern District of 
 New- York, in the Circuit Court for the Third Circuit 
 during the time of Mr. Justice Washington, and 
 in the district courts of the commercial districts of 
 Pennsylvania and Maryland during the times of 
 Judges Peters and Winchester, has been in accord- 
 ance with the views of the subject entertained by 
 Mr. Justice Story; while the elder Judge Hop- 
 KiNSON, and Judge Bee, took the opposite view. 
 In the Supreme Court of the United States, the 
 subject has been treated with great caution ; but I 
 am not aware of anything in its decisions thus far, 
 that conflicts with the doctrines held by Mr. 
 Justice Stoet. On the contrary, its decision in the 
 case of Peyroux v. Howard(a), and its language 
 in several other cases, are wholly at variance with 
 the opinions advanced by Mr. Justice Johnson and 
 contracte of Mr. Justico Baldwin(5). The precise question 
 
 marine inau- ii- -i ~.. 
 
 ranee. whether it extends to contracts oi marme msurance, 
 remains yet to be definitely settled by the Supreme 
 Court. But these contracts, relating, as they do, 
 
 (o) 7 Peters's K., 343 (10 Curtis's Decis. S. C, 506). 
 
 (6) In several more recent cases the authority of the decisions of 
 the English common law courts, as a criterion by which the limits of 
 the admiralty jurisdiction of the American courts are to be determined, 
 is unequivocally denied. See Waring v. Clarke, 5 Iloward's B., 441 
 (16 Curtis's Decis. S. C, 456) ; The Genesee Chief, 12 Howard's R., 
 443 (19 Curtis's Decis. S. C, 233) ; Fretzv. Bull, 12 Howard's R., 46 
 (19 Curtis's Decis. S. C, 249). 
 
ADMIRALTY JURISDICTION. 25 
 
 purely to maritime pursuits, and being eminently c'^^ i- 
 conducive, if, indeed, they are not to be regarded 
 as indispensable to the successful prosecution of 
 navigation and commerce, it is not easy to perceive 
 upon what ground they can consistently be excepted 
 from the principles already established by that court. 
 It is not to be diguised, however, that the preva- 
 lent sentiment of the legal profession seems to 
 be opposed to their subjection to the admiralty 
 jurisdiction. 
 
 Mr. Justice Stobt, in his Commentaries on the 
 Constitution, after adverting to the uncertain state 
 of the law touching the boundaries of the admiralty 
 jurisdiction, and disclaiming any design to go into a 
 consideration of the vexed questions affecting it, 
 proceeds to what he denominates " a brief view of 
 that which is admitted and indubitable" ; and he to what 
 
 7 matters of 
 
 enumerates the following as " among " the matters of admMty'"' 
 contract tailing witmn the admiralty jurisdiction ot extends, 
 the district courts : " The claims of material-men 
 and others for the repair and outfits of ships belong- 
 ing to foreign nations, or to other states^ ; bottomry 
 bonds for moneys lent to ships in foreign ports, to 
 relieve their distresses, and enable them to complete 
 their voyages" ; surveys of vessels damaged by perils 
 of the seas' ; pilotage on the high seas' ; and mari- 
 
 " • The St. Jago de Cuba, 9 Wheaton's R., 409, 416 ; The Aurora, 
 1 Wheaton's R., 106. 
 ' 7%e Aurora, 1 "Wheaton's R., 96. 
 ' JaTi/ney v. Tlie Columbian Insurance Company, 10 Wheaton's 
 
 R., 412, 415, 418. 
 ' The Ann, 1 Mason's R., 508. 
 
 4 
 
26 ADMIRALTY JURISDICTION. 
 
 TOL^i. jjgpgi cages'." To these it is deemed safe to add, 
 charter-parties and other contracts of affreightment, 
 contracts and quasi contracts respecting average con- 
 tributions, contracts for the conveyance of passengers 
 (''), agreements of consortship(^), wharfage(c'), and 
 tonnage. 
 
 There is also anether acknowledged branch of 
 admiralty jurisdiction, founded in a rule of national 
 comity. It is that of enforcing the judgments of 
 foreign courts, when the ends of justice require it ; 
 and it is held to be a good cause of reprisal for a 
 sovereign not to compel his courts to execute the 
 sentence of a foreign court, when the person or 
 goods sentenced are within his jurisdiction((i). 
 
 ' The Thomas Jefferson, 10 Wlieaton's B., 428." 
 (a) Tlie New Jersey Steam Nav. Co. v. The Merchants' Bank of 
 Boston, 6 Howard's B., 344 (16 Curtis'e Decis. S. C, 722) ; Rich ^ 
 Harris T. Lambert ^ Lambert, 12 id., 347 (19 Ourtis's Decis. S. C, 
 171) ; The New World, 16 Howard's B.,469 (21 Ourtis's Decis. S. C, 
 261) ; The Volunteer, 1 Sumner's B., 151 ; Certain Logs of Mahogany, 
 2 Sumner's B., 589; The Tribune, 3 Sumner's B., 144; The Cassius, 
 2 Story's B., 81 ; Freight and Cargo of The Spartan, Ware's B., 149 ; 
 The Reeside, 2 Sumner's B., 567 ; The Rebecca, Ware's B., 189 ; The 
 Phebe, id., 263 ; The Paragon, id., 322. 
 General The only suit in admiralty to enforce a claim for general average, 
 
 that appears to have been brought to the notice of the Supreme Court, 
 if it be not indeed the only one that has been instituted in an Ameri- 
 can court, is that of Cutler v. Roe, 7 Howard's B., 729. It was an 
 
 (6) Andrews v. Wall et al., 3 Howard's B. (15 Ourtis's Decis. S. C, 
 556). 
 
 (c) Ex parte Lewis, 2 Gallison's B., 483 ; The McDonongh, Gilpin's 
 R., 101 ; The Phebe, Ware's B., 354. 
 
 (d) 2 Bro. CiT. and Adm. Law; The Jerusalem, 2 Gallison's B., 
 191, 197. 
 
 average. 
 
ADMIRALTY JUKISDICTION. 27 
 
 Although, as we have seen, it is no longer neces ™f£; i- 
 sary, in order to render a contract, claim or service ^^^e« per- 
 cognizable in the admiralty, that it should relate to commfrco 
 transactions on the high seas or tide waters, it must "™- 
 
 action in personam by a ship-owner against the consignee of the cargo 
 which it was alleged had been saved from destruction by the volun- 
 tary stranding of the ship, and which, on its arrival in port, had been 
 delivered to the consignee. 
 
 The district court decreed the sum of $2,500 to the libelant, and 
 the decree was aflBrmed by the circuit court. On appeal to the 
 Supreme Court, however, the judgment was reversed for the want of 
 jurisdiction in the courts below. It was conceded that the admiralty 
 jurisdiction extends to cases where the vessel or cargo is subject to a 
 lien created by the maritime law ; and that where, as in the cases of 
 bottomry, salvage, seamen's wages and the claims of material-men, the 
 lien adheres to the property, it may be enforced in the admiralty, not 
 only by process in rem, but by a suit in personam, against the party 
 who holds the property or the proceeds, whoever he may be. In such 
 cases the maritime law attaches an absolute and unconditional lien 
 upon the property. • 
 
 But the lien of the party entitled to contribution by way of general 
 average was held not to be of this nature. The master has a right to 
 retain the goods until the general average with which they are 
 charged has been paid or secured. In exercising this right he must 
 be regarded as, in this respect, the agent of the party entitled, acting 
 for his security, and exerting his rights. But this right of retainer 
 conferred by the maritime law is a qualified lien, depending on the 
 possession of the goods by the master or ship-owner, and ceases when 
 they are delivered to the owner or consignee. 
 
 Whether by receiving the goods the consignee renders himself 
 liable in any form for the contribution, the court considered it unne- 
 cessary to decide ; for assuming that he stood in the place of the 
 owner, and was liable to the same extent, the opinion of the court was 
 that the case was not of admiralty jurisdiction. " The owner," say 
 the court, " is liable, because, at the time he receives the goods they 
 are bound to share the loss of other property by [the sacrifice of) 
 which they have been saved ; and he is not entitled to demand them 
 until the contribution has been paid. And as this lien is discharged 
 by the delivery, the law implies a promise that he will pay it. But it 
 
28 
 
 ADMIRALTY JURISDICTION. 
 
 TOL. 1. 
 
 appertain to tlie business of commerce and naviga- 
 tion ; and cases may arise in which the application 
 of this test would be attended with difficulty and 
 embarrassment. Such a case arose in the Eastern 
 
 ConTeyance 
 of pasBen- 
 gere. 
 
 Towage. 
 
 is not implied by the maritime law which gave the lien. It is implied 
 upon the principles of the common law courts, upon the ground that 
 in equity and good conscience he is bound to pay the money, and is 
 therefore presumed to have made the promise when he received the 
 goods." 
 
 From the admissions of the court that the admiralty jurisdiction 
 comprises all subsisting liens given by the maritime law, and that 
 such a lien attaches to goods in favor of the party entitled to contri- 
 bution, while they remain in the possession of the master, it would 
 seem to follow very clearly, that this lien might be enforced by a suit 
 in rem before the delivery of the goods to the owner. But, adverting 
 to this point, the court contented itself with observing that the question 
 did not arise in the case and that no opinion would therefore be 
 expressed upon it. 
 
 The court took occasion, also, to repel any inference that the admi- 
 ralty jurisdiction of the American courts -urns supposed to be restricted 
 to the subjects over which the English Court of Admiralty exercised 
 jurisdiction at the time our Constitution was adopted ; the reverse it 
 was observed, having " been repeatedly decided in this court." 
 
 What I have observed of general average, viz: that it does not 
 appear from the Reports of the Decisions of the Supreme Court, to 
 have given rise to more than one admiralty suit, is true also of con- 
 tracts for the conveyance of passengers. The case I refer to is that of 
 Tlu New World above cited. It was an action in rem by a passenger 
 on board a steamer from Sacramento to San Francisco, in California, to 
 recover compensation for injuries sustained from the explosion of her 
 boiler. No objection appears to have been made to the jurisdiction, 
 nor does there appear to be any foundation for such an objection 
 except the now exploded ground assumed by Mr. Justice Daniels in 
 his dissenting opinion, that the libel contained no allegation that the 
 cause of action " did not occur either infra corpus commiiatus nor 
 infra fauces terra." 
 
 For including the subject of towage among the subjects of admiralty 
 jurisdiction, no specific judicial authority, it will be observed, is cited. 
 
ADMIRALTY JURISDICTION. 29 
 
 District of Pennsylvania, before the late Judge °^^ ^' 
 HoPKiNSON, It was a suit in rem, for wages earned SSa tSboate 
 on board a boat employed in bringing wood for fuel petty tramc. 
 across the Delaware river to the city of Philadelphia, 
 from Cooper's creek in New Jersey, about ten miles 
 above the city. After adverting to the great and 
 increasing frequency of applications for admiralty 
 process to recover wages for services performed on 
 board the river craft, in which little regard was 
 paid " to the character of the use or employment of 
 the vessel * * * * the common river boats, 
 of every size, having become ships or vessels navi- 
 gating the high seas ; their daily trips from shore to 
 shore, voyages on the high seas ; and the loading and 
 unloading of wood and similar articles for the mar- 
 ket, brought from places within a few miles of the 
 city, for daily wages, being denominated marine 
 services or maritime contracts," the court, yielding 
 to what it considered the necessity of the case, 
 expressed a desire, if possible, to fix some principle 
 which might in future serve as a guide in that court 
 with respect to cases of the like nature with that 
 before it. The learned judge, however, frankly 
 acknowledged his inability to draw any line of dis- 
 tinction between cases which were, and those which 
 were not properly cognizable in the admiralty, so 
 definite and clear, as to remove all difficulty from the 
 subject. With respect to services rendered on the 
 
 The jurisdiction, however, results plainly from the. nature of the 
 service. The term itself fumishe sits own definition, and as the 
 subject does not appear to require further notice I do not propose to 
 revert to it. 
 
30 ADMIRALTY JURISDICTION. 
 
 Toi^i. ggg^^ extra fauces tsrrcB, there was little room for con- 
 troversy : tlie difficulty attending the subject related 
 to cases arising on inland tide waters. The general 
 rule, that the objects of the contract must be essen- 
 tially maritime, and must pertain to commerce and 
 navigation was indisputable : the difficulty lay in its 
 application. The cir0umstances of any given case, the 
 kind of vessel, the business she is engaged in, the 
 places between which she is navigated, may make it 
 apparent that it cannot be one for the cognizance of 
 the admiralty, and yet it might furnish no general 
 rule of exclusion. The jurisdiction did not depend 
 on the manner in which the vessel was equipped, 
 whether with or without masts and sails ; nor upon 
 the power by which she was propelled, whether by 
 sails, by oars or by steam. Steamboats, engaged in 
 trade or commerce, were clearly subject to the admi- 
 ralty jurisdiction ; and it had been held to extend 
 to lighters employed on tide waters, in the carriage 
 of goods to and from ships. On the other hand, 
 boats having masts and sails, might be clearly with- 
 out this jurisdiction. Ferry boats plying on tide 
 waters, and boats bringing fruit to market, for 
 example, were supposed to be of this character. 
 They could, in no proper sense, be said to perform 
 voyages on the high seas; nor could the persons 
 employed on board of them — frequently farmers 
 and gardeners from the field, or persons hired for 
 the occasion — be properly denominated mariners. 
 These terms, in their just sense, were inapplicable to 
 such petty domestic traffic. Under these views of 
 the subject, it is hardly necessary to add, the court 
 
ADMIRALTY JURISDICTION. 3] 
 
 was led to the conclusion that the case before it was oh_ap,i. 
 not within the scope of its admiralty jurisdiction. 
 
 The admiralty iurisdiction does not extend to Does not cx- 
 
 ^, , *J o IgQ J tQ mere 
 
 prelimmary contracts merely leading to the execu- ^^S^l^T^ 
 tion of maritime contracts. Thus, if there were a 
 contract to sign a shipping paper, or execute a bot- 
 tomry bond, and the party refused to perform "it, 
 the enforcement of such a contract would not belong 
 to the admiralty(a). And, upon this ground, a con- 
 tract between two persons, one of whom had char- 
 tered the vessel, whereby he was to act as master, 
 and the other as mate* of the vessel, and the two 
 were to share equally in the profits of the contem- 
 plated voyages, was held not to be within the 
 admiralty jurisdiction((^). But whatever may be 
 the particular name or character of the contract, if 
 it imports a maritime contract, that is sufficient to 
 bring the case within the admiralty jurisdiction. It 
 was held to attach, therefore, to a memorandum 
 of a contract contemplating the execution of a 
 more formal charter-party at another place, to which 
 the vessel was required to proceed by sea to com- 
 plete her cargo, before her final departure from the 
 United States ; the cargo for that part of the voyage 
 having been put on board, and the voyage having 
 then been voluntarily broken up by the claimants 
 (c). So, contracts to serve in fishing voyages, for a 
 share of the proceeds of the voyage, the stipulated 
 share being of the nature of wages, are within the 
 
 (a) nie Essex Fire ^ Marine Insurance Company, 3 Mason's R., 6. 
 
 (6) The Crusader, Ware's R., 437. 
 
 (c) The Schooner Tribune, 3 Smnner's R., 144. 
 
32 ADMIRALTY JURISDICTION. 
 
 voL^i. admiralty jurisdiction, notwitlistanding they consti- 
 tute a species of partnership (a). 
 
 II. Jurisdiction in cases of tokt. 
 £IS^°° '^^^ jurisdiction of the admiralty in cases of 
 tort, depends upon locality^ and " respects civil torts 
 and injuries done on, waters within the admiralty 
 jurisdiction of the courts of the United States, 
 comprising, according to a recent decision of the 
 Supreme Court, not only the ocean and tide waters, 
 but the lakes and all the great navigable rivers of 
 the United StatesC^')." 
 
 The following cases are enumerated by Mr. 
 Justice Stoey, as unquestionably falling within 
 this branch of jurisdiction, vi^ : Assaults, or other 
 personal injuries ; collisions ; spoliation and damage 
 (as they are technically called), such as illegal 
 seizures, or depredations on property ; illegal dis- 
 possession, or withholding possession from the owner 
 of ships, commonly called possessory suits ; cases of 
 seizure under municipal authority, for supposed 
 breaches of revenue or other prohibitory laws; and 
 cases of salvage (c). This enumeration, it will be 
 
 (a) Macomber v. Thompson, 1 Sumner's R., 384 ; The Crusader, 
 "Ware's R., 437, 440. 
 
 (6) 3 Story's Com. on the Const., 527, 530 ; The Genesee Chief, 
 12 Howard's R., 443 (19 Ourtis's Decis. S. 0., 233); Fretzr. Bull, 
 id., 466 (19 Curtis's Decis. S. 0., 249). 
 
 (c) 3 Story's Commentaries on the Constitution, 527, 530. 
 
 There can, it is supposed, be little room for doubt that the admiralty 
 jurisdiction of the courts of the United States, in cases both of con- 
 tract and of tort, wiU be firmly asserted and upheld, to the extent, at 
 least, indicated in the text. Indeed, with two or three exceptions 
 undeniably within the admiralty jurisdiction, all the specified subjects 
 
ADMIRALTY JURISDICTION. 33 
 
 seen, comprises every description of probable injury chap.i. 
 to person or property, whicb would constitute a fit 
 subject for private redress in a judicial tribunal. 
 Tlie admiralty jurisdiction in tbese cases, therefore, 
 may be said to depend purely upon tbe place where 
 the cause of action arises. In cases of contract, 
 although the jm-isdiction is said to result primarily 
 from the nature of the contract; yet as locality con- 
 are enumerated and expressly recognized as embraced within it, by 
 the Rules of Practice in admiralty and maritime cases recently adopted 
 by the Supreme Court of the United States. The enumeration 
 includes also the additional subjects of disputes concerning the title 
 to ships, suits for the adjustment of which are denominated petitory 
 suits (Appendix, Rule 20) ; and " suits against the ship or freight, 
 founded upon a mere marine hypothecation, either express or implied, 
 of the master, for moneys taken up in a foreign port for supplies or other 
 necessaries for the voyage, without any marine interest." (Appendix, 
 Rule 17.) 
 
 In hazarding the prediction that the admiralty jurisdiction of the 
 American courts will not, by any future decision of the Supreme 
 Court, be restricted to limits less ample than those above defined, I 
 desire, however, to be understood, touching matters of contract, to 
 refer more particularly to suits in rem. The proposition which Mrv 
 Justice Johnson, in his opinion in the case of Rainsey v. Mlegre, 
 labored most zealously to establish, was, that the admiralty has no 
 jurisdiction at all, purely m personam, in cases arising ex comtractu, 
 except in the single instance of seamen's wages ; and all the cases in 
 which the admiralty jurisdiction, to the extent I have indicated^ has 
 been maintained by the Supreme Court, were suits in rem; but a 
 coextensive jurisdiction inpersonam was incidentally distinctly asserted 
 by that court in the case of The General Smith (4 Wheaton, 438), 
 and is virtually declared in the new Rules. (See Appendix, Rules 12, 
 14, 17, 18.) [Since the first edition of this work, containing the 
 foregoing note, the distinction insisted on by Mr. Justice Johnson 
 has been distinctly repudiated by the Supreme Court. See The New 
 Jersey Steam Navigation Co. v. The Massachusetts Bank of Boston, 6 
 Howard's R., 344 (16 Curtis's Decis. S. C, 922); and infra con- 
 tracts OF AFFREIGHTMENT.] 
 
34 ADMIEALTT JtJEISDICTION. 
 
 TOL^i. gtitutes one of tlie essential elements of this species 
 of contract, the jurisdiction may also be said, to that 
 extent, to depend upon locality. The required 
 localities, in each of the two classes of cases, are 
 the same, 
 ofcontiover- Considering the extent of , our commercial inter- 
 Sli^'^r" course with other nations, and the number of foreign 
 vessels which annually visit our ports, it becomes 
 important to inquire, to what extent foreigners, 
 transiently here, are entitled to seek redress on the 
 instance side of the American courts of admiralty. 
 
 In the High Court of Admiralty of England, this 
 branch of jurisdiction seems to have been the 
 subject of considerable doubt and difficulty. The 
 earliest and most important reported case on this 
 subject was decided by Sir William Scott in 1Y99, 
 the next year after that great judge took his seat in 
 In oases of the court(a). It was a suit for salvage against an 
 
 salvage. , 
 
 American ship and cargo, rescued by her crew from 
 French captors, and carried into an English port. 
 The crew was composed chiefly of Americans, who 
 were not parties to the suit, they having been 
 referred, by the American ministers, to the courts 
 of their own country. The rest of the crew were 
 British subjects, and it was by them that the suit 
 was instituted. The jurisdiction of the court was 
 contested on account of the foreign character of the 
 vessel ; and also on the ground that the libellants, 
 although in fact British subjects, were, as it was 
 insisted, nevertheless to be regarded, in that suit, as 
 
 (a) The Two Friends, 1 Robinson's E., 271. 
 
ADMIRALTY JURISDICTION. 35 
 
 Americans, by reason of their having enrolled them- ^^^ i- 
 selves, in the United States, as a part of the crew of 
 the American vessel, on board of which the salvage 
 services had been rendered. 
 
 Sir William Scott, after laying down the prin- 
 ciple "that every person assisting in rescue has a lien 
 on the thing saved," is reported to have expressed 
 himself as follows: "Then where is this lien to 
 be demanded? It should seem that that was an 
 unnecessary question to be proposed, when the goods 
 were admitted to be in England ; but, strange as it 
 may appear, it is argued that this claim is to be 
 enforced in America, because the ship is an American 
 ship, and the parties are American sailors." Having 
 shown that the libellants were to be considered as 
 British subjects, and that the objection that they 
 were to be regarded as American seamen was un- 
 founded in fact, he deemed it unnecessary to answer 
 the question, whether, if the libellants were Ameri- 
 can seamen, the court would hold plea of their 
 demands. But he significantly added, " In the mean 
 time I will say, without scruple, that I can see no 
 inconvenience that would arise, if a British court of 
 justice was to hold plea in such a case; or, conversely, 
 if American courts were to hold pleas of this nature 
 respecting the merits of British seamen on such occa- 
 sions : for salvage is a question of the jus gentium, 
 and materially different from the question of a 
 mariner's contract, which is a creature of the pecu- 
 liar institutions of each country, to be applied, and 
 construed, and explained^ by its own particular 
 rules. There might be good reason, therefore, for 
 
36 ADMIRALTY JUEISDICTION. 
 
 voL^i. this court to decline to interfere in such, cases, and 
 to remit ttem to their own domestic forum: but 
 this is a general claim upon the ground of quantum 
 meruit^ to be governed by a sound discretion, acting 
 on general principles ; and I can see no reason why 
 one country should be afraid to trust to the equity 
 of the courts of another on such a question, of such 
 a nature, to be so determined." 
 
 After noticing and answering the further objec- 
 tion which had been urged at the bar, that different 
 rules relative to the amount of distribution of salvage 
 might prevail in different countries, he summed up 
 the matter thus: "These considerations, therefore, 
 found no solid objections against the exercise of the 
 jurisdiction ; but I go farther, and say, that I think 
 there is great reason for it, because it is the only 
 way of enforcing the best security — that of the 
 lien on the property itself. Between parties who 
 were all Americans, if there was the slightest dis- 
 inclination to submit to the jurisdiction of this court, 
 I should certainly not incline to interfere ; for this 
 court is not hungry after jurisdiction, where the 
 exercise of it is not felt to be beneficial to the par- 
 ties between whom it is to operate. At the same 
 time, I desire to be understood to deliver no decided 
 opinion whether American seamen, rescuing an 
 American ship and cargo brought into this country, 
 might not maintain an action in rem in this court 
 of the law of nations;. but if there was British 
 property on board, and American seamen were to 
 proceed here against that, I should think it a crimi- 
 nal desertion of my duty did I not support their 
 
ADMIRALTY JURISDICTION. 37 
 
 claim. In the present case, no American seaman ™^-^- 
 has appeared ; lior is it proved that there was any 
 British property on board. But as to these British 
 seamen, holding no connection with America(a), and 
 having rescued foreign property, I have no doubt 
 that they are entitled to have their services rewarded 
 here ; for it would be a mere mockery, and derision 
 of their claims, to send them back to America, to 
 hunt out their redress against each individual owner 
 of separate bales of goods : it were better to inform 
 them that they were entitled to nothing, than to 
 remit them on such a wild pursuit. I should there- 
 fore think it a reproach to the courts of this country, 
 if they were not open to lend their assistance in 
 such a case," 
 
 Although the only question directly involved in 
 this case, was, whether the court would entertain 
 an action in rem, in behalf of British seamen, for 
 remuneration as salvors of a foreign ship and cargo 
 when brought into an English port, I have quoted 
 thus liberally from Lord Sto well's judgment, 
 because m the extracts which I have, given, he has 
 shadowed forth the leading principles by which that 
 court has since professed to be governed, not only 
 during his illustrious presidency of thirty years, but 
 to the present time. 
 
 He recognizes a distinction, it will be observed, 
 between cases resting upon the general ground of 
 quantum meruit, depending on the principles of the 
 
 (a) They had shipped on board The Two Fronds, for the purpose 
 of returning to their own country, without any engagement to serve 
 on the return voyage. 
 
38 ADMIRALTY JURISDICTION. 
 
 voL^i. general maritime law, and whicli therefore form a 
 part of the jus gentium ; and casgs depending on 
 the laws of the particular country to which the 
 parties belong. It is clear, also, that in cases of the 
 former description, he did not consider the nation- 
 ality of the libellants, any more than he did that 
 of the vessel, essential to the jurisdiction of the 
 Suite court. Accordingly, he did not afterwards scruple 
 
 between a J i ^ J- 
 
 ontlKry to take cognizance of suits in behalf of foreigners, 
 talSedinthe affaiust foreisTU ships, on bottomry bonds; these 
 
 English ad- ° . . . 
 
 miraiiy. being iustrumcnts in familiar use by all commercial 
 nations, and deriving their validity and effect from 
 the general maritime law(a). 
 
 fori^g^^sea- ^otA. Stowell Subsequently 'declined to entertain 
 
 wlges'^'not suits for wasTcs by foreign seamen, without the con- 
 entertained O ./ O ' ^ 
 
 TOnsentof* ^^^^ ^f thc mlulster or other accredited resident 
 
 the resident j.j_» j?j1' i j_t 
 
 minister of representative oi their country ; except where, 
 from the nature of the case, no such consent could 
 be obtained, and where the seamen would otherwise 
 be left without the means of redress. In a case 
 which arose not long afterwards, of a suit bj; Ameri- 
 can seamen, for wages, and for the three months' 
 extra pay to which they were entitled by an act of 
 Congress, on being discharged in a foreign port, he 
 said it was the first case of the kind which had been 
 brought to the notice of the court, and he certainly 
 felt great difficulty respecting the propriety of enter- 
 taining it. " "We know," he proceeded to remark, 
 " the language which has been occasionally held in the 
 courts of common law, with respect to the jurisdic- 
 
 (a) The Gratitudine, 3 Robinson's R., 240 ; The Jacobj 4 Robinson's 
 R., 245 ; The Madonna DUra, 1 Dodson's R., 37. 
 
 their country 
 
ADMIRALTY JUEISDICTION. 39 
 
 tion. wliic]! this court exercises in cases of mariners' ohap.i. 
 wages. Suits for wages due to mariners of our own 
 country, have been said to be entertained by the 
 Court of Admiralty, more from a kind toleration 
 founded upon the general convenience of the prac- 
 tice, than by any direct jurisdiction properly belong- 
 ing to it, although the exercise of such jurisdiction 
 has existed from the first establishment of such 
 court. In various instances, in order to prevent a 
 failure of justice, this court has gone a step further, 
 and as wages are due by the general maritime law, 
 however modified by the particular regulations of 
 different countries, it has, with the consent of the 
 accredited agent of their own government, enter- 
 tained proceedings for wages, at the suit of foreign 
 seamen, against foreign vessels in which they 
 served, such vessels being in the ports of this king- 
 dom. But here the other part of the claim does 
 not arise out of the general maritime law, but merely 
 out of a municipal law of the United States ; and 
 I should find great difficulty in considering this 
 recital of the act of Congress as any part of the con- 
 tract, as it is only printed on the back of the instru- 
 ment, and is not at all referred to therein." Time 
 having been taken for further consideration, on a 
 subsequent day. Lord Stowell observed: "With 
 respect to the wages, I am so far willing to enter- 
 tain the suit, with the consent of the representative 
 of the United States ; but I do not think I have 
 jurisdiction to enforce a municipal regulation of that 
 country : had I that power, I should be glad to do 
 it in the present instance ; but I think the probable 
 
40 ADMIRALTY JURISDICTION. 
 
 voL^i. QfiQQi of this court entertaining it in its present form, 
 would be a prohibition. At the same time, it 
 appears to me, that if the regulation were embodied 
 in the contract, so as to compose a part of it, the 
 court might be empowered, in that case, to carry it 
 into full effect as an article of the contract between 
 the parties (a)." 
 
 In the Vrow Mina(b), a suit for wages was allowed 
 
 to be maintained against a Dutch ship which had 
 
 come to England under a British license, Englamd 
 
 unless in aud Hollaud then being at war. "The court," said 
 
 cases where ^ ' 
 
 onhe°mfniL Lord Stowell, however, " is extremely shy, of in- 
 possibiy be terfcring in cases of this kind, where foreigners only 
 are concerned, without the consent of the repre- 
 sentative of the nation to which the parties belong." 
 He was of opinion, nevertheless, that he ought to 
 exercise jurisdiction in the case, because it was 
 " impossible that any sach consent should be obtain- 
 ed ; the ship being an enemy's ship, coming to the 
 ports of this country under a license obtained for 
 that purpose from the British government." 
 
 The same principle was applied in the case of the 
 Maria Theresa^ an American vessel (c) ; the court 
 remarking that the crew could " get no redress in 
 an American court of justice," because " the whole 
 transaction was illegal by the laws of that country." 
 In the case of a Greek ship ((f) which had been 
 libelled in England on a bottomry bond, the crew 
 were permitted, under the circumstances, to inter- 
 vene for wages and maintenance. A memorial in 
 
 (a) The Courtney, Edwards's R., 239. 
 
 (6) 1 Dodson's R., 234. (c) 1. Dodson's R., 303. 
 
 (d) Ths Madonna D'Ira, 1 Dodson's R., 37. 
 
ADMIRALTY JURISDICTION. 41 
 
 their betalf tad been presented to one of the secre- ™f£: ^• 
 taries of state, stating that they had been defrauded 
 by the captain of their wages, and left destitute ; 
 and the King's proctor had been directed to take 
 such steps as might be requisite to recover their 
 wages. Directions had also been given for the support 
 of the crew in the meantime, and for afterwards 
 sending them back to their own country. The 
 court, regarding them as "in an eminent degree 
 inopes consilii," said, it " would to such suitors give 
 every relief in its power, by departing from forms, 
 as far as is consistent with the justice due to others, 
 especially when the Crown has interfered for the 
 protection of the parties." With respect to the claim 
 for subsistence, no express provision for it being 
 contained in the seamen's contract, the court received 
 the oath of the Consul-General of the Sublime 
 Porte, resident in Great Britain — who had himself 
 been twenty years captain of an Ottoman vessel — as 
 to the customary regulations of Turkey on the sub- 
 ject ; and the demand appearing to be in accordance 
 therewith, it was decreed accordingly. 
 
 Causes of possession between foreign part-owners, jurisdiction 
 
 ^ ^ of con trover- 
 
 have been considered, in the English admiralty, to ^art-^o^e™ 
 
 rest on the same footing, in respect to jurisdiction, subjectto 
 
 mi 1 f 1 the like con- 
 
 as smts for wages. The general usage of that court 'i'"o°8. 
 
 accordingly is, to decline all interference in such 
 
 cases. Lord Sto WELL therefore refused to entertain 
 
 a cause of possession, at the suit of the owners of 
 
 jSffceen sixteenth shares of a Hamburgh ship. " If 
 
 this," said he, " were a British ship, there can be no 
 
 doubt that by the practice of the court, it WQuld, 
 
 6 
 
42 ADMIRALTY JURISDICTION. 
 
 voL^i. upQjj jTj^Q application of a majority of the parties 
 interested, proceed to dispossess the master, though a 
 part-owner, without minutely, considering the merits 
 or demerits of his conduct ; buti know of no instance 
 in which the Court of Admiralty has entertained 
 a suit of this nature, in the case of a foreign ship. 
 The court, with the consent of the parties, and of 
 the accredited agent of the country to which they 
 belong, certainly does hold plea of causes between 
 foreigners, arising on the jus gentium ; but this, I 
 think, is a case which cannot be so considered, 
 because, whatever may have been the general rule 
 under the old civil law in cases of possession, it has 
 been variously modified by the municipal law of 
 different countries ; and, therefore, by entertaining 
 this suit, I might deprive the parties of those rights 
 to which they are entitled by the law of their own 
 tountry, as administered in those courts to which 
 they are directly and properly amenable(a)." 
 
 In a subsequent case, the same doctrine was reite- 
 rated: but the master, who was the owner of 'a 
 small share of the ship, having detained her five 
 years in foreign ports, and refusing still to return to 
 his own country, to abide the decision of the court 
 of admiralty there ; and that court having, in the 
 mean time, made a decree directing the master to 
 deliver up the ship — this decree was deemed 
 equivalent to the consent of the foreign government, 
 and the jurisdiction was maintained (5). 
 
 (a) The Johan and Sigmund, Edwards's B., 242. 
 (6) The See Renter, 1 Dodson's R., 22. See also The_ Martin of 
 Norfolk, 4 Robinson's R., 298. 
 
ADMIRALTY JURISDICTION. 43 
 
 As far as any judgment can be formed from the °^^- *• 
 meagre reports we have of the early decisions of « 
 
 the district courts of the United States, little or 
 no distinction seems to have been originally made 
 in respect to jurisdiction, between eases in which 
 foreigners were alone concerned, and those in which 
 our own citizens were interested. In a suitfor wages 
 by British seamen against a British ship "^vrhich 
 came before the District Court of the United States, 
 for the District of South Carolina, in 1798, a plea 
 to the jurisdiction of the court was overruled, the 
 judge declaring it to be "the daily practice of our 
 courts, as well as those of England^'' to entertain suits 
 for mariners' wages, both being guided by the lex 
 loci, and regulating their proceedings accordingly, 
 and there being in his opinion no solid ground 
 for any distinction, in this respect, between such 
 cases and those of bottomry and hypothecation, in 
 which, he said, the jurisdiction seemed to be con- 
 ceded(a). But in two similar cases which came before 
 the same court in 1805, the earlier of the above 
 cited decisions of Lord Stowell having in the mean 
 time been pronounced and become known in this 
 country, the same able and upright judge deemed 
 it to be his duty to reexamine and reconsider the 
 question of his jurisdiction touching suits between 
 foreigners ; and his conclusion was " that this court 
 should be very cautious in exercisuig jurisdiction as 
 to foreigners, unless under peculiar circumstances," 
 and he accordingly declined its exercise in the cases 
 
 (a) The BeUona, Bee's K., 112, 114. See also The Aurora, ib^ 161. 
 
Jermalem. 
 
 44 ADMIRALTY JURISDICTION. 
 
 TOTj^i. "before Mm ; desiring, however, " not to be under- 
 stood as relinquishing jurisdiction where it may 
 appear proper and necessary to prevent a failure 
 of justice(a). 
 
 In the District Court for the Pennsylvania Dis- 
 trict, the course of decision appears to have heen 
 substantially the 8ame(3). 
 pinion of Undferthis state of thq| authorities upon the sub- 
 ^™"m? J6ct, the case of The J&rumlem{6) came before the 
 Circuit Court for the District of Massachusetts. It 
 was a suit on a bottomry bond executed at Smyrna; 
 the ship was a Greek vessel, and the parties were 
 subjects of the Ottoman Porte. The master, himself 
 a part-owner, appeared as claimant, under protest 
 to the jurisdiction of the court, setting forth the 
 alienage of the parties. The question of jurisdiction 
 was fully discussed at the bar, and Mr. Justice Story 
 applied himself to its examination with his accus- 
 tomed ardor and ability. Leaving out of view certaia 
 particular features of the case tending to narrow the 
 discussion, he stated the question to be, " Whether 
 the courts of the United States, in the exercise of 
 their authority over causes of admiralty and mari- 
 time jurisdiction, have cognizance of maritime suits 
 in rem between foreigners, whose permanent domi- 
 cile is in a foreign country, when the specific pro- 
 perty is within our territory ?" His conclusion was 
 
 (a) Thompsm v. The Nancy, Bee's E., 217. 
 
 (6) i'fleMreMa;,2Peters's Ad.Decis., 415; TheCatharina,! Peters's 
 Ad. Decis., 104 ; The St. Orlqf, 2 Peters's Ad. Decis., 428 ; Ike 
 Forsoket, 1 Peters's Ad. Decis., 197. 
 
 (c) 2 GaUison's E., 191. 
 
ADMIRALTY JURISDICTION. 45 
 
 that the jurisdiction was unquestionable. The admi- chap. i. 
 ralty was the only tribunal capable of enforcing a tiononiie°' 
 specific performance in rem, by seizing into its cus- "^^^^^^ 
 tody the very subject of hypothecation. The com- t/nd totSts 
 mercial world look to it for security and redress 5 ^^f'?|^°„. 
 and a jurisdiction so ancient and beneficial, which 
 exercises its powers according to the law of nations, 
 and those rules and maxims of civil right which 
 may be said to form the basis of* the institutions of 
 Europe, ought not to be restrained within narrow 
 bounds, unless authority or public policy distinctly 
 requires it. However the case may be as to remit- 
 ting the defendant to his domestic forum in personal 
 controversies, it is very clearly settled, that in pro- The proper 
 
 , r>i''T-i torum in 
 
 ceedmgs tn rem, or the real actions of the civil law, i^^foo^^J,^ 
 the proper forum is the locus rei sitoe. Mr. Justice **"^" 
 Story was of opinion, therefore, that with reference 
 to what may be deemed the public law of Europe, 
 a proceeding in rem may well be sustained in our 
 courts, where the property of a foreigner is within 
 our jurisdiction. Nor was he able to perceive how 
 the exercise of such a judicial authority clashes with 
 any principles of public policy. On the contrary, 
 he thought the refusal might well be deemed a dis- 
 regard of national comity, inasmuch as it would be 
 withholding from a party the only effectual means 
 of obtaining his right. 
 
 As to the inconvenience which it had been sup- 
 posed might result from the existence, among the 
 different commercial nations, of discordant regula- 
 tions relative to maritime contracts, he thought it 
 had been overrated. These contracts in general are 
 
voyage is not 
 
 terminated. 
 
 46 ADMIEALTY JUKISDICTION. 
 
 TOL^i. substantially governed, in almost all civilized coun- 
 tries, by tbe same rules. Almost all Europe have 
 derived their maritime codes from the Mediterra- 
 nean ; and even in this country, we take pride in 
 conforming our decisions to the rules of the 
 venerable conaolato del mare. 
 Sifof With respect to*the contracts of seamen for 
 
 men^'or'^ WRges, it was true, that where the voyage has not 
 where the terminated, or the 'seamen have bound themselves to 
 abide by the decisions of the tribunals of their own 
 country, foreign courts have declined any interfer- 
 ence, and remitted the parties to their own tribu- 
 nals for redress. But where the contract has been 
 dissolved by the regular termination of the voyage, 
 or by the wrongful act of the other party, the cases 
 are not unfrequent, in which foreign courts have 
 sustained the claim for mariners' wages. 
 
 The jurisdiction of the admiralty, in matters of 
 contract, depends not on the character of the parties, 
 but on that of the contract, whether maritime or 
 not. When, therefore, its jurisdiction once attaches 
 on the subject matter, it will exercise it conformably 
 with the law of nations, or with the lex loci contrac- 
 tus^ as the case may require. 
 
 Upon the whole, the opinion of Mr. Justice Stoet 
 was, that the rule of the civil law, in actionihis in 
 rem speciale forum trihuit locus in quo res sitcB sunt, 
 is applicable to maritime contracts. 
 
 The same doctrine was held, in a much more 
 recent case, after a thorough examination of the 
 question, by the learned and able judge of the 
 
ADMIEALTY JURISDICTIOlSr. 47 
 
 District Court of Maine(a). His opinion was, tliat '^^ ^■ 
 it might safely be assumed, on the ground both of 
 principle and authority, that the alienage of the 
 parties formed no impediment to the jurisdiction of 
 a court of admiralty over maritime contracts ; and 
 that the court in which the thing is situated was 
 the proper forum for the prosecution of a suit in 
 rem, though all the parties are foreigners. 
 
 The result, therefore, of the American authorities 
 seems to be, that though the admiralty courts of this 
 country are not bound to take jurisdiction of contro- 
 versies growing out of maritime contracts, between 
 foreigners having no domicile in this country, as 
 they are when the parties are citizens or resident 
 here, yet that they may lawfully exercise it, and 
 ought to do so in obedience to the demands of 
 justice (5). 
 
 (o) The Bee, Ware's R., 332. 
 
 (6) Had Lord Stowell felt himself at liberty freely to consult his 
 own liberal and enlightened judgment, and to follow its dictates, on 
 this subject, there is good reason to believe that such would also have 
 been his conclusion concerning his own powers and duty; but the 
 court in which he presided, had, for a century and a half, been so 
 trammeled by the arbitrary distinctions and narrow rules imposed 
 upon it by the jealousy of the common law courts, as scarcely to be 
 left at liberty, in deciding questions afiecting the limits of its jurisdic- 
 tion, to look for guidance to those comprehensive principles of justice 
 and expediency which alone could enable it to place the subject on a 
 rational and intelligible basis. By a late act of Parliament, entitled 
 " An act to improve the practice and extend the jurisdiction of the 
 High Court of Admiralty of England " (3 & 4 Victoria, chap. 65), that 
 court is at length relieved, to a considerable extent, from the ^hackles 
 by which its efficiency and usefulness had so long been impeded. 
 
48 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 Of the rights of third persons, not entitled to appear as 
 claimants in a suit in rem, to intervene therein, pendente 
 lite, por the protection of their interests ; or, after 
 condemnation and sale, to demand payment out of surplus 
 proceeds in court. 
 
 The subjects above indicated are of great practical 
 importance, and if they do not strictly pertain to the 
 head of jurisdiction, they are so nearly allied to it 
 as to be fit subjects for consideration in this place. 
 Their importance arises from the nature of a suit in 
 tern, in which the thing proceeded against — usually 
 a ship and her appurtenances — is, at the outset, 
 arrested and held, under the process of the court, 
 for the purpose of being eventually sold, if necessary, 
 to satisfy the demand of the libellant. But it is a 
 principle of this form of action, that (as it is usually 
 expressed) all the world are parties to it, and, as a 
 legal consequence, that all the world are bound by 
 the decree. The effect of the sale, therefore, is to 
 invest the purchaser with an indefeasible title to the 
 property, discharged of all further Hability for. the 
 debts of the owner, even though they were liens 
 thereon. And when a balance remains, after paying 
 the debtor damages awarded to the libellant, as there 
 often does, and sometimes of large amount, unless 
 some other claim to it is interposed, which the court 
 is permitted to recognize as superior to that of the 
 owneu, it is a matter of course at once to direct its 
 payment to him. The demand of the libellant, 
 moreover, though ostensibly just, may, for some 
 
ADMIRALTY JURISDICTION. 49 
 
 reason susceptible of proof, be in reality, invalid, chap. i. 
 and yet the owner may not choose to appear and 
 contest it. The extent and nature of the right 
 of intervention belonging to third persons, whose 
 interests may be injuriously affected by the pro- 
 ceeding, becomes, therefore, an interesting subject 
 of inquiry. 
 
 In the judicial discussions to which it has given 
 rise, the two rights under consideration, as from 
 their close relationship might have been expected, 
 are sometimes so blended and interwoven, not to 
 say confounded, as to render it somewhat difficult, 
 in the brief survey which I propose to take of them, 
 to keep them altogether distinct. 
 
 The right to sue against surplus proceeds is that Paymentout 
 
 o o XT X ofsarpluB 
 
 which has most frequently been the subject of con- p""'"'^- 
 troversy, and that with regard to which the law 
 may at length be considered as most clearly ascer- 
 tained. In the English High Court of Admiralty its 
 agitation has been attended with an extraordinary 
 degree of perplexity, and the course of decision 
 concerning it has been vacillating and inconsistent. 
 There are two general principles pertaining to it, 
 however, about which there has been no serious 
 controversy. On the one hand it seems never to q„f"™;bi« 
 have been doubted that a lien conferred hy the tSf^possf.. 
 
 , , ' sorofamari- 
 
 maritime law entitled its possessor to payment. A «meiien. 
 mariner to whom wages were due, or a salvor, for 
 example, was always permitted to sue against the 
 proceeds of the ship arising from its sale in a suit on 
 a bottomry bond. The justice of such a practice 
 being unquestionable, its admissibility was considered 
 1 
 
50 ADMIRALTY JURISDICTION. 
 
 voL^i. tQ -(je but a question of jurisdiction ; and it being a 
 part of tlie especial business of the court to enter- 
 tain original suits founded on maritime liens, the 
 authority thus collaterally to take cognizance of 
 such liens was supposed to be incidental and was 
 Does not accordinfflv exercised without scruple. And on the 
 
 belong to ° •' ■"• 
 
 crISf other hand, it has never been supposed that the court 
 could exercise jurisdiction in this form in favor of a 
 mere general creditor. 
 
 But until within the last few years everything 
 relating to this branch of the admiralty jurisdic- 
 tion, not embraced by these two general principles, 
 
 Material, remained unsettled. The subiect with regard to 
 
 men. «* ^ 
 
 which it was most frequently drawn into discussion 
 is that of the claims of material-men. It is true 
 the law of England, as expounded by the com- 
 mon law courts, denied to the material-man the 
 lien given by the general maritime law as under- 
 stood and administered on the continent of Europe, 
 and therefore, strictly speaking, the material-man 
 should at dnce have been placed by the English 
 Court of Admiralty on the same footing, in this 
 respect, with other general creditors. But although 
 it was debarred from entertaining suits instituted 
 by material-men, the court seems to have regarded 
 the restraint as unjust to this class of creditors, 
 and never having been expressly prohibited from 
 taking cognizance of their claims in this form, in 
 Claims of, the case of a foreign ship, the court, in several 
 
 how treated , 0x7 i 
 
 in England, instauces, allowcd them, under favorable circum- 
 stances, to sue against surplus proceeds; while in 
 others, not essentially different, it denied them this 
 
ADMIEALTY JURISDICTION. 51 
 
 privilege. In several earlier cases mentioned by °°^- ^• 
 Dr. Haggaed in a note to the 3d volume of liis 
 Admiralty Reports, tlie court had decreed payment 
 of this species of claims. But the first fully reported ^'* ■^''*"' 
 case of this nature is that of The John, decided by 
 Sir WixLiAM Scott about the commencement of the 
 present century. The John was an American ship, 
 and while lying in the Thames had obtained from 
 a mercantile house in London, supplies of which she 
 stood in need, for a voyage to Venice. On her 
 return to London the next year, proceedings were 
 instituted against her in the Court of Admiralty by 
 the crew for wages ; the master having in the mean- 
 time died, and the owner, residing in Philadelphia, 
 having become bankrupt. A surplus remaining 
 in court after the sale of the ship under decrees 
 in the suits for wages, the merchants by whom 
 the supplies had been furnished petitioned for 
 payment out of such surplus ; and Sir "William 
 Scott, after having "had the cases on this point 
 looked up," directed the payment. But another 
 application of a like nature, in the same case by 
 another London merchant, was rejected. He had, 
 as ship's agent, advanced money to defray the 
 expenses of the outfit and insurance of the ship 
 preparatory to her voyage to Venice, and had made 
 various advances and disbursements on her account 
 after her return to London. The facts and circum- 
 stances of the case were detailed in an affidavit; 
 and "The courtj on hearing the affidavit read, 
 rejected the petition ; observing, that the account 
 
52 ADMIRALTY JUEISDICTION. 
 
 voL^i. Y(rag of too general and unsettled a nature to entitle 
 
 the party to this remedy (a)." 
 Ma^nd. ^^ another case decided by the immediate successor 
 of Lord Stowell, the application of material-men 
 for payment out of surplus proceeds was peremp- 
 torily denied. The application in that case was 
 opposed by the owners ; and Sir Cheistopher 
 RoBiNaoN said that in the case of The John, there 
 was no opposition, and no argument, and the effect 
 of the former practice was stated only in general 
 terms. The authorities referred to related, moreover, 
 he observed, only to proceeds remaining in the 
 registry — an ambiguous term, which seemed rather 
 to apply to cases where no appearance had been 
 given for the owner, than to cases in opposition to 
 their claims, as in such cases the proceeds can hardly 
 be said to be remaining in the registry, being 
 detained there only by the warrant of the court, 
 and adversely to the demand of the owner. And 
 there did not, he added, "seem to be any solid 
 distinction between original suits, and suits against 
 proceeds, in cases that are opposed ; whereas in 
 cases unopposed, the exercise of a judicial discretion 
 by the court in permitting bills of this kind to be 
 paid out of unclaimed proceeds, instead of being 
 indefinitely impounded, may be a sound discretion 
 and capable of being justified to that extent, 
 notwithstanding the general prohibition(5)." 
 
 In another case, occurring not long afterwards. 
 Sir John Nicholl, who succeeded Sir Cheistophbk 
 
 (o) The John, 3 Kobinson's Adm. R., 288. 
 (6) The Maitla7ul,2 Haggard's R., 255. 
 
 Tht 
 Neptnme, 
 
ADMIRALTY JURISDICTION. 53 
 
 KiOBiNSOiir, in a very elaborate judgment, pronounced *'^i£: ^• 
 for the claim, of material-men, although it was oppo- 
 sed by the mortgagee of the ship " in possession." 
 " If the owner," he observed, " has not usually 
 appeared, the only legitimate inference is, that the 
 law in favor of the claim of the material-men has 
 been considered to be settled, and that their claim 
 was just ; otherwise, no doubt, prohibitions would 
 have been applied for, or appeals interposed." 
 Considering the views taken of the subject by the 
 predecessors of Sir John Nicholl, this language 
 seems somewhat remarkable ; but the declaration 
 with which he concluded his decision will, I think, 
 appear to the learned reader not less so. It is as 
 follows : " This long practice, founded on principle ; 
 on the law, civil and maritime ; on the usage of 
 other nations ; on the ancient practice of this court, 
 unchecked by prohibitions, except in the case of 
 proceedings against the ship itself — this practice, so 
 founded and so allowed to grow up, I shall not 
 disturb(a)." 
 
 This case led to the final iudicial determination of Decision in 
 
 *' favor of ma» 
 
 the question in England, adversely to the material- JItIJ;™" 
 men ; for, on appeal by the mortgagee to the Privy 
 Council, the decree of the High Court of Admiralty 
 was reversed by the unanimous decision of the 
 judicial committee, who were of opinion that the 
 appellant, as mortgagee in actual possession at the 
 time of the arrest of the ship (for wages), was 
 entitled to the balance of the proceeds. It had bm 
 been argued, or rather assumed, by the advocate of *"'"■ 
 
 (a) The Neptune, 3 Haggard's R., 129. 
 
 neyer 
 to have had 
 
54 ADMIEALTY JUEISDICTION. 
 
 TOL^i. tJie respondents, that prior to the reign of Charles 
 II., a lien on the ship had been conceded to the 
 material-men, in virtue of which he was entitled to 
 sue in the admiralty court ; and, indeed, this impres- 
 sion seems to have been long prevalent in that court ; 
 but the judicial committee declared the assumption 
 to be wholly groundless. " No authority," they 
 said, "but that of the Legislature, could alter the 
 law, or destroy the existing rights of the material- 
 men by taking away their remedy. But the 
 common law courts assumed no such power ; they 
 did not aiffect to alter the law, or control the exercise 
 of acknowledged rights, but they declared that the 
 maritime courts had erroneously applied the doctrine 
 of foreign maritime law to contracts made in this 
 country, and denying that material-men ever had, 
 by the English maritime law, in respect of such 
 contracts, any lien upon the ship, or any preference 
 over simple contract creditors, they prohibited those 
 proceedings which could only be justified by the 
 existence of such a lien (a)." 
 Ship-master For the Same reason that excluded material-men 
 
 excladed. 
 
 from payment out of surplus proceeds in England, 
 ship-masters to whom wages are due, are also 
 excluded, no lien on the ship being conferred upon 
 them by the maritime law. It seems, however, that 
 before the time of Sir William Scott, this privilege 
 had in some instances been allowed to the master(J). 
 
 (a) The Neptune, 3 Knap's P. C. Cases, 94. 
 (6) The Favorite, 2 Robinson's Adm. R., 232. 
 On the death of the master during the voyage, his office devolves 
 on the mate. But although the mate has a lien on the ship for his 
 
ADMIRALTY JURISDICTIOlSr. 55 
 
 But supposing the court to have liad the authority ^^^ ^• 
 and the disposition to extend this remedy beyond 
 the holders of maritime liens, it would have been 
 natural to expect that the possessor of other liens 
 would be thought to have the best claim to it. But Mortgagees 
 
 o and Judg- 
 
 it has been denied to a mortgagee of the ship(a), S™'"*"' 
 and also to a judgment creditor, although the ship 
 when arrested on the admiralty process (in a suit 
 for wages), had already been seized in execution on 
 a Jieri facias in his favor issued from the court of 
 Kings Bench. On appeal, however, to the court 
 of delegates, the judges reversed this decision, and 
 directed the balance of the proceeds to be paid to 
 
 wages as such, he has none for the additional compensation to which 
 he may become entitled for his services as master. It was, however, 
 nevertheless, in this case, held that in a suit against the ship he has 
 a right to claim the wages stipulated to be paid to him as mate, for 
 the whole term of his service in his capacity of master as well as in 
 that of mate. The course of reasoning by which Sir William Scott 
 arrived at his conclusion, is, to say the least of it, highly ingenious. 
 He considered the new character of master to have been superinduced 
 to the original one of mate. The contract of the mate to serve in that 
 character legally implied that he should likewise act as master in case 
 of the death or removal of the actual master ; but the character of 
 mate was not necessarily merged in that of the master, nor was his 
 title to mate's wages totally extinguished, by his acquired title to a 
 quantum meruit for his additional services as master, unless it could 
 be shown that the office of mate was regularly devolved upon some- 
 body else, and the duties of it were entirely performed by some other 
 person. The judgment of the court therefore was that the mate 
 should be paid [out of the proceeds of the ship] for the whole period 
 of his service, at the rate of thirty-five dollars a month ; but "that he 
 must go elsewhere for the reward of the additional services performed 
 as master." 
 
 (a) The Porlsea, 2 Haggard's R., 84 ; The Exmouth, id., 88, note ; 
 The Fruit Preserver, id., 181 ; The Prince George, 3 Haggard's R., 
 376 ; The Percy, id., 402. 
 
56 ADMIRALTY JURISDICTION. 
 
 r 
 
 vOT»^i. the sheriff; being of opinion that "although the 
 Court of Admiralty cannot enter into the contracts 
 of general creditors, yet it may be bound to take 
 notice of a judgment on record as a debt(a)." From 
 the reason assigned by the delegates for their deci- 
 sion it may be inferred that the right claimed by the 
 judgment creditor was considered to belong to him 
 as such independently of his execution and levy. 
 
 Such, in brief, had been the course of decision on 
 this subject in England, prior to the passage of the 
 act (3 & 4 Vict., chap. 65), entitled "An act to 
 improve the practice and extend the jurisdiction of 
 the High Court of Admiralty of England." [7th 
 August, 1840.] 
 S'l^Jenuon "^^ ^^^^ *^^ ^§ ^)' ji^risdictiou is conferred on the 
 material- *" High Court of Admiralty, to decide all .claims and 
 
 men, by _ , t -t 
 
 statute demands whatsoever for necessaries supplied to any 
 foreign vessel, and to enforce the payment thereof, 
 whether such ship or vessel may have been within 
 the body of a country or upon the high seas, at the 
 time when the necessaries were furnished, in respect 
 of which such claim is made. The act does not, in 
 terms, confer upon the material-man a lien on the 
 ship, and thereby directly bring him within the rule 
 entitling the possessors of maritime liens to payment 
 out of surplus proceeds ; but it unquestionably con- 
 fers a right of action against the ship, and thereby 
 infers the grant of a lien. It may be presumed, 
 therefore, that the Legislature designed to confer, 
 
 mOTfeagecs. iicidcntally, the privilege of suing against proceeds. 
 
 (a) J%e Flora, 1 Haggard's R., 298, 303. 
 
ADMIRALTY JURISDICTION. 57 
 
 This act (§ 3) also, in express terms, empowers the chap. i. 
 court to take cognizance in this form of mortgages 
 of the ship, from the sale of which the proceeds 
 have accrued(a). 
 
 (a) The supposed inability of the court to take cognizance of the 
 rights of mortgagees, before the passage of the act 3 & 4 Victoria, and 
 the extent of the authority conferred by it, have been the subject of 
 comment by Dr. Ltjshington, iu several cases that came before him 
 soon after its passage. In the first of the cases to which I allude 
 {The Dowthorpe, 2 Wm. Kobinson's R., 73), referring to the case of 
 The Percy, above cited, in which his predecessor rejected the claim of 
 a mortgagee, he observes, "I greatly doubt whether the principles 
 which governed the proceedings of this court, at the time when this 
 decision was made, were not carried too far in the judgment of Sir 
 J. NicHOLL." And he proceeds to jntimate an opinion that a 
 mortgagee ought to have been allowed to intervene for the protection 
 of his interest, before the passage of the act. But however this may 
 have been, " the question," he adds, " is now put at rest by the late 
 act of Parliament." 
 
 Some expressions used by Dr. Lcshington, in The Dowthorpe. seem 
 strongly to infer an apprehension on his part that the act authorized 
 the institution of an independent suit in the Court of Admiralty, by 
 the mortgagee — a construction by no means warranted by its terms, 
 and accordingly, in TTie Fortitude (2 Wm. Robinson's R., 217), which 
 arose soon afterwards, and in which the power conferred by the act 
 was >fully discussed, it was held not to warrant such a proceeding. 
 " Prior to the passing of this statute," said the learned judge, " it was 
 more than doubted in this court, whether, in cases where a ship had 
 been arrested under the jurisdiction of the court, the court could take 
 cognizance of the claims of mortgagees. ***** 
 In order to obviate this state of things so detrimental to justice, the 
 statute 3 & 4 Victoria was enactad. The intention of the Legislature 
 in passing the statute, I conceive, was, that the remedy should be 
 commensurate with the evil. It was not, I apprehend, intended to 
 confer any new, separate and distinct powers on this court, but merely 
 to enable the court to exercise its ordinary jurisdiction to the full 
 extent." In accordance with this construction of the act, in the 
 intermediate case of The Highflyer (2 Wm. Robinson's R., 109), a 
 
 8 
 
58 ADMIEALTY JURISDICTION. 
 
 voL^i. The earliest of the few American reported cases 
 tJs'^righ'm on this subiect, is that of Gardiner v. The Ship Neio 
 
 the United J ' -t 
 
 ^N^\n^. Jersey {a). The ship, on her return from '&. long 
 menis'of" foreign voyage, had been sold at the suit of the crew 
 hi8°d^m fo^' wages ; and there remained in court a surplus of 
 rejedtel? moncj, after the satisfaction of their claims. Against 
 this surplus a proceeding was instituted by the 
 master, for disbursements made by him during the 
 voyage, for supplies, and in the payment of seamen's 
 wages, and also for his own wages. Judge Petees 
 availed himself of the occasion to state the prin- 
 ciples by which, upon mature consideration, Jie had 
 determined to be governed in all cases of this nature. 
 He was aware of the ^decision of Sir William Scott 
 in the case of The Favorite, above cited from 
 Kobinson, and refers to it ; but he seems not to have 
 
 motion on behalf of a mortgagee for a warrant of arrest, for the purpose 
 of enforcing bail for the safe return of the vessel had been denied. 
 
 Perhaps it ought to be conceded, however, that a mere cursory 
 reading of the 3d and 4th sections of the statute might not very 
 unnaturally suggest the opposite construction. But it seems incre- 
 dible that any one at all conversant with the nature of the admiralty 
 jurisdiction should imagine that a court of admiralty, without the aid 
 of a statute, could take cognizance, in an original suit, of a mortgage of 
 a ship, any more than it could of a mortgage on a coach. It appears, 
 nevertheless, that such a suit was lately instituted in the District 
 Court of the Southern District of New-York, and carried thence by 
 appeal first to the circuit court and thence to the Supreme Court. 
 The prayer of the libel was, that the court would decree a sale of the 
 ship to pay the mortgage (which was for purchase money), or else her 
 delivery in specie to the libellant. 
 
 It seems hardly necessary to add that the libel was dismissed for 
 want of jurisdiction in the district court, and that the decision was 
 affirmed in the appellate courts. Bogart et al. v. The John Jay, 17 
 Howard's R., 399 (21 Curtis's Decis. S. C, 572). 
 
 (a) 1 Peters's Adm. Decis., 223. 
 
ADMIRALTY JURISDICTION. 59 
 
 seen the report of tlie case of The John, which *^hap. i. 
 probably had not yet then made its appearance in 
 this country. He states it to have been his practice, 
 when he first came into the court, to entertain 
 applications of this nature to an extent which had 
 involved him in difficulties ; that he had found it 
 necessary, therefore, to establish some general rules 
 upon the subject ; and that the rule by which, for 
 the last several years, he had been governed, was, 
 " that it shall appear that a sum claimed out of the 
 surplus or remnant is either of itself, or in its origin, 
 a lien on the ship, or other thing out of which the 
 moneys were produced." In another part of the 
 opinion, his language is, " I shall continue to adhere 
 to the principles I have endeavored to establish, 
 not to admit the distribution or payment of surplus 
 to others than those who originally had liens, or legal 
 appropriations, on the subject from which the moneys 
 in court were raised." Guided by these principles 
 Judge Peteks allowed the master's claims for dis- 
 bursements, but rejected his claims for wages. The 
 doctrine of this case was affirmed in two cases that 
 arose in the same court many years later. 
 
 In the first of these cases, the American brig tju, 
 The Hercules had been wrecked on the coast of '^^°'^^ 
 Mexico; and the property saved from the wreck ?e7in?n*Sf'S 
 
 ' X- r ./ ^ wrecked 
 
 had been brought to the port of Philadelphia, by J^^'-tthe 
 the schooner Packet, in which the men composing proplrty"' 
 
 saved, re- 
 
 the crew of the Hercules also took passage. On J*"'*"*- 
 their arrival at Philadelphia they libelled this pro- 
 perty for wages, which were decreed, and the 
 property was sold. One-half of the proceeds was 
 
60 ADMIKALTY JURISDICTION. 
 
 TOT^i. directed to be paid to tlie owner of the Packet^ in 
 pursuance of an agreement to that effect, for bringing 
 the property home. That portion of the proceeds 
 which had been decreed to the seamen for wages, 
 still remaining in court, the owner of the Packet 
 petitioned the court for the payment, out of this 
 fund, of the passag® money due from these seamen 
 for bringing them from Mexico to Philadelphia; 
 for which, it was alleged, they had severally agreed 
 to pay the sum of twenty dollars. The court, 
 referring to the case of Gardiner et al. v. The Ship 
 New Jersey^ and recognizing its authority, rejected 
 the claim ; on the ground that it was a mere per- 
 sonal demand against the sailors, constituting no 
 lien on the property, cognizable in a court of 
 admiralty, or in " any other courts The conclud- 
 ing part of the judgment of the court is as follows: 
 " Nor has this court any jurisdiction to try and 
 determine this demand. It is strictly a personal 
 contract, not made at sea, nor from any cause cog- 
 nizable in the admiralty. It must be prosecuted 
 before a common law tribunal, in like manner as 
 any other personal contract and debt. It is true, 
 the money in court belongs to these men, by virtue 
 of the decree of the court ; but by what authority 
 can I undertake to pay it to a particular creditor, 
 or to disburse it among all the creditors ? In the 
 language of Judge Petees, I should soon ' be involved 
 in many difficulties and mistakes,' by assuming this 
 office. I must try the case of every creditor pre- 
 ferring a claim. This is certainly a novel case. No 
 claim like the present has ever before, in my know- 
 
ADMIKALTY JUEISDICTION. 61 
 
 ledge, been presented to a court of admiralty. It is ^^^ ^■ 
 not a case of surplus and remnants, in which the 
 petitioner, having a claim against the defendant in 
 this court, asks for the money which shall remain in 
 court, after satisfying the decree of the court in favor 
 of the libellant ; such creditor or petitioner having 
 had a lien on the property from which the moneys 
 were produced. The peculiar feature of this case is, 
 that the petitioner does not ask for the surplus funds 
 of the defendants, but for the money which had 
 been ordered and adjudged to be paid to the libel- 
 lants. It is not a case of surplus or remnants to be 
 appropriated in favor of a creditor having a second- 
 ary right in the goods sold, but an application to 
 take from the libellants the money which had been 
 decreed to them, and appropriate it to the payment 
 of one who claims to be their creditor. This is 
 going far beyond any case of surplus and remnants, 
 and has never, I believe, been attempted by any 
 court of admiralty, which, in doing so, would try 
 a cause collaterally, of which directly it could have 
 no jurisdiction(o)." 
 
 This case seems, indeed, to have been a very clear 
 one ; but it serves, nevertheless, in some degree, to 
 dissipate the obscurity resting upon the subject of 
 surplus and remnants. 
 
 The next and only remaining reported case I ^^^^_ 
 have met with, which sheds any light upon the sub- £ri™menta 
 ject, is that of Harper et al. v. The JSTew Brig(b), ,^|;;i°|,°°t. 
 already cited, at some length, for another purpose, ^^^mo^- 
 
 ed. 
 
 {a) Bracket et al. v. The Hercules, Gilpin's R., 184. 
 (b) Gilpin's R., 536. 
 
62 ADMIRALTY JURISDICTION. 
 
 VOL 1 The brig had been condemned and sold at the suit 
 of material men, in virtue of the lien secured to them 
 by the laws of Pennsylvania, and a surplus remained 
 in the registry after payment of their demands. 
 Among the petitioners against this surplus, were 
 Harper and Bridges^ who had also supplied mate- 
 rials for the construction of the vessel ; but not 
 being peraons of the description provided for by 
 the statute of Pennsylvania, they had acquired no 
 maritime lien. They, however, held a bUl of sale 
 of the vessel, executed by the owner, to them, abso- 
 lute in terms, but in reality designed only to secure 
 them for large sums of money advanced, and 
 materials furnished for the use of the owner in 
 building the brig. 
 
 The court, upon a critical review of the cases of 
 The Jolm and The New Jersey, above cited, came 
 to a clear conclusion, 1, that, independently of the 
 bill of sale, the claim of the petitioners could not be 
 sustained, inasmuch as it was founded in a mere 
 personal contract with the owner, conferring upon 
 the petitioners no right of priority over his other 
 general creditors ; and, 2, that whether the bill of 
 sale was to be regarded as importing an absolute 
 sale, or as a mortgage, it entitled the petitioners to 
 the remaining proceeds in court. According to this 
 well considered and well reasoned case, therefore, 
 whoever has a lien or fixed right of priority of 
 payment, attaching to the thing from which the 
 surplus and remnants in court proceeded, whatever 
 may be the nature or origin of the lien or right, is 
 entitled to resort to this fund for satisfaction. 
 
ADMIRALTY JURISDICTION. 63 
 
 Although, the claim of the petitioners embraced a °^^ ^■ 
 great variety of articles furnished, at their instance, 
 by different persons and at different times, and of 
 several distinct advances of money, there seems to 
 have been no question concerning the amount 
 actually due to the petitioners, nor any credits or 
 counter claims ; and I infer, moreover, that the 
 surplus was insufficient to pay the debt. It appears, 
 also, that there was no party before the court, 
 entitled to contest the claim (a). Had the case, in 
 these respects, been different, the claim might have 
 been considered, notwithstanding the mortgage, to 
 be obnoxious to the objection which led, as we have 
 seen, to the peremptory rejection by Sir William 
 Scott, of the petition of the ship's agent in The John. 
 The doctrine of these cases seems to have been 
 fully sanctioned by Mr. Justice Stoey, in T7ie Ship 
 
 (a) The court was, howeTer, fully aware of Its responsilbility in 
 regard to the surplus. The judge, adverting to the absence of any 
 party entitled to controvert the rights of the petitioners against the 
 fiind, observed that it was "nevertheless the duty of the court to look 
 carefully to the disposal of it. It cannot go out of the custody of the 
 court, but by the action and order of the court ; and no such order 
 will be made, until the court is well satisfied that the party asking for 
 it is legally entitled to it. It is not a derehct to be picked up by the 
 first person who may lay his hand upon it : it has a legal owner 
 somewhere, and to him only should it be transferred." 
 
 Soon after the passage of the late act of Congress, conferring 
 admiralty jurisdiction on the district courts, in relation to inland 
 commerce, a case of salvage arose in the District Court for the 
 Northern District of New- York, in which the cargo of the vessel had 
 been insured. A surplus of the proceeds of the sale of the cargo 
 remaining in court, after the payment of the amount of salvage 
 awarded, the underwriters, who had paid for a total loss, petitioned 
 to have this surplus paid to them; and the court directed the payment, 
 on the ground that they stood in the place of the insured. 
 
64 ADMIRALTY JUEISDICTION. 
 
 TOL^i, Packet{a)^ and in The Boston and CargoQ)\ in 
 which he repelled the claims of insurers, on the 
 ground that, though the property concerned had 
 been abandoned to them, they had not accepted the 
 abandonment, " This court," said he, " in the ship 
 Packet, looks only to the ownership, general or 
 special, in the thing itself, and to such claims as are 
 direct, as a lien, or a_;'M,s ac^T-^m." 
 
 The general principle on which these decisions 
 are founded, as the learned reader will not fail to 
 observe, is this : that the right of intervention for 
 payment out of surplus proceeds, extends to all 
 claims supported by lienS, whether implied by the 
 maritime law, or expressly created by special con- 
 tract. The right, therefore, is placed by these cases 
 on substantially the same footing as that on which 
 it has at length been placed in England by the aid 
 of the statute 3 & 4 Victoria. It is true that the 
 application of it by Judge Peters, in TJie New 
 Jersey, in favor of the master's claim for disburse- 
 ments, would have been unwarrantable in England, 
 where no lien is allowed to the master, whether on 
 the ship or freight, for advances ; and that it was 
 questionable here, where it has not even yet, as I 
 am aware, been decided, that the master has a lien 
 on the ship, though he is held to have a lien on the 
 freight(c). It is true, also, that the principle laid 
 down in the American cases does not embrace 
 judgment creditors as such, though in England, as 
 we have seen, a judgment creditor was, in The Flora, 
 
 (o) 3 Mason's R., 255. (c) Vide infra, mariners' wagiS. 
 
 (b) 1 Sumner's R., 328. 
 
ADMIEALTY JUEISDIOTION. 65 
 
 held to be entitled to payment out of surplus pro- chap. i. 
 ceeds, apparently without reference to the levy in 
 his behalf on the ship, previous to her arrest by the 
 admiralty process((z). 
 
 It is not to be disguised, that the duty of courts 
 of admiralty, touching this form of redress, seems to 
 have been supposed, both in England and in this 
 country, to depend, in some measure, upon consider- 
 ations of expediency, as well as upon the mere 
 question of jurisdiction. 
 
 To exclude misapprehension it is proper to add 
 that the principles above stated are to be deemed 
 applicable in their full extent only to those cases of 
 which the court takes cognizance as an instance 
 court of admiralty, and that with respect to the 
 proceeds of vessels condemned and sold by order of 
 the court in the exercise of its prize jurisdiction, 
 these principles require to be qualified. It is a 
 settled principle, both in England and in this coun- 
 try, that in prize cases, no mere lien created by 
 contract between the parties, and not perceptible 
 to the captor, can be recognized as against the rights 
 of capture. These act upon the property, without 
 regard to secret liens held by third parties ; as, on 
 the other hand, the rights of the captor do not 
 extend to liens possessed by enemies upon property 
 itself protected from capture. He has, in general, 
 no means of discovering liens of this latter descrip- 
 tion ; and if effect were to be given to the former, 
 the consequence would be, that the captor would 
 
 (a) Vide supra, p. 55. 
 9 
 
66 ADMIEALTY JURISDICTION, 
 
 TOLL i,Q subject to tlie disadvantage of having neutral 
 liens set up to defeat his claims upon hostile pro- 
 perty, while he could never entitle himself to any 
 advantage from hostile liens upon neutral property. 
 It is only therefore where the. liens result from 
 the knoAvn principles of the general maritime law 
 of nations, independently of express contract, that 
 it can be recognized in a prize court of admiralty. 
 The lien which a neutral ship-owner has upon the 
 cargo of an enemy on board, is an instance of this. 
 The owner of the ship having the cargo in his pos- 
 session, subject to his demand for freight, is entitled 
 by the general law to detain it until the freight is 
 paid. He has " an interest directly and visibly 
 residing in the thing itself." On these grounds his 
 claims are respected even in a prize proceeding, and 
 the freight is to be paid out of the proceeds of the 
 captured property ; but the reason of the exceptions 
 determines its extent. The rights of the captor 
 have accordingly been held to be unaflfected by the 
 lien of a neutral bottomry bond-holder(«), or a lien 
 by way of pledge for the payment of purchase 
 money(^). 
 n. Inter- Haviug now completed what I had to say of the 
 
 Tentionpen- ox j 
 
 right of intervention against surplus pmceeds, I 
 proceed to a very brief consideration of the right 
 of intervention in hostility to the libellant, pending 
 the suit. Whether these rights are exactly coex- 
 tensive is a question to which the reported judicial 
 
 (a) TTie Tobago, 5 Robinson's Adm. R., 221. 
 (6) J%e Marianna, 6 id., 24 ; The Frances, 8 Cranch's R., 418 (3 
 Curtis's Decis. S. C, 200). 
 
 denteliie. 
 
ADMIRALTY JURISDICTION. 67 
 
 decisions do not appear tlius far to furnish, a chap.i. 
 satisfactory answer. From tlie terms in whicli they 
 have been spoken of in our own courts, and also 
 with, so far as I am aware, one exception, in the 
 English. Court of Admiralty, the just inference 
 appears to be that they are regarded in both as 
 strictly corelative. But an observation of Dr, 
 LusHiNGTON in The Dowtlwrpe would seem to imply 
 that in his opinion the right to intervene pending 
 the suit for the purpose of contesting the claims of 
 the libellant may be exercised by one who, from the 
 nature of his interests, would not be entitled to pay- 
 ment out of the surplus proceeds. Speaking generally 
 of the sort of interest requisite to establish &, persona 
 etandi in judioio, Dr. Ltjshingtok said it was not 
 even necessary that the intervenor should possess 
 " an absolute right to a given sum of money ; but if 
 a person may be injured by a decree in a suit, he 
 has a right to be heard as against the decree, 
 although it may eventually turn out that he can 
 derive no pecuniary benefit from the suit itself (a)." 
 The only additional case I have met with, to 
 which it will be useful to refer, is that of The Mary 
 Ann, decided in the District Court of the United 
 States for the District of Maine. It is the only 
 reported case, as far as my information extends, in 
 which the right of intervention and defence ^enc^w^e 
 lite has been discussed with reference to the princi- 
 ples of justice on which it rests. It was a case well 
 calculated to awaken attention to those principles, 
 
 (a) Ware's R., 104. 
 
68 ADMIRALTY JUEISDICTION. 
 
 Tou 1. a-n(j to render them impressive. The suit was 
 prosecuted in behalf of the United States, to enforce 
 an asserted municipal forfeiture, in which the owner 
 of the property interposed no claim. In the event 
 of a sentence of condemnation, the confiscation of 
 the entire proceeds of the property must follow ; 
 the lien set up by "the party claiming a right to 
 intervene, being a common law lien, or privilege 
 which would be extinguished by the sentence. 
 Prior to the seizure of the vessel, she had been 
 attached for a debt due from the owner ; and the 
 question was, whether the attaching creditors were 
 entitled to appear and contest the forfeiture. Their 
 right to do so was controverted by the district 
 attorney, who, it seems, also contended that their 
 appearance was premature, and that they ought to 
 have awaited the issue of the prosecution ; and then, 
 in the event of a decree of condemnation, to petition 
 against the proceeds in the registry. 
 
 The learned judge, in pronouncing his decision, 
 observed: "Asa general principle, it is certainly 
 true that in admiralty process in rem, all persons 
 having an interest in the thing may intervene pro 
 interesse suo, file their claims, and make themselves 
 parties to the cause to defend their own interest. 
 The process acts on the thing itself, and places it in 
 the custody of the court. When thus in its pos- 
 session, the court is bound to preserve it for all who 
 have an interest in it, and not to deliver it but to 
 those who prove a title. It follows as a necessary 
 consequence that all who have a legal interest may 
 appear, and, by suitable allegations and proofs, show 
 
ADMIRALTY JURISDICTION. 69 
 
 what that interest is, and claim to have it allowed. °^^ '• 
 If it were not so, the greatest injustice would be 
 done ; because a decree of the court in rem is bind- 
 ing on aU the world, as to the points which are 
 directly in judgment before it." 
 
 After detailing the course of proceedings enjoined 
 by the act of Congress in cases of municipal seizure, 
 which, when no defence is interposed, must neces- 
 sarily result in a condemnation by default, and an 
 indefeasible title to the purchaser on the sale of the 
 property in virtue of the decree, Judge "Wake asks, 
 " If this be so, what reason can be given why every 
 person having an interest in the thing, whether it 
 be a proprietary interest or a mere lien or privilege, 
 should not be admitted to intervene for his own 
 interest, and contest the forfeiture so far as his right 
 or interest would be prejudiced by the decree ?" 
 He next proceeds to show the inapplicability of the 
 rigorous principles of exclusion enforced in the cases 
 of prize(a), and in conclusion answers the objection 
 that the intervenor was bound to defer his claims 
 until after the sentence of condemnation and sale. 
 "To say," he observes, "that he must wait until 
 after a decree, and then come in and petition against 
 the proceeds, would be little better than a mockery; 
 for if the decree is against the vessel, it annihilates 
 his claim, and he can maintain no claim against the 
 proceeds. It is not a claim, like that of seamen's 
 wages, or material-men, which overreaches the for- 
 feiture. The attachment operates only to the extent 
 
 (a) Vide supra, p. 65, et seq. 
 
70 ADMIRALTY JUEISDICTION. 
 
 vfflL 1. of the debtor's interest, to whose rights, so far as his 
 lien goes, the attaching creditor succeeds ; while the 
 maritime lien of seamen for their wages, and of 
 material-men for supplies and repairs, is a species of 
 proprietary interest in the thing itself, which is 
 independent of any title of any particular individua,l. 
 It inheres in the thing, whoever may be the general 
 owner ; but the interest of an attaching creditor 
 can only be defended by the same means which will 
 be a defence for the owner whose interest is attached, 
 that is, in this case, by showing that no forfeiture 
 has been incurred. To decide that he cannot make 
 himself a party to the cause, before a decree on the 
 merits, is to decide that he cannot be admitted to 
 defend his rights at all." 
 
 The decision of the learned judge, therefore was, 
 that the attaching creditors were entitled to inter- 
 vene in defence of their interests. 
 
 It is difficult to resist the course of reasoning which 
 governed the court in this case, or to. withhold assent 
 from the particular conclusion to which it led. It 
 will be observed that, for the reason assigned by 
 Judge "Ware, the right of intervention against 
 proceeds does not exist in a case of municipal 
 forfeitures, except in favor of the possessors of 
 maritime liens, these alone being preferred to the 
 claims of the government. 
 
 Waiving any further inquiry concerning the 
 identity of the two rights in point of scope, and 
 conceding that, according to the intimation of Dr. 
 LtrsHiNGTOiT, the right to intervene for the purpose 
 of contestation may be maintained on the ground 
 
ADMIRALTY JURISDICTION. 71 
 
 of interests tliat would be inadequate to npliold o^-i- 
 tlie riglit to sue against proceeds, suffice it to say, 
 that tlie true rights are, in this respect, essentially 
 coequal. 
 
 Whether, in any particular instance, the one or 
 the other shall be exercised by him to whom they 
 belong, will be a question of expediency depending 
 on the circumstances of the case. If, by reason of 
 the insufficiency in value of the thing proceeded 
 against, to satisfy his own claims upon it in addition 
 to those of the libellant, or for any other reason, he 
 desires to contest the libellant's demand, he will, of 
 course, elect to appear seasonably for that purpose. 
 But the responsibility for costs and damages imposed, 
 and the security exacted therefor, as the condition 
 on which he wiU be allowed to intervene 'pendente 
 lite, may form an element of the problem to be 
 solved, not unworthy of consideration. These rights 
 are recognized, and the modes of their exercise 
 prescribed, by two of the rules promulgated in 1842 
 by the Supreme Court, to regulate proceedings in 
 admiralty suits. They belong more properly to the 
 second part of this work ; yet, nevertheless, as they 
 seem to require no commentary, it may not be amiss 
 to cite them here, for the purpose of avoiding the 
 necessity of reverting to the subject of intervention. 
 They are the thirty-fourth and forty-third, and will 
 be found in the appendix. 
 
 Having now completed this summary view of the 
 general scope of the admiralty jurisdiction of the 
 district coui-ts of the United States, I propose, in 
 
72 ADMIEALTY JUEISDICTION. 
 
 voL^i. ^]jg succeeding chapters of this part of the work, to 
 revert to the several subjects of this jurisdiction 
 which have been designated, for the purpose of more 
 exactly defining their nature, and of stating the 
 more important principles of law applicable to each. 
 
CLAIMS OF MATERIAL-MEN. 73 
 
 CHAP. 2. 
 
 CHAPTER II. 
 
 Of the Claims of Material-men. 
 Suits in behalf of material-men constitute an im- who are 
 
 materlal- 
 
 portant branch, of the admiralty jurisdiction. '"*°' 
 Under this general denomination are comprised 
 all persons who furnish materials for the building, 
 equipment, repair, outfit, or use of vessels employed 
 in maritime navigation. 
 
 Contracts of this nature, except those relating to 
 the building of vessels (which will be separately 
 noticed in the sequel), are usually made by the 
 master of the vessel. It is necessary, therefore, 
 before proceeding to a consideration of the remedies 
 afforded by law for the enforcement of the demands 
 of material-men, to define the limits of the master's 
 authority to bind the owner and his property for 
 the fulfilment of his contracts with this description 
 of persons. 
 
 The master of a ship is the confidential agent of Extent of 
 
 ■*■ ^ the master's 
 
 the owners, and as such, in general, he appears to all ^^^^ 
 the world, in matters relating to the usual employ- repairs and 
 
 ' o . supplies. 
 
 ment of the ship, and to the means of employing 
 her ; the business of fitting out, victualing and 
 manning the ship being left wholly to his manage- 
 ment, in ports where the owners do not reside and 
 have no established agent, and frequently, also, 
 10 
 
74 ADMIRALTY JUEI8DICTI0N. 
 
 TOL^i. even in the place of their own residence. His char- 
 acter and situation, therefore, furnish presumptive 
 evidence of authority from the owners to act for 
 them in these cases ; liable indeed to be refuted 
 by proof that they, or some other person for them, 
 managed the concern in any particular instance, and 
 that this fact was known to the particular creditor, 
 or was of such general notoriety that he may rea- 
 sonably be supposed not to have been ignorant of it. 
 In general, therefore, the owners are bound to the 
 performance of the master's contracts for repairs 
 and supplies ; such contracts being esteemed, in law, 
 to have been made by them(a). 
 S'repail^ But the safety of the ship-owner, and the interests 
 Isare'flt'and of commerce, require that this presumed authority 
 of the master should be subject to some limitation; 
 and the established rule upon the subject accord- 
 ingly is, that it extends only to such repairs and 
 supplies as are reasonably fit and proper, and 
 apparently necessary to enable the vessel to navi- 
 gate the sea, and pursue her voyage in safety. But 
 where there is no ground for the imputation of bad 
 faith, the rule is indulgently enforced. The repairs 
 made, or articles supplied, need not be shown to 
 have been absolutely necessary ; but it is sufficient 
 if they appear to have been such as a prudent 
 owner would probably have ordered, or assented to, 
 if present at the time(^). 
 
 (a) Abbot on Shipping, Part ii., chap. 2, § 2, 3 ; ibid., Part ii., ch. 
 3, §3. 
 
 (6) Abbot on Shipping, Part ii., ch. 3, § 3 ; 3 Kent's Commenta- 
 ries, 3d ed., 163 ; The Fortitude, 3 Simmer's E., 228 ; Webster v. 
 Seekamp, 4 Barn. & Aid. B., 352. 
 
CLAIMS OF MATERIAL-MEN. 75 
 
 To this extent the master has power, it is supposed, ^^^ ^■ 
 to bind the owners personally, as well in the place p^Zauy 
 
 -^ ^' ^ liable for 
 
 where they reside, as abroad (a). mTde^Suhe 
 
 The master, however, ig also always personally fesidenee." 
 
 answerable for his contracts of this kind, unless he S°unfes. 
 
 takes care by express terms to confine the credit to *'°' 
 
 his owners only, or unless the circumstances clearly 
 
 show that the credit was given to them alone ; for, 
 
 in favor of commerce, the law wiU not compel the 
 
 material-man to seek after the owners and sue them, 
 
 although it gives him power to do so ; but affords 
 
 him a remedy against each(^). 
 
 It may now, at length, be regarded as definitely ^^^^„ 
 
 settled that contracts of this kind, being in their Satlrili-" 
 • • 1 n 1 • 1 T ' 1 °^^^ main- 
 
 nature mantmie, may be enforced m the admiralty ',j^°5|'^t^™t 
 
 courts of the United States, by an action in per- cS'o? 
 
 , admiralty. 
 
 sonam, against the owner, when the contract is 
 made by him, or on his credit alone ; and against 
 the master or owner, when the contract is made by 
 the former, without any stipulation, express or 
 implied, on the part of the creditor, to look to the 
 owner exclusive]y(c). 
 
 (a) Abbot on Shipping, Part ii., ch. 3, § 2, 4. 
 
 (6) Abbot on Shipping, Part ii., ch. 2, § 2 ; ibid., ch. 3, § 2. 
 
 (c) The General Smith, 4 Wheaton's R., 438 (4 Cond. K., 493); 
 Andrews v. Wall et al., 3 Howard, 568 ; Rule 12 of the Rules of Ad- 
 miralty Practice, 3 Howard's R., vi. ; Be Lovio v. Boit, 2 Qallison's 
 R., 398 ; Hale v. TTie Washington Insurance Company, 2 Story's R., 
 176 ; The Centurion, Ware's R., 477 ; Shepard et al. v. Taylor et al, 
 5 Peters's R., 675 (9 Curtis's Decis. S. C, 531); 4 Mason's R., 380. 
 
 The admiralty and maritime jurisdiction conferred upon the national 
 courts being declared by the Constitution to be exclusive, it has been 
 gravely doubted whether the state courts were not thereby deprived 
 of their jurisdiction over all cases falling within the scope of this grant 
 of judicial power to the United States ; and the question has given 
 
76 ADMERALTY JURISDICTION. 
 
 VOL 1. But the material-man has also, subject to certain 
 li^^hT limitations, a further and still more effective remedy, 
 
 tainable . 
 
 »&pl"""'* peculiar to the admiralty. 
 
 According to the general principles of the mari- 
 time law, following in this respect the civil law, a 
 material-man, who repairs or furnishes supplies to a 
 ship, obtains thereby,, without any express contract 
 to that effect, a lien(a) or specific claim upon the 
 
 rise to much discussion, and some diversity of opinion. But it appears 
 to be now agreed that the national and state tribunals possess a con- 
 current jurisdiction in cases of this description, where the common law 
 originally afforded a remedy. See note 59 at the close of the report 
 of the case of De Lovio v. Boit, 2 Gallison's K., 476 ; HaUet v. Nomm, 
 14 Johnson's R., 273 ; S. 0. 16 Johnson's K., 327 ; Percivai v. 
 Hickey, 18 Johnson's R., 257 ; 1 Kent's Comm., 3d ed., 377, note c ; 
 and 1 Story's Comm. on the Constitution, 533, note. See also Conk- 
 ling's Treatise, 3d ed., 271, note a. 
 
 (a) It has been remarked by the late Mr. Justice Story, that this 
 right to priority of satisfaction given by the maritime law, is not, in a 
 strict sense, a lien ; though that term is commonly used in our law to 
 express, by way of analogy, the nature of such claims. This applica- 
 tion of the term, he observes, is an instance of the deflection from its 
 original meaning, which language frequently undergoes by applying it 
 to things which have a strong similitude, but are not a pe/fect identity. 
 The maritime lien differs both from the pignus [pawn] and from the 
 hypotheca [hypothecation] of the civil law. The term pigmts, in an 
 accurate sense, applied to cases where there was a pledge of the thing, 
 accompanied by an actual delivery of possession to the person for 
 whose benefit the pledge was made ; and the hypotheca, where the 
 possession of it was retained by the owner. The lien given by the 
 maritime law attaches and exists independently of possession, and in 
 this respect resembles the Roman hypothecation (though it is different 
 in other respects), and is often called a tacit hypothecation. It also 
 somewhat resembles what js called a, privilege in that law, that is, a 
 right of priority of satisfaction out of the proceeds of the thing in a 
 concurrence of creditors {The Brig Nestor, 1 Sumner's R., 73, 81). 
 
 But notwithstanding this criticism, this application of the term lien 
 is now sanctioned by general usage, and is highly convenient. There 
 is no danger of being misled by it, and it saves circuity of language. 
 
CLAIMS OF MATEEIAL-MEN 77 
 
 stip for remuneration, wliicli he may enforce directly ''hap. 2. 
 against the ship by an action in rem; and neither of 
 these three remedies is displaced, except , by conclu- 
 . sive proof that an exclusive credit was given either 
 to the master or owner, or both, or to the ship 
 itself (a). 
 
 The maritime law of continental Europe makes 
 no distinction between the cases of domestic ships 
 and foreign ships, nor between supplies furnished in 
 a home port and abroad. The result of the modern 
 decisions of the English courts appears, however, to 
 be, that with the exception of the common law lien 
 in favor of a shipwright while he continues in pos- 
 session of the ship which he has built or repaired, 
 no lien or preference is given by the common or 
 maritime law of England, for repairs made or sup- 
 plies furnished in a home port, without an express 
 hypothecation (5) . 
 
 In this country, the general maritime law of 
 Europe on this subject has been expHcitly adopted, 
 with the exception of the case of an American ship 
 repaired or supplied in a port of the state to which 
 she belongs ; and even in this case, if (as in Maine, 
 New- York, Pennsylvania and other states) a lien is 
 
 (a) The Nestor, 1 Sumner's E., 73 ; The Barque Chusan, 2 Story's 
 K., 455, 486 ; Andrews et al. v. Wall et al, 3 Howard's R., 568, 572. 
 
 (6) Abbot on Shipping, Part 11., ch. 3, § 9 ; Kent's Comm., Sd ed., 
 169. By the act of 3 & 4 Victoria, ch. 65, § 6, howeyer, the High 
 Court of Admiralty is now invested with jurisdiction to decide all 
 claims and demands whatsoever for services renderedor for necessaries 
 supplied to any foreign or sea-going vessel, and to enforce the payment 
 thereof, whether such ship may have been within the body of a county, 
 or upon the high seas, at the time when the services were rendered or 
 necessaries furnished, in respect of which such claim is made. 
 
78 ADMIRALTY JURISDICTION. 
 
 TOJL 1. gj^gjj ijy. ^jjg jQgg^j jg^^^ '^ jjjgy j^g ciiforced bj admi- 
 ralty process(«). 
 
 In the case of foreign ships, or of American ships 
 in foreign ports, tlie lien is implied from the nature 
 of the contract and the circumstances attending it; 
 contrary to the rule of the common law, which 
 admits no lien, upon "goods not in the possession, 
 actual or constructive, of the creditor. The creditor 
 is supposed to have looked to the vessel for security, 
 and the contract of the master imports a hypothe- 
 cation. But in the case of a vessel in her home 
 port, it has been thought in the American courts 
 that the credit may well be supposed to have been 
 given to the owner ; and, in this country, no lien is 
 implied. Hence the necessity, in that case, of having 
 recourse to the local law. JSTot that it can confer 
 jurisdiction on the courts of the United States ; but 
 if it gives a lien, and the contract be maritime, then 
 the lien, being attached to it, can be enforced 
 according to the mode of administering remedies 
 in the admiralty. The state law furnishes the rules 
 to ascertain the rights of the parties; and thus 
 assists in the administration of the proper remedies, 
 where the jurisdiction is vested by the laws of the 
 United States. 
 
 (o) See inter, al., The General Smith, 4 Wheaton, 438 (4 Curtis's 
 Decis. S. C, 440) ; The St. Jago de Cuba, 9 Wheaton, 409 (6 Curtis's 
 Decis. S. 0., 110) ; The Jefferson, 10 Wheaton, 429 (6 Curtis's Decis. 
 S. C, 465) ; Peyroux v. Howard, 7 Peters's R., 324 (10 Curtis's 
 Decis. S. C, 506) ; The Steamboat Orleans v. Phoebus, 11 Peters's 
 K., 175 (12 Curtis's Decis. S. C, 391) ; The Jerusalem, 2 GaUison's 
 R., 345; The Fulton, Paine's R., 620; Davis et al. v. A New Brig, 
 Gilpin's R., 473 ; Rule 12 of Ad. Practice, 3 Howard's R., vi. 
 
CLAIMS OF MATERIAL-MEN. 79 
 
 It will be seen, therefore, that in the American °h^ *. 
 courts of admiralty, suits m rem'maj he maintained 
 by material-men, 1, in the case of foreign ships, 
 including ships belonging to other states, these being 
 regarded as foreign ; 2, in the case of domestic ships, 
 when the repairs have been made or supplies fur- 
 nished out of the state to which the vessel belongs ; 
 and, 3, in the case of domestic ships obtaining 
 repairs or supplies in a home port, provided the 
 local law gives a lien therefor. 
 
 I have hitherto spoken of this lien in general Maybe 
 
 ^ o maintained 
 
 terms, as affecting the ship. It is necessary, there- fieVellht'' 
 fore, distinctly to add, that it is to be considered as 
 attaching also to the freight, earned in the voyage 
 during or preparatory to which the supplies were 
 famished. It was so held indirectly by Judge 
 Waee, in the case of The Brig Bpartan{(X), many 
 years ago ; and in the case of 8hepa/rd et al. v. 
 laylor et dl.Q)), it was decided by the Supreme 
 Court of the United States, that the mariner's lien 
 for wages extended likewise to the freight : and the 
 claims of material-men are held, by the maritime 
 law, in equal favor with wages ; repairs and supplies 
 being no less essential than the services of the mari- 
 ner^ to furnish "wings and legs" to the ship, for the 
 purpose of enabling her to complete her voyage for 
 the benefit of all concerned. But the question may 
 be considered as put at rest by the twelfth Rule of 
 Admiralty Practice, by which it is expressly declared 
 that "In all suits by material-men, for supplies or 
 repairs, or other necessaries for a foreign ship, or 
 
 (a) Ware's K., 149. 
 
 (6) 5 Peters's R., 676 (9 Ourtis's Decis. S. C, 531). 
 
80 ADMIRALTY JUEISDICTION. 
 
 voL^i. for a ship in a foreign port (which, as we have seen, 
 includes a port of another state), the libellant may- 
 proceed against the ship and freight m rem, or 
 against the master or owner alone in personamP 
 Material- The terms of this rule may seem to infer, that 
 
 man iiot ^ ' 
 
 p?^d* when the material-man proceeds against the ship, 
 fritghl * he is bound to proceed also against the freight ; 
 but this construction, it is supposed, could not have 
 been intended. The right of the material-man to 
 maintain a suit in the admiralty against the ship 
 alone, had been firmly established by antecedent 
 decisions, and it could not have been designed to 
 interfere with this right. The extension of the lien 
 to freight had not been before directly asserted by 
 the court. The object of the rule doubtless was, 
 therefore, for the purpose of dissipating any doubt 
 which might be entertained upon the subject, dis- 
 tinctly to declare the existence of the lien against 
 the freight as well as against the ship. 
 No lieu ere- To guard agalust possible misapprehension, it is 
 owner."'^"'* proper to state, that no lien is ever implied from 
 contracts made by the owner in person. It is only 
 those contracts which the master enters into in his 
 character of master, that specifically bind the ship, 
 or affect it by way of lien or privilege in favor of 
 the creditor. When the owner is present, and 
 acting in his own behalf as such, the contract is 
 presumed to be made with him on his ordinary 
 responsibility, without a view to the vessel as a fund 
 from which compensation is to be derived (»). 
 
 (a) See the cases of The St. Jago de Cuba, 9 Wheaton's K., 409 (6 
 Curtis's Decis. S. 0., 110) ; and The Phebe, Ware's E., 263, 275, where 
 this principle is incidentally stated. 
 
CLAIMS OF MATERIAL-MEN. 81 
 
 We have seen that in the case of repairs or sup- <^'hap. 2. 
 plies to an American vessel in a port of the state to oiaSoi" 
 
 I'liii T •■ T 1 • n n 1 repairs, etc., 
 
 which she belongs, no lien is implied m favor of the ^^^^'^0*4 
 material-man, because he is presumed to have relied TppTara^'^ 
 
 under for- 
 
 on the personal responsibility of the master and eign aspect 
 owner. But when, as is sometimes done for the 
 purpose of illicit trade, the vessel is made to assume 
 a foreign guise so as to conceal her true character, 
 it is obvious that the reason on which the distinction 
 is founded does not exist ; and it has accordingly 
 been adjuged that, in such a case, the lien attaches. 
 The rights of the material-man depend not on facts, 
 but upon his knowledge or belief concerning them ; 
 and the owner is precluded by his own acts from 
 denying the foreign character of the 8hip(a). 
 
 The case just cited establishes also another impor- ueninfaTor 
 tant principle, viz., that the maritime lien or privilege me"preterl 
 of the material-man in all cases, is entitled to prefer- foJfeUme, 
 ence over the title of the United States acquired by 
 forfeiture, provided the creditor had no knowledge 
 of the offence by which the forfeiture was incurred. 
 The necessities of commerce require that this should 
 be so. The lien is given for the express purpose of 
 inspiring confidence abroad, and thus enabling the 
 master to obtain the means of pursuing his voyage, 
 and getting home in safety ; and it would be incon- 
 sistent with this policy to allow priority to a 
 forfeiture accruing from acts, wherever committed, 
 of which the creditor was ignorant when he parted 
 with his property, or rendered the services for which 
 
 (a) The St. Jago de Cuba, 9 Wheaton's R., 409 (6 Curtis's Decis. 
 S. 0., 110). 
 
 11 
 
82 ADMIRALTY JURISDICTION. 
 
 TOL 1. ]je seeks remuneration. And where a vessel to 
 wMcli the lien of material-men had attached, had 
 been sold on execution upon a judgment in favor of 
 the United States, the lien was enforced against the 
 proceeds in the .hands of the marshal(<z). 
 and to the It IS scarcelv necessary to add, that the lien of 
 
 nghts ac- ./ j 7 , 
 
 a 5^^ material-men prevails over the title of a hona fide 
 pure aser, pyj.g]j^ggp -^ithout noticc ; but to have this effect, it 
 
 must be enforced within a reasonable time(5). 
 andtobot- In the case of The Jerusalem(c). it was held by 
 
 tomrybonds. v ^ ' •' 
 
 Mr. Justice Stort, that the lien of a material-man 
 for repairs which appear to have been indispensar 
 ble, is to be preferred to a bottomry bond, though 
 the bond be prior in point of time. 
 The lien Whcu a licu for repairs is given by the local law, 
 
 given by a x o , ./ 7 
 
 BWpwrights in the case of a domestic ship repaired in her home 
 ■whiieinpos- port, it matters not whether.it is conferred by the 
 
 Bession, may ^ ' ^ 
 
 by a°u"1n statutc or by the common law of the state. The 
 lien in either case being in its nature maritime, the 
 moment its existence is established, the jurisdiction 
 of the admiralty attaches to it praprio vigore. And 
 it has accordingly been held that the lien given to 
 a shipwright for materials furnished and repairs 
 made, and not divested by a surrender of the pos- 
 session of the vessel, might be enforced by a suit 
 in rem in the district court(<i'). 
 
 Construction A statute of & state, providing " That all ship- 
 
 ofstdtelawB. -^ 111 • 1 
 
 Of Maine, carpeutcrs, caulkers, blacksmiths, jomers and other 
 
 (a) The Scattergood, Gilpin's R., 1. 
 
 (6) The Barque Chusan, 2 Story's R., 456. 
 
 (c)2Gallison'sR., 345. 
 
 (d) The Schooner Marion, 1 Story's R., 68. 
 
CLAIMS OF MATERIAL-MEN. 83 
 
 persons who shall perform labor or furnish materials chap. 2. 
 for or on account of any vessel building or standing 
 on the stocks, by virtue of a written or parol agree- 
 ment, shall have a lien on such vessel for his wages," 
 etc., is inapplicable to the case of a mechanic hired 
 at monthly wages, upon a qwmtum meruit^ to per- 
 form any kind of work or labor in which the hirer 
 might choose to employ him, under a general agree- 
 ment or retainer, without reference to any particular 
 vessel, or other specific objects. Such a statute 
 applies only to agreements for work to be done 
 upon a particular vessel, as a distinct and indepen- 
 dent service. There is no principle which authorizes 
 the court to subdivide 'and apportion the value of 
 the work done upon different things in the course 
 of the month, in pursuance of a general hiring like 
 that above mentioned. The employer, in such a 
 case, may have a lien for the work, for the other 
 party is his servant ; but the servant can acquire 
 none. Besides, it is not the mere fact that labor 
 and services have been performed, or materials used 
 upon a vessel, which, according to such a statute, 
 entitles the party to a lien therefor. The " written 
 or parol agreement," spoken of in the act, means an 
 agreement relating to the particular vessel on which 
 the labor and services are to be performed, or for 
 which the materials are to be furnished. The con- 
 tract, then, must be, not a general contract or 
 retainer for labor and services, but a specific con- 
 tract or retainer for the particular vessel embraced 
 and referred to in the contract (a). 
 
 {a) Bead v. The Hull of the New Brig, 1 Story's R., 244. 
 
84 ADMIRALTY JUEISDICTION. 
 
 TOL^i. 'pjie case in which the above mentioned decision 
 was made, arose under the statute of Maine, and 
 was an affirmance, on appeal, of the judgment of the 
 district court. 
 Of New- The statute of New- York conferring a lien for 
 
 repairs, supplies and wharfage, declares that the lien 
 shall cease at the expiration of twelve days after the 
 day of the departure of the vessel to some other port 
 in the state, and immediately after her departure 
 from the state. With respect to domestic vessels, 
 in regard to which, as we have seen, no lien is given 
 by the maritime law of the United States, these 
 limitations are binding upon the national courts of 
 admiralty ; but with respect to foreign vessels, and 
 vessels belonging to other states, they are inopera^ 
 tive. The courts of the United States, in the 
 exercise of their admiralty and maritime jurisdiction, 
 are exclusively governed by the legislation of 
 Congress, or, in the absence thereof, by the general 
 maritime law ; and no state can, by its local legisla- 
 tion, narrow or enlarge such jurisdiction. In the 
 case of foreign vessels the lien is given by the 
 general maritime law, and is not therefore defeated 
 by the departure of the vessel, although the statute 
 makes no distinction in terms between domestic and 
 foreign vessels. And it has accordingly been held 
 that a lien acquired by the supply, in the port of 
 New- York, of materials for the repairs of a vessel 
 belonging to Massachusetts, might be enforced in 
 the admiralty, after the return of the vessel to her 
 home port(a). 
 
 (a) The Barque Chusan, 2 Story's R., 455. 
 
vania. 
 
 CLAIMS OF MATERIAL-MEN. 85 
 
 A question of considerable importance lias also chap. 2. 
 been decided by the late learned Judge Hopkinsow, °' ?«''°''5"- 
 depending on tbe true construction of tbe statute of 
 .Pennsylvania. The title of the act declares its 
 object to be, "to secure the persons employed in 
 the building and fitting vessels and ships for sea, by 
 making the body, tackle, furniture or apparel of 
 such ships or vessels, liable to pay the several trades- 
 men employed in building and fitting them, for their 
 work and materials." The preamble of the act 
 declares that the business of ship-building is an im- 
 portant branch of the commerce of the state ; that 
 the " tradesmen employed in this business are liable 
 to losses, by reason that the persons employing them 
 are frequently masters of ships, strangers, and per- 
 sons having no fixed property in the country ;" and 
 that the ships and vessels are not liable to pay the 
 amount of their bills, "whereby their labor and 
 materials have been taken to pay other debts." To 
 remedy this evil, it is enacted, "That ships and 
 vessels of all kinds, built, repaired and fitted within 
 this state, are hereby declared to be liable and 
 chargeable for all debts contracted by the masters 
 or owners thereof, for or by reason of any work 
 done, or materials found or provided by any car- 
 penter, blacksmith or others, for, upon and concern- 
 ing the building, repairing, fitting, furnishing and 
 equipping such ship or vessel, in preference to any, 
 and before any other debts, due and owing from 
 the owners thereof." A petition (») was filed in the 
 
 (a) The proceeding was against proceeds in court. 
 
86 ADMIRALTY JURISDICTION. 
 
 T^i. district court, to enforce a lien wMct the libellant 
 claimed to have in virtue of this act, upon a vessel, 
 for the value of materials used in her building. In 
 point of fact, the libellants had only " procured and 
 caused" the materials in question " to be provided 
 and furnished by other persons, which persons were 
 afterwards paid and satisfied therefor by the peti- 
 tioners." The petitioners had contracted on their 
 own credit and personal responsibility, in pursuance 
 of an engagement to that effect entered into by 
 them with the owner. Under these circumstances 
 it was held that the act did not extend to the case, 
 and therefore gave no lien on the vessel. According 
 to the spirit as well as the language of the act, the 
 debts to be preferred are those which were con- 
 tracted by the master or owner of the vessel ; and 
 the persons to be secured are the mechanics and 
 material-men, by whom the work is done and the 
 materials are supplied. When this object is accom- 
 plished by other means, there is nothing left upon 
 which the act can operate. By no fair legal impli- 
 cation or intendment could the material-men and 
 mechanics be considered as having mrtuoHVy con- 
 tracted with the owner, through the petitioners as 
 his agents, or otherwise ; but even admitting them 
 to have done so, it was a sufficient answer to say 
 that they had been paid, and the object of the act 
 thus satisfied. To hold that the petitioners were 
 entitled to be substituted in the place of the original 
 creditors, or, by the use of their names, to obtain 
 for themselves the benefit of the security designed 
 
CLAIMS OF MATERIAL-MEN. 87 
 
 by the act for the benefit of material-men and me- ™ap. 2. 
 cbanics alone, would be equally inadmissible (a). 
 
 The state laws above noticed appear to be judi- or owo. 
 cious regulations conceived in a spirit of moderation 
 and justice, adapted rather to supply the deficiencies 
 of the general maritime law, by virtually extending 
 its peculiar remedies to domestic vessels, than to 
 supersede and defeat them, by unnecessary and 
 wanton interference. It would have been well if 
 the example of these states, in this respect, had been 
 followed by aU the other states that have seen fit 
 to legislate on the same subject. But the State of 
 Ohio, by an act of the General Assembly of that 
 State, passed February 26, 1 840, has made itself a 
 remarkable exception. In the case of Tlie Velocity, 
 decided in February, 1850, and again in that of The 
 Globe, decided in December of the same year, in the 
 District Court of the United States for the IS'orthern 
 District of New-York, it became necessary to subject 
 this act to a careful scrutiny. 
 
 In The VelodtyQ)), a vessel owned in the State 
 of Ohio, having been sold at the port of Buffalo 
 under a decree for seamen's wages, certain persons, 
 being also citizens of Ohio, petitioned for payment 
 out of the surplus proceeds of the sale, for supplies 
 furnished by them in that state, insisting that they 
 had a lien therefor on the vessel in virtue of the 
 above mentioned act. Upon a full examination of 
 the subject, the court decided that according to the 
 
 (a) Harper et al. v. The New Brig, Gilpin's R., 536. 
 (6) 13 Law Eep. (3 N. S.), 61. 
 
88 ADMIRALTY JURISDICTION. 
 
 TOL^i. true interpretation of the act, no lien was conferred 
 
 by it, and accordingly rejected the petition. 
 The GUbe. The decisiou in The Globe{a) turned on the effect 
 of a sale of the vessel on execution upon a judgment 
 obtained in Ohio under the act in question. As the 
 subject is one of great interest, and as this case 
 underwent a reexamination on appeal in the circuit 
 court, a somewhat extended notice of it will proba- 
 bly be acceptable to the reader. 
 
 The libellant was a citizen of New-York residing 
 at Buffalo, where the Globe was arrested on admi- 
 ralty process in a suit for necessary supplies furnished 
 at that port, from time to time during the preceding 
 year at the master's request, the vessel being at the 
 time owned in the State of Michigan. A claim was 
 interposed by Joshua Maxwell, as owner, deriving 
 his title from Elisha T. Sterling, by whom she had, 
 shortly before, been purchased at a public sale made 
 by the sheriff of Cayahoga county, in the State of 
 Ohio, in virtue of an execution on a judgment in 
 favor of The Cayahoga Steam, Furruwe Go. recover- 
 ed in a local court against the Globe, in a proceeding 
 instituted, as already mentioned, under the Ohio 
 statute. Of the provisions of this statute it is suffi- 
 cient, in this place, to state, that it is by the first 
 section enacted, "That steamboats and other water 
 craft navigating the waters within or bordering 
 upon this state, shall be liahle for debts contracted 
 on account thereof," &c., &c. ; by the second section, 
 that " any person having such demand may proceed 
 
 (a) Law Eep. (3 N. S.), 488. 
 
CLAIMS OF MATERIAL-MEN. 89 
 
 against the owner or owners, or master of sucIl craft, ohap.j. 
 or against the craft itself f that the sixth section 
 authorises the sale on execution, of the property 
 arrested, to satisfy the judgment, if any, which may 
 be rendered for the plaintiff, and directs that " the 
 surplus money, if any, arising from such sale, shall 
 be returned to -the owner, master or agent, on de- 
 mand, as the surplus money is in other cases of 
 execution ; and if the proceeds of the sale shall fall 
 short of satisfying the judgment, the balance shall 
 remain to be collected on execution, as upon other 
 judgments." The act does not in terms, purport to 
 confer any lien, and, although it prescribes the mode 
 of procedure against the vessel, it requires no notice, 
 in any form, to be given of the proceedings, except 
 of the sale, after judgment, on execution, and there 
 was no evidence or pretence that any was given of 
 the proceedings against the Glohe. But at the trial 
 or hearing, an attorney did, in fact, appear in behalf 
 of the owner who resided in Detroit. The supplies 
 for which the action was brought in the district 
 court, were furnished before the right of action had 
 accrued under the Ohio act, in favor of the parties 
 at whose suit the Globe had been sold on execution. 
 The question for decision arising upon the foregoing 
 facts, was, whether the lien acquired by the libellant 
 under the general maritime law was extinguished by 
 that sale. If it was so, it could only be because the 
 proceedings and judgment in the Ohio court, being, 
 in point of form, against the Glohe^ the judgment 
 carried with it the same obligatory force that belongs 
 to the sentence or decree of a court of admiralty, of 
 12 
 
90 ADMIRALTY JURISDICTION. 
 
 voL^i. competent jurisdiction, proceeding in rem^ and con- 
 ducting its proceedings in subordination to the 
 principles of natural justice. 
 
 Such a judgment is held to be conclusive upon 
 the rights of all parties concerned, not only in the 
 courts of the country where it is pronounced, but, 
 by a rule of the international law, in the courts also 
 of all other countries. This is because all persons 
 having an interest in the subject matter, are, in law, 
 deemed parties ; and they are deemed to be partieSj 
 because they ^re permitted, and, by the most effec; 
 tive forms of notice of which the case is susceptible, 
 are summoned to become so in fact. To those not 
 familiar with these forms of procedure, the eifect 
 ascribed to them may seem to be one at variance with 
 the rule which limits the binding force of judgments 
 atcommon law to the actual parties and their privies. 
 But in reality it is not so ; for it binds only those 
 who are at least potentially parties, by having the 
 opportunity aiforded to them, if they choose to avail 
 themselves of the privilege, not only to contest the 
 claims of the party by whom the suit has been insti- 
 tuted, but to supersede him by setting up superior 
 claims of their own. But law is said to be " the 
 perfection of reason ;" and it would be strange, there- 
 fore, if the maxim cessante ratione cessat et ipsa lex 
 had not, as it has done, foulid an undisputed place 
 among its axioms. It is accordingly an estabhshed 
 principle of jurisprudence as well as of ethics, that 
 no person is to be held bound by an adjudication 
 aflfecting his legal rights unless he had notice of the 
 proceedings that led to it, and an opportunity of 
 
CLAIMS OF MATEEIAL-MEN. 91 
 
 appearing and making a defence. If a government '^°^^- '• 
 should see fit to tolerate such, injustice, a sentence 
 passed without notice might be held binding within 
 its own jurisdiction ; but, in the language of Mr. 
 Justice Story, in Bradstreet v, Tlie Neptune Ins. 
 6'o.(a), "upon the eternal principles of justice it 
 ought to have no binding obligation upon the rights 
 or property of the subjects of other nations." The 
 doctrine was asserted in emphatic language by the 
 Supreme Court of the United States in The MaryiF). 
 " It is," said Ch. J. Marshall, "a principle of natural 
 justice of universal obligation, that before the rights 
 of an individual be bound by a judicial sentence, he 
 shall have notice, either actual or implied, of the 
 proceedings against him." And in the case before 
 Mr. Justice Story, just above cited, speaking of a 
 seizure and condemnation under a municipal law of 
 Mexico, he also declared it to be " A rule founded 
 in the first principles of natural justice, that a party 
 shall have an opportunity to be heard in his defence 
 before his property is condemned." " If," he added, 
 " a seizure is made, and condemnation is passed 
 without aiiy public notice of the proceedings, so 
 that the parties in interest have no opportunity of 
 appearing and making defence, the sentence is not 
 so much a judicial sentence as an arbitrary edict. 
 * * * * J hold, therefore, that if it does not 
 appear, from the face of the record of the proceed- 
 ings in rem^ that due notice, by some public 
 
 (a) 3 Sumner's K., 607. 
 
 (6J 9 Cranch's K., 126 (3 Curtis's Decis. S. C.,292). 
 
92 ADMIKALTY JURISDICTION. 
 
 TOL^i. proclamation, or by some notification or monition, 
 acting m rem or attaching to the thing, so that 
 parties in interest may appear and make defence, 
 and in point of fact the sentence of condemnation 
 has passed upon ex parte statements without their 
 appearance, it is not a judicial sentence conclusive 
 upon the rights of foreigners." These distinguished 
 judges, . it is true, were speaking in reference to 
 adjudications in the courts of foreign countries; 
 but the great principle they assert has been repeat- 
 edly held applicable, in the courts of one state of 
 this Union, with respect to the judgments of the 
 courts of another (a). That it should be so ought 
 not to be doubted; for although the Constitution 
 declares that " Full faith and credit shall be given 
 in each state to the public acts, records and pro- 
 ceedings of every other state(^)," and by the act 
 of 26th May, 1*790, ch. 11, it is declared that such 
 records and judicial proceedings, authenticated in 
 the manner prescribed in the act, " shall have such 
 faith and credit given to them in every court of the 
 United States, as they have by law or usage in the 
 courts of the state from whence the said Records are 
 or shall be taken," these enactments ought not to 
 receive^ nor could they have been intended to 
 receive an interpretation that would compel the 
 judicial tribunals of one state to uphold and enforce 
 
 (a) See D'Arcy v. Ketchum, 11 Howard's K., 165 (18 Curtis's Decis. 
 S. C, 586), where this is expressly adjudged, and the correspondent 
 decisions of the Supreme Court of the State of New- York therein 
 cited hy Mr. Justice Oatkon. See also 1 Kent's Comm., 3d ed., 261, 
 and ib., note b. 
 
 (6) Art. 4, § 1. 
 
CLAIMS OF MATERIAL-MEK. 93 
 
 the judgments of the tribunals of another acting in chap. 2. 
 open defiance of the fundamental principle in ques- 
 tion. 
 
 But assuming that the Legislature of Ohio, in 
 authorizing proceedings against the vessel, really 
 intended to give them the whole force and effect 
 usually ascribed to judgments in rem, and that the 
 state court, in its adjudication against the Globe, so 
 understood the law, then, not only is the judgment 
 obnoxious to this charge, but the statute also, for it 
 requires no notice. But is the great principle of 
 natural right by which notice is enjoined, less 
 obligatory upon the Legislatures of the several states 
 than upon their courts ? It has been declared by 
 the highest authority, to be of universal obligation. 
 Can it, by any reasonable intendment, be supposed 
 that the people of the State of Ohio designed to 
 invest their Legislature with authority to disregard 
 it ? And if they did, have such acts of legislation 
 any binding extra-territorial obligation ? 
 
 But there is another and a very grave objection 
 to the Ohio statute arising from the political rela- 
 tions between the national and state governments. 
 The Constitution of the United States declares that 
 the judicial power of the nation shall extend " to 
 all cases of admiralty and maritime jurisdiction ;" 
 and by the Judiciary Act of 24th September, 1Y89, 
 the district courts are invested with " exclusive 
 cognizance of all civil causes of admiralty and mari- 
 time jurisdiction." The Constitution also confers 
 upon Congress power " to regulate commerce with 
 foreign nations and among the several states." 
 
94 ADMIRALTY JURISDICTION. 
 
 TOL^i. These constitutional and legislative provisions do 
 not interfere with, the common law jurisdiction of 
 the state courts, but leave the suitor at liberty to 
 pursue his concurrent common law remedy in these 
 courts, whenever he sees fit. No inconvenience 
 arises from this concurrent jurisdiction. The com- 
 mon law remedies are clearly defined and quite 
 dictinct from those administered by courts of admi- 
 ralty. These latter belong exclusively to the 
 national courts, and any attempt by the Legislature 
 of a state to engraft them upon its system of juris- 
 prudence, whether eo nomine, or only in substance 
 and effect, under whatever name, would be void. 
 Would it be less objectionable for a state Legislature 
 to interpose by assuming to create new forms of 
 remedy, unknown to the common law, but bearing 
 a rude analogy to the admiralty remedies, and 
 adapted, therefore, to supersede and defeat those 
 provided by the Constitution and laws of the United 
 States ; thus exhausting the sources of the federal 
 jurisdiction, and disturbing the commerce of the 
 country? This question seems to admit but one 
 answer ; and precisely of this character, according to 
 the interpretation put upon it by the claimant in 
 the case of The Globe, is the statute of Ohio. 
 
 But supposing the validity of the state law, — ^not- 
 withstanding its conflict with the Constitution and 
 laws of the United States, and its silence with 
 respect to notice, and the validity of a judgment 
 and an execution sale under it, notwithstanding the 
 want of notice, — to be conceded ; the main question 
 still remains unanswered whether such judgment 
 
CLAIMS OF MATERIAL-MEN. 95 
 
 and sale are conclusive against all the world. The chap. 2. 
 act itself is silent upon this point ; and the more closely 
 its provisions are scanned, the more numerous and 
 the stronger will appear to be the reasons for doubt- 
 ing whether anything was comtemplated by the 
 Legislature beyond what belongs to an ordinary 
 judgment and sale hj execxition m personam, ,• and 
 the stronger also will appear to be the extrinsic 
 objections to the opposite construction. The great 
 distinctive element of a civil law action m rem is 
 the universality of notice, and the correspondent 
 right of intervention. It is this that constitutes the 
 reason and the justification of the conclusiveness 
 ascribed to the judgment in such an action. The 
 proceedings prescribed by the act in question are 
 wholly ■ wanting in this peculiar element. There 
 is no provision for notice, or for intervention either 
 pendente lAte^ or even against surplus proceeds. The 
 only notice required is one of ten days of the sale 
 of the vessel on execution ; and whatever balance of 
 proceeds may remain after satisfying the execution, 
 the sheriff is peremptorily directed by the act to 
 pay over to the owner or his agent, without, as I 
 understand the act, any judicial order for that pur- 
 pose, and without any provision for ascertaining to 
 whom the vessel really belonged. The remedy 
 against the vessel is not confined to those demands 
 for which a lien is conferred by the maritime law, 
 nor does the act make any distinction between for- 
 eign and domestic vessels, but it subjects all alike to 
 " seizure" for debts contracted as well by the owner ^ 
 steward^ consignee or other agent,, as by the master ; 
 
96 ADMIRALTY JURISDICTION. 
 
 TOT.^1. and "for all injury done to persons or property by 
 sucli craft ;" and " for any damage or injury done 
 by the captain, mate or other officer thereof, or by 
 any person under the direction of either of them, 
 to any person who may be a passenger or hand " on 
 board. The question is whether an execution sale 
 under a judgment recovered in any court, or before 
 a "justice of the peace" of the State of Ohio for any 
 one of the causes of action here enumerated, has the 
 effect of extinguishing a maritime lien so highly 
 favored in law as to be held paramount to the title 
 acquired by a hona fide purchaser, without notice, 
 and even to that of the government acquired by 
 forfeiture. An affirmative answer to this question 
 would, in my judgment, be repugnant alike to law 
 and common sense. 
 
 It was under the foregoing views of the subject, 
 somewhat amplified in the opinion he delivered, 
 that the district judge, in the case of Tlie Globe, 
 prbnounced for the libellant, holding that his lien 
 was not extinguished by the Ohio judgment and sale, 
 and awarding to him the value of the supplies fur- 
 nished by him to the master of the Globe. An 
 appeal to the circuit court was, however, interposed 
 to this decree, and it was reversed by the presiding 
 judge of that court, who dismissed the libel with 
 costs(a). The amount in controversy being less 
 than $2000, his judgment was final. Whether the 
 validity or construction of the Ohio acts has been 
 drawn in question in any other of the national courts, 
 
 (o) 15 Law Eep. (5 N. S.), 421. 
 
CLAIMS OF MATERIAL-MEN. 97 
 
 I am not apprised. Probably the reversal of the chap. 2. 
 decree of the district court in the case of The Globe 
 may have deterred persons possessing maritime 
 liens from contending against these acts, and as the 
 question adjudicated is of do inconsiderable impor- 
 tance to the prosperity of the immense commerce 
 of the lakes, it may not be amiss to subject the pub- 
 lished opinion of Mr. Justice Nelson to a very brief 
 examination. 
 
 It is not necessary to dwell upon the exordium of 
 this remarkable judgment. 
 
 To say that the grant of admiralty jurisdiction to 
 the courts of the United States " did not take away 
 the concurrent remedy that existed at common law ;" 
 that *' the remedy at common law is to be sought in 
 the jurisprudence of the states ;" but that " it may 
 be administered in the federal courts, in cases where 
 the citizenship or residence of the parties enables 
 those courts to entertain the jurisdiction," is to utter 
 trite truisms, which no one is likely to think of 
 disputing, except that it is a mistake to suppose 
 that residence is sufficient to give jurisdiction. 
 Precisely of this character, also, is all that is said of 
 the decision of Mr. Justice Stoet, in TTie Barque 
 Chuscm; and with regard to his honor's observa- 
 tions concerning priority among several possessors of 
 maritime liens, and a decision of the district judge 
 of the Southern District of New- York, relative to the 
 order of payment among suitors claiming payment 
 out of proceeds in court (an extended note of which it 
 has been seen fit, it seems, to append to the report), 
 little else need be said, except that they are unde- 
 13 
 
98 ADMIRALTY JURISDICTION. 
 
 \oLn.. niably wholly irrelevant to the case of The Globe. 
 Indeed, I shall need no apology for affirming that, 
 but for the high official source whence they emanate, 
 the strange confusion of ideas they evince would be 
 absolutely ludicrous. The question was, whether 
 the libellant's maritime lien had been extinguished 
 so as to depiive him of the right to maintain a suit 
 in admiralty npon it, and to suppose that this 
 depended on the priority of his lien in point of time, 
 was simply preposterous. The libellant's predica- 
 ment in this respect would have been exactly the 
 same, if his lien had accrued subsequently to the 
 origin of the Ohio creditors' demand. No one has 
 ever imagined that the existence of a prior lien 
 against a ship was any impediment to the mainte- 
 nance of a suit in rem in a proper court, and the 
 recovery of a valid and conclusive judgment against 
 the same ship, by any one having a right of action 
 in that form against it.. It is only with respect to 
 the application of the proceeds of the sale of the ship 
 that the question of priority becomes important. 
 Such was the case before the judge of the Southern 
 District of New -York, and his observations upon it, 
 so irrelevantly quoted as authority by Mr. Justice 
 Nelson, had, at least, the merit of pertinency to the 
 case before him, whatever may be thought of the 
 soundness of the conclusion at which he arrived. 
 
 But impertinency is not the worst fault of Mr. 
 Justice Nelson's judgment. "When, after remarking 
 that, " as a' general, if not universal rule, in order to 
 bind the defendant, or confer any rights upon the 
 plaintiff, by force of the judgment, in all personal 
 
CLAIMS OF MATEEIAL-MEN. 99 
 
 actions, the former must be served with notice of the ^'^^ *• 
 institution of the suit, so that he may have an oppor- 
 tunity to appear and defend" — he adds, "But a 
 proceeding in rem forms an exception to the general 
 rule, and binds the res in the absence of any personal 
 notice to the party interested" — he utters a direct 
 denial of a well settled and incontrovertible principle 
 of law ; for I will not impute to him the puerility of 
 intending, by the expression '■'• personal notice," to 
 be understood to speak of a service of process or 
 other notice, personally on the owner or other 
 persons interested in the res, who are often unknown 
 to the party by whom the suit is instituted. The 
 authorities cited by Mr. Justice Nelson for this pro- 
 position are "Story's Conflict of Laws* chap. 14, § 549, 
 and cases there cited, and chap. 15, §§ 592, 593 ; 
 JBoswelVs Lessee v. Otis, 9 How., 336," which, it is 
 scarcely necessary to observe, afford not the slightest 
 warrant for his assertion. In describing the effect 
 of proceedings in rem, they refer to properly con- 
 ducted proceedings, of which notice is an essential 
 element, and when they assert that notice is not 
 necessary to give them validity, actual personal 
 notice by the service of process is meant, the object 
 being to mark the distinction in this respect between 
 proceedings in rem and in persona/m. 
 
 In actions against the person, the defendant must 
 be personally summoned, because he is known and 
 can be notified in this form. In actions in rem the 
 persons whose interests are to be affected by the 
 proceedings are not known to the promo vent, and 
 they can therefore be notified in no other form than 
 
100 ADMIRALTY JURISDICTION. 
 
 vOT^i. tiiat resorted to by courts of admiralty. This form 
 of notice, with rare exceptions, is in fact eflFectnal, 
 and from necessity must be held sufficient, or the 
 decree would be nugatory. But such a notice is 
 just as essential to the validity of a decree in rem, 
 as a personal notice to the defendant is to the 
 validity of a judgment in a peraonal action. 
 
 Mr. Justice Nelson proceeds, however, to say 
 that " it is unnecessary to place the decision of this 
 branch of the case [in his treatment of it, it had no 
 other branch] upon the ground that the Ohio judg- 
 ment, acting ill rem, would be conclusive in the 
 absence of any personal notice to the party inter- 
 ested, because Robinson, the owner of the vessel at 
 that time, appeared in the suits in the court of Ohio, 
 and contested the proceedings throughout." No 
 authority is cited for this assertion, and, without 
 giving myself the trouble to search, I hesitate not 
 to aver that none can be found. The assertion is 
 this : That if, in a proceeding in rem, of which no 
 notice has been given, the owner, being, by some 
 means, nevertheless, apprised of it, sees fit to appear 
 before the court, he thereby not only concludes 
 himself, but closes the mouth also of all third persons 
 possessing liens on the property who do not appear 
 and who know nothing of the proceeding. Such a 
 qualification of the rule is inconsistent with its spirit. 
 If the effect of the proceeding is to be to bind all 
 the world, as it is usually expressed, which means 
 all persons having an interest in the thing, all the 
 world, in this sense, should have notice of it, and 
 thus have the opportunity to become parties to it. 
 
CLAIMS OF MATERIAL-MEN. 101 
 
 In otter words, tlie notice should be public, as it is ™:^- *• 
 required to be in all well regulated systems of juris- 
 prudence ; and it is upon this ground alone, that 
 the proceeding is held to be universally obligatory. 
 The rule as qualified by Mr. Justice Nelson would 
 lead to intolerable injustice. In a suit by one 
 creditor against a vessel encuinbered by numerous 
 liens to the whole amount of her value, it would put 
 it in the power of the owner to defeat the claimsf of 
 all the other creditors, and to appropriate the plro- 
 ceeds of his vessel rightfully belonging to others, to 
 his own use ; and this evil would be aggravated by 
 fraudulent collusions between owners and creditors, 
 real or pretended. The principle is that notice, 
 actual or implied, must be given of all judicial 
 proceedings coextensive with their obligatory force. 
 It is a fundamental principle pervading every sound 
 system of jurisprudence. It is strictly enjoined by 
 the statutes of the United States relative to for- 
 feitures, as it is by numerous statutes of the State 
 of New-York, and it is studiously and efficaciously 
 enforced by courts of admiralty. Of this principle 
 Mr. Justice Nelsow seems to have been profoundly 
 ignorant, and he accordingly first denies its existence 
 altogether with respect to proceedings m rem, and 
 then asserts that conceding its existence, the volun- 
 tary appearance of the owner effectually curerf its 
 non-observance with respect, not only to himself but 
 all other persons. 
 
 After stating the decision of Judge Betts relar 
 tive " to the order in which the different demands 
 [upon the funds in court arising from the sale of the 
 
102 ADMIRALTY JUKISDICTION. 
 
 TOT^i. ship] are to be satisfied when of like rank," Mr. 
 Justice Nelson concludes as follows: "I concur 
 fully in this view, and, therefore, hold, in this case, 
 that the priority of time in the furnishing of the 
 supplies and materials by the libellant gave him no 
 paramount lien on the vessel over the liens of the 
 creditors in the Ohio suits"! Certainly not, and 
 no one ever dreamed that it did. 
 
 I have now noticed every part of Mr. Justice 
 Nelson's opinion and have endeavored to do it 
 fairly. Should the reader find it difficult to credit 
 the assertion, I refer him for its verification to the 
 opinion itself. With the exception of two or three 
 sentences, he will find it to consist, as I have repre- 
 sented it to do, of matter as inapplicahle to the 
 question before the court as the law of copy-right, 
 and in the excepted sentences he will find only bold 
 assumptions in confiict with " the first principles of 
 natural justice," and contradicted by the highest 
 judicial authorities. It is scarcely necessary to add 
 that the question passed upon by Mr. Justice Nel- 
 son is left by his opinion, in point of judicial 
 authority, exactly where he found \i{a). 
 
 (a) If my strictures upon the judgment of Mr. Justice Nelson 
 should seem to be marked by unusual severity, it is no fault of mine. 
 Had he given evidence of having duly examined the case before pre- 
 sumtng to decide upon it, he would have entitled himself at least to 
 forbearance, and to the respect due to good intentions and honest en- 
 deavors. But this he has not done. The question depended upon a 
 statute of extraordinary character, and there is not in his opinion the 
 slightest mention of any one of its provisions, nor a syllable implying 
 that he had any knowledge of them. He took it upon himself to 
 reverse one decision and virtually to overrule another, of the district 
 court, without even an allusion to the published reasons for these de- 
 
CLAIMS OP MATERIAL-MEN. 103 
 
 If an exclusive personal credit has been given by °°i£: *• 
 material-men to tlie master, tbey cannot afterwards, crldu'^ven 
 
 , , to the maa- 
 
 upon any change of circumstances or opmion, resort ot'iltnel^^ 
 to the ship, or shift the responsibility over to the 
 owner ; but prima facie the supplies are to be 
 deemed to have been furnished on the credit of the 
 ship and owners, as well as of the master, until the 
 contrary is proved. It is not sufficient to show that 
 the master is himself, in fact, personally liable ; for 
 he is in all cases so liable for supplies and necessaries 
 furnished for the ship, unless the credit be exclu- 
 sively confined to the owners (a). 
 
 But it has been held that the acceptance, as a Acceptance 
 
 *^ ' of a negoLi- 
 
 conditional payment, of a negotiable promissory oStet^nding, 
 note, which had not been surrendered or tendered 
 
 cisions, and in a manner, therefore, compatible neither with judicial 
 duty nor decorum. To the elaborate and obviously maturely consid- 
 ered judgment of the district court, he contented himself with opposing 
 an opinion that cannot truly be characterized without the employment 
 of epithets from which I choose to abstain. This is not a solitary 
 instance. No judge has a right thus to trifle with his high functions. 
 They furnish scope for the highest intellectual endowments, and the 
 profoundest legal learning. However great may be the abilities of a 
 judge, he is bound to devote them conscientiously and strenuously to 
 the public service ; and especially is this duty incumbent on a judge 
 of humble capacity. He is bound to strive as far as in him lies, to 
 supply this deficiency, by extraordinary exertions. But unfortunately 
 judges of this character are precisely those who are most apt to be 
 blinded by conceit and self-complacency, and thus to be rendered in- 
 capable of apprehending the responsibilities of their oflBce. I believe 
 this to be the only highly civilized country in the world where such 
 men are elevated to the highest judicial stations. They require to be 
 watched ; and he, who, regardless of their displeasure, proclaims their 
 delinquencies, and arouses them to the better performance of their 
 duty, entitles himself to be regarded as a pubUc benefactor, 
 (a) The Brig Nestor, 1 Sumner's R. 
 
104 ADMIRALTY JURISDICTION. 
 
 TOL^i. to be given up, was a waiver of the riglit to resort 
 bat not to an admiralty suit for satisfaction(a). If, however, 
 
 unless taken ■' \ / i 
 
 wmeir tlie note was not taken as absolute payment, or is 
 not, by the local law of the state where the debt 
 was contracted, to be deemed to have been so taken, 
 and if the creditor at the hearing offers to surrender 
 it, the lien exists, and may be enforced in the 
 admiralty(5). 
 
 Agreement In thc case of The Nestor, above referred to, it 
 
 toglvecredlt ' ' 
 
 notawaiver. ijecame ueccssary for Mr. Justice Stoey maturely to 
 consider and to decide upon the effect of a stipula- 
 tion on the part of material-mfen to give a credit, 
 whether indefinitely, or for a specified time ; and, 
 by a course of reasoning marked by consummate 
 learning and ability, he arrived at the conclusion, 
 contrary to the prevailing impression previously 
 entertained(c), that the giving of such" credit, in 
 either form, was no waiver or extinguishment of the 
 maritime lien. 
 ^•'Jp'^!''!^ From what has been said in the preceding chapter 
 ty fo?m™eri- couceming the limitation of the admiralty j urisdiction 
 
 alsand labor , i • i • 
 
 jSSd^a" m cases of contract, to those contracts which pertam 
 where a lien to commercc aud navigation on waters within the 
 admiralty jurisdiction, a doubt might be entertained 
 whether a court of admiralty could take cognizance 
 of the claim of a shipwright for materials furnished 
 and labor bestowed in the construction of a vessel 
 not yet launched, or which had not yet been 
 
 (a) Ramsay v. Allegre, 12 Wheaton's R., 611 (7 Curtis's Decis. 
 S. C, 395). 
 (V) The Barque Chusan, 2 Story's R., 455, 
 (c) See Zane v. The Brig President, 4 Washington's R. 453. 
 
CLAIMS OF MATERIAL-MEN. 105 
 
 employed in maritime pursuits, alttougli the local chap. 2. 
 law might give him a lien on the vessel. Enough, 
 perhaps, has been already said in the present chapter 
 to dissipate such a doubt ; but it is necessary, never- 
 theless, to bestow a particular notice upon the subject. 
 Claims of this nature have been held to be unques- 
 tionably within the admiralty jurisdiction, provided 
 the vessel is designed for the proper employment. 
 
 Read v. Tlie HuU of a New Brig{a)^ was a case 
 of this description ; and the following extract from 
 the opinion of Mr. Justice Story, will serve to show 
 the legal footing upon which claims of this description 
 rest : " The brig is built and designed for maritime 
 business and navigation upon the seas, and waters 
 navigable from the sea ; so that her employment is 
 clearly to be maritime, and the contract for the work 
 and labor is for maritime purposes. This is a fact, 
 which is naturally inferable from the actual circum- 
 stances and local position of the port of Portland 
 [in Maine], and from the size and build of the vessel 
 itself. It ought, however, to have been positively 
 averred in the libel, as it is, or at least may be, 
 material to the exercise of the admiralty jurisdiction, 
 both in rem and m persona/m, that the vessel is of 
 the size and build fitted for maritime employment, 
 and that her business is to be maritime navigation, 
 or at least navigation upon waters which are, in 
 some part thereof, tide waters, or navigable to and 
 from tide waters. It is not every case, where a lien 
 exists by the local law or the general law, that the 
 
 (a) 1 story's R. 244. 
 
 14 
 
106 ADMIEALTY JUEI8DICTI0N, 
 
 voL^i. admiralty possesses and exercises jurisdiction : the 
 lien must arise from some business, employment, or 
 work and labor connected witli maritime affairs, or 
 nayigation, or shipping." 
 
 A like jurisdiction was exercised, upon the. same 
 ground, in the case of Da/ois et al. v. A New Brig, 
 in the District Court? for the Eastern District of 
 Pennsylvania(a). 
 
 (a) GUpin's R., 473. 
 
MARINERS' WAGES. 107 
 
 CHAP. 8. 
 
 CHAPTER III. 
 
 Mariners' Wages. 
 
 The term mariner may, in general, be said to 
 embrace all persons employed on board ships, to 
 assist in their navigation and preservation. It 
 includes, therefore, not only the officers and the 
 ordinary seamen of the ship, but also surgeons, 
 carpenters, coopei'S, stewards and cooks, employed 
 on board as such(«). It may include women, also, 
 
 (a) The right of "mariners," with the exception of the master, to 
 sue in the admiralty for wages, was always conceded by the common 
 law courts of England ; but duriaig the pendency of the well known 
 controversy between these courts and the High Court of Admiralty, 
 touching the extent of the jurisdiction of the latter, the question, who 
 were to be considered as embraced within this denomination, often 
 became the subject of discussion, and there are many reported decisions 
 upon this point. It is unnecessary, however, particularly to refer to 
 them, because their authority and influence are superseded by the 
 decisions and established usages of our own courts. If there is ground 
 for doubt with respect to either of the classes of persons mentioned 
 in the text, it is that of surgeons or physicians. In the case of Mills 
 V. Long (Sayer, 136), it was unanimously decided by the court of 
 King's Bench, that a ship's surgeon might sue in the admiralty ; but 
 in the case of The Lord Hobart (2 Dodson's R., 100), Sir Wilmam 
 Scott seems to have entertained some doubt upon the point ; consider- 
 ing the case of a surgeon to be different, in this respect, from that of 
 a carpenter, who frequently acts in the capacity of a mariner in the 
 strict sense of the term. It did not become necessary to decide the 
 point ; and the reporter, in a note, intimates an opinion that if the 
 cause had been persevered in, the court would have recognized the 
 
 "Who are 
 mariners. 
 
108 - ADMIEALTY JUKISDICTION. 
 
 Toi^i. as well as men (a) ; and the pilot, deck hands, engi- 
 neer and firemen employed on board a steamboat 
 have been held to fall under the denomination of 
 mariners (5). It is not, however, to be understood 
 that all persons employed, in whatever capacity, on 
 board vessels, fall within this denomination. To 
 constitute a mariner, the services rendered by him 
 must pertain to the business of navigation ; and 
 must be such as are necessary, ar at least conducive 
 
 authority of the case of Mills v. Long, and permitted the surgeon to 
 maintain his suit. In the case of Gardiner et al. v. The Ship New 
 Jersey (1 Peters's Adm. Decis., 223), however, it was assumed by 
 Judge Peters that the ship's physician had no lien on the ship ; but 
 in the case of Turner et al. v. The Superior (Gilpin's R., 514), and 
 also In the case of Thackarey et al. v. The Farmer (ibid., 524), which 
 arose more than thirty years afterwards, in the same court, the right 
 of surgeons to sue in the admiralty was incidentally asserted by the 
 court as a settled point. In the case of Macomber et al. v. Thompson 
 (1 Sumner's R., 384), no objection was interposed to the right of a 
 cooper, on board of a whaling ship, to maintain a suit in the admiralty 
 for his share in the earnings of the ship. 
 
 The master is not entitled to sue in the English admiralty for his 
 wages, not having, as we shall see, any lien on the ship therefor ; but 
 this is because, from the relation in which he stands to the owners, he 
 is presumed not to have looked to the ship for security. The right of 
 the mate to sue for wages, in the admiralty, was also formerly ques- 
 tioned in England, on the same ground ; but it has long been settled, 
 both in England and the United States, that he stands, in this respect, 
 on the same footing as the crew. 
 
 (a) The Jane and Matilda, 1 Haggard's R., 187. 
 
 (6) Wilson V. The Ohio, Gilpin's R., 505, and in the District Court 
 of the Northern District of New-York, "porters," whose chief business 
 it is, on board of lake steamers employed in the conveyance of passen- 
 gers, to receive and bring on board, and discharge the luggage of the 
 passengers, have been allowed to sue as mariners, their services being 
 essential to the proper and successful navigation of the vessel as a 
 passenger vessel, and for the same reason this privilege has been 
 allowed to the derk. 
 
MARINERS' WAGES. 109 
 
 to the preservation of tte vessel, or of those '^hap. s. 
 employed in her navigation. It has therefore been 
 held that no suit in the admiralty could be main- 
 tained for wages, by persons hired and employed as 
 musicians on board a vessel (a). 
 
 Few claims are so highly favored and so studiously Manner hu 
 
 remeily 
 
 protected by law, as those of manners for their 'fr^freight, 
 wages ; and it has long been a settled principle of "wn^' """^ 
 the maritime law, that the seaman has a three-fold 
 remedy for the recovery of his earnings: against the 
 ship, in virtue of a specific lien or privilege secured 
 to him by the maritime law ; against the master, by 
 reason of his right to receive the freight earned by 
 the ship, that being the appropriate fund for the 
 payment of wages ; and against the owner, in virtue 
 of his contract(5). It is now, moreover, an estab- 
 lished principle of the maritiJne law of the United 
 States, that the mariner has a lien for his wages 
 also on the freight^ in the hands of the merchant, 
 owner or consignee of the goods from whom it is 
 due. This doctrine was laid down by the Supreme 
 Court of the United States, for the first time, in 
 qualified terms, and apparently Avith considerable 
 
 (a) Trainer et al. v. The Superior, Gilpin's R., 514. The yessel, in 
 this case, was originally designed for canal navigation ; but at the 
 time the services for which the suit waa brought were rendered, was 
 employed as a floating museum, and, in that character, left Philadel- 
 phia soon after the libellants were shipped, passed down the Delaware, 
 through the canal and Chesapeake bay, to Norfolk, and thence to 
 various places in North Carolina, stopping from time to time, and 
 exhibiting her curiosities. 
 
 (6) Abbot on Shipping, Boston ed. of 1846, 781 ; Brands v. Haven, 
 Gilpin's K., 592 ; Sheppard v. Taylor, 5 Peters's R., 665 (9 Ourtis's 
 Decis. S. C, 531). 
 
110 ADMIRALTY JURISDICTION. 
 
 voL^i. hesitation, in the case of Sheppa/rd v. Tcuylor, just 
 cited. It has, however, since been distinctly 
 asserted in several cases by Mr. Justice STOET(a) ; 
 and is explicitly declared by the Supreme Court, in 
 one of the rules of practice in cases of admiralty and 
 maritime jurisdiction, promulgated in 1845(5). And 
 it had also been pfeviously maintained, in a case 
 not then reported, by the learned judge of the 
 District Court of the United States for the District 
 of Maine, in an elaborate and very able opinion 
 comprising a full review of the authorities bearing 
 upon the question (c). In that case, a part of the 
 return cargo belonged to the ship charterers, by 
 whom the crew was shipped, and who had the entire 
 control of the ship during the voyage. Before the 
 return of the ship, the charterers became insolvent, 
 and had executed an assignment of all their pro- 
 perty, including so much of the return cargo as 
 belonged to them. In behalf of the seamen, it was 
 insisted that they had a lien not only upon the 
 freight due to the charterers on account of that part 
 of the cargo which belonged to others, but also on 
 wheiherthe the reslduc of the cargo itself. As a judicial ques- 
 lien does not tiou, with rcspcct both to the freight and the cargo, 
 
 extend also ' ^ O o ' 
 
 to the cargo, 
 -when the 
 
 the ship- (o) Brown V. Lull, 2 Sumner's K., 443 ; Pitman v. Hooper, 3 Sum- 
 
 ner's R., 50. 
 
 (6) Rule 13. " In all suits for mariners' wages, the libellant may 
 proceed against the ship, freight and master, or against the ship and 
 freight, or against the owner alone, or the master alone, in personam." 
 This rule is not understood to require the mariner, when he wishes 
 to proceed against the ship and master, to embrace also the freight, 
 but only to declare his right to do so. 
 
 (c) Poland et al. v The Spartan, Ware's R., 134. 
 
MARINERS' WAGES. JIJ 
 
 it was considered aud treated by the court as chap.s. 
 entirely new. The conclusion of the court was, 
 that a lien was given by the general maritime law 
 on freight, and, in cases like that before the court, 
 on the cargo also. 
 
 In the case of Slieppa/rd v. Taylor^ cited above, 
 it was said by the Supreme Court that seamen 
 have no lien on the cargo ; " as that is not in any 
 manner hypothecated, or subjected to the claim for 
 wages(«)." But in a late case in the High Court of 
 Admiralty of England, it is not only assumed as a 
 settled principle, that the mariner has a lien on the 
 freight, "as appurtenant to the ship," but it is 
 strongly iatimated that the lien may be enforced 
 also against the cargo, when it is the property of 
 the ship-owner. The ship, designed on a trading 
 voyage from Liverpool to Africa and back, sailed 
 with goods for barter; and, on her voyage home, 
 was, with her cargo, totally consumed by fire. The 
 ship and cargo were the property of the same owner, 
 and were insured. The suit was in favor of one of 
 the crew who had worked his passage to England, 
 and was against the owner of the ship, and of " the 
 cargo lately laden on board." The court, in dis- 
 cussing the questions to which the case was supposed 
 to give rise, is repoi"ted to haves said, that " a mariner 
 has no lien on the cargo, as cargo : his lien is on the 
 ship, and on the freight as appurtenant to the ship ; 
 and so far as the ca/rgo is svihject to freight, he 
 may attach it as a security for the freight that may 
 
 (a) 5 Peters's R., 675 ( 9 Curtis's Decis. S. 0., 531 ). 
 
112 ADMIRALTY JUEISDICTIOlSr. 
 
 Toi^i. Iq gug^ Here, however, the ship and cargo are all 
 destroyed." But in a subsequent part of his judg- 
 ment, the learned judge adds : " Whether, if any part 
 of the cargo were saved, it could be held to represent 
 the freight, I give no opinion: it might raise a very 
 different question from the present ; here the goods 
 taken in barter were destroyed and lost, so that 
 no freight could accrue(a)." "Whatever rule may 
 eventually be established with respect to cases where 
 the same person is the owner of the ship and of the 
 cargo, and where, therefore, no freight, eo nomine, 
 is earned, the doctrine of the case of The Spartcm is 
 recommended by persuasive considerations of justice, 
 and supported by strong analogies in the undisputed 
 principles of the maritime law. 
 Priority of Against the ship and freight, and against their 
 lien on ship procecds, iuto whosesoever hands they may come, 
 the seaman's claim for wages has priority over all 
 other claims. It is a sacred lien ; and as long as a 
 plank of the vessel or a fragment of the freight 
 remains, the mariner is entitled to it, in preference 
 to all other persons, as a security for remuneration. 
 It, accordingly takes precedence of bottomry bonds, 
 and is accordingly entitled to priority of payment 
 out of the proceeds of the sale of the ship sold under 
 a decree in favor of a bottomry bond holder, even 
 though the fund is insufficient to pay the bond (5) : 
 and it may be enforced against a subsequent hona 
 fide purchaser, and even against the title of the 
 
 (a) The Lady Durham, 3 Haggard's R., 196. 
 (6) 27ie Favorite, 2 Robinson's R., 232. 
 
.MARINERS' WAGES. 113 
 
 government acquired by forfeiture(»). Tte lien is °^^- ^■ 
 not impaired by the forbearance of the seaman to edb^Si'- 
 
 ^ •' ^ _ mediate 
 
 arrest the vessel at the termination of the voyage, voyages. 
 but may be enforced after she has made other 
 voyages, and in any port where she may be found, 
 until by lapse of time the claim may become stale(^). 
 Nor is the remedy lost by the seizure and condem- Not extin- . 
 
 •' •' guished by 
 
 nation of the vessel, in a foreign country, if she is nauSS^nhe 
 subsequently restored ; and there is no difference in 
 this respect, between the case of a restitution in 
 specie of the ship itself, and that of a restitution in 
 value. The lien attaches to the thing, and to 
 whatever is substituted for it ; and if, in the order 
 or award of restitution or indemnity, freight has 
 been allowed as a distinct item, and the proceeds of 
 the ship are insufficient, the seaman may assert his 
 claim against the allowance for freight(c). And in 
 a case in which the owner of the captured vessel was 
 also the owner of the cargo, and the claim was for 
 loss of freight as well as of the vessel, and a gross 
 sum was awarded to the claimant for his loss, 
 without any distinct noticQ of the freight, it was held 
 by Mr. Justice Stobt^ that an allowance on account 
 of freight was to be presumed ; and he intimated 
 that even if it had appeared on the face of the award 
 that no freight had been allowed, it would not foUow 
 
 (a) 7%e St. Jago de Cuba, 9 Wheaton's E., 409 (6 Curtis's Decig. 
 S. 0., 110) ; Pitman v. Hooper, 3 Sumner's R., 51 ; 3 Kent's Oomm., 
 3d ed., 197. 
 
 (6) The Mary, Paine's R., 180 ; The Eastern Star, Ware's R., 185. 
 
 (c) Sheppard v. Taylor, 5 Peters's R., 675, 710 (9 Curtis's Decis. S. 
 C, 531) ; Pitman v. Hooper, 3 Sumner's R., 50; Brown v. Lull, 2 
 Sumner's R., 443. 
 
 15 
 
114 ADMIRALTY JURISDICTION". 
 
 TOL^i. t]2at this would necessarily affect the title to wages ; 
 because the natural presumption would be, omnia 
 rite acta, that the rejection was founded on objections 
 personal to the owner, or his acts, in no respect' 
 touching the rights of the' seamen. At least, it must 
 be a very strong case which would justify a different 
 conclusion (a). 
 In case of The case just cited embraced also another and far 
 
 partial " 
 
 fuif wage°' more important question. The sum awarded to the 
 
 recoverable. i. ,. r-ji'i -x xT 
 
 owner as his proportion of the indemnity granted 
 by treaty, was a little short of one-third' of the 
 amount lost; and the question was whether the 
 libellant was entitled to receive his full wages for 
 the homeward voyage, or whether there was a 
 reduction to be made of the wages in the same 
 proportion as the owner himself had been compelled 
 to submit to under the award. The question was 
 new ; and the clear conclusion of the learned judge, 
 after the most thorough and exhausting examination, 
 and contrary, as he admits, to his first impression, 
 was that the wages of seamen, in such cases, consti- 
 tute a privileged lien to their full amount, and not 
 merely ^ro rata on the sum received by the owner. 
 Mariner It has been held that where a mariner is dis- 
 
 discharged -in ^ 
 
 mincement charged from a vessel after signing the shipping 
 entitiJd^w articles, though before the commencement of the 
 
 Bue in ihe 
 
 fof^IgM. "^oy^g^i ^6 ™^y sue in the admiralty for his wages, 
 provided the voyage for which he was engaged is 
 actually prosecuted ; but it was doubted whether if 
 the voyage was altogether abandoned, he would not 
 be obliged to seek his remedy at common law(5). 
 
 (a) Pitman v. Hooper, 3 Sumner's R., 50, 57. 
 
 (6) The City of London, 1 Wm. Robinson's R., 88. 
 
MARINERS' WAGES. 115 
 
 The master, who contracts with the owners, and •^'^^ ». 
 is not therefore supposed to look to the ship for the'^aster." 
 security, has no lien on the vessel for his wages. 
 He cannot, therefore, maintain a suit therefor in rem 
 against the ship(a). But it has uniformly been held ^^ =^'^^ 
 by Mr. Justice Stoey, in the Circuit Court for the °'''^^^^- 
 First Cii'cuit, that his right of action against the 
 owner may be enforced in the admiralty by a suit 
 in persoTiam ; and in the case of TTO^rc? v. Z>orr(5), 
 he speaks of this as the settled doctrine of the court, 
 and no longer open to question. 
 
 In England, it is a settled principle, also, that the (\^^j'j^g 
 master has no lien on the ship or freight for advances alilnc/r 
 made, or debts incurred either at home or on the sibmues. 
 voyage, for repairs, or for supplies of any kind for 
 the use of the ship. The rule is supposed by the 
 English courts to be founded in sound policy, as 
 being conducive to the interests of navigation and 
 commerce ; for it would be a great inconvenience, 
 if, on a change of the master for misbehavior, or 
 other cause, he would be entitled to keep possession of 
 the ship until he has been paid, or to enforce the lien 
 whQe abroad, and compel a sacrifice of the ship(c). 
 But in this country it has been repeatedly held, 
 and appears now to be settled, that for money paid 
 and responsibilities incurred for the use of the 
 ship, the master has a lien on the freigUid) ; and 
 
 (a) Steamboat Orleans v. Phmbus, 11 Peters's R., 175, 184 (12 
 Curtis's Decis. S. C, 391) ; Willard v. Dorr, 3 Mason's R., 91. 
 
 (b) 3 Mason's R., 91. 
 
 (c) See 3 Kent's Comm. 3d ed., 166, and the authorities there cited. 
 
 (d) The Packet, 3 Mason's R., 255 ; Poland v. The Spartara, Ware's 
 E. 134, 149. See also 3 Kent's Comm., 167, note b, and the decisions to 
 
bunements. 
 
 116 ADMIRALTY JURISDICTION. 
 
 TOT^i. j^ jij^Q gi^yp Packe% just cited, the court seemed 
 strongly inclined, in accordance with the maritime 
 law of foreign countries, to recognize the lien of the 
 
 For wages? master upon the ship also. In the case of TTie 
 Spartcm^ Judge "Ware, after an elaborate examina- 
 tion of the question, came to the conclusion that the 
 master has a lien upon the freight, not only for his 
 disbursements and liabilities incurred on account of 
 the ship, but also for his wages. 
 
 naKrdis- -'■* ^^ ^^ established principle in England as well 
 as here, that for advances made by the master on 
 account of the ship, the owners are personally 
 responsible ; and in this country, he may maintain 
 a suit in persoTiam in the district court, against them, 
 for reimbursement. 
 
 The usefulness of seamen as a class of men, and 
 their proverbial improvidence and recklessness, have 
 rendered them peculiar objects of solicitude to the 
 governments of all commercial nations. WhUe, 
 therefore, it is the aim of their commercial codes, on 
 the one hand, to secure punctuality on the part of 
 seamen in the fulfilment of their engagements, by 
 arming the masters of vessels with extensive and in 
 some respects despotic power over their crews, and 
 by the infliction of severe penalties ; it is not less 
 their aim, on the other hand, to shield the seaman 
 from oppression, to guard his rights and interests, 
 and to protect him even against himself, by looking 
 with indulgence on his faults and dglinquencies, and 
 by holding the master accountable for any wanton 
 
 the same effect, of the State Courts, there cited ; and Sheppard t. 
 Taylor, 5 Peters's K., 675, 711 (9 Curtis's Decis. S. C, 531). 
 
MARINERS' WAGES. 117 
 
 abuse of his authority. Several acts have accord- °^^ *• 
 ingly been passed by Congress in furtherance of 
 these objects, some of the provisions of which 
 require notice. 
 
 By the act for the srovernment and regulation of swpping 
 
 •i a o anicles to 
 
 seamen in the merchants' service, passed July 20, oth^wfae,' 
 1790(a), the master or commander of any ship or of wages 
 
 \ ^ ' %/ ± Tecoverable ; 
 
 vessel bound from a home port to any foreign port, ^^t'^ 
 or, if the vessel is of fifty or more tons burthen, irto/iTM.' 
 bound to a port in any other than an adjoining 
 state, is required, before proceeding on his voyage, 
 to " make an agreement in writing or in print, with 
 every seaman on board such ship or vessel (except 
 such as shall be apprentice or servant to himself or 
 owners), declaring the voyage or voyages, term or 
 terms of time for which such seaman or mariner 
 shall be shipped. And if any master or commander 
 of such ship or vessel shall carry out any seaman or 
 mariner (except apprentices or servants as aforesaid), 
 without such contract or agreement being first made 
 and signed by the seamen and mariners, such master 
 or commander shall pay to every such seaman or 
 mariner the highest price or wages which shall 
 have been given at the port or place where such 
 seaman or mariner shall have been shipped, for a 
 similar voyage, within three months next before 
 the time of such shipping, provided such seaman 
 or mariner shall perform such voyage ; or if not, 
 then for such time as he shall continue to do duty 
 
 (a) Chap. 29; 1 Statutes at Large, 131, § 1. The terms of this act 
 being general, it is supposed to extend as well to inland as to maritime 
 navigation. 
 
118 ADMIRALTY JURISDICTION. 
 
 TOL^i. on board sucli ship or vessel ; and shall, moreover, 
 forfeit twenty dollars for every such seaman or mari- 
 ner, one-half to the use of the person prosecuting 
 for the same, the other half to the use of the United 
 States ; and such seaman or mariner, not having 
 signed such contract, shall not be bound by the 
 regulations, nor subjetst to the penalties and for- 
 feitures, contained in this act." 
 
 Act of 1808. But the provisions of this act have been modified 
 by more recent legislation. The act of February 
 28, 1803(a), directs, that before a clearance shall be 
 granted to any vessel bound on a foreign voyage, 
 the master shall deliver to the collector of the port 
 a list, containing the names of the crew, their places 
 of birth and residence, and a description of their 
 persons ; which list is to be verified by the master's 
 oath, and a certified copy thereof is to be delivered 
 
 Act of 1840. to him by the collector: and the act of July 20, 
 1840(^), requires that this certified copy of such list 
 " shall be a fair copy in one uniform handwriting, 
 without erasure or interlineation ;" and also that the 
 shipping articles, including the names of the crew, 
 shall in like manner be certified by the collector ; 
 which two certified copies, the act declares "shall 
 be deemed to contain all the conditions of contract 
 with the crew, as to their service, pay, voyage, and 
 all other things." The act directs, moreover, that 
 whenever any master shall ship a mariner in a 
 foreign port, he shall forthwith take the list of his 
 
 (a) Chap. 9 ; 2 Stat, at Large, 203, § 1. 
 (6) Chap. 23 ; 5 Stat, at Large, 394. 
 
MARINERS' WAGES. 119 
 
 crew, and the duplicate [certified copy] of the ship- ''hap. s. 
 ping articles, to the consul at that port, "who shall 
 make the proper entries thereon, setting forth the 
 contract, and describing the person of the mariner." 
 This act further declares that " all shipments of sea- 
 men, made contrary to the provisions of this a'^id 
 other acts of Congress^ shall be void; and any seaman 
 so shipped onay lea/ve the service at amy time, amd 
 demand the highest rate of wages paid to any sea/rha/n 
 shipped for the voyage, or the swm agreed to he given 
 him at his shipment ;" and it further enacts, that 
 " if any master of a vessel shall proceed on a foreign 
 voyage without the documents herein required, or 
 refuse to procure them when required, or to perform 
 the duties imposed by this act, or sliall violate the 
 provisions thereof, he shall be liable to each and 
 every individual injured thereby, in damages ; and 
 shall, in addition thereto, be liable to pay a fine of 
 one hundred dollars for each and every offence, to 
 be recovered by any person suing therefor in any 
 court of the United States in the district where such 
 delinquent may reside or be found." 
 
 It would be indiscreet, in the absence of judicial 
 decisions touching this last act, to attempt explicitly 
 to point out all the particulars in which it has modi- 
 fied the antecedent law. In conferring on the Bate of com- 
 pensation 
 seaman a right to demand " the highest rate of wages l^tTmo 
 
 paid to any seaman shipped for the voyage, or" [at aofof 184^ 
 his election] " the sum agreed to be given him at 
 his shipment," Congress may reasonably be presumed 
 to have intended to supersede the rule of compen- 
 sation prescribed by theact of 1790, subjecting the 
 
120 ADMIRALTY JURISDICTION. 
 
 voi;^!- master to the payment of "the highest price or 
 wages which shall have been given at the port or 
 place where such seaman or mariner shall have been 
 shipped, for a similar voyage, within three months 
 next before the time of such shipping. 
 
 Whether this provision of the act of 1*790 was 
 limited to the case of a mariner who had served 
 without any specific agreement as to the wages he was 
 to receive, or extended also to cases in which the 
 rate of compensation had been orally agreed upon, is 
 a question never definitively decided, and concern- 
 ing which different opinions seem to have been 
 Eateofre- entertained (ffl). No such question, it will be seen, 
 
 maneration tttit 
 
 I"t°on84o can arise under the act of 1840 ; and although the 
 ISIto*" act relates in other respects exclusively to foreign 
 '"JaTs""^ voyages, while the correspondent provision oi the 
 act of 1790 extends also to shipments for voyages 
 to be performed in vessels of not less than fifty tons 
 burthen, from a port in one state to a port in any 
 other than an adjoining state ; yet, inasmuch as the 
 act of 1840 applies the new rule of compensation to 
 " all shipments of seamen made contrary to this cmd 
 other acts of Congress^'' this rule is supposed to em- 
 brace shipments of this latter description, as well as 
 those for foreign voyages. 
 
 The act of 1840, in prescribing the rate of com- 
 pensation of the seaman, omits the qualification 
 
 (a) See note to the case of The Regulus, 1 Peters's Adm. Dec, 213 
 in which Judge Peters expresses the opinion that an oral agreement 
 supersedes the statute ; and the case of Wickham v. Blight, Gilpin's 
 R., 4, 52, 454, in which Judge Hopkinson strongly intimates the opposite 
 opinion. 
 
MARINERS' WAGES. 121 
 
 contained in the former act, '•'•provided sucli seaman ^'^^- '• 
 or mariner shall perform such voyage ; or if not, 
 then for such time as he shall continue to do duty 
 on board such ship or vessel." But it does not seem 
 to be necessary to consider this proviso as embraced 
 within the implied repeal of the rate of pay pre- 
 scribed by the former act ; and, the qualification is 
 so obviously reasonable, that the courts would pro- 
 bably have deemed it to be their duty to give effect 
 to it, even without any express legislative sanction. 
 But the act of 1840 declares all shipments of 
 mariners not made in the prescribed form, that is to 
 say, all shipments on board vessels of fifty or more 
 tons burthen, engaged in the home trade, without 
 an agreement in writing or print, and all shipments 
 on board vessels bound to any foreign port, without 
 such shipping articles and a descriptive list of the 
 crew, both duly certified by the collector, to be void, 
 and that the seaman riiay leawe the service at any 
 time; and questions of considerable importance 
 seem not unlikely to arise, depending on the force 
 and effect of this enactment. The act of 1Y90, as 
 we have seen, declares that a seaman who has not 
 signed shipping articles " shall not be bound by the 
 regulations, nor subject to the penalties and for- 
 feitures, contained " in the act. But it was held by 
 Judge Peters at an early date, and seems to have 
 been uniformly considered by the courts, that the 
 unarticled seaman was nevertheless subject to all 
 the forfeitures denounced by the general maritime 
 law ; while, upon the other hand, he was entitled to 
 all the privileges it confers, and, as one of "the crew" 
 16 
 
122 ADMIRALTY JURISDICTION. 
 
 voL^i. of the vessel, to the benefit of those provisions of the 
 act itself, which regard the subsistence, health and 
 safety of- the mariner. In the language of Judge 
 Peters, he was not considered to be outlawed, and 
 left without any control ; but, on the contrary, was 
 held to be governed by the laws existing indepen- 
 dently of the act, and to be in precisely the same 
 situation he would have been if our law had never 
 been made, except that he was entitled to the highest 
 rate of wages ; and it was accordingly held that his 
 wages would be forfeited by such acts of desertion, 
 or other misconduct, as would subject him to this 
 penalty according to the general law(«). Indeed 
 this is the only principle which it seems safe to apply 
 to the case ; for to hold a seaman, during the voyage, 
 absolved from all obligation and restraint for the 
 want of an agreement in writing, would be to 
 augment the perils, both to life and property, 
 unavoidably great, attendant upon nautical enter- 
 unarticicd prise. But in one essential particular, at least, this 
 
 Be&men no .,,, ,,., .nil 
 
 joouJtor^ principle has unquestionably been restricted by the 
 
 wages for Hct of 1840. The seaman "may leave the service at 
 
 any time," and still demand the highest rate of 
 
 wages : he is released, therefore, from all liability 
 
 be'Tabie'^to ^'^^ desertiou. It is presumed, however, that he may 
 
 "'ffof°oftCT still be subjected to a forfeiture or reduction of 
 
 wages by reason of other misconduct, such as creating 
 
 a revolt, habitual drunkenness, or disobedience. 
 
 This act evinces the earnest desire of the Legisla- 
 
 (a) The Regulus, 1 Peters's Adm. Dec, 212. See also, to the like 
 effect, The Crusader, "Ware's R., 437, 447. 
 
MAKINERS' WAGES. 123 
 
 tare to secure an observance of the prescribed forms °"f^- ^• 
 
 of shipment ; and in subjecting the master to a fine 
 
 of one hundred dollars for a violation of its provisions, 
 
 instead of the forfeiture of twenty dollars denounced 
 
 by the act of 1Y90, for each seaman shipped without 
 
 a written agreement, it may have been the intention 
 
 of Congress to substitute, the new penalty in all cases. 
 
 But as it is applied, in terms, only to violations of lfSamp°' 
 
 the act 'itself, and as, with the exception already fimuedio" 
 
 ' ' X J shipmento 
 
 mentioned referring to " other acts of Congress," the vo/ageaf" 
 act relates only to foreign voyages, this penalty is 
 supposed to attach only to shipments of mariners for 
 such voyages, leaving the smaller penalty still in 
 force in other cases embraced by the act of 1790. 
 Whether, when several seamen are shipped for the whether, 
 
 ' ■*-■*■ in case of 
 
 same voyage without a written agreement, the J^pments, 
 penalty of one hundred dollars attaches to each attachcsdi«- 
 
 ■*■ *' trifmtively or 
 
 shipment, as the penalty of twenty dollars is by the """ectueiy. 
 act of 1790 declared to do, or to all the several ship- 
 ments collectively, is a question upon which I will not 
 venture to intimate any opinion. Agreements to 
 serve on board merchant vessels of less than fifty 
 tons burthen, whether upon the ocean or upon our 
 inland waters, not being required to be in writing, 
 when the wages have been agreed upon, the contract, 
 though oral, unless it be impeached for fraud or 
 imposition, is conclusive ; and when there has been 
 no express agreement in this respect, a reasonable 
 remuneration is to be awarded (a). 
 
 (a) The act of June 19, 1813, ch. 2, entitled " An act for the gOTern- 
 ment of persons in certain fisheries " ( 3 Statutes at Large, 2 ), requires 
 that the master or sMf^r of any vessel of the burthen of twenty tons 
 
124 ADMIRALTY JURISDICTION. 
 
 Toi. 1. ^ strict construction of the foregoing enactments, 
 ^SSnd it will be seen, would limit them to shipping contracts 
 /Kewlhin'^ for single voyages with fixed and specified termini. 
 
 1790. 
 
 or upwards, qualified according to law for carrying on the bank and 
 other cod fisheries, and bound from a port of the United States, to be 
 employed in such fishery at sea, shall, before proceeding on such 
 voyage, make an agreement in writing or in print, with every fisher- 
 man who may be employed therein ( except only an apprentice or 
 servant of himself or owner ) ; and, in addition to such terms of 
 shipment as may be agreed on, shall, in such agreement, express 
 whether the same is to continue for one voyage, or for the fishing 
 season ; and shall also express that the fish or the proceeds of such 
 fishing voyage or voyages, which may appertain to the fishermen, shall 
 be divided among them in proportion to the quantities or number of 
 fish which they may respectively have caught ; which agreement shall 
 be endorsed or countersigned by the owner of such fishing vessel, or 
 his agent. And if any fisherman, having engaged himself for a voyage 
 or for the fishing season, in any fishing vessel, and signed an agreement 
 therefor, shall, thereafter and while such agreement remains in force, 
 desert, or absent himself from such vessel without leave of the master 
 or skipper, or of the owner or his agent, such deserter shall be liable 
 to the same penalties as deserting seamen or mariners are subject to 
 in the merchant service, and may, in the like manner and upon the like 
 complaint and proof, be apprehended and detained ; and all costs of 
 process and commitment, if paid by the master or owner, shall be 
 deducted out of the share of fish, or proceeds of any fishing voyage, 
 belonging to such deserter. And any fisherman, having engaged 
 himself for a fishing voyage, who shall, during the voyage, refuse to 
 perform or neglect his proper duty on board, when ordered by the 
 master or skipper, or shall otherwise resist his just commands to the 
 hindrance or detriment of the voyage, besides being answerable for all 
 damage thereby, shall forfeit, to the use of the owner of the vessel, 
 his share of any public allowance which may be paid upon such voyage. 
 And it is by this act . ( § 2 ) further provided, that where such 
 agreement or contract has been made and signed, and any fish which 
 may have been caught on board the vessel' during the voyage, shall be 
 delivered to the owner or to his agent for cure, and shall be sold by 
 such owner or agent, the vessel shall, for the term of six months after 
 such sale, be hable and answerable for the skipper's and every other 
 fisherman's share of such fish, aW may be proceeded against in the 
 
MAEINERS' WAGES. 125 
 
 But in the case of The Crusader {a) ^ it was held by chap. s. 
 the learned and distinguished judge of the District 
 Court for the District of Maine, that an engagement 
 
 same form and to the same effect as any other vessel is by law liable 
 to be proceeded against for wages of seamen or mariners in the 
 merchant service. And upon such process for the value of a share or 
 shares of the proceeds of fish so delivered and sold, it shall be incum- 
 bent on the owner or his agent to produce a just account of the sales 
 and division of such fish, according to such agreement or contract, 
 otherwise the said vessel shall be answerable upon such process for 
 what may be the highest value of the share or shares demanded ; but 
 in all cases the owner of such vessel, or his agent, appearing to answer 
 to such process, may offer thereupon his account of general supplies 
 made for such fishing voyage, and of other supplies therefor made to 
 either of the demandants, and shall be allowed to produce evidence 
 thereof in answer to their demands respectively ; and judgment shall 
 be rendered upon such process for the respective balances which, upon 
 such an inquiry, shall appear: provided, always, that when process 
 shall be issued against any vessel liable as aforesaid, if the owner 
 thereof, or his agent, will give bond to each fisherman in whose favor 
 such process shall be instituted, with sufficient security, to the satis- 
 faction of two justices of the peace, one of whom shall be named by 
 such owner or agent, and the other by the fisherman or fishermen 
 pursuing such process ; or if either party shall refuse, then the justice 
 first appointed shall name his associate, with condition to answer and 
 pay whatever sum shall be recovered by him or them on such process, 
 there shall be an immediate discharge of such vessel, provided that 
 nothing in the act contained shall prevent any fisherman from having 
 his action at common law, for his share or shares of fish or the 
 proceeds thereof. 
 
 In relation to the whale and mackerel fisheries, no similar statute 
 has yet been passed. But the admiralty jurisdiction is held in this 
 country to attach to the contracts of fishermen, stipulating for a share 
 of the fruits of the voyage instead of pecuniary wages in the usual 
 form in the merchant service, independently of any statute, on the 
 ground that they are in their nature maritime contracts, in effect 
 stipulating for the payment of wages ; and it has accordingly been 
 held to extend to the claims of persons employed in the whale and 
 
 (o) Ware's B.j 437. 
 
126 ADMIRALTY JURISDICTION. 
 
 TOTj^i. for a general coasting and trading service, comprising 
 a series of contemplated voyages to various ports in 
 different states (other than adjoining states ), without 
 any certain termini, and without any limitation of 
 time for whicTi the engagement was made, was 
 clearly within the act of 1790, and, if not in writing, 
 entitled the mariner to the highest rate of wages 
 
 mackerel fisheries. Harden v. Gordon, 2 Mason's R., 541, 543 ; 
 Coffin V. Jenkins, 3 Story's R., 108. 
 
 In The Sidney Cove, in the English admiralty ( 2 Dodson's R., 11 ), 
 it was objected that contracts of this kind, being of an extraordinaiy 
 character, and partaking of the natnre of partnership transactions, the 
 court had no jurisdiction over them. The court, intimating an opinion 
 that it did not possess jurisdiction, directed the cause to stand over, 
 that search might be made for precedents ; and none having been 
 found, the article of the libel setting forth the contract in question 
 was, on a subsequent day, rejected. But in a previous case, of a prize 
 proceeding, where specie shares of the cargo of a French whaling ship 
 were claimed as the property of the officers and crew of the vessel, 
 who were asserted to be subjects of America, Sir William Scott said 
 the claimants were " to be considered as mariners ; and the proportion 
 [claimed by them] of the proceeds of the voyage, as their wages:" 
 and he rejected the claim, on the ground that no "claim can be 
 sustained for wages on board of an enemy's ship " ( The Frederick, 5 
 Robinson's R., 8 ). And in an action of assumpsit against the captain 
 of a whaling ship, in the English Court of Common Pleas, founded on 
 contract by which the plaintiflF was to receive a certain proportion of 
 the profits of the voyage in lieu of wages. Lord Alvanlet overruled 
 the objection that the parties were to be regarded as partners, and 
 that the action was not, therefore, maintainable ( Wilkinson v. 
 Frasier, 4 Espinasse's N. P. R., 182 ). The same view of the subject 
 has been taken in the American common law courts, and in other 
 cases in the English courts. See the cases collected in Abbot on 
 Shipping ( Boston ed. of 1846 ), p. 715, note. But by a very late 
 judgment pronounced upon deliberate consideration by Dr. Lushing- 
 TON, present judge of the High Court of Admiralty, it is at length 
 settled that contracts of this sort are not cognizable in that court. 
 The Riby Grove, 2 Wm. Robinson's R., 52. 
 
MARINERS' WAGES. 127 
 
 paid at tlie port where he shipped, without regard °°^^-"- 
 to the terms of any oral agreement under which the 
 service might have been rendered. 
 
 It was also held in this case that either party, fi^^J^^ 
 that is, either the master or the seaman, might put Sn"'eng''agll^ 
 
 Til 1 1 • 1 ment for 
 
 an end to such a contract at pleasure, subject only snciiBToy- 
 to the equitable restriction that this shall not be 
 done under circumstances, or at a time particularly 
 inconvenient or injurious to the other party. This 
 consequence, it was supposed, resulted necessarily 
 from the nature of the contract. Society may 
 condemn a man to perpetual servitude as a punish- 
 ment for crime: but a man cannot thus subject 
 himself by his own voluntary act. The policy of 
 the law will not admit of such a contract. But if 
 a contract to serve for an indefinite period could be 
 dissolved only by mutual consent, it would be in the 
 power of either party to render it perpetual. In the 
 case of such a contract between the master of a vessel 
 and a seaman, the former would at least have it in 
 his power to put an end to it at any time, by putting 
 an end to the voyage ; and it is the dictate of 
 common sense, and common justice, that the mariner 
 should have a reciprocal right to dissolve it by 
 leaving the vessel. In this respect it is unimportant 
 whether the contract be oral or in writing. 
 
 Between agreements of this nature, and those 
 entered into with seamen to serve on the great lakes, 
 there is a strong analogy ; and as the act of 1Y90 is 
 not restricted in terms, nor, as it is perceived, by 
 any necessary implication, to the seacoast, it is pre- 
 sumed that the provisions of this act, and. also those 
 
128 ADMIEALTY JURISDICTION. 
 
 vra^^i. of tlie act of 1840, as defined, extend to lake navi- 
 gation and commerce ; and, of course, are to be 
 enforced by the district courts, in the exercise of 
 the admiralty jurisdiction conferred by the act of 
 1845, over cases arising out of such navigation and 
 commerce. 
 
 one-twrd of The act of 1790 farther provides that every sea- 
 wages due, ■•■ ** 
 
 FnterSldiate Dian or mariner shall be entitled to be paid one- 
 third part of the wages which shall be due to him, 
 at every port where the vessel shall unlade and 
 deliver her cargo before the voyage is ended, unless 
 the contrary is expressly stipulated in the shipping 
 articles(a). 
 Three^^ a ^^ * subscqucut act of Congress(^), it is made 
 raen''a.re'" the duty. of thc mastcr, upon the sale of the vessel 
 in foreign aud the dlscharge of the crew, or the discharge of a 
 seaman with his assent in a foreign country, to pay 
 to the consul or commercial agent, for every seaman 
 so discharged, the amount of three months' pay, over 
 and above what is due to him by the terms of his 
 contract ; two-thirds of which sum is to be paid 
 over to the seaman, upon his engagement on board 
 a vessel to return to the United States ; the 
 remaining third to be retained by the consul or 
 commercial agent, to assist destitute seamen in 
 returning home. 
 
 If the three months' wages required to be paid by 
 this act is withheld, the seaman, on his return, may 
 recover it in admiralty, to be applied according to 
 
 (a) Ohap. 29; 1 Stat, at Large, 131, § 6. 
 
 (b) Act of February 26, 1803, ch. 9 ; 2 Stat, at Large, 203, § 3. 
 
MAKINERS' WAGES. 129 
 
 the requirements of the act ; and the onus p'obcmdd, °°^- * 
 to show that it has been paid, is on the master((z). 
 
 How forfeited. The wages of seamen may be for- 
 feited by desertion, or other gross misconduct. 
 
 By the act of Congress for the government and ^"^^^^^^ 
 regulation of seamen in the merchant service, of 
 July 20, 1Y90, if any seaman or mariner, after sign- 
 ing shipping articles, absents himself from the vessel 
 without the leave of the commanding officer, and 
 the mate or other officer having command of the log- 
 book shall make an entry therein of the absence on 
 the day of its occurrence, but returns to his duty 
 within forty-eight hours, he forfeits three days' pay 
 for every day of his absence ; and if he absents 
 himself for more than forty-eight hours, he forfeits 
 all the wages due to him, and all his goods or chat- 
 tels on board the vessel or in any store at the time, 
 and subjects himself moreover to an action for 
 damages(5). 
 
 This is a statute desertion, and in one respect an 
 innovation upon the general maritime law. In the 
 sense of this law, desertion is a quitting the ship and 
 her service, not only without leave and against the 
 duty of the party, but with an intent not again to 
 return to the ship's duty. If the seaman quits the 
 ship without leave, or in disobedience of orders, but 
 with an intent to return to his duty, however blam- 
 able his conduct may be, it does not constitute the 
 offence of desertion, to which the maritime law 
 
 (a) Ome v. Townsend, 4 Mason's R., 541 ; The Saratoga, 2 Galli- 
 son's R., 18. 
 (6) Chap. 29 ; 1 Stat, at Large, 131, § 5. 
 
 IT 
 
130 ADMIRALTY JURISDICTION, 
 
 TOL^i. attaches the extraordinary penalty of forfeiture • of 
 all antecedent wages. And even in a case of clear 
 desertion, if the party repents his offence, and seeks 
 to return to his duty, and is ready to make suitable 
 apologies and to repair the injury sustained by his 
 misconduct, he is entitled to be received on board 
 again, if he tenders his services in a reasonable time, 
 and before any person has been engaged in his stead, 
 and his prior misconduct has not been so flagrantly 
 wrong that it would justify his discharge. Accord- 
 ing to the maritime law, therefore, an absence from 
 duty without leave for forty-eight hours, or even a 
 longer time, would be an equivocal act, and would 
 at most be but presumptive evidence of desertion ; 
 whereas the statute, deeming such prolonged absence 
 dangerous to the ship, or the due progress of the 
 voyage, declares it to be ipso facto a desertion to 
 be visited with a total forfeiture of wages. But to 
 bring a case within the statute, there must be a strict 
 compliance with its requirements. It is an indispen- 
 sable condition, therefore, that there should be an 
 entry in the log-book by the mate or other officer 
 having it in charge, made on the day of the absencej 
 stating the fact and also that the absence was with- 
 out leave. The statute does not supersede the 
 general doctrine of the maritime law, or repeal it; 
 but merely in a given case applies a particular rule 
 in pcenam^ leaving the maritime law in all other 
 cases in full efficacy. 
 
 To constitute an act of desertion justifying an 
 infliction of forfeiture, whether under the statute or 
 by the principles of the maritime law, the desertion 
 
MARINlEKS' WAGES. 131 
 
 must occur during the voyage^ 6r, in other words, ^^^ s- 
 before its termination in the home port ; and the 
 voyage is ended, in the sense of the maritime law, 
 when the ship has arrived at her last port of desti- 
 nation, and is moored in safety in her proper place. 
 Not -that the officers and men are then discharged 
 from any further duty. On the contrary, the sea- 
 men, and a fortiori the officers are bound to remain 
 by the ship, and watch over her concerns, ancl assist 
 in the delivery of her cargo, if made in a reasonable 
 time ; unless there is some express or implied agree- 
 ment, or established usage, to dispense with their 
 further services. There is a clause in the common 
 shipping articles expressly to this effect; and for a 
 violation of this duty, the mariner is responsible in 
 damages by way of deduction from his wages, but 
 not to forfeiture, eo nomine^ or to an unreasonable 
 extent (a). 
 
 The liability of seamen to a forfeiture of wages MiBcondaot. 
 for other acts of misbehavior is limited to grave 
 offences, such as a single act of a heinous and aggra- 
 vated nature, or luthitual neglect or disobedience, or 
 hahituoH and gross drunkenness. 
 
 This subject has been fully examined and very 
 
 ably discussed by Mr. Justice Stoey, in several cases, 
 
 in which the principles of the maritime law which 
 
 pertain to it are eloquently stated and enforced, sugiit offen- 
 ces to be 
 
 The acts of seamen are to be judged of, not by the overlooked. 
 
 (a) See the case of CloruJtmanN. Tunisson, 1 Sumner's R., 373, where 
 the whole subject Is fully and ably discussed, and whence the foregoing 
 summary is extracted. See also The Crusader, Ware's E., 437, and 
 Cojin V. Jenkins, 3 Story's R., 108. ' 
 
132 ADMIRALTY JURISDICTION. 
 
 voL^i. courtesy or the rigid exactions of domestic society, 
 but by that milder judgment whicli winks at their 
 errors, and mitigates its own resentment in consider- 
 ation of the provocations, temptations and personal 
 infirmities incident to their employment. To visit 
 all their ill advised and even mischievous conduct 
 with severe penalties,* would be unjust to them, and 
 injurious to the interests of commerce ; but to indulge 
 them in gross misdemeanors, without adequate cor- 
 rection, would be destructive to discipline, property 
 and life. The maritime law has therefore adopted 
 a middle course. It treats lighter faults with an 
 indulgent lenity, allowing compensation for any 
 losses caused by them, passing over slight errors, 
 unaccompanied with mischief,, without notice; and 
 correcting habitual neglect, or incompetent perform- 
 Grave offen- auce of duty, whcu it amounts only to hvissima ovhya, 
 pSSy ^7 ^ correspondent dimmution of wages. On the 
 regwd'to other hand it punishes gross and obstinate offences 
 ScSs" ■with a forfeiture of wages, especially when such 
 offences are persisted in without repentance or 
 amends. It is the duty of the court to uphold, with 
 a firm hand, a reasonable exercise of the authority 
 committed to the master and other officers of the 
 ship. It views a prompt and cheerful obedience of 
 orders, on the part of the seaman, as of the deepest, 
 importance. It admits of no slight excuses for a 
 slow or reluctant fulfilment of duty, and weighs not 
 with a scrupulous nicety the language of command, 
 or the necessity of the service. Occasional harshness 
 of manner or matter, occasional ebullitions of passion, 
 and other infirmities incident to nautical life, are not 
 
MARHiTERS' WAGES. 133 
 
 admitted as justifications of insubordination; but are chap.s. 
 deemed not wholly inexcusable, unless they degene- 
 rate into wanton and malicious abuse, or illegal 
 severity. The very necessities of the sea service 
 require this stubborn support of authority. On the 
 ocean, the officers can have but little physical power 
 compared with that of the crew. They may, at any 
 time, become the victims of a general conspiracy to 
 revolt ; and unless they can subdue obstinacy and 
 indolence by the moral influence of command, and 
 enforce a prompt and uncomplaining obedience by 
 punishment, the ship and cargo must soon be at the 
 mercy of the winds and waves. 
 
 The proposition of Lord Tentekden, "that ^^I'l^^^e- 
 neglect of duty, disobedience of orders, habitual '™'*" 
 drunkenness, or any cause which will justify a 
 master in discharging a seaman during a voyage, 
 will also deprive him of his wages," is admitted by 
 Mr. Justice Stoet to be true only in a limited and 
 restricted sense. It is not, he maintains, a single 
 neglect of duty, or a single act of disobedience, which 
 ordinarily carries with it so severe a penalty. There 
 must be a case of high and aggravated neglect or 
 disobedience, importing the most serious mischief, 
 peril, or wrong ; a case calling for exemplary punish- 
 ment, and admitting of no reasonable mitigation(a). 
 Such, also, is the precise doctrine of recent cases 
 decided in the High Court of Admiralty in England. 
 
 (a) The Mentor, 4 Mason's K., 84, 86, 87, 90. Loss arising from 
 the gross negligence of the mariner, as of a part of the cargo, in the 
 process of lading or unlading, constitutes a valid defence by way of 
 offset to his suit for wages {The New Phmnix, 2 Haggard's R., 420). 
 
134 ADMIRALTY JURISDICTION. 
 
 TOL^i. In tiie case here alluded to, it was also held, contrary 
 Snd tSS"^ to what seems to have been the impression of the 
 
 the court has , i i • • /» ' • i 
 
 no authority Amcncan courts, that where in a smt for manners 
 
 to inflict a ' 
 
 feuureof'' wagcs misconduct is set up as a defence, the court 
 
 wages for_ ,, _ it«iiit 
 
 misconduct, lias no power to mitigate the penalty, by withhold- 
 ing from the mariner a part of his wages, but must 
 pronounce either for Or against a total forfeiture(«). 
 In deciding upon the validity of a defence of this 
 nature, a broad line of distinction is to be drawn 
 between disobedience of orders in port, and acts of 
 insubordination on the high seas, where life and 
 property are exposed to destruction (5). 
 
 Drunken- With rcffard to habitual drunkenness, it is a vice 
 
 ness. O ' 
 
 which can never receive countenance from any 
 maritime court; and it is of such rankness and 
 injurious tendency, both as to discipline and service 
 on shipboard, that it usually calls for the animad- 
 version of the court, and not unfrequently is followed 
 by pui^ishment in the shape of diminished compen- 
 sation and wages. Where it is habitual and gross, 
 it may be visited with a total forfeiture of wages ; 
 but where it is only occasional, or leaves much 
 meritorious service behind, it is thought quite 
 sufficient to recover, in damages, the amount of the 
 actual or presumed loss resulting from such a vio- 
 lation of the mariner's contract, and imperfect 
 performance of duty. The maritime law is, in this, 
 as in many other cases, founded on an indulgent 
 consideration of human temptations and infirmities. 
 It is not insensible to the perils and hardships, the 
 fatigues and the excitements, incident to the sea 
 
 (a) The Blake, 1 Wm. Robinson's R., 73, 87. (6) lb. 
 
MARINERS' "WAGES. 135 
 
 service ; and it allows mucli to the habitual thought- ^^^ »■ 
 lessness, irregularity and impetuosity, which, with 
 much gallantry and humanity, is mixed up in the 
 character of seamen. It deals out its forfeitures, 
 therefore, with a sparing hand, and aims to arrive 
 at just and equitable results, not by enforcing rigid 
 and harsh rules, but by moderating compensation 
 as well as punishment, so as to apportion each to the 
 nature and extent of the offence (a). 
 
 Mr. Justice Stoet was of opinion that even the Attempt to 
 
 ■'■ create a 
 
 offence of endeavoring to create a revolt, punishable "'™"- 
 as it is by fine and imprisonment under our laws, 
 ought not, in all cases and under all circumstances, 
 to be visited with a total forfeiture of wages. Cases, 
 he thought, might easily be conceived, where the 
 seamen have, in a legal sense, committed this offence, 
 and yet under such circumstances of gross provoca- 
 tion and misconduct on the part of the master as to 
 form a very strong excuse, addressing itself to the 
 conscience and mercy of the court. And when after 
 the commission even of inflamed offences, and serious 
 violations of duty, by seamen, under circumstances 
 of an aggravated nature, if they testify by their 
 subsequent conduct a thorough repentance and con- 
 trition ; if they apologize for and offer amends for 
 the wrong, and justify a confidence in their sincerity 
 
 (a) Ome v. Tovmsend, 4 Mason's R., 541, 544, 545 ; Jhe New 
 Fhanix, 1 Haggard's K., 198 ; The Frederick, ib., 211 ; The Lady 
 Campbell, 2 Haggard, 5; ITie Gondolier, 3 Haggard, 190. In this last 
 case it was held that a seaman who enters as second mate, and at a 
 foreign port becomes first mate, is entitled, there being no new agree- 
 ment to the contrary, to the rate of wages allowed to his predecessor. 
 
desertion in 
 case of 
 danger. 
 
 136 ADMIRALTY JUEISDICTION. 
 
 vOT|^i. }yy subsequent exemplary diligence, there is no 
 
 stubborn rule of law that prohibits the court from 
 
 mitigating the forfeiture, and giving the whole or a 
 
 portion of their wages, according to its discretion(a). 
 
 may re'^t'a ^he mastcr, moreover, has power to remit a forfeiture 
 
 forfeiture, ^^ "wages ; and when a seaman, after rendering 
 
 himself liable to thi^ penalty by his misconduct, 
 
 repents, promises amendment and atonement by 
 
 good conduct in future, and is on these grounds 
 
 restored to duty by the master, the forfeiture will 
 
 not be enforced (5). 
 
 Forfeiture In circumstauces of peril and distress, seamen are 
 
 incurred by J- ' 
 
 bound to abide by the ship as long as reasonable 
 
 hope remains ; and if they desert when their presence 
 
 . and exertions might have restored the ship to safety, 
 
 or prevented damage, they forfeit their wages, and 
 
 Not by qoit. are moreover answerable in damages(c). But if a 
 
 ting the ship ° ^ ' 
 
 riiy?or°by scamau quits the ship involuntarily, or is driven 
 cruli^age; ashore by cruel usage and for personal safety, he is 
 nor by im- nevcrtheless entitled to wages(c?). And even when 
 
 prisonment ° 
 
 abroad. g, Seaman might well have been discharged in the 
 course of the voyage, for gross misbehavior, if the 
 master refuses to discharge him, and leaves him in 
 imprisonment abroad, he will, in that case, be entitled 
 to wages until his return to the United States, after 
 deducting from the claim his time of imprison- 
 ment(e). If a seaman is wrongfully discharged on 
 a voyage, the voyage is ended with respect to him, 
 
 (a) The Mentor, 4 Mason's R., 84, 93, 94. See also The Lima, 2 
 Haggard's R., 346. 
 
 (6) 3 Kent's Oonun., 8d ed., 187, 198, 199, and the authorities there 
 cited. (c)Ibid. ((?) Ibid. (e) Ibid. 
 
MARINERS' WAGES. 137 
 
 and lie is entitled to sue for his full wages for the ^^^ ^ 
 voyage(a). 
 
 If the cargo be embezzled or injured by the fraud f^™*"^, 
 or negligence of the seamen, so that the merchant zung"r^ 
 has a right to claim satisfaction from the master or ""■s"- 
 owners, they may deduct the amount. for which they 
 are thus made responsible, from the wages of the 
 seamen by whose misconduct the loss or injury has 
 been produced (J). In some cases, seamen are also 
 bound to contribute out of their wages for such 
 embezzlement and injuries. 
 
 This doctrine of contribution in cases of embezzle- 
 ment was thoroughly examined, and most satisfac- 
 torily stated and defined by Mr. Justice Story, in 
 the case of ^ur v. Pearson{c'). The result of his 
 opinion was, that where the embezzleinent has arisen 
 from the fault, fraudj connivance or negligence of 
 any of the crew, they . are bound to contribute to 
 it in proportion to their wages: that where the 
 embezzlement is fixed on an individual, he is solely 
 responsible : where the embezzlement is clearly 
 shown to have been made by the crew, but the 
 particular offenders are unknown, and, from the 
 circumstances of the case, strong presumptions of 
 guilt apply to the whole crew, all must contribute ; 
 but where no fault, fraud, connivance or negligence 
 
 (o) 3 Kent's Comm., 3d ed., 187, 198, 199, and the authorities there 
 cited ; The True American, Bee's R., 134. 
 
 (6) Abbot on Shipping (Boston ed. of 1826), 778. 
 
 (c) 1 Mason's R., 104. The judgment in this case has received the 
 warm and emphatic approval of Chancellor Kent, who pronounces the 
 doctrine of the case " so moral and so just, that it may be said to rest 
 on immovable foundations" (3 Kent's Commentaries, 194), 
 
 18 
 
138 ADMIRALTY JURISDICTION. 
 
 voL^i. jg proved against the crew, and no reasonable pre- 
 sumption is shown against their innocence, the loss 
 must be borne exclusively by the owner or master. 
 In no case are the innocent part of the crew to 
 contribute for the misdemeanors of the guilty ; and 
 in a case of uncertainty, the burthen of proof of 
 innocence does not reSt on the crew ; but the guilt of 
 the parties is to be established beyond all reasonable 
 doubt, before the contribution can be demanded, 
 niioit Seamen's waeres for services on an unlawful voyage 
 
 voyage. ^ •/ o 
 
 or unlawful military expedition, are no lien on the 
 vessel((z) ; and therefore the payment of wages by 
 the owner, for such services, gives him no claim upon 
 the proceeds of the vessel after condemnation (5). 
 But where the seamen are innocent of all knowledge 
 of, or participation in, the illegal voyage or expedition, 
 they have a valid claim on the vessel, which wUl be 
 preferred to that of the government arising from her 
 forfeiture (c). 
 After aban- After au abandonment is accepted by the under- 
 nnderwrit- writers, they become owners for the voyage, and are 
 liable for the seamen's wages from the time they 
 become owners, they being thenceforth entitled to 
 the freight earned by the ship(c?). 
 
 (a) The St. Jago de Cuba. 9 Wheaton's R., 409 (6 Curtis's Decis. S. 
 C, 110) ; The Langdon Cheves, 2 Mason's R., 58 ; The Benjamin 
 Franklin, 6 Robinson's R., 350 ; The Leander, Edward's R.j 35 ; The 
 Vanguard, 6 Robinson's R., 207. 
 
 (6) The Langdon Cheves, 2 Mason's R., 58. 
 
 (c) The St. Jago de Cuba, 9 Wheaton's E., 209 (6 Curtis's Decis. 
 S. C, 110) ; The Vanguard, 6 Robinson's R., 207, 210. 
 
 (d) Hammond v. The Essex Fire and Marine Insurance Company, 
 4 Mason's R., 196. 
 
MARINERS' WAGES. 139 
 
 The seaman is entitled to wages for the entire *^^^ *• 
 voyage, notwithstanding his inability to render his vigmnot 
 service by reason of sickness or bodily injury, 1^^"™'- 
 happening while in the performance of his duty, in 
 the course of the voyage. So also when wrongfully 
 discharged by the master in the course of the 
 voyage, he is nevertheless entitled to his wages; 
 and he is not deprived of this right by the interrup- 
 tion or destruction of the voyage, not by any 
 unavoidable necessity, but by the illegal act, or 
 misconduct, or fraud of the master or owner(«). 
 
 It has been held by Mr. Justice Stoet, that by ^^^'j^Ji 
 the general maritime law, the expenses of curing a etef'S^ot 
 sick seaman, in the course of the voyage, including ^ar|e on 
 not only medicines and medical advice, but nursing, 
 diet and lodging on shore, are a charge upon the 
 ship ; that the maritime law in this respect is not 
 abrogated as to American seamen, by the provision 
 contained in the act for the government and regula- 
 tion of seamen in the merchants' service, which 
 requires vessels bound on foreign voyages to be 
 provided with a chest of medicines, and, in default 
 thereof, subjecting the master' to the expenses of 
 such advice, medicine or medical attendance as any 
 of the crew may stand in need of in case of sickness, 
 " without cmy dedAicUonfrom their wages j " and that 
 claims of this description are properly cognizable in 
 the courts of admiralty(5). 
 
 (a) 3 Kent's Comm., 186, 187; Sheppard v. Taylor, 5 Peters'sR., 
 675, 710 (9 Ourtis's Decis. S. C, 531). 
 
 (6) Harden v. Gordon, 2 Mason's R., 531. See also Reid v. 
 Canfield, 1 Sumner's R., 195, and The George, ib., 151. 
 
140 ADMIEALTY JURISDICTION. 
 
 Death of 
 seaman on 
 the voyage, 
 
 Terable 1 
 
 voi^i. Whether, when a seaman dies on the voyage, his 
 representatives are entitled to his wages for the 
 whole voyage, or only to the time of his death, seems 
 yet to be an unsettled question in the American 
 courts(a). 
 wag^nof ^^ t^i^ country, it seems never to have been 
 Id'tydela doubted, that if a seaman falls sick and dies during 
 
 during . , . 
 
 voyage. ^j^g voyage, his personal representatives are entitled 
 to demand his, wages, at least up to the time of his 
 
 ttme'°reJ^' death. But whether this right extends also to the 
 termination of the voyage, as if the seaman had lived 
 and returned in the ship, has not even yet, been 
 definitively determined, although it has in several 
 instances been the subject of judicial consideration. 
 In the District Court of Pennsylvania, during the 
 time of Judge Petees, it was repeatedly held that 
 wages were due for the whole voyage (3) ; and in 
 one case(c), his judgment to that effect was affirmed 
 on appeal by Mr. Justice Washington, who 
 expressed his entire concurrence in the opinion of 
 the district judge. But on the other hand, the 
 opposite doctrine has been maintained by Judge 
 Davis, in the District Court of Massachusettg((^, 
 and by Judge Bee in the District Court of South 
 Carolina(e). 
 
 According to a pervading and established princi- 
 ple of the maritime law, a seaman is entitled to 
 
 (a) 3 Kent's Commentaries, 189. 
 
 (6) Walton v. The Neptune, 1 Peters's Adm. Decis., 142 ; Scott v. 
 The Greenwich, ib., 155. 
 
 (c) Simms v. Jackson, 1 Washington's C. C. R., 414. 
 
 (d) NatterstKam v. The Hazard, Bee's IS,., 441. 
 (c) Carey v. The Kitty, Bee's R., 255. 
 
MARINERS' WAGES. 141 
 
 recover his wages for the whole voyage, notwith- o^^^- »• 
 standing he may have been unable to render hia 
 stipulated services, by reason of sickness, or bodily 
 injury, happening in the course of the voyage while 
 in the performance of his duty (a). 
 
 It is a general principle of the maritime law, that ^°|^^g„t 
 if no freight is earned, no wages are due ; and hence ™'*®'s'"' 
 the maxim so often met with, that " freight is the 
 mother of wages." This is a peculiarity of this class 
 of contracts. In ordinary contracts for hire and 
 services, the persons employed do not partake of 
 any of the risks of the owner in relation to the 
 property concerned. They are entitled to their full 
 compensation for labor and services on the property, 
 although it be utterly lost or destroyed by accident 
 or superior force. But it is the policy of the mari- 
 time law to subject the mariner to the risks of the 
 voyage to a limited extent, in order the more 
 effectually to secure his fidelity and vigilance in 
 guarding or rescuing the ship from loss or injury by 
 the peril of the sea, fire, robbery, capture or the 
 like. This principle, however, is limited to those 
 cases in which freight is not earned on the voyage 
 in consequence of an overwhelming calamity, or an 
 unexpected accident, such as the loss or capture of 
 the ship. It does not therefore extend to cases 
 in which freight might have been earned, but for 
 the act of the owner or master. If, therefore, the bntnot 
 
 ' ', where the 
 
 voyage and freight be lost, because the ship was tlfghu. 
 seized for debt, or for having contraband goods on hy'he^tot 
 
 ' *-' ^ the nwriAF or 
 
 the owner or 
 master. 
 
 (a) S Kent's Commentaries, 187. 
 
142 ADMIRALTY JUEISDICTION. 
 
 vo)L_i. board, or for any other cause proceeding from mis- 
 conduct in the master or owner ; or if the voyage 
 has been voluntarily abandoned ; or if the owner 
 has chartered his ship to take in a cargo at a foreign 
 port, and no freight is on this account earned on the 
 outward voyage, wages are nevertheless recoverable 
 to the time of the breaking up of the voyage, 
 together with such additional allowance as shall be 
 deemed reasonable under the circumstances(a). 
 Exception But to the Tule, even as thus qualified, there is 
 
 jn case of ' •*- ' 
 
 wh?n Bom^ an important exception. Where the loss of freight, 
 eaved; though it be total, is occasioned by shipwreck, the 
 seamen are nevertheless entitled to have their wages 
 paid out of the fragments of the wreck, if enough is 
 saved to pay them (and it is presumed, ^w tanto^ 
 when there is a deficiency), provided they remain 
 by the ship and assist in the salvage(5). And in a 
 late case in the District Court of the Massachusetts 
 District, it was held to be sufficient, in the case of a 
 vessel cast on shore, if the seamen were willing to 
 assist in the salvage, and were prevented from doing 
 so by the interposition of the owner, who appeared 
 on the ground with other persons employed by him 
 for that purpose, and thus took the business of 
 salvage out of the hands of the officers and crew of 
 the ship(c). This exception is founded in the same 
 
 (a) 3 Kent's Comm., 3d ed., 187, 188, and the authorities there cited; 
 Pitman v. Hooper, 3 Sumner's R., 50, 59, 60; Abbot on Shipping 
 (Boston ed. of 1826), 743, note 2; The Malta, 2 H^gard's R., 158; 
 The Saratoga, 2 Gallison's R., 164, 175. 
 
 (6) Pitman v. Hooper, 3 Sumner's R., 50, 60 ; The Two Catherines, 
 2 Mason's R., 319 ; The Neptune, 1 Haggard's R., 227. 
 
 (c) Jones V. The Wreck of the Massassoit, Law Reporter for March, 
 1845, p. 522. 
 
MARINERS' WAGES. 143 
 
 policy as tlae rule itself. The precise nature of the chap, s, 
 exception has been a subject of considerable discus- 
 sion and diversity of opinion. The question has 
 been, whether the compensation allowed to seamen 
 in cases of shipwreck was to be considered as falling 
 more properly under the denomination of wages, or 
 of salvage. 
 
 In the case last above referred to, Judge Spkagtje, 
 in a learned, well reasoned, and, as it appears to me, 
 unanswerable argument, maintains that to denomi- 
 nate it salvage would be to confound things between 
 which there is no similitude or analogy ; and that 
 there is no substantial objection to classing it under 
 the head of wages. The amount of the compensation 
 allowed is always, in fact, the stipulated wages, 
 without regard to the peril or gallantry of the 
 service, or to the value of the property saved, 
 except that the allowance cannot exceed that value ; 
 and the service, as we have already seen, is one which 
 the seaman is bound by his contract to render (a). 
 
 The view taken of the question by the learned 
 judge, seems, indeed, to be in strict accordance with 
 that taken by Lord Stowell in the case of The 
 NeptuTie^ just above cited ; and it is, moreover, fully 
 sustained by the judgment of Dr. Lttshington, the 
 present distinguished judge of the High Court of 
 Admiralty, in a more recent case. He distinctly eTenthongi> 
 
 , by the oxer- 
 
 rejected the prmciple of salvage, as the foundation JJ^^nB*'"* 
 
 {a) There are, however, certain extraordinary cases in which seamen 
 have in this country been held entitled to be considered strictly as 
 salvors, and to claim compensation in that character. Vide infra 
 Salvage. 
 
144 ADMIRALTY JURISDICTION. 
 
 VOL 1. of the mariner's claim to compensation in cases of 
 shipwreck; and he extended the doctrine of TJie 
 N&ptwae to a case where all Iput one of the crew 
 perished in the shipwreck, and where the parts of 
 the ship saved were preserved by third persons, and 
 not by the exertions of the crew(a). 
 OTwUd" Wages for the outward and for the homeward 
 nffi-*""' voyage are divisible ; and if a ship delivers her out- 
 ™*8^«"en' ward cargo, and is totally lost on her return voyage, 
 vessel. ^jjg outward freight having been earned, the seamen 
 are entitled to wages on the outward voyage ; and 
 they cannot be deprived of this right by any stipu- 
 lation between the owners and the charterer, making 
 the voyages out and home one entire voyage, and 
 the freight to depend on the accomplishment of such 
 consolidated voyage. The owners may waive or 
 modify their claim to freight as they please, but 
 their acts cannot deprive the seamen, without their 
 consent, of the rights belonging to them by the 
 When the general principlcs of the maritime law( J). Incases 
 beSild" calling for an application of this principle, it is 
 "^^^ necessary, therefore, to determine when the outward 
 voyage is to be considered as ended, and the home- 
 ward voyage as begun. Strictly, the outward 
 voyage ought to be deemed to continue as long as 
 the seamen are engaged in purposes connected with 
 the outward voyage ; and the homeward voyage to 
 begin, when any acts are done dr preparations made, 
 having reference exclusively to the homeward voyage. 
 
 (a) The Reliance, 2 Wm. Robinson's R., 119. Vide Davis's R., 121. 
 (6) 3 Kent's Commentaries, 190. 
 
MAEINERS' WAGES, 145 
 
 But in many cases it is not practicable tlius to divide ^^^ »• 
 the time accurately, because it frequently happens 
 that acts are done, and proceedings are had simul- 
 taneously, with reference both to the outward and 
 homeward voyage. Indeed, in some voyages the 
 sale and discharge of the outward cargo are going 
 on simultaneously with the purchase and loading of 
 the homeward cargo. With a view to this practical 
 difficulty, a rule has been established, that one-half 
 of the time during which the vessel is lying in the 
 port of delivery shall be deemed a part of the out- 
 ward, and the other half, a part of the homeward 
 voyage. If, therefore, a vessel be lost on the home- 
 ward voyage, wages are due for the outward voyage 
 and half the time of the stay in the foreign port. 
 
 In this, as in many other cases, the law prefers 
 general certainty, to the precarious results of endea- 
 vors to discriminate between particular cases. The 
 rule is recommended by its near approximation to 
 absolute truth and justice in a great majority of 
 cases, and by its tendency to prevent litigation upon 
 trifling differences. It was understood to be a settled 
 and unquestionable rule, and as such was enforced 
 in both the national and state courts of this country, 
 until it was denied to be well founded, either in 
 principle or in authority, by the late Judge Hop- 
 KiNsoN, in a case in the District Court of the Eastern 
 District of Pennsylvania(a). The conclusion at 
 which Judge Hopkinsoit seems to have arrived, was, 
 that the outward voyage, with reference to seamen's 
 
 (a) Blonde v. Haven, Gilpin's R., 592. 
 19" 
 
146 ADMIRALTY JURISDICTION. 
 
 voL^i. -w^ages, ends with the discharge of the outward cargo, 
 and that the homeward voyage commences when 
 the outward voyage ends. 
 
 This led Mr. Justice Stoey, in a subsequent case, 
 " from great deference for the opinions of that able 
 judge," to enter into an elaborate review of the 
 grounds of the doctriae. The result of this review, 
 marked by research and great force of reasoning, 
 was a thorough conviction of the soundness of the 
 above mentioned rule(a). 
 intennedi- It was hcM bv Mr. Justice Story, in opposition 
 
 ate voyage. •' 
 
 to the opinion of Mr. Justice 'Washington(5), that 
 the outward voyage does not necessarily terminate 
 at the port of delivery ; but that if a vessel, after 
 landing her outward bound cargo in a foreign port, 
 proceed in ballast to another foreign port, and there 
 take another cargo, and be lost on her homeward 
 voyage, the seamen would be entitled to wages to 
 the last port of departure, and for half the time she 
 remained there. Such a case he held not to be 
 distinguishable in principle from that of a vessel 
 making the whole outward voyage in ballast, in 
 which case, should she be lost on her return voyage, 
 the seamen would incontestibly be entitled to wages 
 for the outward voyage ; or, from the case of a 
 vessel performing a distinct intermediate voyage 
 and earning freight, in which case the seamen would 
 
 (a) Pitman t. Hooper, 3 Sumner's R., 286. See also The Two Ca- 
 therines, 2 Mason's E., 319, 329 ; Thompson v. Faussat, Peters's 0. 
 C. R., 182 ; The Elizabeth, ib., 130 ; and 1 Peters's Ad. Deois., 204 ; 
 ib., 217. 
 
 (6) In the case of Thompson v. Faussat, 2 Peters's 0. C. R., 182. 
 
MARINERS' WAGES. , 147 
 
 be equally entitled to wages for such intermediate ^^ »• 
 voyage(a). 
 
 If the vessel be lost on the outward voyage, yet, wages re- 
 
 •/ o 7 ,/ 7 eoverable 
 
 if part of the outward freight has been paid, the sofblloJCif 
 
 , , , , , ^ freight has 
 
 seamen are entitled to wages m proportion to the ^eea advan- 
 amount of freight advanced(5). And in trading or 
 divided voyages, in which cargoes are successively 
 taken in and discharged, whereby, according to the 
 general law, freight is earned, wages are also earned, 
 and the mariner's right to their recovery is not 
 defeated by the subsequent loss of the ship ; and no 
 special agreement between the owner and freighter, 
 at variance with this general principle, is binding on 
 the seaman(c). 
 
 Notwithstandina: the doubts formerly entertained Effector 
 
 '-' *' capture. 
 
 upon the subject, it is now settled that the capture 
 of a neutral ship does not of itself operate as a 
 dissolution of the contract for mariners' wages, but 
 at most only as a suspension of the contract. If the 
 ship is restored, and perform her voyage, the contract 
 is revived, and the mariner becomes entitled to his 
 wages; that is, to his full wages for the whole 
 voyage, if he has remained on board and performed 
 his duty, or having been taken away, he has been 
 unable, without any fault of his own, to rejoin the 
 ship. If the ship is condemned by the prize court, 
 then the contract is dissolved, and the seamen are 
 discharged from any further duty on board; and 
 
 (a) The Two Catherines, 2 Mason's R., 319. 
 (6) 3 Kent's Comm., 3d ed., 191. 
 
 (c)Ibid.; The Juliana, 2 Dodson's R., 504; The Two Catherinea, 
 2 Mason's R., 319. 
 
148 ADMIRALTY JUKISDICTION. 
 
 voL^i. tjiey lose their wages unless there is a su'bsequent 
 restitution of the property, or its equivalent value, 
 upon an appeal or by treaty, with an allowance of 
 freight, in which event their claim for wages revives. 
 In the case of a restitution in value, the proceeds 
 represent the ship and freight, and are a substitute 
 therefor. If freight is decreed or allowed for the 
 whole voyage, then the mariners are entitled to fuU 
 wages for the whole voyage; for the decree for 
 freight in such a case includes an allowance for the 
 full wages, and consequently creates a trust or lien 
 to that extent thereon, for the benefit of the mariners. 
 If the freight decreed or allowed is for a part of the 
 voyage only, the seamen are ordinarily entitled only 
 to wages up to the time for which the freight is 
 given, unless, under special circumstances ; as where 
 they have remained by the ship, at the special 
 request of the master, to preserve and protect the 
 property for the benefit of all concerned(«). 
 stipulations The pcculiar character of seamen as a class — 
 
 in shipping 
 
 ^nnii.-^ their thoughtlessness and improvidence, their igno- 
 mMtoer, ' rauce of the nature, extent and value of their rights 
 and privileges, their credulity and rashness, give 
 them extraordinary claims to the vigilant protection 
 of courts of admiralty. These courts are not by 
 their constitution and jurisdiction confined to the 
 mere dry and positive rules of the common law. 
 They act upon the enlarged and liberal principles 
 
 (o) Brown v. Lull, 2 Sunmer's E., 443 ; The Saratoga, 2 Gallison's 
 K., 175. See also Sheppard v. Taylor, 5 Peters's K., 675 (9 Curtis's 
 Decis. S. 0., 531) ; WUlard v. Dorr, 2 Mason's R., 91, 161 ; 3 Kent's 
 Conim., 191, 192. 
 
MAEINEES' WAGES. 149 
 
 of courts of equity ; and, with regard to the subjects chap. ». 
 of their jurisdiction, they act as courts of equity. 
 They are especially bound to scrutinize bargains 
 and dealings between seamen and ship-owners, 
 who are generally men of much intelligence and 
 shrewdness. Whenever, therefore, any stipulation 
 is found in the shipping articles, which derogates 
 from the general rights and privileges of the seamen, 
 courts of admiralty hold it void, as founded in 
 imposition or undue advantage, unless it appears, 
 first, that the nature and operation of the clause 
 was fully explained to the seamen ; and, secondly, 
 that an additional compensation is allowed, entirely 
 adequate to the new restrictions and risks imposed 
 upon them thereby; and the om/ns probcmdi to 
 establish these facts lies upon the ship-owner (a). It 
 has accordingly been held that where the shipping 
 articles contained a clause providing that in case of 
 the loss of the vessel during the voyage, no wages 
 were to be claimed by the seamen ; and that in case 
 of her detention for more than thirty days at any 
 one time, their wages were to cease during such 
 detention, the clause was held to be void(^). So 
 also an engagement on the part of the seamen to 
 pay for all medicines and medical aid, further than 
 the medicine chest afforded(c). And where seamen 
 were hired for a voyage from Portsmouth, in Eng- 
 land, to several distant ports, and back to the port 
 of London, and cargoes were successively taken and 
 delivered at different ports, whereby freight was 
 
 (a) Brown v. LuU, 2 Sumner's E., 443. (6) Ibid, 
 
 (c) Harden v. Gordon, 2 Mason's E., 541. 
 
ners' con- 
 tract. 
 
 150 ADMIRALTY JURISDICTION. 
 
 T^i. earned for tlie owners, and the seamen became 
 entitled by the general maritime law to wages up to 
 the time of delivery at each port, a stipulation 
 inserted in the ship's articles that no seaman should 
 be entitled to his wages or any part thereof until 
 the arrival of the ship at the port of London, was 
 held to be void(a). ' 
 conatraotion The act for the government and regulation of 
 
 and legal . ^ . ,7N . i 
 
 wda°^o?" seamen m the merchants service (6), requires, as also 
 M al)art*o'f' does the correspondent English act, that the shipping 
 ToVe'ta articles shall specify the voyage for which the seamen 
 the man- ^^^ sMppcd ; but it has been usual, nevertheless, 
 both in England and in this country, after naming 
 in the articles some particular port or ports of desti- 
 nation, to add the words "or elsewhere:" and the 
 legal effect of these words has been the subject of 
 judicial discussion in both countries. Thus, in an 
 early case before Mr. Justice Stoey, where the 
 voyage was described to be "from Boston to the 
 Pacific, Indian and Chinese oceans, or elsewhere, on 
 a trading voyage, and from thence back to Boston ; " 
 and where the vessel in fact went to the Sandwich 
 Islands, thence to California, and thence to the 
 Russian settlements on the northwest coast of 
 America, whence, with a cargo of furs, she went to 
 Canton; one of the mariners who had signed the 
 shipping articles, after arriving at Canton, having 
 refused to return with the vessel to the northwest 
 coast and back to Canton — the question arose, in a 
 suit brought by him for his wages, whether, by 
 
 (a) The Juliana, 2 Dodson's R., 504. 
 
 (6) Act of July 20, 1790, ch. 29 ; 1 Stat, at Lar^, 131. 
 
MARINERS' WAGES. 151 
 
 reason of sucli refusal, he had forfeited his right to chap.s. 
 wages ; and it was held that he had not ; the words 
 " or elsewhere " being insufficient to warrant so wide 
 a departure from the voyage specifically described in 
 the articles. Indeed, the language of the learned 
 judge implies that he doubted whether these words 
 were of any avail in any case(a) ; and the subsequent 
 decisions of the High Court of Admiralty of England 
 seem strongly to countenance such a doubt. In a 
 case before Lord Stoweli, in which it became 
 necessary to give a construction to the words in 
 question, he entered into a very elaborate discussion 
 of the general nature and obligations of the mariners' 
 contract. The circumstances of the case before him 
 were well calculated to awaken his well known 
 sensibility to the rights of common seamen, and to 
 call forth one of those eloquent bursts of mingled 
 irony, satire and rebuke, in which he sometimes 
 indulged, and in which gravity and urbanity were 
 always so happily blended, as, at once, to insure 
 their remembrance, and disarm resentment. It was 
 a cause of subtraction of mariners' wages. The 
 voyage was described in the shipping articles to be 
 " from London to New South Wales and India, or 
 elsewhere, and to return to a port in Europe." It 
 appeared from the evidence to be highly probable 
 that the words "or elsewhere" were fraudulently 
 interpolated after the contract was signed; and 
 when, after the arrival of the ship at Port Jackson, 
 the attention of the crew was first drawn to them, 
 
 (a) Brown v. Jones et al., 2 Gallison's K., 477. 
 
152 ADMIRALTY JURISDICTION. 
 
 voL^i. and the captain's intention of proceeding to distant 
 ports not mentioned in the articles was then first 
 made known to the crew, they expressed their 
 extreme disappointment at the change made in their 
 destination, in breach of the articles they had 
 subscribed. But the captain insisted on his right to 
 carry them where hei' pleased, " even to hell itself;" 
 which, Lord Stowell observed, seemed to be " a 
 very favorite place of consignment" with this 
 captain, who was " certainly a person of lofty pre- 
 rogative notions." And he did carry them, against 
 their remonstranceSj to New Zealand, thence to 
 Valparaiso, thence to Lima, thence to Otaheite, 
 thence back to Sidney Cove, and thence to Calcutta, 
 " to which place," Lord Stowell said, " they 
 ought to have proceeded originally." Here, while 
 employed in discharging the cargo and taking 
 another on board, they were, without any apparent 
 necessity, compelled to labor on two successive 
 Sundays ; and when, after working six hours during 
 the morning of the third Sunday, and being peremp- 
 torily ordered to resume their labors after dinner, 
 they followed the example of the captain, and went 
 on shore, he refused to receive them again on board, 
 had them committed to the house of correction for 
 twenty-five days, engaged other men in their places, 
 and left them to find their way back to England as 
 they might. The conduct of the seamen, in thus 
 refusing to work, and going on shore, was insisted 
 upon at the hearing, as an act of desertion, by which 
 they had incurred a forfeiture of their wages. 
 Lord Stowell's conclusion from the evidence was. 
 
MAEINERS' WAGES. 153 
 
 ttat the words " or elsewhere " composed no part "°-^p- ^• 
 of the original contract, but were interpolated after- 
 wards to countenance a deviation from it. But 
 admitting that they did compose a part of the origi- 
 nal text of the contract, his opinion was that they 
 by no means warranted the wild and eccentric 
 rambles which the captain had thought proper to 
 take, upon a voyage rather of experiment and dis- 
 covery than of commerce, and which could be 
 defended upon no principle, but such as he had 
 unwarrantably laid down in asserting that he had a 
 right to carry them wherever he pleased, and, that 
 his owners had given him that right; for it was 
 proper to inform him that he never possessed such 
 right, and that his owners could not convey any 
 such right to him. His owners were only one set 
 of parties to the contract, an*d the other parties were 
 not bound to submit to variations introduced with- 
 out their consent. The words " or elsewhere," he 
 observed, he had no hesitation in asserting, were 
 not to be taken in that indefinite latitude in which 
 they are expressed : they were no description of a 
 voyage ; they were an unlimited description of the 
 navigable globe ; and were not to be admitted as a 
 universal aliii for the whole world, including the 
 most remote and even pestilential shores, indefinite 
 otherwise both in space and time ; they must receive 
 a reasonable construction, a construction which, he 
 readily admitted, must be, to a certain extent, con- 
 formable to the necessities of commerce ; for he 
 hoped that few men's minds were more remote than 
 his from a wish to encourage any wayward opposi- 
 20 
 
154 * ADMIRALTY JURISDICTION. 
 
 TOL^i. tion in seamen to those necessities, or to the fair and 
 indispensable indulgence which, such necessities 
 require ; for no class of men was more interested in 
 supporting the maritime commerce of the country 
 than these persons themselves ; but the entire dis- 
 advantage must not be thrown upon them : the 
 owners must make their sacrifices as well as the 
 mariners. 
 
 The word " elsewhere," he added, however, must, 
 in its construction, vary much, according to the 
 situation of the primary port of destination. If it 
 applied to a country remote from all neighboring 
 settlements, it is entitled to a larger construction ; 
 if to one surrounded by many adjacent ports, the 
 limitation must be much narrowed : and he could 
 not, he said, help observing, that in the case before 
 him, the captain had deprived himself of an exten- 
 sive latitude, by describing his primary port to be 
 in the neighborhood of many adjacent ports which 
 could supply cai'goes. Where a trade is carried on 
 notoriously in an established course, and that in a 
 remote part of the world, where various obstructions 
 may occur, he would not say that the courts might 
 not strain hard to support a change of voyage, even 
 on an imperfect description of it contained in the 
 articles, if it appeared conformable to the general 
 routine of the commerce there carried on, and pre- 
 sumed to be generally known to all persons who 
 resorted there. In the case, for instance, of a return 
 voyage to India to collect a cargo ; if it was the 
 constant habit of vessels to pursue any established 
 course, the court might possibly favor such a con- 
 
MARINERS' WAGES. 155 
 
 struction of the contract, althougli not specifically °^^ »• 
 expressed; though it would certainly very much 
 improve the court's view of the question, if that 
 appeared to have been done, which appeared by 
 the evidence to have been done in several instances 
 — making an addition to the rate of wages, conform- 
 able to the value of navigation and sea service in 
 that quarter of the globe ; for that might be pro- 
 perly considered by the owners, and perhaps by the 
 court, as taking their fair share in the disadvantages 
 that attended such an adventure. 
 
 Lord Stowell's conclusion from the principles 
 thus laid down by him, was, that upon the annuncia- 
 tion by the master, at Port Jackson, of his intention 
 to proceed to New Zealand, the crew of the ship were 
 absolved from any further obligation to serve, and 
 might lawfully have quitted the ship. And he held 
 also, as I understand him, that their submission to 
 the violation of the contract by remaining on board, 
 did not impair this right ; and that even if this were 
 otherwise the treatment to which they were sub- 
 jected at Calcutta, "justified their retiring from a 
 service in which they had meritoriously hitherto 
 submitted to what was, in its latter stage, an usurped 
 authority(a)." 
 
 In another case, where the engagement of the 
 mariners was, to go "from London to Batavia in 
 the East Indian seas, or elsewhere, until the final 
 arrival at any port or ports in Europe ;" and where 
 on the return and arrival of the ship at Cowes in 
 
 (a) The Minerva, 1 Haggard's E., 347. 
 
156 ADMIRALTY JURISDICTION. 
 
 vra^i. England, the master went up to London, in pursu- 
 ance of a previous agreement between him and the 
 owners, to obtain orders, and was directed to pro- 
 ceed to Eotterdam for the discharge of his cargo, it 
 was held by Lord Stowell, that the seamen were 
 not bound to serve on this further voyage ; as, 
 according to the just construction of the contract, 
 the voyage for which they had shipped, terminated 
 on the arrival of the ship at a home port. To ac- 
 complish the object intended, the description of the 
 voyage, Lord Stowell said, ought to have been 
 " for the ship to come to Cowes, and there receive 
 the owners' orders for the delivery of the cargo in 
 England, Holland, or even in the pOrts of the north 
 seas, if there was any such designation intended. 
 The mariner, upon such a description, would have 
 received full and true information of 'all which it 
 imported him to know, in order to determine his 
 mind upon the propriety of his engagement in the 
 contract : it would be a true description, not merely 
 geographically for the fact of the voyage, but for a 
 proper conformity to the purposes of the statute(a)." 
 It is very clear that at the time the above cited 
 cases arose, the words " or elsewhere," as part of the 
 description of a contemplated voyage, were supposed, 
 by nautical men in England, to have the effect of 
 essentially enlarging the master's lawful power of 
 deviation from the more definite terms of the con- 
 tract; and the pains taken by Lord Stowell, in 
 the case of The Minerva, to determine their true 
 
 (a) The George Home, 1 Haggard's R.,370. See also The Countess 
 of Hareourt, id., 249. 
 
MARINEKS' WAGES. 157 
 
 construction, may seem to give countenance to this "^^p- *• 
 opinion. But in considering that case in conjunction Quere, whe- 
 with. the additional cases above cited, and with words "or 
 
 ' elsewhere," 
 
 others in the same court, in which these words were inio/eMhl 
 omitted, and where the payment of wages was ^^if°^'^ 
 resisted on the ground of alleged desertion, and 
 claimed nevertheless on the ground of deviation, it 
 appears to be doubtful whether the words in question 
 are not practically regarded in the English admiralty 
 as inoperative, according to the opinion expressed 
 by Mr. Justice Stoey, that they are to be considered 
 as either void for uncertainty, under the act of 1Y90 ; 
 " or," as he rather indefinitely adds, " that they must 
 be construed as subordinate to the principal voyage 
 stated in the preceding words(ffl)." Indeed, what is 
 said by Lord Stowell in The Minerva, of the 
 possible right of the master to deviate to a reason- 
 able extent from the direct course to or from the 
 port of destination, for the purpose of visiting other 
 ports, in accordance with an established and known 
 usage of the particular trade in which the vessel is 
 employed, appears to have been intended for general 
 application, without reference to the words in ques- 
 tion. And although in the cases of Tlie Dutchess 
 of Harcourt and The George Home, these words 
 were contained in the contract, they are scarcely 
 noticed at all ; and the same is true also of the case 
 of The JEUza, in which, however, the words were 
 inserted in the articles after the ship had proceeded 
 on her voyage, though with the knowledge, and, as 
 
 (a) Brown v. Jones et al., 2 GaUison's K., 477, above cited. 
 
158 ADMIRALTY JURISDICTION. 
 
 Yor^i. it -^as contended, with the implied > assent of the 
 crew (a). 
 
 In another case occurring a few years later, in 
 
 which the^e words were not used. Sir Chkistophee 
 
 KoBiirsoir, in a learned and instructive opinion, 
 
 discussed at length the effect of deviation upon the 
 
 rights of the mariners, and referred to the above 
 
 cited decisions, including that of The Minerva, in 
 
 terms which seem to infer that he deemed the words 
 
 unimportant. In the case before him, the' voyage 
 
 was described to be " to Madras and Calcutta, and 
 
 back to London/" and the deviation consisted in 
 
 proceeding from Madras to Calcutta by way of 
 
 Prince of Wales's Island, whereby the voyage was 
 
 The general lengthened about six hundred miles. This deviation, 
 
 iTvCTylon"' when announced to the crew at Madras, he held, 
 
 spontaneous entitled them to their discharge, on the ground that, 
 
 deviation c) ) o / 
 
 by the laws of England, every spontaneous deviation 
 of importance exonerates the mariner from further 
 service under his contract. It was otherwise accord- 
 ing to the codes of some of the continental maritime 
 powers — those of Denmark and Holland, in par- 
 ticular — which allow the master to alter and enlarge 
 the voyage, provided he makes a reasonable addition 
 to the wages of the seamen on that account. And 
 with regard to what, by the law of England, was to 
 be considered an unauthorized deviation, Sir Chris- 
 topher EoBiK-sour observed: "I find, in Sir Edward 
 Simpson's notes, cases, in which the necessity of going 
 to St. Petersburgh for a cargo, which the master 
 
 (a) 1 Haggard's R., 182. 
 
 releases the 
 seaman. 
 
MAEINERS' WAGES. 159 
 
 had been disappointed of obtaining at Hamburgh. ; chap. s. 
 and alterations, arising from stress of weather, or the 
 order of the government, have been held not to be 
 deviations amounting to a breach of the mariner's 
 contract, such as would entitle them to their dis- 
 charge ; and, in maritime engagements, allowances are 
 often made in the interpretation of general terms, 
 according to the accidents affecting the common 
 object of the original voyage. But when no such 
 ground of exception exists, justice and policy concur 
 in requiring a strict observance of the specified 
 conditions of the contract ; and in the present times, 
 especially, of increased enterprise in distant com- 
 merce, considerations of this kind gain additional 
 force from the, length of voyage and extent of time 
 for which such engagements are formed." The 
 marginal abstract of the reporter shows that the 
 learned judge was understood to adopt and sanction 
 the doctrines of the cases mentioned by Sir Edwaed 
 Simpson (a). 
 
 In accordance with the same humane and iust Release 
 
 ^ under seal, 
 
 principles, of which so many illustrations have Sve'aga'sns't 
 already been given, an acquittance and release under wagX " 
 seal, executed by a mariner on payment or settlement 
 for wages, is treated in the admiralty as but a simple 
 receipt, being held to be only prima facie evidence 
 of payment which may be rebutted by other evi- 
 
 (a) The Cambridge, 2 Haggard's R., 243. In the case of The 
 Minerva, 1 Haggard's R., 347, 357, Lord Stowell speaks of the work 
 of Sir Edward Simpson as " a manuscript book of great accuracy, 
 composed by Sir Edward Simpson, a distinguished practitioner and 
 judge in these courts." 
 
160 ADMIRALTY JURISDICTION. 
 
 voL^i. (Jence(a). And so where a seaman, immediately 
 Nor an after his return from a whaling voyaffe, in payment 
 
 assignment. o j o ' ^ ^ . 
 
 for clothing and a watch, and in consideration of 
 two dollars in cash, amounting in all to about one- 
 third of the value of his share of the oil, gave an 
 order on the owners for the whole of share, the 
 order, though it had ^been presented and accepted, 
 was held to be no defence to his action against the 
 ship, except as to the amount he had received (5). 
 
 It was, however, held in the High Court of 
 Admiralty of England, that the acceptance by a 
 seaman at Calcutta, in preference to money which 
 was offered to him, of a bill of exchange on the 
 London owner, for a part of his wages, was to be 
 regarded as a payment; and that he had no lien on 
 the ship although the owner had refused payment 
 and become bankrupt(c). 
 
 But the mere acceptance by a seaman, on settle- 
 ment with the master, and at his instance, of a draft 
 on the owner, was decided, in the District Court of 
 Maine, not to be a waiver of the maritime lien on 
 the vessel for wages((?). 
 
 (a) The David Pratt, Ware's K., 495. 
 
 (6) The. Barque Rajah, 15 Law Reporter (5 N. S.), 208, decided in 
 the District Court of Massachusetts. 
 
 (c) The William Money, 2 Haggard's R., 136. 
 
 (d) The Eastern Star, Ware's R., 185. 
 
CONTRACTS OF AFFREIGHTMEMT. 161 
 
 0HAP.4. 
 
 CHAPTER IV. 
 
 Contracts of Affreightment. 
 
 It is an established maxim of the general maritime uen*™""' 
 law, that "the ship is bound to the merchandise, frli^hteS!"' 
 and the merchandise to the ship." But in England, 
 though this maxim, as a general principle, is con- 
 ceded by the English elementary writers, it is, to a 
 great extent, ineflfectual, for want of any court to 
 enforce it by process in, rem; for while the courts Jbte*ta"th!S 
 of common law are themselves incompetent to afford nurliV. 
 this remedy, they prohibit the Court of Admiralty, 
 the only tribunal adequate to this purpose, from 
 doing so. 
 
 Lord Tewterden, speaking of the contract of 
 affreightment by charter-party, says : " When this 
 contract is made by the master in a foreign port, in 
 the usual course of the ship's employment, and under 
 circumstances which do not afford evidence of fraud ; 
 or when it is made by him at the ship's home, under 
 circumstances which afford evidence of the assent of 
 the owners, the ship and freight, and therefore 
 indirectly the owners also to the amount of the ship 
 and freight, are by the maritime law bound to the 
 performance. ' The ship is bound to the merchan- 
 dise, and the merchandise to the ship,' are the words 
 of Cleirac." And he subsequently adds: "It is 
 21 
 
162 ADMIRALTY JURISDICTION. 
 
 voL^i. true, indeed, that this principle of the maritime law, 
 by which the ship itself, in specie, is considered as a 
 security to the merchant who lades goods on board 
 it, cannot be carried into effect in this country, 
 because the Court of Admiralty, in which alone pro- 
 ceedings can be carried on against the ship, has no 
 jurisdiction in such a case (a)." 
 
 Considering the habit of American lawyers — a 
 habit, which, in regard to maritime law at least, may 
 be safely said to have been indulged to excess — of 
 looking implicitly to English judicial decisions for 
 guidance in every branch of jurisprudence, it is 
 not surprising that this subject has led to earnest 
 controversy, and elaborate judicial discussion in 
 HeidtoTje our courts. In the celebrated case of Be Lovio 
 
 enforceable 
 
 'c°ri.ru' V. jBoit(b), in which -Mr. Justice Stoet took 
 
 ofadmiralty. , . i • -i 1 i 
 
 occasion to enter into a searching and thorough 
 examination of the nature and extent of the admi- 
 ralty jurisdiction conferred on the district com'ts by 
 the Constitution and laws of the United States, his 
 conclusion was that it embraced all maritinae con- 
 tracts, and, among others, all contracts of affreight- 
 ment ; and that wherever the maritime law gave a 
 lien, it might be enforced by admiralty process 
 against the thing in specie. This decision was pro- 
 nounced in 1815/ 
 
 But the earliest case known to have occurred in 
 our courts, of an admirialty suit founded directly on 
 a contract of affreightment, is that of The JFreigM 
 
 (a) Abbot on Shipping, Boston ed. of 1846, p. 160 ; ib., 361. 
 (6) 2 Gallison's R., 398. 
 
CONTRACTS OF AFFREIGHTMENT. 163 
 
 and Cargo of the Spartan{a\ decided in 1828, in the '^^^ *• 
 District Court of the United States for the District 
 of Maine. It was a libel upon a charter-party by 
 which the owners let to freight the whole vessel 
 with her appurtenances, for a specified voyage, and 
 was brought to enforce payment of the stipulated 
 freight. An objection having been interposed to 
 the jurisdiction of the court, the learned judge, 
 referring to the case of De Lovio v. Boit, declared 
 his cordial acquiescence in its doctrines ; for although 
 it had been twelve years before the public, and 
 though several attempts had been made to answer 
 it, his opinion was that its reasonings and conclu- 
 sions remained unshaken. Instead, however, of 
 simply adopting and applying its principles to the 
 case before him, as he said he should have consid- 
 ered it to be his duty to do, even though it had not 
 been in accordance with his own judgment, he 
 nevertheless proceeded to an original investigation 
 of the question, and, in a very learned and weU 
 reasoned opinion, maintained the jurisdiction of the 
 court. 
 
 The next reported case of this nature, is that of 
 The B,ebecca{b)^ which arose in the same court three 
 years later. It differed in two respects from its pre- 
 decessor. The suit was founded on a bill of lading, 
 instead of a charter-party ; and was brought by the 
 freighter against the vessel, to enforce his claim for 
 damages on account of the loss of his goods on the 
 voyage. 
 
 (o) Ware's R., 149. (6) Ware's R., 188. 
 
164 ADMIRALTY JURISDICTION. 
 
 TOL^i. jn tyg case, the counsel for the claimant denied 
 the existence of any lien or privilege against the 
 vessel ; insisting that the rule that " the vessel is 
 bound to the merchandise," existed if at all, not as 
 a universal principle of maritime law, but only as a 
 particular law of particular countries ; deriving its 
 authority, not from Ae general customs of the sea, 
 but from local usages or special acts of legislation. 
 But Judge "Wake pronounced the objection un- 
 founded, and vindicated his decision with his 
 accustomed depth of learning and force of reason- 
 ing ; and the doctrines of these cases were again 
 subsequently applied by him in The PTid)e{a). 
 
 The only remaining reported cases in admiralty, 
 founded on the contx'act of affreightment, are those 
 decided on appeal by Mr. Justice Story. The first 
 of these is that of TJie Volunteer cmd Oa/rgo (b), in 
 which the suit was against the cargo for freight 
 earned under a charter-party. It occurred in 1834 ; 
 and the admiralty jurisdiction of the American 
 courts was again brought into contestation. Mr. 
 Justice Stoet, in delivering his opinion, alluding to 
 his judgment in the case of De Lovio v. Soit, 
 pronounced nearly twenty years before, availed 
 himself of the occasion to declare his undiminished 
 confidence in its soundness, and, in general terms, 
 to reassert its doctrines(c). But he nevertheless 
 
 (a) Ware's R., 263. (6) 1 Sumner's R., 551. 
 
 (c) The learned reader, I am persuaded, will require no apology for 
 inserting the whole passage to which I refer. 
 
 "It is now approaching nearly to twenty years since I had occasion 
 to consider, with laborious care and attention, the nature and extent 
 
CONTRACTS OF AFFEEIGHTMENT. 165 
 
 entered at large into an examination of the particular ohap. 4. 
 question before him, and held the jurisdiction to be 
 
 of the jurisdiction of the admiralt7 over maritime contracts. The 
 conclusion, to which my mind then amyed, was, that the admiralty 
 had an original, ancient and rightful jurisdiction over all maritime 
 contracts, strictly so called (that is, such contracts as respect business, 
 trade and navigation, to, on and over the high seas), which it might 
 exert by a proceeding in rem, in all cases where the maritime law 
 established a lien or other right im rem; and by a proceeding in 
 personam, where no such lien or other right in rem existed. The 
 courts of common law, it is true, had on various occasions denied, 
 opposed and sought to restrict this jurisdiction ; but their decisions . 
 have been founded in no uniform principles or reasoning, and have 
 been, it may be so said without irreverence, more the offspring of 
 narrow prejudice, illiberal jealousy, and imperfect knowledge of the 
 subject, than of any clear and well considered principles. These 
 decisions have fluctuated in different directions at different periods ; 
 and the final results, unfavorable to the admiralty, have been in a 
 great measure owing to a deference for the learning of Lord Coke, 
 whose hostility to the admiralty, not to speak of his disingenuousness, 
 entitle him to very little respect in such a discussion. At all events, 
 the contradictory nature of these decisions, and the state of the law 
 on the subject at the time of the emigration of our ancestors, as well 
 as the structure and jurisdiction of the vice-admiralty courts under 
 their commissions, on that occasion seemed to me to require that the 
 jurisdiction of the admiralty in America should be reexamined, and 
 established upon its true principles, and maintained upon its just 
 original foundations. If, since that period, I had found reason in any 
 subsequent researches to change these opinions, I should not hesitate 
 on the present occasion to avow and correct errors ; for the advance- 
 ment of juridicial truth is, and ever ought to be, far more important 
 to every judge, than any narrow adhesion to his own preconceived 
 and ill founded judgments. But I am free to confess, that after every- 
 thing which I have heard and seen in the intermediate period, whether 
 in the shape of appeals to popular prejudices, or of learned and 
 liberal arguments, or of severe and confident criticism, I have been 
 unable to change these opinions : they remain with me unshaken and 
 unrefuted. Whether it is fit that the admiralty jurisdiction of the 
 United States shovdd be administered upon its just and original prin- 
 ciples, or whether it should be bound down and crippled by the 
 
166 ADMIRALTY JUEISDICTION. 
 
 TOT|^i unquestionable. In the subsequent case of Certain 
 Logs of Mahoga7m/{a\ the question of jurisdiction 
 was again raised by the pleadings in the district 
 court, but was abandoned at the argument on appeal. 
 A like jurisdiction has been exercised in rem in 
 several other reported cases, which were finally 
 determined by the ' same distinguished judge. ' I 
 understand Chancellor Kent to have intended to 
 express his approbation of its exercise (3) ; and I 
 am not aware of any adverse decisions in any 
 American court. It may be safely said, therefore, it 
 is presumed, that in this country, the rule declaring 
 the liability of the ship to the merchandise, and of 
 the merchandise to the ship, is practically as well as 
 theoretically true. As it is here interpreted and 
 applied, it imports that the freighter has a lien on 
 the ship and freight, for the safe conveyance and 
 delivery of his goods according to the contract under 
 which they are shipped ; that the owners, upon the 
 
 arbitrary limitations of the common lawyers, it is not for me to decide. 
 I have no desire to extend its boundaries, or, by any attempt to 
 amplify its justice, to encourage usurpation. But, believing, as I do, 
 that it is a rightful jurisdiction, highly promotive of the best interests 
 of commerce and navigation, and founded in the same enlightened 
 vrisdom which has sustained the equity jurisdiction through all the 
 earlier as well as later perils, I cannnot consent to be the instrument of 
 surrendering its powers, consistently with my own conscientious 
 discharge of duty. Other persons with different opinions may concur 
 in reducing it to a state of decrepitude, which will leave it neither 
 dignity nor power ; and I shall not scruple to obey their decisions, 
 when they shall have judicially prescribed the limits which I am 
 bound not to transcend." 
 
 (a) 2 Sumner's R., 589. 
 
 (b) 3 Kent's Comm., 3d ed., 220. 
 
CONTRACTS OF AFFREIGHTMENT. 167 
 
 fulfilment of their engagement, have a lien on the 
 goods for their freight ; and that these liens may be 
 enforced by admiralty process m rem(a). 
 
 (a) Since the first publication of the text as it now stands, the 
 admiralty jurisdiction over contracts of affreightment not only in rem 
 but also in personam, has been distinctly asserted by the Supreme 
 Court. The first of the cases here alluded to is that of The New 
 Jersey Steam Nav. Co. v. The Merchants' Bank of Boston, 6 Howard's 
 R., 344 (16 Curtis's Decis. S. C, 722). 
 
 It was an action in •personam to recover the value of a quantity of 
 gold and silver coin shipped on board the steamer Lexington at the 
 port of New- York for conveyance to Stonington, in the State of 
 Connecticut, and which was lost on the voyage in consequence of the 
 destruction of the Lexington by fire. The suit was instituted in the 
 District of Rhode Island. It was dismissed "pro forma" by the 
 district court for want of jurisdiction ; but on appeal to the circuit 
 court, this decision was reversed and damages were awarded to the 
 libellants. The case having been carried by further appeal to the 
 Supreme Court, the question of jurisdiction was most elaborately 
 discussed, the argument turning as usual, upon the applicability of the 
 decisions of the English courts affecting the jurisdiction of the High 
 Court of Admiralty. The court, in an able and lucid opinion pro- 
 nounced by Mr. Justice Nelson, clearly demonstrated that to adopt 
 these decisions as the true test of the extent of the admiralty 
 jurisdiction of the United States, would be Inconsistent at once with the 
 dictates of enlightened reason and with its own antecedent decisions ; 
 and the contract of affreightment being in its nature a fit subject of 
 admiralty jurisdiction, it was adjudged to fall within its scope, and the 
 decree of the circuit court was afBrmed. 
 
 A suit in personam founded on a contract of aftreightment having 
 by this decision been pronounced to be cognizable in the admiralty, it 
 followed of necessity that this was true also of suits of this nature 
 prosecuted in rem: and accordingly in Rich ^ Harris, claimants, 
 ^c, V. Lambert, 12 Howard's R., 347 (19 Curtis's Decis. S. C, 171), 
 which was a suit against the ship to recover damages for injury done 
 to the cargo in its conveyance from Liverpool to Charleston, S. C, no 
 objection to the jurisdiction appears to have been made at the 
 argument of the appeal in the Supreme Court, nor is the point of 
 jurisdiction even alluded to by the Supreme Court in pronouncing 
 its decision. 
 
 CHAP 4. 
 
168 ADMIRALTY JURISDICTION. 
 
 VOL 1. J propose now to describe the Contract of Af- 
 freightment, according to the several forms which it 
 assumes ; briefly to state the general principles by 
 which it is governed ; and to notice, somewhat more 
 particularly, the few reported cases to which it. has 
 given rise in the American courts of admiralty. 
 
 All contracts havipg for their direct object the 
 conveyance of goods by sea, fall under the general 
 denomination of contracts of affreightment ; for 
 although fr eighty in its original and more common 
 acceptation, means the hire which is earned by the 
 transportation of goods, in its more extensive sense 
 it is applied to all rewards or compensation paid for 
 the use of ships(ffi). 
 
 When the master and owners of a vessel destined 
 to proceed on a particular voyage, enter into separate 
 engagements with different persons to convey their 
 respective goods to the place of the vessel's des- 
 tination, the contract with the several freighters 
 respectively is expressed and evinced by what is 
 Bm.^of denominated a Wl of ladmig • and the ship, in 
 General such casc, is Called a general ship. The contract 
 is usually made personally with the master, but is 
 nevertheless considered in law to have been made 
 with the owners also; and both he and they are 
 separately bound, as well as the ship m specie, for 
 its performance. The bill of lading contains a 
 description of the goods, and an acknowledgment of 
 their receipt on board in good order at the place 
 whence the ship is to sail ; the name of the shipper, 
 
 (a) Poland et al. v The Freight and Cargo of the Spartan, Ware's 
 R., 134, 138 ; I Peters's Adm. Decis., 206. 
 
C0NTEACT8 OP AFFREIGHTMENT. 169 
 
 of the sMp and master, of the place whither she is ^^ *■ 
 bound ; the name of the consignee to whom or to 
 whose order (the dangers of the seas excepted) the 
 goods are to be delivered in the like good order, on 
 payment of the freight, which is usually agreed upon 
 and stated(a). This is the most common form of a 
 bill of lading. It is signed by the master and 
 dehvered to the freighter. Sometimes two, and 
 sometimes three bills of lading are thus signed and 
 delivered, of which the merchant commonly sends 
 one or two to his agent, factor, or other person to 
 whom the goods are to be delivered at the place of 
 destination, that is, one on board the ship with the 
 goods, another by the post or other conveyance ; and 
 one he retains for his own security. The master 
 should also take care to have another for his 
 own use. 
 
 When a merchant hires a ship, or some defined 9^'' 
 part of it, for a voyage to one or more places, the 
 contract, when in writing, is denominated a charter- 
 pa/rtyiV). When not under seal, as in England is 
 often the case, it is there called a memora/ndami of 
 chart6r(G). If the contract is made at the place of 
 
 (a) See Abbot on Shipping, Boston ed. of 1846, 398, where the 
 usual form of a bill of lading, such as is generally used in England, is 
 given, and the occasional variations of it stated and explained. 
 
 (6) Prom "the Latin words charta partita; the two parts of this 
 and other instruments being usually written in former times on one 
 piece of parchment, which was afterwards divided by a straight line 
 cut through some word or figure, so that one part should fit and tally 
 with the other, as evidence of their original agreement and cprrespon- 
 dence, and to prevent the fraudulent substitution of a fictitious 
 instrument for the real deed of the parties" (Abbot on Shipping, 
 Boston ed. of 1846, 315, 316). (c) Ibid. 
 
170 ADMIRALTY JURISDICTION. 
 
 voL^i. the owners' residence, it is usually executed by tLem 
 or some of them (and frequently by the master also), 
 and by the merchant or his agent. In a foreign 
 port, unless the owners have an agent at the port 
 empowered to execute the instrument for them, it is 
 of necessity executed by the master only, and by the 
 merchant or his agent(<z). It may be for the entire 
 ship, or an entire part of the ship, or for each ton or 
 other portion of its capacity; and the sum to be 
 paid for freight is again either a gross sum for the 
 whole voyage or voyages, or a particular sum for 
 every month or week of the ship's employment. 
 Sometimes also the freight is expressed to be a 
 certain sum for every ton, cask, or bale of goods put 
 on board ; in which case the merchant usually 
 covenants not to put on board less than a specified 
 number of tons, casks or bales ; and where the 
 payment is to be by the ton of goods, it is usual and 
 proper to add, "and so in proportion for a less 
 quantity than a ton(^)." 
 
 Msy^be by In England, this contract may be by parol ; but, 
 in respect to foreign voyages, at least, it is a loose 
 and dangerous practice. In the river and coasting 
 trade, a formal instrument in writing is less neces- 
 sary, and is no doubt frequently dispensed with(c). 
 In The Phebe(d)^ the validity of a parol agreement 
 of this nature seems to have been assumed as 
 unquestionable, 
 
 contenta^of The usual stipulations on the part of the owner or 
 master are, that the ship shall be tight and staunch, 
 
 (a) Abbot on Shipping, Boston ed. of 1846, 316. (6) lb., 321. 
 (c) 3 Kent's Comm., 3d ed., 204. (d) Ware's R., .263. 
 
 party. 
 
CONTRACTS OF AFFREIGHTMENT. 171 
 
 fiirnislied with all necessaries for the intended voyage, cnip. <. 
 ready by a day appointed to receive the cargo, and 
 wait a certain number of days to take it on board ; 
 that after lading, she shall sail with the first fair 
 wind and opportunity to the destined port (the 
 dangers of the seas excepted), and there deliver the 
 goods to the merchant or his assigns, in the same 
 condition they were received on board ; and further, 
 that during the course of the voyage the ship shall 
 be kept tight and staunch, and furnished with 
 sufficient men and necessaries, to the best of the 
 owner's endeavoi-s(ffl). 
 
 Upon the delivery by the charterer of his goods sm of iki- 
 
 ^ •'_ •/ o Ingtobe 
 
 on board the vessel, in pursuance of a charter-party '''»»s'™°- 
 of the nature above described, the master signs a 
 bill of lading for them, as in the case of shipments on 
 board a general ship, the design of a charter-party 
 being to secure the charterer the exclusive right to 
 the use of the ship to the extent and upon the terms 
 stipulated, and the bill of lading being the evidence 
 of the shipping of the particular merchandise, to be 
 conveyed in pursuance of the contract. So far as 
 the rights and obligations of the parties are specified 
 in the charter-party, that is, of course, to govern ; 
 and the parties are mutually liable to each other for 
 the damages that may accrue from any failure to 
 perform their respective engagements. Thus, for 
 example, the merchant is bound to load and unload 
 the ship within the stipulated number of days after 
 she shall be ready to receive the cargo, and after 
 
 (a) Abbot on Shipping, Boston ed. of 1846, 323. 
 
172 ADMIRALTY JURISDICTION, 
 
 voL^i. iier arrival at the destined port(a) ; and the owner 
 
 is bound to take care that his ship is in readiness to 
 
 sail, at the time, and to have her in the condition 
 
 Eighisand stipulated. But, aside from the express stipulations 
 
 thfsamJ"? of the charter-party, it may be said, in general, that 
 
 SnS by the riffhts and remedies of the parties concerned in 
 
 billoflading ° _ ^ 
 
 *'°"'- the shipment of merchandise in pursuance of a char- 
 ter-party of the kind now under consideration, are 
 the same as in the case of a contract evidenced by a 
 bill of lading alone for the conveyance of goods in a 
 general ship. The general nature of the contract, 
 in both cases, is essentially the same. A charter- 
 party is for the whole or for a specified and 
 generally large part of the vessel ; and a bill of 
 lading is for an indefinite and generally smaller por- 
 tion of the vessel's capacity. Both contracts, in one 
 aspect, are for the hire of the whole or a part of the 
 vessel ; both, in another aspect, are tor the convey- 
 atce of merchandise. In both cases the ship-owner 
 
 (a) Sometimes a clause is inserted in the cljarter-party, giving to 
 the freighter a right to detain the vessel for these purposes a further 
 specified time, on the payment of a daily sum ; and a memorandum is 
 sometimes added to a bill of lading on board a general ship to the like 
 effect, with respect to the time to be allowed for unloading the cargo 
 at the port of delivery. The delay, and the payment to be made for 
 it, are both called demurrage. If the freighter or consignee detains 
 the ship beyond the period, or, when such clause is inserted or memo- 
 randum added, beyond the two periods specified, he is liable to pay for 
 such detention. This unauthorized delay, and the damages which the 
 owner has a right to claim on account of it, are also loosely termed 
 demurrage : but demurrage, properly so called, arises out of the ex- 
 press terms of a charter-party, or out of an express stipulation in a 
 bill of lading entered into by the master and owners, and adopted and 
 assumed by the consignee (Abbot on. Shipping, Boston ed. of 1846, 
 324; id., 381). "■ ■■ 
 
CONTRACTS OF AFFREIGHTMENT. 173 
 
 is the carrier, and he has a lien on the merchandise oh_^-*- 
 for the transportation (a). And when by the char- Eemmrar- 
 ter-party the stipulated freight or hire is a gross Mgw"'* 
 Slim payable on the completion of the whole voyage, 
 the homeward cargo is liable for the entire amount. 
 Thus where the charterer agreed to pay in full 
 freight or hire of the vessel the sum of six hundred 
 and fifty dollars per calendar month, and the bill of 
 lading declared that the return cargo should be 
 delivered to the shipper or his assigns, they paying 
 freight, as per charter-party, it was held that a lien 
 attached to the homeward cargo for the freight due 
 from the whole voyage(5). 
 
 The merchant to whom the ship is lent may lade charterer 
 
 J- »' may take in 
 
 it either with his own goods, or if he has not suffi- omew^OT"' 
 cient, may take in the goods of other persons ; or he 
 may underlet the ship to another(c). But it is now ^?o^«°f_ 
 the established law that the goods of third persons ffiefo? 
 who are shippers under the charterer, are liable to 
 the owner only to the extent of the freight payable 
 to the charterers on account of such goods, as in 
 the case of a general ship (J). 
 
 In the case of The Trihme{e), after the vessel ^«j^"/,f^ 
 was laden for the intended voyage by the charterer, Srch"te> 
 the owner ordered the cargo so laden to be put on ^°j^^^ 
 shore, and voluntarily broke up the voyage. The '"°''e''»p- 
 
 (a) Drinkwater v. The Freight and Cargo of the Spartan, Ware's 
 K., 149, 155. 
 
 (6) Certain Logs of Mahogany, 2 Sumner's E., 589. 
 
 (c) Abbott on Shipping, Boston ed. of 1846, 321. ' 
 
 (d) See The Volunteer, 1 Sumner's R., 551, and the authorities 
 there cited. 
 
 (e) 3 Sumner's R., 144. 
 
 BODS, how far 
 liable fo: 
 freight. 
 
174 
 
 ADMIKALTY JUEISDICTION. 
 
 VOL. 1. 
 
 Contract of 
 charter- 
 party, by 
 which the 
 charterer 
 becomes 
 owner for 
 the voyage. 
 
 cargo consisted of a large number of cedar posts, 
 which the charterer had entered into a contract 
 with the government of Cuba to deliver at Havana ; 
 and he claimed damages on account of the loss of 
 the expected profits to be made on the voyage, 
 and also for the supposed injury he had sustained 
 from his inability to comply punctiliously with his 
 contract. But Mr. Justice Stoet held that these 
 items of damage were not allowable. The due per- 
 formance of the voyage was subject to many con- 
 tingencies, and the item of profits was too uncertain 
 in its nature to form a basis of damages; and all that 
 the libellant was fairly entitled to was a compensa- 
 tion for his actual losses and expenses incurred in 
 and about the voyage, and for his labor and services 
 in procuring another vessel, and his reasonable dis- 
 bursements in vindicating his rights in the suit, 
 beyond what he would receive indemnity for in the 
 regular taxed costs. 
 
 But there is another form of contract passing 
 under the general name of charter-party, differing 
 so widely from that here described, that the learned 
 judge of the United States for the District of Maine 
 has not hesitated to speak of them as " two kinds 
 of contracts(a)." Contracts of this nature are, 
 however, sometimes so ambiguously framed, as to 
 render it difficult to decide to which of these two 
 descriptions of contract they belong. The question, 
 it will be seen, resolves itself into the inquiry, who, 
 according to the just interpretation of the instru- 
 
 (a) Drvnkaater v. The Freight and Cargo of the Spartan, "Ware's 
 K», 149, 156. 
 
CONTEACTS OF AFFREIGHTMENT. 175 
 
 ment, it is to he ccmsidered as the ^^ owner for the ch^*- 
 voyage.''^ Judge Wake, in the case iust above cited, characteri.- 
 
 "^ "^ O ' •> ' tics and legal 
 
 has contrasted what he denominates the two kinds snchlcon- 
 of contract of charter-party, and stated their legal 
 incidents with so much precision, perspicuity and 
 brevity, that I gladly av^ myself of his analysis for 
 the purpose of conveying a clear notion of the nature 
 and distinctive character of each. "There are," 
 says he, " two kinds of .contracts passing under the 
 general name of charter-party, differing from each 
 other very widely in their nature, their provisions, 
 and in their legal effects. In one the owner lets the 
 use of the ship to freight, he himself retaining the 
 legal possession, and being liable to all the responsi- 
 bilities of owner. The master is his agent, and 
 the mariners are in his employment, and he is 
 answerable for their conduct. The charterer obtains 
 no right of control over the vessel, but the owner 
 is in fact, in contemplation of law, the carrier of 
 whatever goods are conveyed in the ship. The 
 charter-party is a mere covenant for the conveyance 
 of the merchandise, or the performance of the service 
 which is stipulated in it. In the other, the vessel 
 is herself let to hire, and the charterer takes her 
 into his own possession. It is a contract for the 
 lease of the vessel. The owner parts with possession 
 and the right of possession, and the hirer has not 
 only the use but the entire control of the vessel 
 herself He becomes the owner during the term of 
 the contract. He appoints the master and mariners, 
 and is responsible for their acts. If goods are taken 
 on freight, the freight is due to him; and if by 
 
176 ADMIRALTY JURISDICTION, 
 
 YOL^i. barratry or other misconduct of the master or crew, 
 the shippers suffer a loss, he must answer for it. If 
 he ships his own goods, he is his own carrier. Under 
 a charter-party of the former description, the char- 
 terer may hire the use of the whole vessel, and it 
 may be employed in carrying his own goods, or the 
 goods of other merchaaits on freight. His own goods 
 become liable to the owner of the vessel for the 
 charter, to the full extent of their value ; and though 
 he is entitled to the freight of the goods shipped by 
 the sub-freighters, the owner of the ship has a lien 
 on that freight for the charter of the vessel, and his 
 lien extends to each sub-freighter for the amount of 
 freight due on his shipment. This was the decision 
 in the case of Paul v. Birch (2 Atkins, 621), and it 
 has ever since been held to be law (Holt, Law of 
 Shipping, 471). It is recognized in Christie v. 
 Lewis (2 Brod. & Bing., 410), and in Faith v. East 
 India Gonvpamy (4 Barn. &, Aid., 630). In a charter- 
 party of the second kind, not only the entire capacity 
 of the ship is let, but the ship itself, and the 
 possession is passed to the charterer. The entire 
 control and management of it is given up to him. 
 The general owner loses his lien for freight, but 
 the lien itself is not destroyed; the charterer is 
 substituted in his place, in whose favor the lien 
 continues to exist when goods are taken on freight. 
 But the general owner has no remedy for the charter 
 of his vessel, but his personal action on the covenants 
 of the charter-party. It is a contract in which he 
 trusts the personal credit of the charterer. These 
 principles appear to be firmly established by the 
 
CONTRACTS OF AFFKEIGHTMENT. 177 
 
 cases cited at the argument." After remarking upon chap. 4. 
 several English cases, and referring to the review by 
 Holt, in his Law of Shipping, 460-471, he states 
 the result to be, " that a ship may be so let to hire 
 as to constitute the charterer owner under the 
 charter-party, provided such appears to be the 
 intention of the parties ; and that this intention may 
 be collected either from the necessary construction 
 of the terms of the instrument, or from the nature of 
 the service for which she is hired. But the right 
 of the owner is strongly favored; and while he 
 appoints the master and crew, his lien for freight 
 can only be excluded by the most express and 
 absolute terms of the charter-party, or by unavoidable 
 implication. But there is no case where the owner's 
 lien has been sustained, unless where he retained the 
 possession by the appointment of the master." 
 
 It has already been remarked that this is the first Adjudica- 
 
 , tionB of the 
 
 reported American case of a suit in the admirality f^^^"^^^^ 
 on a contract of afireightment ; and it is needless, S'/ quest™n 
 therefore, to add, that it was the first m which it ^y?^"';"'* 
 became necessary to apply the principles laid down 
 in the foregoing extracts froin the opinion of Judge 
 Wake. It was a suit on a charter-party, by which rreight «nd 
 the owners let to freight the whole of the vessel, for ^^^ 
 a voyage to be made by the charterer to one or "'" 
 more ports in the Western, Canary and Madeira 
 islands, and back again to her port of discharge in 
 the United States, and to Portland. The owners 
 covenanted, that in and during the voyage, the 
 vessel should be tight, staunch and strong, and 
 sufficiently tackled and appareled for such a ship 
 23 
 
178 ADMIRALTY JURISDICTION. 
 
 voL^i. and voyage; and that it should be lawful for the 
 freighters or their agents or factors, as well at Port- 
 land as in foreign ports, to put on board such loading 
 and goods as they should think proper, contraband 
 excepted. On the part of the charterers, it was 
 agreed that they should pay for the full freight or 
 hire of the brig, a certain sum per month during the 
 time of the service, in thirty days after the termina- 
 tion of the voyage, and pay the charges of victualing 
 and manning, and all other charges, and deliver the 
 brig, on her return to Portland, to the owners or 
 their order. One of the owners was named in the 
 charter-party, as, at the time, master, and it was 
 contemplated by the parties that he should continue 
 to act in that capacity on the voyage. This circum- 
 stance was relied on by the owners as evidence that 
 they did not intend to part with the possession of 
 the vessel. Another master was, however, in fact, 
 appointed; the right of appointing him being 
 Charterers claimed and exercised by the charterers. The 
 
 held to be '' 
 
 ftTvJyage. learned judge was clearly of opinion, that, according 
 to the just construction of this contract, it was 
 a letting of the ship to hire, and not a mere 
 contract for the conveyance of merchandise; that 
 the charterers were to be considered as having the 
 possession and control of the vessel, and as owners 
 for the voyage ; and consequently that the general 
 owners had no lien on the cargo for the stipulated 
 hire of the ship. 
 Thtvoiun. The Volimteer and Gmqoia) was a case of the 
 
 Oa/rgo. 
 
 (a) 1 Sumner's R., 551. 
 
CONTRACTS OF AFFREIGHTMENT. 179 
 
 like nature, and involved the same question. By ^^^ *• 
 the charter-party, the whole vessel was by the libel- 
 lant let to hire, except the cabin, which was reserved 
 for the use of the master, and the room under deck 
 which might be necessary -for provisions, wood, 
 water and cables. The covenants relative to the 
 condition and equipment of the vessel, and to the 
 right of the charterer to take merchandise on board, 
 were the same as in the case of The Spartan. The 
 libellant was to victual and man the vessel during 
 the voyage ; and the other charges, port charges, 
 pilotage, etc., were to be borne by the charterer. 
 For the freight or hire of the vessel, the charterers 
 were to pay four hundred dollars a month. 
 
 In nearly all the circumstances upon which the 
 question of ownership for the voyage depends, this 
 contract, it will be noticed, was the opposite of that 
 vo. Ihe Spa/rtan. The master was appointed by the 
 owner, and the vessel was to be equipped, manned 
 and victualed by him, and at his expense during the 
 voyage. It is true, as the court remarked, it was 
 said in the instrument that he had letten to freight 
 the whole vessel for the voyage, and that these 
 words might seem to import a demise or grant of 
 the vessel, and not a mere covenant for the convey- 
 ance of merchandise ; but in point of fact the whole 
 vessel was not let, for the charter-party contained 
 an express exception of the cabin and certain por- 
 tions of other rooms under deck. The general The general 
 
 owner held 
 
 owner was accordingly held to be owner lor the ^,"11"™: 
 voyage. The views taken of the question, and the ^^°" 
 principles applied to it by Mr. Justice Stoet, he 
 
180 ADMIRALTY JURISDICTION. 
 
 TOL^i. considered to liave been already expressly sanctioned 
 by the Supreme Court of the United States : and he 
 referred particularly to Hooe v. Gh'Overman{a)^ in 
 which that court, "under circumstances far less 
 cogent and expressive,'' held the general owner to 
 be owner for the voyage; and to Marsca/rdier v. 
 The Chesapeake Insurance Conrvpany{U)^ which he 
 considered to be almost identical with the case 
 before him, and in which the distinction in question 
 is laid down in the following terms : "A person may 
 be owner for the voyage, who, by contract with the 
 general owner, hires the ship for the voyage, and has 
 the exclusive possession, command and navigation of 
 the ship. But where the general owner retains the 
 possession, command and navigation of the ship, 
 and contracts to carry the cargo on freight for the 
 voyage, the charter-party is considered as a mere 
 affreightment, sounding in covenant ; and the 
 freighter is not clothed with the character or legal 
 responsibility of ownership." 
 
 In the case of Certain Logs of Mahogany{p\ this 
 
 doctrine was again discussed by Mr. Justice Stort; 
 
 and he lays down the principle that the question of 
 
 ownership for the voyage depends upon all the terms 
 
 When the ^^ ^^^ chartcr party taken together, and that if the 
 
 th^^MMef intention of the parties in this respect seems doubtful 
 
 is doubtful, 1 /. p 1 ■ 
 
 the general qu the lacc 01 the mstrumeut, the general owner is 
 
 owner to be ? o 
 
 o?S^?for to be deemed to continue owner for the voyage. 
 
 the voyage. "^ 
 
 (fi) 1 Crancti's R., 214 (Ourtis's Decis. S. C, 397). 
 (6) 8 Cranoh'sR., 39 (3 Ourtis's Decis. S. C, 15). See also Grade 
 V. Palmer, 8 Wheaton's R., 605 (Ourtis's Decis. S. C, 523). 
 (c) 2 Sumner's R., 589. 
 
CONTRACTS OF AFFREIGHTMENT. 181 
 
 His decision turned upon this principle ; for he held chap. 4. 
 the absolute owner to be owner for the voyage, on 
 the ground that from the obscurity of the phrases 
 and the apparent contradictory presumptions arising 
 from the various clauses of the charter-party, it 
 was really somewhat difficult to say what was the 
 absolute intention of the parties(a). 
 
 (a) In Calvin r. Newberry, 6 Bligh's R. (N. S.), 189, Lord Tbn- 
 TERDEN, in moving for the afBrmance of the judgment of the Ex- 
 chequer Chamber, used the following language : " Two propositions of 
 law are clear, as applicable to a case like the present. The first is the 
 common case of goods shipped on board of a vessel, of which the ship- 
 ment is acknowledged by a bill of lading, signed by the master, that, 
 if the goods are not delivered, the shipper has a right to maintain an 
 action against the owner of the ship. The other proposition, which 
 is equally clear, is this, that if the person in whom the absolute 
 property of the ship is vested, charters that ship to another for a 
 particular voyage, although the absolute owner appoints the master 
 and crew, and finds provisions and everything else, and is to receive 
 from the charterer' of the ship a certain sum of money for the use and 
 hire of the ship, an action can be brought only against the person to 
 whom the absolute owner has chartered the ship, and who is considered 
 the owner pro tempore, that is, during the voyage for which the ship 
 is chartered. In such a case the action cannot be maintained against 
 the person who has let out the ship on charter, namely, the absolute 
 owner." 
 
 Mr. Justice Story, in delivering his judgment in the case last cited 
 in the text, after quoting these remarks of Lord Tenterden, proceeds 
 to observe, that " according to this decision, the fact that the absolute 
 owner appoints the master and crew, and finds provisions for the voyage, 
 will not alone control the other words, if there is by them a clear 
 letting to charter of the whole ship ; but the charterer will be deemed 
 the owner for the voyage. On the other hand, the Supreme Court of 
 the United States, in the case of Marscardier v. The Chesapeake 
 Insurance Company (8 Cranch, 49), where the same question arose, 
 used the following language :" (quoting the passage from that case 
 given in the text.) And he adds: "Perhaps there is no real discre- 
 pancy between the doctrines held in each of these cases ; and, with 
 
182 
 
 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 General 
 owner of t, 
 vessel sailed 
 " on shares," 
 held not 
 responsible 
 for supplies. 
 
 In Weih et al. v. P&irceia), the master had made 
 a verbal agreement with the owners of the vessel to 
 
 reference to the facts, each may be perfectly correct. In the former 
 case the master was the charterer, and not the absolute owner ; in the 
 latter, the master was the absolute owner, and entered into the charter- 
 party, he being to continue master during the voyage. The charter- 
 parties, too, contained very different and special provisions. In the 
 former case, although there were express words of demise, yet the 
 court thought that, upon the whole terms of the instrument taken 
 together, there was in effect a letting of the whole ship to the master 
 for the voyage, notwithstanding she was to be victualed and manned 
 at the expense of the absolute owner. But if there be any real discre- 
 pancy between these cases, I have no difficulty, independently of my 
 official duty to. obey the decisions of the Supreme Court, in saying 
 that I deem the American decision built upon the more solid and 
 satisfactory distinction. I agree that it is not indispensable, to con- 
 stitute the charterer the owner for the voyage, that express terms of 
 demise and letting of the whole ship should appear on the face of the 
 charter-party ; but that it may be gathered, as a result, from the whole 
 stipulations in the instrument. I also agree that the clause that the 
 absolute owner shall appoint the master and crew, and victual and 
 provision and equip the ship during the voyage, is not of itself neces- 
 sarily conclusive that he retains the ownership during the voyage ; 
 and that the provision is controllable by the other stipulations, showing 
 a clear intention that the charterer shall be owner for the voyage. 
 But I do consider such a stipulation as veiy strong prima facie 
 evidence in favor of the absolute owner, that he is deemed to be the 
 owner for' the voyage, and that it wiU require very cogent circum- 
 stances to overcome it. In short, it appears to me, that if the absolute 
 owner does retain possession, command and control of the navigation 
 of the ship during the voyage, and the master is deemed his agent, 
 acting under his instructions for the voyage, though authorized and 
 required to fulfil the terms of the charter-party, the absolute owner 
 must, under such circumstances, be still deemed owner for the voyage, 
 and be liable as such to all persons who do not contract personally and 
 exclusively with the- charterer by a sub-contract with the latter, 
 knowing his rights and character under the charter-party. This seems 
 to me the natural, and, indeed, the necessary result of the doctrine 
 
 (a) 15 Law Reporter (5 N. S.), 9. 
 
CONTRACTS OF AFFREIGHTMENT. 183 
 
 sail lier on shares. He was to victual and man the ^^^ *• 
 vessel, and pay one-half the port charges. He was 
 to have fuU liberty to employ the vessel according 
 to his own will, and he and the owners were to share 
 the gross earnings equally. The action was against 
 the owners for supplies furnished to the master while 
 sailing the vessel under that agreement, and Mr. 
 Justice CtTETis held the master to be owner pro hoc 
 vice, and that he, and not the general owners, was 
 accordingly responsible for the supplies. The true 
 question in the case before him, as in all similar 
 cases, he conceived to be whether the master could 
 properly be regarded as having stood towards the- 
 general owners in the relation of an agent towards 
 his principal. Ordinarily the law infers this relation 
 from that of master and owner, and holds the latter 
 responsible for the contracts of the former accord- 
 ingly, upon the familiar principles of the law of 
 agency. But the relation of principal and agent 
 between the general owner and the master may be 
 superseded by clothing either the master or a third 
 
 stated in Marscardier y. The Chesapeake Insurance Company (8 
 Cranch's R., 49), and M'Intyre v. Browne (1 Johnson's R., 229), and 
 Grade v. Palmer (8 Wheaton's R., 632, 633 ; S. C, 4 Wash. Cir. R., 
 110). The same view is taken by Mr. Chancellor Kent, in his very 
 learned Commentaries ; and it stands confirmed by the decision of 
 Taggart v. Loring (16 Massachusetts R., 336), and in Clarkson v. 
 Edes (4 Cowen's R., 478). My brother, Mr. Justice Washington, in 
 his excellent opinion in the case of Grade v. Palmar, has collected the 
 main authorities, and commented on the true results to be deduced 
 from them with his usual clearness and accuracy ; and the Supreme 
 Court supported and approved his opinion. So that whatever minute 
 differences or distinctions or discrepancies are found in the English 
 cases on this subject, in America there is a general uniformity of 
 decision upon the principles and distinctions already stated." 
 
184 ADMIRALTY JURISDICTION. 
 
 roL^i. person with a special ownership, leaving in the 
 genera] owner only an interest in the nature of a 
 reversion. In such a case the special owner stands 
 as principal, in law as well as in fact, with respect' 
 to the employment and navigation of the vessel. 
 And such the' learned judge held to be the nature 
 and effect of the agreement between the general 
 owner and the master in the case before him. 
 ofTh°8Wp- ^^ ^^ Phebeia)^ the important question arose, 
 Sittionlh'the whether, when by the terms of the charter-party 
 the TOyIgS' *^® charterer is constituted owner for the voyage, a 
 sub-shipper nevertheless acquires a lien on the ship 
 ■for his damages in case of the loss of his goods. The 
 question was thoroughly examined and discussed by 
 Judge Waee, both upon principle and authority; 
 and his decision was in favor of the existence of the 
 liten. It was conceded that in such a case no direct 
 personal responsibilty was incurred by the owner ; 
 the general principle being, that when, by a contract 
 of charter-party, the charterer takes the vessel into 
 his own possession and control, and navigates her by 
 his own master and crew, he alone is responsible for 
 the acts of the master; and that this principle is 
 equally applicable, although, as in the case before 
 the court, the owner may be so far interested in the 
 voyage that he receives for the hire of the vessel a 
 certain proportion of her earnings, instead of a. fixed 
 sum; for although this mode of determining the 
 hire of the vessel gives to the contract the aspect 
 of a partnership transaction, it is held not to draw 
 
 (a) Ware's R., 263. 
 
CONTRACTS OF AFFREIGHTMENT. 185 
 
 after it the consequences of a partnership, but is chap.*. 
 considered merely as an equitable mode of ascer- 
 taining the real value of the use of the vessel. It 
 was insisted by the counsel for the respondent, that 
 the admitted exemption of the owner from personal 
 responsibility extended also to his property; and 
 the argument was, that the liability of the vessel is 
 merely collateral or accessory to that of the owner, 
 and stands in the nature of a surety or pledge. 
 Judge Waee held the objection to be untenable 
 upon two grounds. In the first place, he said, 
 admitting the liability of the vessel to be not 
 primary but collateral, it must, in the case before 
 him, be deemed to be collateral to the personal 
 responsibility of the charterer. It was he, who, for 
 this purpose, was to be considered the owner: he 
 was the exercitor, and it was to the quality of exer- 
 citor or employer, and not to that of proprietor, that 
 the liability attached. But he held the argument 
 to be founded on a misconception of the true prin- 
 ciples of the law. The rule by which the vessel is 
 bound in specie for the acts of the master, was not 
 derived from the civil law, but had its origin in the 
 maritime usages of the middle ages. It was to these 
 usages, therefore, that we must look to ascertain its 
 true character ; and tracing back the rule to its 
 source, the learned judge proceeded to show that 
 the liability of the vessel, instead of being merely 
 collateral or accessory to that of the owner, was 
 originally the primary liability ; that of the owner 
 being, not personal, but merely incidental to his 
 ownership, and limited to the value of the ship. 
 24 
 
186 ADMIRALTY JURISDICTION. 
 
 TOL^i. fij^e nature of the lien remains unchanged; and 
 though in England, from the limited jurisdiction of 
 the admiralty, the shipper cannot have the full 
 benefit of it, iu this country it is not only acknow- 
 ledged, but is enforced by our courts of admiralty. 
 The principle is, that whoever deals with the master, 
 in all cases where he is acting within the scope of his 
 authority as master, is entitled to look to the ship as 
 security; and the authority of the master to bind 
 the vessel is the same, whether he is appointed by 
 the owners, or the ship is let to him by a charter- 
 party. Applying these principles to the case before 
 him. Judge Ware accordingly held that there was 
 no foundation in authority for the distinction insisted 
 upon by the resjDondent's counsel; and he was of 
 opinion, moreover, that it was equally unfounded in 
 reason and mercantile policy. If this privilege is 
 given as an additional security to the merchant, the 
 reason for it is quite as strong, to say the least, 
 when the ship is employed under a charter-party, as 
 when it is employed by the owner. The owner has 
 his remedy against the charterer. 
 
 The Cassius(a), on appeal before Mr. Justice 
 Story, under one of its aspects, presented a similar 
 question. But it was at least doubtful in that case, 
 whether the charterer was to be deemed owner 
 for the voyage ; and the charter-party, moreover, 
 contained an express stipulation, pledging the vessel 
 for the due fulfilment of the contract with the shipper. 
 Mr. Justice Story therefore contented himself with 
 
 (a) 2 Story's R., 81. 
 
CONTRACTS OF AFFREIGHTMENT. 187 
 
 asserting the validity and sufficiency of this stipu- chap. 4. 
 lation, and upheld the lien on this ground. The case 
 may, on this account, be regarded as falling short of 
 the doctrine of The Pliebe, although it is not supposed 
 to contain anything adverse to that doctrine. 
 
 But in a later case, the question having been 
 brought to the consideration of the Supreme Court, 
 has there been definitively settled in conformity 
 with the decision of Judge Ware in The Phebe. 
 Contracts of affreightment entered into with the 
 master in good faith, and within the scope of this 
 apparent authority as master, were held to bind the 
 vessel to the merchandise for the performance of 
 such contracts, wholly irrespective of the ownership 
 of the vessel, and whether the master be the agent 
 of the general or of the special owner. If the general 
 owner has allowed a third person to have the entire 
 control, management and employment of the vessel, 
 and thus become the owner ^ro haxi vice, the general 
 owner must be deemed to consent that the special 
 owner or his master may create liens binding on the 
 interest of the general owner in the vessel, as security 
 for the performance of such contracts of aflfreight- 
 ment(a). 
 
 But this presumption may be repelled by proof But no uen 
 that the bill of lading was designed to be an fadtol."""^ 
 instrument of fraud. Thus where the master of the 
 special owner, at his instance, had signed bUls of 
 lading for property not shipped, it was held that the 
 general owner was not estopped from alleging and 
 
 (a) Schooner Freeman v. Buckingham, 18 Howard's R., 182. 
 
owner may 
 be waived. 
 
 188 ADMIRALTY JUEISDICTION. 
 
 TOT-^i proving the fraud, although the libellants, as con- 
 signees named in the bills of lading, had in good 
 faith made advances thereon ; and the alleged fraud 
 having been substantiated, it was held that no lien 
 had accrued. The result would have been the same 
 if it had appeared that the master was cognizant of 
 the fraud, or had conimitted it alone ; nor, in the 
 latter case, would a lien have been created on the 
 interest of the general owner if the master had been 
 appointed by him(«). 
 Lien of the The lleu which the owner has upon the goods 
 
 owner mav l <j 
 
 shipped, for the freight due thereon, like other legal 
 rights or privileges, may be waived by consent, 
 express or implied ; and in a case of charter-parties, 
 it often becomes a question, whether the stipulations 
 are, or are not, inconsistent with the existence of the 
 lien. If, for instance, the actual delivery of the 
 goods is, by the terms of the charter-party, to precede 
 the payment of the freight, the just inference is that 
 the owner has been content to look to the personal 
 responsibility of the merchant; but the ornts 
 prohcmdi to establish a waiver or extinguishment of 
 the lien, rests upon the shipper(Z>). 
 
 Two cases in admiralty, depending on this doctrine 
 of implied waiver, have been decided in the Circuit 
 Court of the United States for the District of 
 Massachusetts. The first is that of The Volunteer 
 cmd Oa/rgo(c), in which the charter-party was for a 
 voyage from Boston to Havana ; and the charterers 
 
 (a) Schooner Freeman v. Buckingham, 18 Howard's R., 182. 
 (6) Certain Logs of Mahogany, 2 Sumner's R., 589, 594. 
 (c) 1 Sumner's R., 551. 
 
CONTRACTS OF AFFREIGHTMENT. 189 
 
 agreed to pay in fall for freight or tire, at tte rate ^^ *• 
 of four hundred dollars per month, within ten days 
 after the retv/rn of the vessel to Soston, or, in case of 
 loss, to the time she was last heard of. The parties 
 also mutually bound themselves personally, and 
 especially the owner bound the schooner, and the 
 charterer the goods to be laden on board, in the 
 penal sum of two thousand dollars, for the faithful 
 performance of their respective engagements. The 
 question was whether the allowance of ten days, as 
 above mentioned, for the payment of freight, implied 
 a waiver by the owner of the lien which he would 
 otherwise have had upon the return cargo for the 
 stipulated hire. Mr. Justice Story held that it did 
 not. From the latter plause of the stipulation in 
 question, by which, in case of loss, the ten days 
 were to commence running from the day when the 
 vessel was last heard of, it was apparent that the 
 payment of freight was not in every event to be 
 contingent on, or subsequent to, the delivery of the 
 cargo; nor did the other clause, by any means, 
 necessarily carry with it any implication that the 
 cargo was to be deUvered before the payment of 
 freight. Fifteen and sometimes twenty days are by 
 our laws allowed at the custom-house, for the entry 
 and discharge of the cargo. An unlivery might 
 therefore be lawfully postponed beyond the ten days 
 after the return of the vessel, when, by the terms of ' 
 the charter-party, the freight would become due; 
 and although the delivery must be within a reason- 
 able time, Mr. Justice Stobt was of opinion that a 
 time short of that allowed by statute for unlivery of 
 
190 ADMIRALTY JURISDICTION. 
 
 TOL^i. the cargo could not be deemed unreasonable. The 
 parties had not stipulated for a delivery of the cargo 
 within ten days, nor for any delivery at all without 
 payment of freight ; and even if they were unlivered 
 within the ten days, on what ground could the court 
 say that they might not be retained by the owner 
 until the lapse of that period, unless the freight 
 was paid or secured? These reasons, alone, seem 
 to have been considered by Mr. Justice Stoey 
 sufficient for holding the lien not to have been 
 abandoned. But the case, he said, did not rest 
 merely upon negative inference ; for the charter- 
 party contained a clause expressly binding the 
 cargo : and notwithstanding what was said by the 
 court of King's Bench in the case of Birhy v. 
 Gladstone (3 M, <fe Selw. R., 205), he was of opinion 
 that this clause contained an express contract for a 
 lien for the freight ; but if it did not, he held it 
 to be at least sufficient to repel any inference of 
 intentional waiver. 
 
 The other case above alluded to, is that of Certam 
 Logs of MaTwgany{a). The clause in the charter- 
 party, relied upon by the respondent as a waiver or 
 displacement of the owner's lien, was that by which 
 it was stipulated that the freight should be paid " in 
 five days after her [the brig's] return to and dis- 
 cha/rge at Boston." The argument of the respondent 
 was, that " discharge," as there used, imported, not a 
 mere unlading of the cargo, but an actual delivery 
 thereof to the charterer or owner of the goods. 
 
 (a) 2 Sumner's R., 589. 
 
CONTRACTS OF AFFREIGHTMENT. 191 
 
 But Mr. Justice Stoey said, that in a general sense, '^'^:^ *• 
 as well as in a nautical sense, the proper meaning of 
 the word " discharge," with reference to a cargo, is 
 to unlade it from the ship. So it was defined in 
 Johnson's Dictionary, and in Falconefs Marine Dic- 
 tionary. This meaning ought therefore to govern 
 the rights of the parties, unless a different use of the 
 word was manifestly intended in the clause in ques- 
 tion ; and he saw no reason for such a construction. 
 On the contrary, he was of opinion that, from the 
 circumstances of the case, it might reasonably be 
 presumed to have been the intention of the parties 
 to use the word in its appropriate sense. " It was 
 well known," he said, " that the goods of the shipper 
 may not only be detained for freight, properly so 
 called, but also for the hire agreed to be paid by the 
 shipper under a charter-party for the use of the ship, 
 if the owner of the ship retains possession of the 
 cargo ; and that the shipper cannot ordinarily insist 
 on the delivery of the goods to him, until the freight 
 or hire is paid or secured according to the terms 
 of the agreement. But, then, the owner is not at 
 liberty to insist that the goods shall not be landed 
 before such payment or security is made. On the 
 contrary, the shipper has a right, as it should seem, 
 by the maritime law, to insist upon examining the 
 goods, after they are unlivered, in order to ascertain 
 whether they are damaged or not, before he makes 
 himself liable at all events for the freight. Under 
 these circumstances, an unlivery of the cargo becomes 
 perfectly proper ; and after it is made, the owner of 
 the ship has a right to detain it in his custody, until 
 
192 ADMIRALTY JURISDICTION. 
 
 VOL 1. tiie payment of or security for ilie freight. So the 
 law is laid down in Lord Tentebden's Treatise on 
 Shipping (Abbot on Shipping, Part m., ch. 3, § 11, 
 pp. 247, 248) ; and it appears to be the general rule 
 adopted by fof eign maritime nations. In the mari- 
 time ordinance of Louis XIV. (1 Valin., lib. iii, tit. 
 3, art. 21, p. 665), it is expressly prescribed that 
 the master shall not retain the merchandise on board 
 his vessel for default of payment of the freight ; but 
 he may, at the time of the discharge, refuse to 
 deliver it, or cause it to be held for the freight. 
 Valin gives, as a reason, that it would be absurd to 
 allow the master to insist upon the paymeat of his 
 freight before the goods were examined, and the 
 damage, if any, ascertained. The modern Code 
 of Commerce of France (lib. ii., tit. 8, art. 306), 
 contains a provision very similar in its purport and 
 objects. It declares that the master shall not retain 
 the merchandise on board the ship, for default of 
 the payment of freight ; but he may, at the time of 
 discharging, insist upon having them deposited in 
 the hands of a third person, until the freight is paid. 
 The commentators give the same reason for this 
 provision, which is assigned by Valin." By the 
 terms of the charter-party, the charterer agreed "to 
 deliver the said brig, on her return to Boston, to the 
 owner aforesaid, or his order." It was also stipulated 
 that the charterer was "to load the vessel at Boston, 
 and the owner to discharge the cargo on her return;" 
 and by the terms of the bill of lading for the home- 
 ward voyage, the homeward cargo was to be 
 delivered at Boston, the dangers of the seas only 
 
CONTRACTS OF AFFREIGHTMENT. 193 
 
 excepted, "unto tlie order of the shipper or chap. 4. 
 assigns, he or they paying freight for the said goods 
 as per charter-party." The natural interpretation 
 of this language taken together, Mr. Justice Story 
 held to he, " that the shipper or his assigns will pay 
 the freight in five days after the cargo is unladen 
 by the owner, if the latter will, at the time of 
 payment, deliver the cargo to the shipper or his 
 assigns." But if "discharge" meant delivery, there 
 would, he said, be, at least, a seeming repugnancy 
 between the charter-party and the bill of lading. 
 By the latter, the payment of the freight was to be , 
 a cotemporaneous act with the delivery; while by 
 the former it would not be until five days after the 
 delivery. It was true the repugnancy might be 
 avoided, or at least mitigated, by construing the 
 words, that when the cargo is delivered, the pay- 
 ment of freight shall be in five days after such 
 delivery. But this construction was less consonant 
 with the just import of the words, and would defeat 
 the right of the owner to any lien for freight ; a lien 
 which is favored in law, and ought not to be 
 displaced without a clear and determinate adandon- 
 ment of it. 
 
 The manner of taking the goods on board, and the Lading and 
 
 - - , , , -. , stowage of 
 
 commencement oi the master s duty, m this respect, 'he cargo. 
 depend on the custom of the particular place. More 
 or less is done by the wharfingers, lightermen, or 
 stevedores, according to the usage. If the master 
 receive the goods at the quay or beach, or send his , 
 boat for them, his responsibility commences with the 
 
 25 
 
194 ADMIRALTY JURISDICTION. 
 
 voL^i. receipt. As soon as the 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 are 
 stolen, while 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(a). The ship- 
 owner is answerable also for any loss or damage of 
 the goods occasioned by want of due care or skill in 
 taking them on board, or by improper stowage(5). 
 The contract by bill of lading in the usual form, 
 implies that the goods are to be placed under deck ; . 
 and if, without the consent of the shipper either 
 express or clearly implied, they are stowed on deck 
 and are lost, the ship-owner is responsible, although 
 the loss was caused by the dangers of the seas, unless 
 it is clearly shown that the dangers were such as 
 would have occasioned the loss, had the goods been 
 safely stowed under deck(o). 
 Commence- All thiugs beinff prepared for the commencement 
 voyage. ^f ^j^q voyage, the master must forthwith obtain the 
 necessary clearances, and must then commence his 
 voyage without delay as soon as the weather is 
 
 (a) Abbot on Shipping, Boston edition of 1846, 423 et seq., and 
 the authorities there cited. 
 
 (6) lb.; The Reeside, 2 Sumner's R., 567. 
 
 (c) Vemard v. Hudson, 3 Sumner's R., 405 ; The Rebecca, Ware's 
 R., 188, 210; The Paragon, id., 322. In the case of Vemard v. 
 Hudson, above cited, the goods were shipped at an under-deck freight, 
 but were in fact stowed and carried on deck ; and although they were 
 delivered without damage, it was held by Mr. Justice Story that the 
 ship-owner was entitled only to a deck freight. 
 
CONTRACTS OF AFFREIGHTMENT. 195 
 
 favorable ; but he must by no means sail out during chap. 4. 
 tempestuous "weather(a). 
 
 The voyage being commenced, the master is bound ^"t^''^® Pf^f 
 to proceed to the place of destination without delay, dCTilS." 
 and without any unnecessary deviation from the 
 direct and usual course, unless such delay or deviation 
 be necessary to procure repairs or supplies, to avoid 
 enemies or pirates, or to relieve a ship in distress(5). 
 If, during an unnecessary deviation, the cargo is lost 
 or injured, the law ascribes the misfortune to the 
 deviation as the proximate cause, and the freighter 
 is accordingly to recover. 
 
 The responsibility of the ship-owner having once Termination 
 attached by the receipt of the goods, it continues °^omibm^. 
 untn the complete fulfilment of the contract on his 
 part, by the actual delivery of the goods to the 
 proper person at their place of destination, unless 
 the delivery is waived by the previous interposition 
 of the owner or his agent, as where the goods, after 
 their arrival, are put on board a lighter in the usual 
 mode, and the consignee takes charge of them on 
 their passage to the quay(c). But the manner of 
 
 (a) Abbot on Shipping, Boston ed. of 1846, 431 ; Rocctis, Note 56. 
 
 (6) 3 Kent's Comm., 3d ed., 209 ; Abbot on Shipping, Boston ed. of 
 1846, 441. It seems to be agreed, in this country, that stopping or 
 going out of the way to save human life is not a deviation ; but where 
 life is not in jeopardy, and the sole purpose is to save property, it may 
 be otherwise. Mason v. The Ship Blaireau, 2 Cranch's R., 240 
 (1 Curtis's Decis. S. C, 479); The Boston, 1 Sumner's K., 329; The 
 Eubank, ib., 400; The (hra, 2 Peters's Adm. R., 373 ; S. C, 2 Wash. 
 C. C. R., 80; 3 Kent's Comm., 313. 
 
 (c) Strong V. Natally, 4 Bos. & Pull., 16 ; 2 Kent's Comm., 3d ed., 
 605 ; Story on BaUments, §§ 538, 542. 
 
196 ADMIRALTY JUKISDICTION. 
 
 TOL^i. delivery, and consequently the period at wMch the 
 liability of the ship-owrier ceases, often depends on 
 the custom of particular places and the usage of 
 particular trades(a). If there is an express special 
 contract, prescribing the manner of delivery, that, 
 of course, will govern the case. The general rule is 
 that a delivery at the wharf is sufficient, provided it 
 be to some person authorized to receive the goods, or 
 due previous notice has been given to the consignee 
 of the time and place of delivery(^). But the 
 master has no right to leave the goods exposed to 
 loss or injury on the wharf; and if the consignee is 
 unable, or even if he refuses to receive them, the 
 master is required to take care of them, for the 
 owner(c). The law upon this subject is well defined 
 in a recent case decided by the Supreme Court of 
 New-York(<i), in which it is said, that although in 
 general the master is bound to deliver the goods to 
 the consignee, yet where they are safely conveyed 
 to the place of destination, and the consignee is dead 
 or is absent, or if he refuses to receive them, or is 
 not known or cannot be found, the master may 
 discharge himself and his employer from further 
 responsibility, by placing the goods in store at the 
 place of destination, with some responsible person 
 engaged in the kind of business to which the goods 
 
 (a) Abbot on Shipping, Boston ed. of 1846, 463 ; Story on Bail- 
 ments, § 543 ; 3 Kent's Comm., 215. 
 
 (6) 3 Kent's Oomm., 315 ; Chickering v. Fowler, 4 Pickering's 
 E., 371. 
 
 (c) Osirander v. Brown, 15 Johnson's E., 39; 2 Kent's Comm., 3d 
 ed., 605 ; Story on Bailments, § 545. 
 
 (d) Fisk V. New/ton, 1 Denio's E., 45. 
 
CONTRACTS OF AFFREIGHTMENT. 197 
 
 relate, for and on account of their owner ; in wtich. chap. 4. 
 case, the depositary will become tte agent or bailee 
 of the owner. 
 
 The owners and masters of ships employed ^^^^^f^^g 
 generally in the conveyance of merchandise for hire, life ah^-"'^ 
 as well as the proprietors of vehicles employed in 
 like manner for this purpose on land, are deemed 
 common carriers ; and there is no distinction in this 
 respect between foreign and inland navigation, nor 
 between vessels navigated by means of sails, and 
 such as are propelled by steam((2). 
 
 (a) Elliot Y. Rosell, 10 Johnson's R., 1 ; The Citizens^ Bank v. The 
 Nantucket Steamboat Company, 2 Story's R., 16 ; Kinff v. Shepard, 
 3 Story's R., 360 ; Story on Bailments, §§ 496, 497, 501 ; 2 Kent's 
 Comm., 597, 599-609 ; 3d id., 216. 
 
 In the case oiAymery. Aster (6 Oowen's R., 266), it was, however, 
 adjudged that the owners of a vessel transporting goods from New 
 Orleans to New-York for hire, were not to he deemed common carriers. 
 But this decision, as reported, is cBrtainly irreconcilable not only with 
 the antecedent, but also with the subsequent decisions of the same 
 court ; and Chancellor Kent does not hesitate to consider it as having 
 been completely overruled by the case of Allen v. Sewall (2 Wendell's 
 R., 327). This case was finally decided, and the judgment of the 
 Supreme Court reversed, in the Court of Errors (6 Wendell's R., 335), 
 on the ground that bank bills were not goods, wares and merchandise, 
 within the meaning of the act incorporating the steamboat company, 
 whose agent the defendant was ; and that the carriage of such bills 
 was not a part of their ordinary business, and was moreover forbidden 
 by instructions to the master. See 2 Kent's Comm., 3d ed., 609, note 
 b ; Story on Bailments, § 497. 
 
 The decision of the Court of Errors accords with that of Mr. Justice 
 Story in the case of The Citizens^ Bank v. The Nantucket Steamboat 
 Company (2 Story's R., 16), which was a libel in the admiralty, for 
 the recovery of the value of a package of bank bills delivered to the 
 master of the defendant's steamboat, to be carried from Nantucket to 
 New Bedford, and which was lost on the voyage. Judge Story held 
 that the transportation of passengers or of merchandise, by common 
 
198 ADMIRALTY JUKISDIGTION. 
 
 voL^i. By the common" law, the responsibility of a 
 common carrier extends to all losses except those 
 occasioned by the act of God, or of the king's 
 
 carriers, does not necessarily imply that they are also common carriers 
 of bank notes and specie. The nature and extent of the employment 
 or business which the owners of a vessel hold themselves out as 
 undertaking, he said, determined the limits of their rights, duties, 
 obligations and liabilities. In the case before him, the statute incor- 
 porating the respondents granted a right to run a steamboat " for the 
 transportation of merchandise ;" and he held that the term " merchan- 
 dise " did not apply to mere evidences of value, such as notes, bills, 
 checks, policies of insurance and bills of lading, but only to articles 
 having an intrinsic value in bulk, weight or measure, which are bought 
 and sold ; and that in order to render the respondents liable, it must 
 be clearly proved that they had held themselves out to the public as 
 common carriers of bank bills for hire, and that they had authorized 
 the master to contract on their account, and not on his own, for the 
 carriage of the notes in question. Proof of the knowledge of the 
 owners, that the master carried money for hire, would not affect them 
 unless the hire was on their account, or unless the master held himself 
 out as their agent in that business, within the scope of the usual 
 employment and service of the steamboat. He held also that the onus 
 probandi was upon the libellants to make out a prima fade case, in 
 the afBrmative ; and then the onus probandi would be shifted, and it 
 would rest upon the respondents to exonerate themselves. The 
 respondents were held not to be liable. 
 
 A disposition has been evinced in Pennsylvania, to introduce a 
 distinction between carriers on inland waters and carriers by land. 
 See Gordon v. Little, 8 Serg. and Rawle's R., 533 ; and Bell v. Read, 
 4 Binney's R., 127. 
 
 The owners of steapiboats are liable, as common carriers, for the 
 luggage or baggage of passengers ; but to subject them, as such carriers, 
 to damages for its loss, it must be strictly luggage, comprising only 
 such articles of necessity, convenience or recreation as are usually 
 carried by travelers. A trunk containing valuable merchandise, and 
 nothing else, was therefore held not to be baggage {Pardee v. Drew, 
 25 "Wendell's R., 459). Nor does the term embrace samples of goods, 
 nor money, in a trunk, nor articles usually carried about the person. 
 Hawkins v. Hoffman, 6 Hill's R., 586; Orange County Bank v. 
 Brmion et al, 9 Wendell's R., 85. 
 
CONTRACTS OF AFFREIGHTMENT. 199 
 
 enemies; and this rule, as will be seen by the chap. «. 
 authorities just cited, has been adopted and become 
 finnly established in this country. The phrase act 
 of God, when thus employed, imports " inevitable 
 accident; and by the Icing's enemies are meant 
 public enemies with whom the nation is at open 
 war(a)." Inevitable accident is defined by Mr. 
 Justice Stoey to be "any accident, produced by 
 physical causes, which is irresistible ; such as a loss 
 by lightning and storms, by perils of the seas, by 
 inundations and earthquakes, or by sudden death 
 or illness(J)." 
 
 With these exceptions, unless there be a special 
 contract to the contrary either express or clearly 
 implied by the circumstances of the case, the 
 common carrier, whether by land or by water, is in 
 effect the insurer of the goods which he undertakes 
 to transport. In England, this principle has always 
 been deemed to be deeply founded in urgent con- 
 siderations of public policy; and in the judicial 
 tribunals of that country, it has constantly been 
 maintained with exemplary firmness, and enforced 
 with nice discrimination. 
 
 But as already stated, shipments of goods for import or 
 
 , the phrase 
 
 transportation by water are generally accompanied '^^°^ 
 by bills of lading, which usually contain express 
 exceptions in favor of the ship-owner, of losses by 
 the perils of the seas. This exception has accordingly 
 given rise to considerable discussion ; and its precise 
 import may be considered as, in some degree, stiU 
 
 (a) Story on Bailments, § 489 ; " And not accidents arising from 
 the negligence of man" (id., § 511). (6) Id., § 25. 
 
200 ADMIRALTY JURISDICTION". 
 
 voL^i. open to controversy. Perhaps it is unfortunate that 
 it ever found its way into bills of lading at all. 
 The general rules of law respecting common carriers 
 are certainly sufficiently stringent ; and if, in their 
 application to marine transportation, they had been 
 found too rigorous, they could have been mitigated, 
 as, indeed, both in this country and in England they 
 have been, by legislative enactments (a). It would 
 probably therefore have been better, had the rights 
 and obligations of the parties to the contracts of 
 affreightment been left, in the absence of any special 
 
 agreement to the contrary, to be determined by 
 
 J 
 
 (a) Several statutes have been successively passed in England, by 
 which the responsibility of the ship-owner, as a common carrier, has 
 been essentially restricted. He is exempted from liability for any loss 
 or damage to goods, occasioned by fire happening on board the ship ; 
 for any loss or damage happening to any gold, silver, diamonds, 
 watches, jewels or precious stones, by means of any robbery, embezzle- 
 ment, making way with or secreting thereof, unless the owner or 
 shipper shall, at the time of shipping the same, insert in his bill of 
 lading, or otherwise declare in writiag to the master, owner or owners 
 of the ship, the true nature, quality and value thereof; for any loss 
 or damage resulting from any neglect, default, incompetency, or 
 incapacity of any licensed pilot acting in charge of the ship ; or from 
 there being no Ucensed or qualified pilot on board, unless it shall be 
 proved that the want of such pilot is imputable to the master. It is 
 also enacted that the owner shall not be liable for any loss or damage 
 arising from any act or neglect, without his fault or privity, beyond 
 the value of the ship and freight due or to grow due for the voyage. 
 7 Geo. 11., oh. 15 ; 26 Geo. iii., ch. 66 ; 53 Geo. iii., ch. 159 ; 6 Geo. iv., 
 ch. 125 ; Abbot on Shipping, Boston ed. of 1846, Part ii., ch. 7, § 7 ; 
 ib., Part iv., ch. 6, § § 3, 4, 5 ; ib.. Part iv., ch. 7, § § 2, 3, 4. The above 
 mentioned innovations in favor of the ship-owner, with the exception 
 of the enactments relative to pilots, have very lately, with some 
 modifications, been adopted in this country. The provision of the 
 act of Congress by which this has been done wiU be noticed in the 
 sequel. 
 
CONTRACTS OF AFFREIGHTMENT. 201 
 
 these rules, or rather by tlie principles on which °^^ *• 
 they are founded. Indeed, owing, it may be 
 supposed, to the inconvenience and difficulty of 
 giving an independent interpretation to the terms 
 of this exception, the courts, both in England and 
 in this country, seem to have been disposed to regard 
 it in the light rather of a mutual recognition by the 
 parties of the exceptions to the carrier's liability 
 established by the general law, than as a distinct 
 contract, designed of itself to define and regulate 
 their rights. 
 
 In some of the English reported cases against the 
 ship-owner, the exception of the " perils of the seas " 
 has been omitted in the bill of lading, and the 
 decision of course depended on the general principles 
 of law affecting common carriers; and it will be 
 found, upon comparing these cases with others in 
 which this exception was contained in the bill of 
 lading, that the course of reasoning, and in some 
 instances the forms of expression, employed by the 
 judges in stating and applying the principles by 
 which these cases were supposed to be governed, 
 have been essentially the same as in cases of the 
 former description. The most accurate modern 
 elementary writers upon this subject, accordingly, 
 define accidents occasioned by perils of the sea, in 
 terms synonymous with those used by them in 
 defining accidents arising from what is denominated 
 the act of God. " Perils of the sea," says Chancellor 
 Kent, "denote natural accidents peculiar to that 
 element, which do not happen by the interven- 
 tion of man, nor are to be prevented by human 
 26 
 
202 ADMIRALTY JURISDICTION. 
 
 TOT|^i. prudence ;" and Mr. Justice Story has not hesitated, 
 as we have seen, to enumerate losses produced by 
 perils of the seas among the losses referable to the 
 act of God (a). This exception has received a like 
 interpretation by American judges. 
 
 In a case in the District Court of the United 
 States for the District of Maine, there were two 
 distinct contracts of affreightment, one of which 
 was evidenced by a bill of lading containing the 
 usual exception of the danger of the seas, and the 
 other of which was by parol : and the learned judge 
 recognized no distinction between the two contracts, 
 with respect to the responsibility of the ship-owner. 
 " In every contract of affreightment," he said, " losses 
 by the dangers of the seas are excepted from the 
 risks which the master takes upon himself, whether 
 the exception is expressed in the contract or not. 
 The exception is made by the law, and falls within 
 the general principle that no one is responsible for 
 fortuitous events and accidents of major force. Casus 
 fortuitus nemo prcBStatQ)) ." And Mr. Justice Stoet, 
 referring to a remark of the like effect by one of the 
 judges of the Supreme Court of Connecticut(c), ex- 
 presses no dissent from the proposition. But " the 
 law," by which the exception is supposed to be made, 
 " whether the exception is expressed in the contract 
 or not," can be no other than the general rule of law, 
 by which common carriers are exempt from liabilities 
 
 (a) Story on Bailments, § 25. 
 (6) The. Faragon, Ware's K., 322, 324. 
 
 (c) Per Go0LD, J., Williams y. Grant, 1 Connecticut R., 487; Story 
 on Bailments, § 512. 
 
CONTEACTS OF AFFREIGHTMENT. 203 
 
 for losses proceeding from the act of God or of the chap. 4. 
 king's enemies. 
 
 But though it seems to be conceded that this 
 exception comprises all losses proceeding from what 
 is denominated the act of God, it is said to have been 
 doubted by the court of King's Bench, in the case 
 of Sever v. Tomlinson, whether it extends to losses 
 occasioned by public enemies ; the express exception, 
 says Lord Tenteeden, affording "room to contend 
 that the exception of the act of the king's enemies, 
 which arises out of general rules of law, was meant 
 to be excluded in tlie particular instance." The case, 
 however, never proceeded to final judgment, and the 
 question was left undecided (a). 
 
 A similar doubt seems to have existed in the mind 
 of Mr. Justice Story, in deciding the case of The 
 Heeside. " The phrase ' danger of the seas,' " he 
 observed, " whether understood in its most limited 
 sense, as importing only a loss by natural accidents 
 peculiar to that element ; or whether understood in 
 its more extended sense, as includiag inevitable acci- 
 dents upon that element, must still, in either case, 
 be clearly understood to include only such losses as 
 are of an extraordinary nature, or arise from some 
 overwhelming power, which cannot be guarded 
 against by the ordinary exertions of human skill 
 and prudence (^)." 
 
 But losses by pirates have been adjudged to be 
 within the exception of perils of the seas, and, as 
 Mr. Justice Stoet understands the doctrine, on the 
 
 (a) Abbot on Shipping, Boston ed. of 1846, 472. 
 (6) 2 Sumner's E., 567, 571. 
 
204 ADMIRALTY JURISDICTION. 
 
 TOL^i. ground that pirates are deemed tlie enemies of the 
 whole human race (Jiostes Tiumcmi generis) ; and by 
 the common consent of all nations, are, everywhere, 
 when taken, punished with death(<35)» 
 
 Chancellor Kent, after giving the definition of 
 perils of the seas, already mentioned, making the 
 phrase synonymous with that of the act of God, 
 adverts to the doctrine exempting the ship-owner 
 rom liability for losses from capture by pirates, and 
 speaks of it as the only exception to his definition of 
 perUs of the seas(5). But if Mr. Justice Stokt is 
 right in supposing this exemption to result from the 
 hostile character of pirates, then the definition should 
 include the other branch of the common law rule, 
 viz., the act of the king's enemies, and thus be made 
 exactly coextensive with the exceptions implied by 
 law when no express exceptions are made. Accord- 
 ing to this view of the subject, the phrase " perils 
 of the seas" might not unfitly be defined to be a 
 conventional nautical formula, comprising all those 
 inevitable perils or accidents incident to marine 
 transportation^ which human foresight cannot guard 
 against, and all losses occasioned by the act of public 
 enemies; or, more tersely, all those perils which, 
 upon general principles, are held to excuse a common 
 carrier. 
 The omw From the principles above stated, it follows that 
 drfendlnfc 11 Considering whether the ship-owner is answerable 
 
 (a) Abbot on Shipping, 472 (citing Pickering v. Barclay, 2 Roll. 
 Ab., 248; Barton y. Wallerford, Comb., 56); 3 Kent's Comm., 216; 
 Story on Bailments, §§'25, 526. 
 
 (6) 3 Kent's Oomm., 3d. ed., 216. 
 
CONTEACTS OF AFFKEIGHTMENT. 205 
 
 for any particular loss, the question is, not whether ^^^ *■ 
 the loss happened by reason of the negligence of the 
 persons employed in the conveyance of the goods, 
 but "whether it was occasioned by any of those causes 
 which, either according to the general rules of law, 
 or the particular contract of the parties, afford an 
 excuse for the non-performance of the contract(6i). 
 And the onus probamM is on the carrier to exempt 
 himself from liability ; for, prima facie, the law 
 imposes the obligation of safety on him(J). 
 
 Having thus briefly stated the general nature of 
 the ship-owner's and master's responsibility, it 
 remains to notice some of the judicial decisions 
 tending to illustrate the principles already men- 
 tioned. 
 
 The difficulty in the administration of this, as of 
 other branches of the law, consists chiefly in the 
 application of admitted principles : and it is fre- 
 quently a difficult question to determine whether 
 the loss or injury is attributable to a peril of the 
 sea, in the legal sense of these terms, or to what in 
 point of law is to be deemed the negligence or 
 misconduct of the owner or his agents. 
 
 There are indeed cases of such a nature as to lob« by 
 
 lightning- 
 exclude this question. Thus, lightning is held to be 
 
 a peril of the sea, or act of God(c) ; and as it is the 
 
 effect of natural causes operating independently of 
 
 (a) Abbot on Shipping, Boston ed. of 1846, 467. 
 
 (6) Story on Bailments, § 529 ; King v. Shepherd, 3 Story's R., 349, 
 355 ; The William, 6 Rob. Adm. R. (N. T. ed. of 1810), 316, 318 ; 
 Rich et al. v. Lambert, 12 Howard's R., 347. 
 
 (c) Abbot on Shipping, Boston ed. of 1846, 475. 
 
206 ADMIRALTY JURISDICTION. 
 
 voL^i. human agency, where the loss ia shown to have been 
 occasioned by lightning, there can in general be no 
 room for further inquiry ; because although there 
 may have been previous negligence or misconduct 
 on the part of the master and crew from which no 
 loss or injury had accrued, the loss will nevertheless 
 be attributed to the lightning, and a peril of the 
 sea(a). On the other hand, a loss by fire proceed- 
 ing from any other cause, whether the fire originated 
 in the same ship, or was communicated to it from 
 another, has been held not to be a peril of the sea(J) ; 
 and therefore, this being the law, it would, in such 
 a case, be impertinent to inquire into the circum- 
 stances under which the fire Occurred. Its occurrence 
 would 'per se, in legal contemplation, be evidence of 
 negligence. But by an act of Congress, passed 
 Owner not March 3, 1851, it is enacted "That no owner or 
 
 liable for loss ' ' 
 
 by deri^' OT owners of any ship or vessel shall be subject or liable 
 to answer for or make good to any one or more 
 persons, any loss which may happen to any goods or 
 merchandise whatsoever, which shall be shipped, 
 taken or put on board any such ship or vessel, by 
 reason or by means of any fire happening to or on 
 
 (a) Story on Bailments, § 515 ; Powers v. Mitchell, 3 Hill's R., 545. 
 Unless, possibly, in case of deviation from the voyage; in which case, 
 it is said the carrier is responsible, by relation, for all losses, even from 
 inevitable accident. Story on Bailments, § 509 ; Davis v. Garrett, 6 
 Bingham's R., 716. 
 
 (6) Abbot on Shipping, Boston ed. of 1846, 475, and 3 Kent's Comm.j 
 5th ed., 217 ; Forward v. Pittard, 1 Term R., 27 ; Hyde v. The Trent 
 and Mersey Navigation Company, 5 ib., 389. But in the case of Hunt 
 V. Morris (6 Martin's Louisiana R., 676), the Uability of the owners 
 of a steamboat destroyed by fire, was held to depend on the question 
 of proper diligence. 
 
CONTRACTS OF AFFREIGHTMENT. 207 
 
 board the said ship or vessel, unless such fire is ^^ *■ 
 caused by the design or neglect of such owner or 
 owners: Provided^ That nothing in this act con- |^^'^«'^ 
 tained shall prevent the parties from making such 
 contract as they please, extending or limiting the 
 liability of ship-owners (a)." The words "answer for 
 or make good" seem, by their generality, to have 
 been designed to exempt as well the ship and freight 
 from liability to a suit by admiralty process in rem, 
 as the owner from personal responsibility. 
 The owner only being mentioned in this section, Act not to 
 
 •' ~ ' embrace the 
 
 the master would probably on that ground alone "»•'«'■ 
 have been held not to be embraced by it. But by 
 the sixth section of the same act it is expressly 
 enacted, "That nothing in the preceding sections 
 shall be construed to take away or affect the 
 remedy to which any party may be entitled, against 
 the master, officers or mariners, for or on account of 
 any embezzlement, injury, loss or destruction of goods, 
 wares, .merchandise or other property, put on board 
 any ship or vessel, or on account of any negligence, 
 fraud or malversation of such master or mariners 
 respectively; nor shall anything herein contained 
 lessen or take away any responsibility to which any 
 master or mariner of any ship or vessel may now by 
 law be liable, notwithstanding such master or mari- 
 ner may be an owner or part owner of such ship or 
 vessel." 
 
 By the second section of this act it is further swpper of 
 
 "^ gold, 4c., to 
 
 enacted, " That if any shipper or shippers of platina, ^IJeor"'^ 
 
 (a) Ch. 43, § 19 ; Stat, at Large, 635. 
 
208 ADMIRALTY JURISDICTION. 
 
 voL^i. goi(j^ goi(j (j^gt^ silver, bullion, or other precious 
 metals, coins, jewelry, bills of any bank or public 
 body, diamonds or otber precious stones, sball lade 
 the same on board of any ship or vessel, without, at 
 the time of such lading, giving to the master, agent, 
 owner or owners of the ship or vessel receiving the 
 same, a note in writihg of the character and value 
 thereof, and have the same entered on the bill of 
 lading therefor, the master and owner or owners of 
 the said vessel shall not be liable, as carriers thereof, 
 in any form or manner. Nor shall any such master 
 or owners be liable for any such valuable goods 
 beyond the nature and according to the character 
 incoMis- thereof so notijSed and entered." This section,,it will 
 
 lency of 2d ' 
 
 andMiiseo -[^g observcd, expressly embraces the master, as, from 
 the nature of the enactment, it certainly ought to 
 do, and yet, as we have just seen, the sixth section 
 expressly excepts the master from the operation of 
 all the preceding sections of the act. The two sec- 
 tions appear, therefore, on their face, to stand in 
 direct conflict in this respect, and to be likely to 
 give rise to a judicial question not devoid of diffi- 
 culty. To effectuate the obvious legislative intent, 
 it would be necessary to assume the responsibility 
 of holding the second section to be excepted, by 
 implication, from the operation of the sixth. 
 
 Charterer, The fifth scctlon euacts, "That the charterer or 
 
 when to be ' 
 
 charterers of any ship or vessel, in case he or they 
 shall man, victual or navigate such vessel at his or 
 their own expense, or by his or their own procure- 
 ment, shall be deemed the owner or owners of such 
 vessel within the meaning of this act; and such ship 
 
 deemed the 
 owner. 
 
CONTRACTS OF AFFREIGHTMENT. 209 
 
 or vessel, when so chartered, shall be liable in the ^^^ *• 
 same manner as if navigated by the owner or owners 
 thereof." 
 
 The seventh and last section of this act declares ^brace*" 
 that it " shall not apply to the owner or owners of oS'boats, 
 
 , &»• Vessels 
 
 any canal boat, barge or lighter, or to any vessel of "andnS'iga- 
 any description whatever, used in rivers(«) or inland 
 navigation." This exception seems likely to give 
 rise to the question, apparently not altogether devoid 
 of difficulty, whether or not it comprises vessels 
 employed in navigating the great lakes. The proper Sef^u^x^ 
 
 _ . , - _ ^ , tends to the 
 
 answer to this question depends on the mterpre- owners of 
 
 ^ r r vessels navi- 
 
 tation that ought to be given to the word "inland ;" l^eat^iSfes. 
 and unless its abstract signification should be thought 
 too unequivocal and definite to admit of the exercise 
 of judicial discretion, its interpretation may depend 
 on a consideration of the motives to which the 
 exception shall be ascribed. The reasons for making 
 it may at least help to determine its scope ; for the 
 modifications of the antecedent law being in the 
 opinion of Congress in their nature salutary, it is 
 reasonble to conclude that no other than what were 
 deemed necessary exceptions, would be made in their 
 practical application. 
 
 But before proceeding further, it is proper to 
 
 (a) I cannot but strongly suspect that the word "rivers,'' as 
 printed in the Statutes at Large, has, inadvertantly, either in copying 
 or in printing, been erroneously substituted for the word river. If 
 the plural noun had been the word intended, it seems reasonable to 
 suppose that the phrase would have been on rivers, or in inland 
 navigation. The interpretation of the word " inland " being a point 
 of considerable nicety, this change, if it has been made, may have some 
 influence on its determination. 
 
 27 
 
210 ADMIRALTY JURISDICTION, 
 
 TOL^i. apprise tlie learned reader that in addition to the 
 partial exemptions of carriers by water from respon- 
 sibility for losses by fire, and on account of shipments 
 of the precious metals and other like articles of small 
 bulk and great value, specified in the first and second 
 sections above cited, the third section of the act 
 exempts the ship-owner, unless personally in fault, 
 absolutely from liability beyond the value of his 
 ship(a^). Such are the innovations upon the ancient 
 law that are, by the seventh section, declared inap- 
 plicable to the owner of every canal boat, barge or 
 lighter, or to [of?] any vessel used in rivers or 
 inland navigation. Now, supposing there had been 
 no jurisdictional impediment to the extension of 
 these innovations to the owners of canal boats, &c., 
 and of river vessels, their exclusion might neverthe- 
 less be naturally accounted for by imputing it to 
 the apprehension of peculiar danger from so great a 
 relaxation of the existing law with respect to them, 
 
 (a) This section as well as the fourth (which has no connection 
 with the present inquiry) will be more particularly noticed towards 
 the close of this chapter, in connection with the rule of damages. 
 
 The seTcnth section of this act contains the following enactment, 
 which, though it forms a part of the penal code of the United States, 
 it may neyertheless be proper to mention in this place, it being also a 
 regulation of commerce : " That if any person or persons shipping oil of 
 vitriol, unslacked lime, imflammable matches or gunpowder, in a ship 
 or vessel taking cargo for divers persons on freight, without delivering 
 at the time of shipment, a note in writing, expressing the nature and 
 character of such merchandise, to the master, mate, or officer or person 
 in charge of the lading of the ship or vessel, shaU forfeit to the United 
 States one thousand dollars." Another act passed the next year 
 contains more ample and highly stringent regulations relative to the 
 shipment and transportation of inflammable and explosive articles on 
 board of vessels propelled by steam and carrying passengers. Act of 
 August 30, 1852, ch. 106, §§ 7, 8, 25. 
 
CONTRACTS OF AFFREIGHTMENT. 211 
 
 But in reality there was, I imagine, another and °hap. 4. 
 conclusive reason for excepting tliem from the opera- 
 tion of the act. The authority of Congress to pass 
 this act I understand to have been derived from the 
 power conferred by the Constitution to regulate 
 commerce with foreign nations and among the states. 
 It could not, therefore, without transcending the 
 limits of the grant, have been extended to the owners 
 of craft employed in the prosecution of the purely 
 internal commerce of a 'state. With regard, how- 
 ever, to lake vessels, it is to be considered that 
 comparatively few of them are of this description, 
 most of them being engaged in the two species of 
 commerce designated in the Constitution. With 
 regard to these, therefore, there was no lack of con- 
 stitutional power. Nor were they obnoxious to the 
 other objection above mentioned, arising from pru- 
 dential considerations, for in this respect there is no 
 ground for distinction between them and vessels 
 employed in navigating the ocean. Why then 
 should they have been intentionally excluded ? If 
 no satisfactory reason can be discerned, and if, on 
 the contrary, the policy of this remedial act unques- 
 tionably embraces the commerce carried on by means 
 of the great lakes, no less forcibly than that prose- 
 cuted upon the ocean, the only remaining question 
 is whether the phrase '' inland navigation " in the 
 act, absolutely requires an interpretation which would 
 exclude the owners of vessels employed in the busi- 
 ness of commerce and navigation upon the lakes. In 
 determining this question it will not be forgotten that 
 these waters are of vast extent ; that they border, on 
 
212 ADMIRALTY JURISDICTION. 
 
 TOL^i. the one side, upon different states of the American 
 Union, and, on the other, upon the dominion of a 
 foreign power; that of the immense commerce carried 
 on upon them, a very large proportion is between 
 ports in those different states, and is therefore exter- 
 nal with regard to each; and that no inconsiderable 
 proportion of this commerce is with the subjects of 
 that foreign power, and therefore external with 
 respect to the United States. It is true there is still 
 a remaining portion of it prosecuted between ports 
 in the same state ; but even this, it is presumed, is in 
 a greater or less degree connected with one or the 
 other of the two other branches, and Congress has 
 not scrupled to treat it as a part of the coasting trade 
 of the United States, and as such to regulate it, by 
 requiring " that a/my boat, sloop or other vessel of 
 the United States, navigating the waters on our 
 northern, northeastern and northwestern frontiers, 
 otherwise than by sea, shall be enrolled and licensed 
 in such form as may be prescribed by the Secretary 
 of the Treasury ; which enrollment and license shall 
 authorize such boat, sloop or other vessel to be em- 
 ployed either in the coasting or foreign trade(a)." 
 Nor, in the acts to provide for the better security of 
 the lives of passengers on board steamers, did Con- 
 gress deem it necessary to discriminate in this respect 
 between vessels navigating" the ocean and those 
 navigating the lakes or even rivers. " Vessels pro- 
 pelled in whole or in part by steam, and carrying 
 passengers," are, by those acts, without regard to 
 
 (a) Act of March 2, 1831, ch. 93, § 3 ; 4 Stat, at Large, 487. 
 
CONTRACTS OF AFFREIGHTMENT. 213 
 
 place, subjected to the most unsparing regulations ohap.*- 
 and control ; and thougli their provisions would 
 probably be held not to be constitutionally appli- 
 cable to steamers employed on navigable waters 
 wholly within the limits and jurisdiction of a state, 
 like Cayuga and Seneca lakes in the State of New- 
 York, for example, no doubt can be entertained of 
 their validity with respect to steamers navigating 
 the great lakes(a). For losses occasioned by theft 
 or embezzlement at sea, or even by robbery while 
 the ship is in a port or river within the body of a 
 county, the master and owners are absolutely answer- 
 able, although they have been guilty of neither fraud 
 nor fault ; " the law," says Lord Tenteeden,." hold- 
 ing them responsible from reasons of public policy, 
 and to prevent the combinations that might other- 
 wise be made with thieves and robbers(5)." 
 
 But the phrase " perils of the sea," in its just sense, 
 as we have seen, embraces only those losses which 
 arise from some inevitable accident, or some over- 
 whelming power, which cannot be guarded against 
 by the ordinary exertions of human skill and pru- 
 dence. K, therefore, the loss occurs by what would 
 otherwise be deemed a peril of the sea, if it might 
 have been avoided by any reasonable skill and 
 diligence, the carrier is responsible. 
 
 (a) Act of July 7, 1838, ch. 191 ; 5 Stat, at Large, 304 ; act of 
 March 3, 1843, ch. 94 ; id., 626 ; act of March 3, 1851, ch. 43 ; 9 Stat, 
 at Large, 635 ; and see Waring v. Clark, 5 Howard's K., 441 (16 
 Ourtis's Decis. S. C, 456), where the scope of the act of 1838 is 
 asserted to be unlimited over the waters of the United States. 
 
 (6) Abbot on Shipping, Boston ed. of 1846, 424; Story on Bail- 
 ments, § 526 ; King t. Shepherd, 3 Story's R., 349. 
 
214 ADMIRALTY JURISDICTION. 
 
 vOT^i. Thus, althougli the ship-owner is not answerable 
 for a loss or injury arising from a leak oceasioned 
 
 i*»k- by tempest, yet, if the leak is caused by the unsea- 
 worthiness of the ship, whether it exist at the 
 commencement of the voyage (a), or arise from 
 
 Worms. negligence during the voyage, as from worms, for 
 want of seasonable repairs of the copper sheathing 
 which might have been made(5) ; or, according- to 
 
 Bat.. the better opinion, from rats(c), the loss is not 
 imputatable to a peril of the sea, but to culpable 
 negligence. So also, if the unseaworthiness and 
 consequent loss result from the wear and tear of the 
 equipments of the ship((^. 
 
 (a) Abbot on Shipping, Boston ed. of 1846, 417. 
 
 (6) Hazard v. The New England Marine Insurance Company, 1 
 Sumner's R., 218; S. C, 8 Peters's E., 557 (H Curtis's Decis. S. C, 
 215) ; 3 Kent's Comm., 5th ed., 300; Rohl y. Parr, 1 Espinasse, 445- 
 
 (c) 3 Kent's Comm., 301 ; Story on Bailments, § 513 ; Abbot on 
 Shipping, Boston ed. of 1846, 454 ; Aymar v. Astor, 6 Cowen's R., 
 266. But if the master has used all reasonable precautions to prevent 
 injury by rats, as by having cats on board, it is, by the general consent 
 of the writers upon the foreign maritime law, held to be a loss by a 
 peril of the sea, or ineTita,ble accident (Story on Bailments, libi supra). 
 And so it was held in Pennsylvania, in the case of Garigues v. Coxe, 
 1 Binney's R., 592. But in Laveroni v. Dewey et al. (5 Law Rep., 
 N. S., 506), determined in 1852, in the English Court of Exchequer, 
 where the bill of lading contained the usual exceptions, the action 
 being for damages done to cheese by rats, it was held, on a review of 
 the authorities and upon full consideration, to be no defence that the 
 master had kept cats on board. Referring to Roccus, who, as well as 
 Emferigou, lays down the opposite rule, the court say, "whatever 
 might be the case when Roccus wrote, we cannot but think that rats 
 might now be banished from a ship by no very extraordinary degree 
 of diligence on the part of the master. And we further are very 
 strongly inclined to believe that in the present mode of stowing 
 
 (d) 3 Kent's Comm., 300 ; Story on Bailments, § 512 a. 
 
CONTEACTS OF AFFEEIGHTMENT. 215 
 
 The extent of the carrier's liability on the ground ^^^ *■ 
 of unseaworthiness, is, however, limited to the just tew" "" 
 scope of the principle from which it results. The 
 principle is, that the man who undertakes to trans- 
 port goods by water for hire, is bound to provide a 
 vessel sufficient in all respects for the voyage ; well 
 manned, and furnished with sails and all necessary 
 furniture ; and that if any loss happens through de- 
 fects in any of these respects, he must make it good- 
 If therefore the loss is occasioned by a peril of the owner not 
 
 •^ -'- responsible 
 
 sea, wholly independent of the want of seaworthi- peru'"©' tSl 
 
 sea, inde- 
 pendent of 
 unaeawor- 
 
 cargoes, cats would offer a very slight protection, if any, against rats, thiness. 
 It is dilBcult to understand how, in a full ship, a cat can get at a rat 
 in the hold at all, or at least with the slightest chance of catching it." 
 Whether the doctrine of this case ought not to be adopted and enforced 
 in the American courts of admiralty, as in strict harmony with the 
 policy that lies at the foundation of the rigid responsibility imposed 
 upoH the common carrier, is, to say the least, a question that requires 
 grave consideration. The opposite rule allows the dangerous liberty 
 of leaving port with the ships overrun by rats, provided only the 
 precaution, not at all likely to be effectual, be taken, of putting cats 
 on board, when, by the means alluded to by the court, the rats might 
 probably be destroyed. 
 
 But the intimation which, after the judgment was pronounced, fell 
 from 0. B. Pollock and B. Alderson, that " if the rats had made a hole 
 in the ship, through which water came in and damaged the cargo, 
 that might very likely be a case of sea damage," seems more than 
 questionable. Indeed, so far as I can discern, it is in direct conflict 
 with Dale v. Hall, 1 Wils. R., 281, cited and mainly relied on by the 
 court as a " conclusive " authority in the case before them. In Dale 
 V. Hall there was no question about cats. The action was for damage 
 done to cutlery by leakage. The defence set up was, that the leakage 
 was occasioned by rats, and that the defendants pumped and did all 
 they could to prevent the goods from being damaged. The only 
 question before the court was whether this was a good defence. 
 The court held it to be invalid, and the evidence in support of it to 
 have been improperly admitted. 
 
216 ADMIRALTY JURISDICTION. 
 
 vo]L 1. ness, tlie loss must be borne by the freighter (a). 
 toTe^deem' The responsibility of the owner, on account of un- 
 
 6d 11.116 6 fli* 
 
 reMOTaw*™ seaworthiness, is subject also to this further quali- 
 Buffloient. f cation; that if a vessel, reasonably sufficient for 
 the voyage, be lost by a peril of the sea, the owner 
 cannot be charged by showing that a stouter ship 
 might have withstood the peril. Thus, where a hoy 
 in attempting to pass a bridge was driven by a 
 sudden gust of wind against the pier and sunk, tie 
 owner was held not to be liable, although it was 
 shown that if the hoy had been better it might have 
 sustained the shock without sinking, " The damage," 
 said the Chief Justice Pkatt, " was occasioned by 
 the act of God, which no care of the defendant could 
 foresee or prevent ; and no carrier is obliged to have 
 anew carriage for every journey : it is sufficient if 
 he provide one which, without any extraordinary 
 accident, will probably perform the journey(5). 
 Loss by It follows from the general principle under con- 
 
 fitriking on a o jr Jr 
 
 sideration, that if a ship perish by striking against a 
 rock or shallow, the circumstances under which the 
 event took place must be ascertained, in order to 
 decide whether the loss is justly attributable to a 
 peril of the sea, or to the fault of the master. If 
 the situation of the rock or shallow is generally 
 known, and the ship is not forced upon it by adverse 
 
 (a) Story on Bailments, § 413 d, 515; Hastings v. Pepper, 11 Pick. 
 K., 41 ; Bell V. Reed, 4 Binn. R., 127 ; Keeler v. Firemen's Insurance 
 Company, 3 Hill's R., 250; Hollingsworth v. Broderick, 7 Adolp. and 
 Ellis's R., 50 ; Swan v. Union Insurance Company of Maryland, 3 
 Wheat. R., 168 (4 Curtis's S. C. Decis., 188). 
 
 (b) Amies v. Stevens, 1 Stra., 128 ; Bull. N. P., 69 ; Abbot on Ship- 
 ping, 475. 
 
 rock. 
 
CONTRACTS OF AFFREIGHTMENT. 217 
 
 winds or tempest, the loss is to be imputed to the "°-^^- *• 
 fault of the master. On the other hand, if the ship 
 is forced upon such rock or shallow by adverse winds 
 or tempest, or if the shallow was occasioned by a 
 sudden and recent collection of sand in a place where 
 ships could before sail in safety, the loss is to be 
 attributed to the act of God, or the perils of the ■* 
 sea(a). In cases of loss by accidents of this nature, omisBion to 
 
 V ■' •' ' take a pilot. 
 
 the omission of the master to take a pilot on board 
 in entering or leaving port, constitutes of itself a 
 want of due diligence(5). 
 
 (a) Abbot on Shipp., Bost. ed. of 1846, 475 ; Roocus de Nav., n. 55. 
 And this writer adds, that if a vessel fall upon a shoal in the night, in 
 consequence of being misled by the lights of fishermen, the navigator 
 is not to be deemed in fault. 
 
 (6) The WUliam, 6 Rob. Adm. R. (N. Y. ed. of 1810), 316; The 
 Portsmouth, id., 317 n. In Keeler v. The Firemen's Insurance Corrtr 
 pany, 3 Hill's R., 250, it was held that a vessel is to be considered 
 unseaworthy, if, in navigating where it is customary to have on board 
 a licensed pilot, she should proceed without one ; but that if there is no 
 such custom, the captain, mate, or other person possessing the requisite 
 skill, may act as pilot. See, also. Low v. Hollingsworth, 7 T. R., 160. 
 
 Lord Tentebden lays down the law relative to the employment 
 of pilots, as follows : " Pilots are established at several places in this 
 country, by ancient charters of incorporation. In general the master 
 of a ship engaged in a foreign trade must put his ship under the charge 
 of such a pilot, both in his outward and homeward voyage, within the 
 limits of such establishment" (citing Low v. Hollingsworth, 7 Term 
 R., 160 ; 52 Geo. iii., ch. 39, § 59 ; Phillips v. Headlam, 2 Barnw. and 
 Adolph. R., 380). 
 
 In the case of Bolton and others v. The American Insurance Com- 
 pany, tried before C. J. Jones, in the Superior Court of New- York, 
 and cited by Chancellor Kent (3 Kent's Comm., 176), it was held that 
 in every well appointed port, where pilots were to be had, a vessel, 
 arriving upon pilot ground, was bound to take a pUot, and the ground 
 was to be approached carefully ; and if in the night, the master was to 
 hold out a light for a pilot, and wait a reasonable time for one, and to 
 
 28 
 
out a buoy. 
 
 218 ADMIRALTY JURISDICTION. 
 
 TOL^i. Where a vessel was sunk in a river by striking 
 InihS wim- against tlie .anchor of another vessel, the anchor 
 being under water and without a buoy, whereby 
 some goods on board the former vessel were 
 
 approach one if he can do it with safety. If he attempted to enter the 
 port without a pilot, or steered rashly or negligently in approaching 
 the ground where it was unsafe to navigate without a pilot, and damages 
 ensued, the underwriters would not be responsible for them. The duty 
 of the master is the more imperative on the approach to New-York, 
 which is of dangerous access ; as the channel is only a mile and a half 
 wide between the bars, and the coast is lined with shifting sandbars. 
 In cases of great danger, as in the case of a storm, if the captain cannot 
 wait with safety for a pilot he must come in without one. 
 
 Whether the owner is responsible for losses and injuries occasioned 
 by the fault and negligence oif a licensed pilot on board, seems not to 
 have been very clearly settled by judicial decisions. Lord Tenterden 
 expresses himself cautiously on the subject, observing that for any 
 loss arising from the negligence or misconduct of a local pilot, to 
 whom the direction of the ship was necessarily entrusted, the owner 
 and master would, probably,, be answerable (Abbot on Shipping, Bost. 
 ed. of 1846, 468) ; but the only authority to which he refers, is the case 
 of Bowcher v. Nordstrom (1 Taunt. R., 568), in which Mansfield, C. 
 J., held the master responsible for an act of trespass on another vessel, 
 committed, while he was asleep, by order of the pilot on board his 
 vessel. This decision, made at Nisi Prius, was overruled by the court 
 of King's Bench, on a rule nisi to set aside the verdict ; the court 
 holding, " that as it did not appear that the captain had done any act 
 in this case," the action against him could not be maintained. The 
 decision therefore was, simply, that the master was not responsible ; 
 and the case is wholly silent with respect to the liability of the owner. 
 Chancellor Kent understands the cases to warrant the assertion of such 
 liability ; and he cites to this point, Bussey v. Donaldson, 4 Dallas's 
 R., 206 ; Haggart v. Montgomery, 5 Bos. Pull., 446 ; Yates v. Brown, 
 8 Pick. R., 23 ; Pilot Boat Washington v. Ship Saluda, U. S. District 
 Court, S. C, April, 1831 ; Williamson v. Price, 16 Martin's' Louis. E., 
 399. Some of these cases are sufSciently explicit with respect to the 
 owner's liability for injuries ax'ising from collision, occasioned by the 
 negligence or unskilfulness of the pilot. The owner was held to be 
 clearly answerable in such cases, also, by Lord Stowell, in The Nep- 
 
CONTEACTS OF AFFREIGHTMENT. 219 
 
 injured, the owners thereof were held responsible for chap. 4. 
 the injury. Both parties were deemed to be in 
 fault: the one in leaving his anchor without a buoy; 
 the other, because, not seeing the buoy, he was 
 bound, on that account, to use a greater degree of 
 caution(«). And where goods were injured by I'fosu 
 steam which escaped from the steam boiler through 
 a crack occasioned by frost, the court held it to 
 have been gross negligence in the carrier to fill his 
 boiler with water over night, without keeping up 
 a sufficient fire to prevent such an accident (5). But 
 the freezing of canals and rivers on which the trans- 
 portation was to be performed, has been held to be 
 such an intervention of the vis major^ as excuses the 
 
 tune the Second, 1 Dodson's R., 467. His liability is deduced from the 
 relation of agent in which the pilot stands towards him ; and the prin- 
 ciple seems to be comprehensive enough to embrace all injuries and 
 losses, however occasioned, arising from the carelessness or misconduct 
 of the pilot. The owner must seek his remedy against the pilot, who 
 is answerable as strictly as if he were a common carrier, for his fault, 
 negligence or unskilfulness. The Neptune the Second, 1 Dodson's B., 
 467 ; Yates, v. Brcrwn, 8 Pick. R., 23, 24 ; 3 Kent's Oomm., 3d ed., 176. 
 In the above mentioned remark of Lord Tenterden, asserting the 
 liability of the owner, he includes, as we have seen, the master also. 
 But the decision of the King's Bench, as already stated, was the reverse 
 of that of the Chief Justice at the trial, cited by Lord Tentekdkn ; 
 and in this country the master has been considered not to be answer- 
 able for injuries resulting from the fault of the pilot. The pilot, while 
 on board, has the exclusive management and control of the ship ; and, 
 pro hac vice, is considered as master. Provided the crew act in obe- 
 dience to his commands, the master ought not therefore to be held 
 responsible as master (Snell v. Rich, 1 Johns. R., 305; Yates v. 
 Brown, 8 Pickering's R., 23; 3 Kent's Oomm., 176). 
 
 (a) Proprietors of Trenton Navigation v. Wood, 3 Espinasse's R., 
 127 ; Abbot on Shipping, 455. 
 
 (b) Siordel v. HaU, 4 Bingham's R., 607. 
 
220 ADMIEALTY JURISDICTION. 
 
 rm^i. (Jelay of tlie carrier. He is, however, bound to exer- 
 cise ordinary forecast in anticipating the obstruction, 
 and to use proper means to overcome it. He is 
 bound also to take due care of the property during 
 its detention, and to complete the transportation as 
 soon as the obstruction ceases(«). 
 
 mZiot; III cases of loss or damage to goods, proceed- 
 ing from collision of the carrier-ship with another 
 vessel, the carrier's liability depends upon the 
 question of actual negligence on his part. If, it 
 appear that the accident could not have been pre- 
 vented by human prudence, it is to be deemed a 
 peril of the sea, and the carrier is excused(3). So, 
 if a vessel, under a misapprehension of the nature of 
 
 fordbi"^ her employment or her character, be forcibly taken 
 
 towT '° in tow by a ship-of-war of her own nation, and being 
 obliged to use an extraordinary press of sail in order 
 to keep up, ship a quantity of water in a gale and 
 high sea, whereby damage is done to her cargOj 
 such damage has been held to be a loss by perils of 
 the sea((?). 
 
 By action of If a vessel, properly moored in a harbor, be 
 unavoidably injured by collision with the bottom, 
 
 (a) Bowman v. Teal, 23 Wendell's R., 306. 
 
 (6) Buller et al. v. Fisher et al., 3 Bsp. R., 6 9 ; Smith et al. r. Scott, 
 2 Taunt., 227. In the first of these cases, it did not appear that either 
 vessel was in fault. In the second, there was no fault on the part of 
 the carrier-ship, but gross negligence on the part of the other. " I do 
 not know,'' said Mansfield, C. J., " how to make this out to be a peril 
 of the sea. What drove the Margaret against the Helena ? The sea. 
 What was the cause that the crew of the other ship did not prevent 
 her from running against the Helena? Their gross and culpable 
 negligence ; but still the sea did the mischief." 
 
 (c) Hagerdom et al. v. Whitmore, 1 Starkie's R., 157. 
 
C0N"TRACT8 OF AFFREIGHTMENT. 221 
 
 in consequence of the action of the tide, and her ^^^ *• 
 cargo be thereby injured, the loss so occasioned has 
 been adjudged to be attributable to a peril of the 
 sea(a). 
 
 The master is bound, during the voyage, to take answSfe 
 all possible care of the carffo. If it require to be wantofTcn- 
 
 ^ O T. tilation, etc. 
 
 aired or ventilated, as fruit and some other things 
 do, he must take the usual and proper methods for 
 this purpose ; and if by the neglect of these means, 
 the cargo is spoiled or injured, the master and owner 
 are responsible for the loss(5). 
 
 In order to exempt the ship-owner from responsi- ^^jt'be*^'"' 
 bility, the act of God, on which he relies for this ?M8™f'flie 
 purpose, must appear to have been the immediate 
 cause of the loss. Thus, where a ship, sailing into a 
 harbor, struck against a floating mast belonging to 
 a sunken vessel and tied to some part of it, and the 
 mast not giving way, the ship was in consequence 
 forced towards the bank until she struck, and upon 
 the ebbing of the tide, her stern sunk into the water, 
 and the goods were spoiled ; the owner was held 
 to be liable, although it appeared that the part of 
 the bank on which she struck had been swept away 
 by a great flood a short time before, so that it had 
 become perfectly steep, and that the ship would 
 otherwise have remained perfectly safe on the bank. 
 The court held that the act of God, which could 
 excuse the owner, must be immediate ; and that as 
 the collision with the mast was the proximate cause 
 of the misfortune, the change which the bank had 
 
 (a) Fletcher v. Inglis, 2 Bam. & Aid. R., 315. 
 (6) Abbot on Shipping, Boston ed. of 1846, 454. 
 
222 ADMIRALTY JURISDICTION. 
 
 Tc^i. undergone was too remote. The bank, previous to 
 tlie recent flood, was sbelving, and vessels used to 
 lie on it in safety ; and Lord Kenton said that if 
 it had been removed by an earthquake, at the time 
 of the accident (that is to say, as I understand him, 
 after the ship got on it), the master would have been 
 excused(a). In that case the earthquake would have 
 been the proximate cause of the disaster ; whereas, 
 in the case before the court, the bank having been 
 previously removed, the immediate cause was the 
 collision with the floating mast, which, for aught 
 that appeared, might, by extraordinary precautions, 
 have been prevented. 
 
 This doctrine was asserted and applied, with 
 jwerabie^for obvious propriety, by the late Mr. Justice Stoey, 
 menTronlt ih a reccnt case(3), which involved also other im- 
 Bhipwreck. portaut principles affecting the liability of carriers 
 by water. His judgment is very elaborate, and 
 abounds with sound learning and instruction. The 
 suit was in the Admiralty, in pefrsonam; and was 
 brought to recover the value of a box of gold sover- 
 eigns shipped on board the ship North America, to 
 be carried for hire from New-York to Mobile. The 
 bill of lading contained the usual exception of the 
 " perils of the seas ;" and the ship having been 
 wrecked on the " Honda Keefs," the captain then 
 removed the box from the state-room where it 
 could be locked up, and placed it in the run where 
 
 (a) Smith v. Shepherd, cited in Abbot on Shipping, Boston ed. of 
 1846, 468, 475. 
 
 (ft) James O. King and others v. George Shepherd and others, 3 
 Story's R., 349. 
 
CONTRACTS OF AFFEEIGHTMENT. 223 
 
 the crew had free access, and allowed it to remain °°^- *• 
 there, without personally superintending it while the 
 wreckers were on board, and it was lost. Mr. Justice 
 Stoey held that the burthen of proof was on the 
 respondents, to show that the loss occurred by a peril 
 of the seas ; and the reasonable inference from the 
 evidence, on the contrary, being that the box had 
 been stolen or embezzled — and whether by the offi- 
 cers and crew of the ship, or by the salvors employed 
 by the master, it mattered not — he held that the 
 owners were responsible, on the ground that the 
 loss was attributable, not to the stranding of the 
 ship, but to the theft or embezzlement, as its proxi- 
 mate cause. The mere fact that the vessel was 
 wrecked, did not vary the liabilities of the owners 
 and master as common carriers ; the property not 
 being shown to have perished with the wreck, and 
 in consequence of the wrecking. They were not 
 thereby exempted from all liability, except for 
 reasonable diligence and care in their endeavors to 
 save the property : but on the contrary, their duties The dntics 
 and obligations as common carriers still continued, S'shlp-"' 
 and they were bound to show that no human dili- m™ter m 
 
 ** common 
 
 gence, or skill, or care, could have saved the property So7tl™iS" 
 from being lost by the shipwreck. Had it perished wreck! ° '''' 
 with the wreck, the maxim, Res perit domino, might 
 have applied; but it could not apply where the 
 loss was by theft or embezzlement, by persons in 
 the employ of the owners and master, not acting 
 piratically and with hostile force or irresistible vio- 
 lence. 
 
224 ADMIRALTY JURISDICTION. 
 
 vOT^i. But althougli embezzlement is not, by the maritime 
 Epbbery: law of this countrj, a peril of the seas, and theft or 
 robbery is a peril of the seas only where it is piracy 
 on the high seas ; yet if upon the stranding and 
 wreck, the property has been plundered by pirates, 
 or even by robbers from the shore, acting with 
 violence and force, cmimo fwa/nd/i, the loss might 
 perhaps have been properly attributed to the first 
 peril — the stranding or wreck : though even in that 
 case there are authorities tending to show that the 
 same rule ought not to be applied to the liability of 
 the common carrier. 
 BhipwrMk, It was suggested in behalf of the respondents in 
 
 the master , , . 
 
 aendae*" ^^'^^ cs&Q, that the coutract bemg m terms for the 
 Mother^ carriage of the goods in the ship North America, 
 
 ship, or . . 
 
 Bafe17to dis- *^^ ^^^ ^^ *^y other ship, the duties of the carrier 
 lelplhem. wcre cudcd when she was lost, the fulfilment of the 
 contract having been prevented by the perils of the 
 seas. But Mr. Justice Stobt held this view of the 
 subject to be sophistical and unsound. The gold 
 coin was to be transported in the North America, 
 if she was in a condition to carry it ; but when she 
 became disabled, it was the duty of the master to 
 carry it on, or send it in another ship, if practicable ; 
 and his duties as carrier were not ended until the 
 property was delivered at the port of destination, or 
 returned to the possession of the owner, or kept 
 safely until the owner could resume it, or it was 
 otherwise carefully disposed of. 
 
 It was also suggested by the counsel for the 
 respondents, that the master had no command over 
 the wreckers, and that he surrendered all to their 
 care and custody. 
 
CONTRACTS OF AFFREIGHTMENT. 225 
 
 Mr. Justice Stoey was of opinion that the asserted ^^^ *• 
 facts were not supported by the evidence, and he l^^^^^t 
 moreover emphatically repudiated the leeral conse- hu ^elZ"^ 
 
 . ./ i. o the care and 
 
 quence which it was proposed to draw from them. ^^^^1°^ 
 The master, he said, had no right to make such a 
 surrender of his authority and responsibilities. The 
 wreckers were to act under him, not over him. 
 
 When goods are thrown overboard, in a case of J««i«'n- 
 necessity, for the purpose of saving the vessel from 
 foundering, and of preserving the lives of the crew, 
 the loss is held to be referable to the act of God(a) ; 
 and when goods are shipped to be stowed on deck, 
 where, from their situation, they are peculiarly liable 
 to be thrown overboard to lighten or disencumber 
 the vessel in case of distress, the carrier is exonerated, 
 and the owner must bear the loss without contribu- 
 tion, although the necessity for the jettison arose 
 from such stowage(5). But it is otherwise if the 
 goods are stowed on deck without the consent of the 
 shipper, either express or clearly implied, unless 
 the carrier can show that the jettison would have 
 been equally unavoidable, had the goods been stowed 
 under deck(c) ; and so, also, if the necessity arise 
 from the overloading of the vessel (tZ). 
 
 The liability of the ship-owner may be limited by Limitation 
 
 •/ ■!■ t' i* of carriers 
 
 responsibili- 
 ty by special 
 (a) Bird v. Astcock, 2 Bulstrode's R., 280 ; Jones on Bailments, contract. 
 
 108 ; Smith v. Wright, 1 Gaines's E., 43 ; Story on Bailments, 
 
 §§ 525,531. 
 
 (6) 1 Gaines's R., 43 ; Lenox t. The United Insurance Company, 3 
 
 Johnson's Gas., 178 ; Story on Bailments, § 531. 
 
 (c) The Paragon, Ware's R., 322; The Rebecca, id., 188, 211 
 
 (d) Case cited in Boggs v. Bernard, 2 Lord Raymond, 909, 911. 
 
 29 
 
226 ADMIRALTY JURISDICTION. 
 
 VOTj^i. special contract ; and sucli contract may be either 
 express or implied. An express contract for tliis 
 purpose would naturally find its place in a bill of 
 fra*ma°'be lading(a). A special contract to this eflfect may be 
 Implied. implied from the particular dealing between the 
 parties, either generally or in a given case, or from 
 the general course of trade or business, or by the 
 general law of England, from public advertisements 
 and notices, given by carriers, stating the terms and 
 limits of their responsibility (5). The expediency 
 of admitting the right of the common carrier to limit 
 his responsibility ad libitum, has been strongly 
 questioned and seriously doubted in the English 
 NottoM. courts; but the right of making such qualified 
 acceptances, as they are called, and the validity of 
 notices for this purpose, seem nevertheless to have 
 been firmly established by judicial decisions(e). 
 
 But in order to render the notice effective, it must 
 be clearly shown, either by direct evidence or con- 
 structively, to have been previously brought to the 
 actual knowledge of the bailor, and must be clear, 
 
 (a) The exception of " dangers of the seas," is said to have been 
 latterly altered in England, and now to be made in the following 
 words : 
 
 " The act of God, the king's enemies, fire, and all and every other 
 dangers and accidents of the seas, rivers and navigation, of whatever 
 nature and kind soever, excepted." In the case, however, of ships 
 homeward bound from the West Indian islands, which send their boats 
 to fetch the cargo from the shore, there is introduced a saving out of 
 this exception, " of risks of boats, so far as ships are liable thereto." 
 Abbot on Shipping, Boston ed. of 1846, 399. 
 
 (6) Story on Bailments, § 551. 
 
 (c) Story on Bailments, § 549-564; 2 Kent's Comm., 606. 
 
CONTRACTS OF AFFEEIGHTMENT. 227 
 
 explicit and consistent(a) ; and whatever may be chap. 4. 
 the form of the notice, the carrier ia nevertheless uaS^nS" 
 
 , withstand- 
 
 responsible for any loss or damage resulting from ^^f^°^^' 
 gross negligence or misfeasance in him or his ser- OTmJfel^ 
 
 anoe. 
 
 vant8(J). The reported English decisions upon this 
 subject have generally turned upon the question of 
 gross negligence, and the question of the carrier's 
 liability for ordinary negligence seems not to have 
 been determined (c). 
 In this country, the validity of notices for the Validity of 
 
 J r J notices ques- 
 
 purpose of exempting common carriers from liability coun?ry?and 
 has been questioned in several of the states of the New-Tork. 
 Union ; and in New- York, such notices have been 
 decided, by a series of adjudications, to be against 
 public policy, and on that ground altogether 
 ineffectual. Thus it has been held by the Supreme 
 Court of this state, that the proprietors of a stage 
 coach, or of a steamboat, cannot relieve themselves 
 from responsibility as common carriers, by publish- 
 ing a notice that "all baggage is at the risk of the 
 owner(c?)." And so of a notice that " all boxes and 
 parcels sent by a stage coach wiU be at the risk of 
 the owner(«)." It was said, however, in one of these 
 
 (a) 2 Kent's Comm., 606 ; Story on Bailments, § 558. The cases 
 on this subject are collected and lucidly arranged, by Mr. Justice Story, 
 in this excellent work. 
 
 (6) 2 Kent's Comm., 607 ; Story on Bailments, § 570. 
 
 (c) Story on Bailments, § 571. 
 
 (d) The Camden and Amboy Railroad Transportation Company^. 
 Burk, 13 "Wendell's R., 611 ; Holiister v. Nolan, 19 Wendell's R., 234 ; 
 Cole V. Goodwin, id., 251 ; The Camden and Amboy Railroad Trans- 
 portation Company v. Belknap, 21 Wendell's R., 351. 
 
 (e) Clark v. Faxton, 21 WendeU's R., 153. 
 
228 ADMIRALTY JURISDICTION. 
 
 '^2t^- cases(«), that a common carrier, like other insurers, 
 may demand a premium proportionate to the hazards 
 of his engagement ; and he may therefore require 
 the owner of the goods to give such information, as 
 to their nature and value, as will enable him to 
 determine the amount of compensation which he 
 ' ought to exact ; though it was also said that a general 
 notice requiring such information was insufficient, 
 unless it was clearly shown to have actually come to 
 the knowledge of the owner of the goods : and the 
 same doctrine was reiterated by the court in another 
 of these cases(5), in which the right of the carrier to 
 Expressoon- make a special acceptance was asserted. In a subse- 
 
 tractfl to J- ■*■ 
 
 JS'r'a'nabiu- qucut case(c), the same court. Chief Justice Nelson 
 valid in'" dissenting, went to the extreme length of deciding 
 that a common carrier cannot limit his responsibility, 
 or evade the consequences of a breach of his duties 
 as such, even by an express agreement for that pur- 
 pose with the owner of the goods ; and, accordingly, 
 where upon the receipt of the goods for transporta- 
 tion, the carrier gave to the owner a memorandum 
 by which they promised to forward the goods 
 to their place of destination, " danger of fire," etc, 
 excepted, it was held that the carriers were liable for 
 a loss by fire, though not occasioned by negligence(<^). 
 
 (a) Hollister v. Noland, supra. (6) Cole v. Goodwin, supra. 
 
 (c) Gould V. HOI, 2 Hill's R., 623. 
 
 (rf) Care was taken by the court, in the above cited cases, to limit 
 the doctrine therein laid down strictly to common carriers. It does 
 not therefore extend to other bailees, who are at full liberty to pre- 
 scribe the limits of their own responsibility. In a suit, therefore, 
 against the owners of a steamboat employed in the business of towing 
 canal boats on the Hudson for hire, to recoyer the value of the cargo 
 
CONTRACTS OF AFFREIGHTMENT. 229 
 
 But since the publication of the first edition of this ""^^- *• 
 work, the legal effect of a special contract designed 
 to limit the liability of the common carrier, has been 
 brought directly and forcibly to the consideration of 
 the Supreme Court of the United States, in the case 
 of Tlie New Jersey Steam Namigation Connpany v. 
 The Merchants' JBanh of Boston{a). The action 
 (being an admiralty suit in personam) was brought 
 to recover the value of a large amount of coin 
 belonging to the appellees, and lost by the burning, 
 on Long Island Sound, of the steamer Lexington, 
 belonging to the appellants. The money had been 
 delivered to Mr. F. Harnden, an " express carrier," 
 in the city of New -York, for conveyance to Stoning- 
 ton, and had by him been placed on board the 
 Lexington for that pui'pose. The appellants claimed 
 
 of a canal boat, lost by reason of the negligence of the master of the 
 steamboat, the Supfeme Court of New- York being of opinion that the 
 owners of the steamboat were not common carriers, and it having been 
 expressly stipulated that the canal boat in question should be towed 
 at the risk of her master, that court held that the defendants were not 
 responsible even for ordinary care and skiU (^Alexander v. Green, 3 
 Hill's R., 1). This decision was, however, reversed by the Court of 
 Errors, that court, without deciding whether the owners of the steam- 
 boat were to be deemed common carriers or not, being of opinion that 
 they were bound to exercise ordinary diligence, notwithstanding the 
 special agreement (S. C, 7 Hill's R., 533). 
 
 In England, at least, it appears to be an unsettled question whether 
 the general rule requiring ordinary diligence in common cases of hire, 
 is applicable to the case of carriers under notice, or whether they are 
 rendered responsible only by gross negligence. See, on this subject, 
 Story on Bailments, § 571, and the cases collected, p. 574 (4th edit.), 
 note 3. Indeed, it seems to be doubtful whether in cases of this nature, 
 there is, in reality, any distinction between negligence and gross negli- 
 gence. (Story on Bailments, § 570). 
 
 (a) 6 Howard's R., 344 (16 Curtis's Decis., S. 0. 722). 
 
230 ADMIRALTY JURISDICTION. 
 
 voL^i. exemption from liability in virtue of a special agree- 
 ment previously entered into by them, under seal, 
 with Harnden, by which it was stipulated that, in 
 consideration of a specified pecuniary compensation, 
 he should have the privilege of transporting in the 
 steamers of the appellants running between the 
 ports of New -York and Providence, once a day, one 
 wooden crate of certain specified dimensions, subject, 
 however, to the condition that the "crate, with its 
 contents," should " be at all times exclusively at the 
 risk of" Harnden; and that the appellants should 
 not, " in any event, be responsible, either to him or 
 his employers, for the loss of any goods, wares, 
 merchandise, money, notes, bills, evidences of debt, 
 or property of any and every description, to be con- 
 veyed or transported by him in the said crate, or 
 otherwise, in any manner, in the boats of the said 
 company." The agreement contained a further 
 stipulation that the advertisements to be published 
 by Harnden, and also his receipts or bills of lading 
 should be accompanied by a full notice of the above 
 mentioned condition. Such a notice was published 
 by Harnden, but it does not appear in the report of 
 the case whether it was appended to his bills of 
 lading or not. A general notice of the like import 
 was published by the appellants in their own names. 
 In speaking of the case under this aspect, the 
 court, however, held these notices to be whoUy 
 unimportant, not only because they were couched in 
 language no more comprehensive than that of the 
 special agreement, but also because "the carrier 
 cannot in this way exonerate himself from duties 
 
CONTRACTS OF AFFREIGHTMENT. 231 
 
 whicli tlie law has annexed to his employment." "°^^- *• 
 " He is," say the court, " in the exercise of a sort of 
 public office, and has public duties to perform, from 
 which he should not be permitted to exonerate him- 
 self without the assent of the parties concerned. 
 And this is not to be implied or inferred from a 
 general notice to the public, limiting his obligation, 
 which may or may not be assented to." 
 
 But with regard to the special agreement, the 
 court, adverting t& the decision of the Supreme 
 Court of New -York, above cited, pronouncing such 
 agreements nugatory, declared itself unable to per- 
 ceive any well founded objection against holding it 
 to be valid to the extent of exempting the appellants 
 from responsibility for laws against which they 
 would otherwise have been liable as insurers. It 
 was conceded also, that, as the appellees claimed 
 through the agreement they were bound by its pro- 
 visions so far as they were consistent with law. But 
 general and strong as its language was, the court was 
 of opinion that " to regard it as stipulating for wilful 
 misconduct, gross negligence or want of ordinary 
 care, either in the seaworthiness of the vessel, her 
 proper equipments and furniture, or management 
 would be inadmissible according to " any fair and 
 reasonble construction of the agreement " The appel- 
 lants must therefore be " deemed to have incurred the 
 same degree of responsibility as that which attaches 
 to a private person, engaged casually in the like 
 occupation," and were, therefore, " bound to use 
 ordinary care in the custody of the goods, and in 
 their delivery, and to provide proper vehicles and 
 
232 ADMIRALTY JURISDICTION. 
 
 TOL^i. means of conveyance for their transportation." It 
 was accordingly lield to be incumbent on the appel- 
 lees to prove their loss to have been "occasioned by 
 want of due care or gross negligence," and the court, 
 on looking into the evidence, having come to the 
 conclusion that this had been done, affirmed the 
 decree of the circuit court, awarding damages to the 
 amount of the loss. 
 
 This decision, it will be noticed, involved also the 
 determination of another point. The contract of 
 affreightment on which the action was founded, was 
 entered into by the appellants, not with the appel- 
 lees, but with Harnden, and it was objected that no 
 action could be maintained upon it except by him, 
 or, at least, in his name. But upon what was deemed 
 ample authority establishing the rule of law, that, 
 where a contract, not under seal, is made by an agent 
 in his own name for an undiscovered principal, either 
 the agent or the principal may sue upon it, the court 
 held the action to be maintainable, the circumstance 
 of the contract in the case under consideration, being 
 under seal, not being considered important in a suit 
 in the admiralty, where technicalities are less 
 regarded than in the courts of common law((z). 
 In cases of In cascs of noticc, the burthen of proof of nesrli- 
 
 notice, the ' Jr o 
 
 Sflton gence is on the party who sends the goods, and not 
 of due diligence on the part of the carrier(5), which. 
 
 the shipper* 
 
 (a) It was in this important case, also, the attentive reader will 
 remember, that the contract of affreightment was, for the first time 
 adjudged by the Supreme Court to be cognizable, and that in a suit 
 in personam as well as in rem, in our courts of admiralty. 
 
 (6) Story on Bailments, § 573. 
 
CONTRACTS OF AFFEEIGHTMENT. 233 
 
 as we have seen, is contrary to the general rule in (^^^ *• 
 cases of carriers, where there is no notice(«). 
 
 The question, both in an ethical and in a legal 
 point of view, has been much discussed, how far a 
 contracting party may innocently be silent with 
 respect to matters which, if known to the other 
 party, would be likely to have an influence on his 
 iudgment. In relation to contracts for the carriage whether the 
 
 ^ *-> ^ ^ ^ ^o shipper is 
 
 of goods, where there is no notice, the better opinion ei"™ uS'*''" 
 seems to be, that the party who sends the goods is goo"^ sen?.* 
 not bound to disclose their value unless he is asked. 
 But if the carrier makes the inquiry, he is entitled 
 to a true answer; and if a false answer is given, and 
 the carrier is deceived, he will not be responsible for 
 any loss. If he makes no inquiry, and no artifice is 
 used to mislead him, he is responsible, whatever may 
 be the value of the goods sent. But whether the • 
 same rule applies to cases of notice, is an unsettled 
 question admitting of much more doubt. It is 
 scarcely necessary to add, that if any deception is 
 intentionlly practiced, the carrier will not be answer- 
 able(5). 
 
 The doctrine of restricting the carrier's liability 
 by notice, does not appear as yet to have been 
 judicially established in this country(c). 
 
 The general rules of law relative to the responsi- usage, 
 bility of the ship-owner as a common cal-rier, may 
 also, as we have seen, be modified by usage. The 
 admissibility of parol evidence for the purpose of 
 establishing the existence of some usage or custom 
 
 («) Supra, p. 161. 
 
 (6) Story on Bailments, § 569. (c) 2 Kent's Comm., 608. 
 
 30 
 
special 
 
 234 ADMIEALTY JURISDICTION. 
 
 YOL^i. Jq reference to wliicli the parties may be supposed 
 to have contracted, for the purpose of varying what 
 might otherwise be the legal effect of the contract, 
 has long been established in the English courts, and 
 was distinctly recognized by the Supreme Court of 
 New- York in the early case, Coite v. The Commercial 
 Generi or InswajnGe Comfpom/^^. A usage may be either 
 general, or it may be peculiar to some place or 
 trade ; and in this latter case it is denominated a 
 particular usage. Many of what are now deemed 
 to be established principles of commercial law, and 
 are recognized as such by courts without proof, had 
 their origin in antecedent general mercantile custom. 
 Of this nature, for example, is the allowance of three 
 days' grace for the payment of promissory notes ; 
 and the necessity, for the purpose of charging the 
 endorser, of making a demand of payment on the 
 third day after the day of payment specified in the 
 note. 
 
 But in a suit by a bank against the endorser of 
 a note made and endorsed for the purpose of being 
 discounted at that bank, payment having been de- 
 manded, and notice to the endorser given on the 
 fourth instead of the third day after the designated 
 day of payment, parol evidence was held by the 
 Supreme Court of the United States to be admissible 
 to prove that it had been the uniform custom of the 
 bank from the time of its incorporation, twenty-five 
 years before, and was also the custom of all the 
 other several banks in the same place, to defer the 
 
 (a) 7 Johnson's R., 385. 
 
CONTRACTS OF APFEEIGHTMENT. 235 
 
 demand of payment and the notice until tte fourth ^'^^- *• 
 day; and a judgment in favor of the bank was 
 affirmed upon this ground(a). The usage set up in 
 this case, it will be seen, was peculiar to a particular 
 place, and also to a particular business or trade. 
 
 But although commercial contracts are admitted 
 to form an exception, to some extent, to the rules 
 applicable in this respect to other contracts, the 
 introduction of usages of trade for the purpose of 
 controlling the construction of contracts and the 
 ordinary principles of law, is subject to certain 
 reasonable restrictions ; and both in England and in 
 this country, the courts have latterly evinced an 
 inclination to confine it to the narrowest limits com- 
 patible with established doctrines(J). The subject Evidence of 
 
 ^ \ / fj usage, in 
 
 seems to have been much and anxiously considered admlsibi^f' 
 by Mr. Justice Stobt, and he has repeatedly taken 
 occasion to express his disapprobation of the extent 
 to which the practice of admitting evidence of usage 
 
 (a) Renner v. TTie Bank of Columbia, 9 Wheaton's R., 581 (6 
 Ourtis's Deois. S. C, 195). The decision of the court was pronounced 
 in an elaborate opinion by Mr. Justice Thompson. Mr. Justice Stoky 
 dissented; and Chief Justice Marshall, and Justices Washington 
 and DuvALL, did not sit in the case. A like decision was, however, 
 afterwards made unanimously by the same court, in the case of Mills 
 V. The Bank of the United States, 11 Wheaton's R., 431 (6 Ourtis's 
 Decis. S. C, 653), in which it was further held that the usage was 
 binding on the dealers with the ban^, without proof of previous notice 
 of its existence. 
 
 (6) Trueman v. Lockr, 11 Adolph. & Ellis's R., 589 ; Palmer v. The 
 American Insurance Company, 1 Hall's N. T. R., 619; Donnell v. The 
 Columbian Insurance Company, 2 Sumner's R., 366; The Reeside, 
 2 Sumner's R., 567 ; The Citizens' Bank v. The Nantucket Steamboat 
 Company, 2 Story's R., 16, 45 ; Anderson v. Pitcher, 2 Bos. & Pull. 
 E., 164, 168. 
 
236 ADMIRALTY JURISDICTION. 
 
 TOL^i. ijad in some cases been carried(»). In several cases 
 whicli arose before him, it became necessary also to 
 state the principles dedueible from authority and 
 expediency, by which, according to his apprehension, 
 this practice ought to be regulated. 
 
 In a suit for wages brought by the mate, who, 
 upon the death of the master during the voyage, 
 had succeeded him as master, where the owners 
 brought forward a claim in the nature of a set-off 
 for money expended for the hbellant on account of 
 his sickness on shore in a foreign port, and relied 
 upon an alleged usage prevailing among the mer- 
 chants of the port from which the vessel sailed on 
 her voyage, by which expenses of this nature were 
 made a personal charge on the master when incurred 
 on his account — which usage, it was contended, was 
 applicable to the case of a mate, under the circum- 
 stances of the case — the learned judge said, that it 
 was certainly sometimes useful, in order to ascertain 
 what the law ought to be in new cases open for 
 future decision, to ascertain what the customs and 
 usages of merchants on such subjects generally are ; 
 for such customs and usages may have a material 
 influence as to the rule which ought to be adopted. 
 But he thought that the usages of a particular port 
 or place could never be properly admitted for such 
 purposes ; much less, even when general, to control 
 or alter the settled maritime law. The most that 
 could ever be allowed to such customs and usages 
 was to give them effect, when, from their being 
 
 (a) 2 Sumner's R. and 2 Story's R., vbi supra. 
 
CONTEAOTS OF AFFREIGHTMENT. 237 
 
 generally known, and inyariably used as fixed rules, °^^ *• 
 they miglit be said to constitute a direct and positive 
 element of the particular contract ; and he had long 
 thought, he said, that too much deference had been 
 allowed to loose and floating customs and usages of 
 this sort, founded on no known pruiciple, and arising 
 more often from ignorance of right, and mere acqui- 
 escence, than from any intentional recognition of a 
 fixed rule. In cases of this sort, he was not disposed 
 to set up customs and usages against principles of 
 law, or to suffer new inroads to be made upon old 
 doctrines ; but was content to stand m^er cmtiquas 
 vias, and to go where they lead(»). 
 
 In another case, after declaring himself "no friend 
 to the almost indiscriminate habit, of late years, of 
 setting up particular usages or customs in almost all 
 kinds of business and trade, to control, vary or annul 
 the general liabilities of parties, under the common 
 law as weU as under the commercial law ;" and after 
 expressing his apprehension of the danger of the 
 practice, and his gratification at finding "that the 
 courts of law, both of England and America, have 
 been disposed to narrow the limits of the operation of 
 such usages and customs, and to discountenance any 
 further extension of them," he adds, "The true and ETidenoeof 
 
 usage, for 
 
 appropriate office of a usage or custom is, to mterpret ^o^a^'^p^'^,. 
 
 Bible. 
 
 (a) The Brig George, 1 Sumner's K., 151. See, also, Bonnell v. 
 The Columbian Insurance Company, 2 Sumner's K., 366, 367, where 
 the same learned judge expresses the opinion that "usages among 
 merchants should be sparingly adopted as rules of law, by courts of 
 justice ; as they are often founded in mere mistake, and still more often 
 in the want of enlarged and comprehensive views of the full bearing 
 of principles." 
 
238 ADMIRALTY JUEISDICTION. 
 
 TOL^i. ^;]jg otherwise indeterminate intentions of the parties, 
 and to ascertain the nature and extent of their con- 
 tracts, arising not from express stipulations, but from 
 mere implications and presumptions, and acts of a 
 doubtful and equivocal character. It may also be 
 admitted to ascertain the true meaning of a particular 
 word, or of particular words, in a given instrument, 
 when the word or words have various senses, some 
 common, some qualified, and some technical, accord- 
 ing to the subject matter to which they are applied. 
 But I apprehend that it can never be proper to resort 
 to any usage or custom to control or vary the positive 
 stipulations of a written contract, and, a fortiori^ not 
 in order to contradict them. An express contract 
 of the parties is always admissible to supersede, or 
 vary, or control, a usage or custom ; for the latter 
 may always be waived at the will of the parties : 
 siweT' but a written and express contract cannot be con- 
 
 control an 
 
 teMtf''"™" ■fcrolled, or varied or contradicted by a usage or 
 custom ; for that would not only be to admit parol 
 evidence to control, vary, or contradict written con- 
 tracts ; but it would be to allow mere presumptions 
 and implications, properly arising in the absence of 
 any positive expressions of intention, to control, vary 
 or contradict, the formal and deliberate written 
 declarations of the parties." The case in which this 
 was said, was a suit in rem for damages done to 
 certain goods shipped on a voyage from New-York 
 to Boston. There was a bill of lading in the usual 
 form, whereby the goods were to be delivered in 
 good order and condition at the port of Boston, " the 
 dmigers of tlie seas only excepted^ The goods, con- 
 sisting of carpeting, having been injured on the 
 
CONTRACTS OF AFFREIGHTMENT. 239 
 
 voyage by leakage from oil casks, one of tlie grounds ohap.4. 
 of defence set up was, that according to the estab. 
 listed usage or custom of the packet vessels engaged 
 in trade between New-York and Boston, the ship- 
 owners were not " liable to pay for any damage not 
 occasioned by their neglect." It was in deciding on 
 an exception taken, preliminarily, to the article 
 containing this ground of defence, that Mr. Justice 
 Story laid down the general principles above stated; 
 and proceeding to apply them to the case before 
 him, he expressed himself as follows: "Now, what 
 is the object of the present asserted usage or custom ? 
 It is to show, that, notwithstanding there is a written 
 contract (the bill of lading), by which the owners 
 have agreed to deliver the goods, shipped in good 
 order and condition, at Boston, the dangers of the 
 seas only excepted, yet the owners are not to be held 
 bound to deliver them in good order and condition, 
 although the danger of the seas had not caused or 
 occasioned their being in bad condition, but causes 
 wholly foreign to such perU. In short, the object 
 is, to substitute for the express terms of the bill of 
 lading an implied agreement on the part of the 
 owners, that they shall not be bound to deliver the 
 goods in good order or condition; but that they 
 shall be liable only for damage done to the goods 
 occasioned by their own neglect. It appears to me, 
 that this is to supersede the positive agreement of 
 the parties ; and not to construe it. The exception 
 must therefore be sustained (a)." 
 
 (a) The Reeside, 2 Sumner's R., 567. See, also, The Citizens^ Bank 
 T. The Nantucket Steamboat Company, 2 Story's R , 47, 50, where, 
 
240 ADMIRAITY JURISDICTION. 
 
 VOL 1. ^ usage, to be admissible, must be clearly shown 
 mM™!^' to exist, and to be so uniform, and so well known, 
 uniform. gg to Warrant the presumption that the parties con- 
 tracted with reference to it, and intended to adopt 
 it as one of the elements of their contract(a). 
 
 In the case of The Patragon^ just cited, the suit 
 was for the value of- goods thrown overboard in 
 tempestuous weather for the safety of the vessel and 
 the lives of the crew, on a voyage from Boston to 
 Portland. The goods were stowed on deck, con- 
 trary to a settled general rule of the maritime law, 
 requiring the cargo to be stowed under deck ; and 
 the defence set up by the ship-owner was an alleged 
 usage or custom of trade between the above men- 
 tioned ports, authorizing the master to carry goods 
 on deck without the consent of the shipper. But 
 the evidence touching the usage being in the opinion 
 of the learned judge inconclusive, he decreed damages 
 to the libellant on account of the improper stowage, 
 notwithstanding the loss was occasioned by the 
 dangers of the seas. 
 Euie of After Considerable research, I have not had the 
 
 damages. / 
 
 good fortune, extraordinary as it may seem, to find 
 that any definite rule has been definitively established 
 with respect to the measure by which the damages 
 
 in speaking of a supposed usage or practice to treat the owners of 
 vessels as not liable for losses of bank biUs entrusted to them, even 
 though their business as common carriers embraced the carriage of 
 bank biUs, Mr. Justice Stort said he " was not prepared to say that 
 any such evidence would be admissible to control the well-established 
 rules of law." 
 
 (a) Trott V. Wood, 1 Gallison's R., 445 ; The Paragon Ware's E., 
 322; Davis etal. v. A New Brig, Gilpin's K., 473. 
 
CONTRACTS OF AFFREIGHTMENT. 241 
 
 of the shipper, in case of loss or injury to his goods, ^^^ *• 
 are to be estimated. 
 
 In cases of illegal capture, or other marine trespass, 
 it is, however, a settled rule that no damages are to 
 be awarded on account of the possible or probable 
 profits "which might have accrued to the shipper if 
 the goods had gone safe to the port of delivery («) ; 
 and the same principle has, in a late case, been 
 adopted by the Supreme Court of the United Staites, 
 with respect to losses occasioned by collision (5). 
 Such being the rule in cases of tort, it would seem 
 to follow, a fortiori, that there ought to be no 
 allowance for contingent prospective profits in the whether 
 
 o i- i- X damages for 
 
 case of a mere non-performance of a contract of pJoms^are 
 affreightment, the breach of which is very rarely 
 intentional. But what seems stUl more to the point, 
 no damages on account of such profits are recover- 
 able on an open policy of insurance. This appears 
 to be a settled doctrine in England, and other 
 commercial countries, including our own(c). The 
 measure of damages adopted in each of these classes 
 of cases is the value of the goods at the time and 
 place of shipment, in case of loss; and in case of 
 
 (a) The Anna Maria, 2 Wheaton's R., 327 (4 Curtis's Decis. S. C, 
 123) ; The Amiable Nancy, 3 Wheat. R., 546 (4 Ourtis's Decis. S. C, 
 287) ; La Amistad de Rues, 5 Wheat. R., 385 (4 Ourtis's Decis. S. 
 C, 673) ; The Lively, 1 Gallison's R., 315 ; Dusar v. Murgatroid, 1 
 Washington's 0. 0. R., 13. 
 
 (6) Smith et al. v. Condry, 1 Howard's R., 28 (•■14 Curtis's Decis., 
 S. C, 487). iut see Williamson v. Barret, 13 Howard's R., 101, 
 where this rule appears to have been qualified, if not subverted. And 
 vide infra. Collision. 
 
 (c) 3 Kent's Oomm., 3d ed., 335 ; Carson v. The Marine Insurance 
 Company, 2 Washington's 0. 0. R., 468. 
 
242 ADMIRALTY JURISDICTION. 
 
 voL^i. damage, the diminution of value by reason of tlie 
 injury ; witli interest thereon to the time of judg- 
 ment, including all proper charges, and the premium 
 of insurance where it has been paid(a). 
 
 In the case of TTie OassmsQ))^ Mr. Justice Stoet 
 awarded the value at the place of destination, deduct- 
 ing the freight and duties ; but I understand him to 
 have put his decision distinctly upon the ground 
 that the cargo had been actually carried to the place 
 of destination, where it ought to have been, and but 
 for the improper conduct of the master, would have 
 been unladen ; and I infer from his language that 
 he considered the value of the goods lost at the time 
 and place of shipment, to be the proper measure of 
 damages in the ordinary case of a loss accruing before 
 the termination of the voyage. Indeed, in a suit on 
 
 (a) Mr. Justice Washington seems, however, to have been of 
 opinion, that in an action on the contract of affreightment, no interest 
 ought to be allowed (Dusar v. Murgatroid, 1 Washington's C. 0. R., 
 13 ; Gilpins v. Consequa, 1 Peters's C. 0. R., 86 ; Willings v. Consequa, 
 id., 172; Yonqua v. Nixon, id., 221). But I am unable to discover 
 any reason, founded either in justice or analogy, for withholding it. 
 The shipper is fairly entitled to full indemnity for the loss he has sus- 
 tained ; and it is very clear that the tardy recovery of the mere actual 
 original cost or value of his goods will not, in general, afford him a just 
 remuneration. In cases of marine tort, it is uniformly allowed upon 
 the value of property lost, and upon the diminution in value of property 
 injured (See inter al. The Anna Maria, 2 Wheaton's R., 327, 4 Curtis's 
 Decis., S. S., 122; The Amiable Nancy, 3 Wheat. R., 546, (Ourtis's 
 Decis., S. 0., 287). It is believed to be universally true, that in actions 
 arising ex contractu, for the recovery of a sum certain, or which may 
 be rendered certain, unless it be for a penalty, interest is recoverable ; 
 and it has been held, also, to be allowable by way of damages, both in 
 the action of trover and of trespass de bonis asportatis ( Wilson v. 
 Conine, 2 Johnson's R., 280 ; Seals v. Guernsey, 8 Johnson's R., 446). 
 
 (6) 2 Story's R., 81. 
 
CONTRACTS OF AFFEEIGHTMENT. 243 
 
 a memorandum of charter-party, where the voyage *^hap. 4. 
 was broken up and the goods relanded by the ship- 
 owners in a home port, the same learned judge 
 expressly decided that nothing was to be allowed for 
 contingent profits. " I have no doubt," he observed, 
 "that the expected profits to be made on the voyage, 
 and the supposed injury to the libellant, from his 
 inability to comply punctiliously with his contract ' 
 with the government of Cuba, are not proper items 
 of damage. The due performance of the voyage 
 was subject to many future contingencies; and the 
 item of profits is too uncertain in its nature to form 
 any basis of damages, even if, in a case like the 
 present, there were not other objections to it(«)." 
 In a later case in the same court, the value at an 
 intermediate port, where the vessel was wrecked, 
 and' the goods embezzled or stolen, with interest, was 
 awarded(5) ; but the case was peculiar, and does 
 not appear to me to militate against the views above 
 suggested. 
 
 The decisions upon the subject in this state have 
 not been uniform, and are very unsatisfactory. In 
 the case of Smith et al. v. Richardsonic), the value 
 of the goods at the place of shipment was adjudged 
 to be the just measure of damages. In a subsequent 
 case of assumpsit against the master, in which it 
 appeared that several trunks, containing a part of 
 the goods shipped, had been broken open during 
 the voyage, and rifled of a portion of their contents, 
 
 (a) The Tribune, 3 Sumner's R., 144, 151. 
 (6) King v. Shepherd et al, 3 Story's R., 349. 
 (c) 3 Gaines's R., 219. 
 
244 ADMIRALTY JURISDICTION. 
 
 TOT-^i. though without the knowledge of the defendant, he 
 was held to be answerable for " the clear net value 
 of goods of the like quality at the place of destina- 
 tion ;" " the rule of the maritime law, in such cases," 
 being, it was said, " that the master must answer for 
 the value of the goods missing," according to this 
 mode of computation:. " All the ordinances and 
 authorities," say the court, " declare this to be the 
 rule, when the goods are sold by the master from 
 necessity, in the course of the voyage ; ^nd why 
 should not the same rule apply when the goods are 
 missing by any other means (a) ?" The case of 8miih 
 V. MicTia/rdson is commented upon by the court, 
 without any expression of disapprobation ; and the 
 case in judgment was distinguished from it chiefly on 
 the ground of embezzlement. The plaintiff claimed 
 a right also to recover interest ; but the court, con- 
 ceding that interest might be allowed by the jury 
 as damages in cases of malfeasance by the master, 
 refused, though apparently with considerable hesita- 
 tion, to allow it. In a case which occurred several 
 years later(J), the rule of damages does not appear 
 to have been discussed by the counsel ; and the 
 court, without referring to the case of Smith v. 
 RicJiardson at all, applied the rule of computation 
 adopted in the case of Wilhmson v. Laughton^ with- 
 out referring to any other authority, and without 
 comment. 
 
 The rule upon which I have presumed to insist, 
 is strongly recommended by its substantial justice 
 
 (a) Wilkinsons. Laughton, 8 Johnson's R., 213. 
 (6) Amory v. M'Gregor, 15 Johnson's R., 24. 
 
CONTRACTS OF AFFREIGHTMENT. 245 
 
 and simplicity ; and in a case (a) very recently decided °°^- *• 
 in the District Court of tlie United States for tlie 
 Northern District of New-York, it was, upon full 
 consideration, adopted and applied. 
 
 But by an act of Congress, passed March 3, 1851(5), ^^^^% 
 many of the provisions of which have abeady T™ieof° 
 
 ... . . . Bhip, unless 
 
 been cited in this chapter, a limit to the responsi- Bonaiiyin 
 bility of the ship-owner, not only as a carrier but for 
 every species of loss or injury for which, he is answer- 
 able, has been prescribed, that, in some cases, super- 
 sedes the necessity of any minute inquiry into the 
 extent of the damages actually sustained by the 
 suffering party. The third section of this act ordains 
 " that the liability of the owner or owners of any ship 
 or vessel, for any embezzlement, loss or destruction, 
 by the master, officers, mariners, passengers, or any 
 other person or persons, of any property, goods, or 
 merchandise, shipped or put on board of such ship 
 or vessel, or for any loss, damage, or injury by col- 
 lision, or for any act, matter, or thing, loss, damage, 
 forfeiture, done, occasioned, or incurred, without the 
 privity or knowledge of such owner or owners, 
 shall in no case exceed the amount or value of the 
 interest of such owner or owners, respectively, in 
 such ship or vessel, and her freight then pending." 
 And by the next section it is further enacted, 
 " that if any such embezzlement, loss, or destruction, 
 shall be suffered by several freighters or owners of 
 goods, wares, or merchandise, or any property 
 whatever, on the same voyage, and the whole value 
 
 (a) The Propeller Goliath, determined October, 1847. 
 (6) Oh. 43, 9 Stat, at Large, 635. 
 
246 ADMIRALTY JURISDICTION. 
 
 voL^i. of ^-j^Q g]ijp oj. vessel, and lier freiglit for the voyage, 
 shall not be sufficient to make compensation to each 
 of them, they shall receive compensation from the 
 owner or owners of the ship or vessel in proportion 
 to their respective losses ; and for that purpose the 
 said freighters and owners of the property, and the 
 owner or owners of the ship or vessel, or any of 
 them may take the appropriate proceedings in any 
 court, for the purpose of apportioning the sum for 
 which the owner or owners of the ship or vessel 
 may be liable amongst the parties entitled thereto. 
 And it shall be deemed a sufficient tjompliance with 
 the requirements of this act, on the part of such 
 owner or owners, if he or they shall transfer his or 
 their interest in such vessel or freight, for the benefit 
 of such claimants, to a trustee, to be appointed 
 by any court of competent jurisdiction,. to act as 
 such trustee for the person or persons who may 
 prove to be legally entitled thereto, from and after 
 which transfer, all claims and proceedings against 
 the owner or owners shall cease." The new rule 
 introduced by this statute is slightly restricted by 
 the act of August 30, 1852, ch. 106, §§ 20, 30; 
 10 Stat, at Large, T2 12(a). 
 By whom The actlon for a breach of a contract for the 
 
 the action 
 
 brmght. transportation of goods, evidenced by a bill of lading, 
 is sometimes to be brought by the consignor, and 
 sometimes by the consignee of the goods. In gene- 
 ral there is little or no difficulty in deciding to 
 which of these parties the right to sue pertains ; but 
 as each case depends, in this respect, upon its own 
 
 (a) Vide infra, ch. 13. 
 
CONTRACTS OF AFFREIGHTMENT. 247 
 
 particular -circumstances, the question is sometimes o^-*- 
 one of considerable difficulty, and it has given rise to 
 numerous judicial decisions, which are not in all 
 respects easily reconcilable. The general result of 
 the English cases, however, is supposed to be, that an 
 action can be maintained only by a person who has 
 some property in the goods at the time of the breach 
 of the contract; and the consignee will be deemed to 
 have such a property, unless the contrary appears — a P™|jf^,®® 
 delivery to the ship-master, in the ordinary course ^ sue-'* 
 of mercantile transactions, being, in effect, a delivery 
 to the consignee(«). But if by the terms of deal- 
 ing between the consignor and consignee, the latter 
 is not to acquire a property in the goods, and they 
 are to remain at the risk of the consignor until 
 actual delivery, the property remains in him until 
 their delivery, and he is the person to sue the car- 
 rier for the loss of them (J) : and this will be so, 
 notwithstanding that the freight is to be paid by 
 the consignee. Thus, where goods were purchased 
 and shipped in this country by American merchants, 
 consigned to merchants in France, under an agree- 
 ment by which the former were to deliver the goods 
 at St. Vallery, for which' they were to be allowed a 
 commission of eight per cent, and take on them- 
 selves all risks; the consignees to pay the freight 
 on delivery, and to pay also in bills on London; it 
 
 (a) See Abbot on Shipp., Bost. ed. of 1846, 402, 403, 414; Coleman 
 V. Lambert, 5 M. & W., 502. 
 
 (6) Freeman v. Birch, 1 Nev. & Man. R., 420; Abbot on Shipping, 
 403 ; M'Intyre v. Bowne, 1 Johns. K., 229. 
 
248 ADMIRALTY JURISDICTION. 
 
 VOL 1, -y^aa held that the goods remained the property of 
 the consignors, until their delivery in France (a). 
 
 "Where goods are sent upon the account and risk 
 of the shipper, the delivery to the master is a 
 delivery to him as agent of the shipper, not of the 
 consignee; and it is competent for the consignor, at 
 any, time before actual delivery to the consignee, to 
 countermand it, and thus prevent the assignee's lien 
 from attaching(5). The shipper and owner may 
 
 (a) Ludlow V. Bowne, 1 Johnson's R., 1. See also, to the like effect, 
 Brant v. Bowlby, 2 B. & Ad., 932 ; The Merimack, 8 Cranch's R., 317 
 (3 Curtis's Decis. S. C, 153), and 7T^ St. Joze Indiana, 1 Wheaton's 
 R., 208 (3 Curtis's Decis. S. C, 623). 
 
 (b) The Frances, 8 Cranch's R., 418 (3 Curtis's Decis. S. C, 200). 
 " Goods may be shipped to the order, and ' on account and risk,' of 
 the consignee as purchaser, and yet his right to the possession of them 
 be incomplete ( Wilmshurst v. Bowker, 5 Ring. N. C, 5 ; 7 Scott, 561 ; 
 4 M. & G., 792). It commonly happens that goods are not to be paid 
 for before or at the time of their shipment, but by bills of exchange 
 drawn for their amount on the consignee, or on other parties. 
 Between the consignor and consignee, the agreement or under- 
 standing may be that the property in the goods shaU not vest in the 
 latter, imtil such bills are accepted. When this is the case, the master 
 wiU generally be reqaired to sign biUs of lading, to deliver the goods 
 to the order of the shipper, by whom one part unendorsed wiU be 
 forwarded to the consignee, to notify the shipment ; another part, 
 endorsed, to the agent of the consignor, to be delivered to the con- 
 signee when the condition of the consignment has been performed, by 
 the acceptance of the bUls of exchange." Abbot on Shipping, Boston 
 ed. of 1846, 404. 
 
 " BiUs of lading to the order of the shipper or to , or 
 
 order, or assigns, convey notice to the master that although the goods 
 be shipped on account and risk of a consignee, and delivery to him be 
 the object and intention of the shipment, there may yet be some con- 
 dition imperformed, on which his right of possession depends, or 
 some circumstances which have indaced the shipper to retain in his 
 own hands the ultimate appointment of the consignment. It is the 
 master's duty, in such cases, to retain, and he cannot safely deliver 
 
CONTRACTS OP AFFREIGHTMENT. 249 
 
 also attach coaditions to the consignment, or revoke ^^^ *• 
 it, even after the shipment has been made and a 
 bill of lading making the goods dehverable to a 
 consignee by name has been signed, at any time 
 before the bill of lading or the goods are actually 
 delivered to the consignee(a) ; but if such subse- 
 quent acts of the consignee involve fraud or imposi- 
 tion upon the person on whose account the ship- 
 ment was made, they will be ineffectual(3). 
 
 If the consignor purchase goods merely as agent 
 of the consignee, and which are to be transported 
 at the risk of the latter; by the delivery to the 
 carrier, the property of the consignor is divested, 
 and he cannot bring an action against the carrier ; 
 and if the papers accompanying the goods state them 
 to be shipped on account and risk of the consignee, 
 he paying freight, without further explanation, it 
 will be intended that the consignor was a mere 
 agent to make the purchase(c). But although the 
 shipper is, in fact, only the agent of the owners of 
 the goods resident abroad, yet, if the bill of lading 
 states the goods to have been shipped and the freight 
 to have been paid by him, he may maintain an 
 action for the non-performance of the contract. In 
 such a case, there is a privity of contract between 
 
 the goods, until they are claimed of him by the holder of a biU o' 
 lading, endorsed by the shipper, to whose order he has engaged to 
 deliver them." Id., 407. 
 
 (a) Mitchell v. Ede, 3 Perry & Davidson, 513; 11 Ad. & Ell., 888 ; 
 Abbot on Shipping, 404. 
 
 (6) Ogle V. Atkinson, 1 Mars. R., 323, and 5 Taunt., 759 ; Abbot on 
 Shipping, 406. • 
 
 (c) Potter V. Lansing, 1 Johnson's R., 215. 
 
 32 
 
250 ADMIRALTY JURISDICTION. 
 
 TOL^i. ijr^Q ship-owners and the shipper. It is from the 
 latter that the consideration moves, and to him that 
 the promise is made. After such a contract has 
 been signed by the master as the agent of the ship- 
 owners, they cannot say to the shipper that he has 
 no interest in the goods, and is not damnified by 
 their breach of the contract.. If the goods are lost, 
 the shipper is entitled to recover their value, and 
 will hold the sum recovered as a trustee for the real 
 owners (a). 
 
 According to what appears to be the predomi- 
 nance of authority in the English courts, if the 
 person to whom, by the terms of the bill of lading, 
 the goods are to be delivered, is only the agent of 
 ■ the shipper, and has no property in the goods, he 
 cannot maintain an action in his own name for not 
 delivering them(5). But the reverse of this has 
 been decided in Pennsylvania, in a case where goods 
 had been shipped by the owner at Liverpool, who 
 paid the freight on them and consigned them to his 
 agent or his assignees at Philadelphia; the court 
 holding that the legal property, by the bill of lading, 
 vested in the consignee in trust for the consignor(c). 
 
 General Average. 
 
 One of the remaining subjects of litigation enu- 
 merated in the first chapter, as cognizable in the 
 American courts of admiralty, is General Average. 
 
 (a) Joseph v. Knox, 3 Camp. R., 320. 
 
 (6) See Abbot on Shipping, Boston ed. of 1846, 411, et seq. 
 
 (c) Griffiths v. Ingledew, 6 Serg. & Rawle's R., 429. 
 
CONTRACTS OF APFREIGHTMENT. 251 
 
 In England it has always been regarded as belonging ^^^ ^ 
 exclusively to the courts of common law, while in 
 this country it has only lately, and, as already ob- 
 served(«), in but a single instance, so far as appears, 
 been brought under the cognizance of a court of 
 admiralty. Having at length found its way thither 
 it may eventually become a familiar guest, and the 
 principles by which it has hitherto been governed 
 may, to some extent, be here modified by the 
 influence of the civil law. But as yet it is unneces- 
 sary, and would scarcely be consistent with the 
 design of this work to attempt to treat the subject 
 at large, and I shall accordingly content myself with 
 a few general observations upon it, and a very brief 
 notice of two decisions of the Supreme Court of the 
 United States, by which questions of great impor- 
 tance that would otherwise have remained in doubt, 
 may, so far as relates to our national courts, be 
 regarded as settled. 
 
 The principle of average contribution is understood ""^f^"'""^ 
 to have been first asserted in the once celebrated 
 maritime code of the ancient Ehodians, which for 
 centuries before the Christian era was acknowledged 
 by the maritime communities of that early age as a 
 part of the laws of nations. This code was lost in 
 the darkness of succeeding centuries, and all the 
 knowledge we now have of its contents is derived 
 from the title De lege Rhodico de Jactu, ia the Roman 
 Pandects, and is accordingly, limited to the single 
 subject of jettisons. The Ehodian ordinance as TheEhodian 
 there cited is this : " If goods are thrown overboard 
 
 (a) Supra, p. 15, note. 
 
252 ADMIRALTY JURISDICTION. 
 
 TOL^i. for tjie purpose of liglitening the sMp, tte loss is to 
 be made good by the contribution of all, because it 
 was incurred for the benefit of all." 
 
 The abstract principle of equity embodied in this 
 
 rule is too obvious and impressive not to have found 
 
 Adopted by a lalace among the maritime laws of every commer- 
 
 all maritime x^ o J 
 
 nations. ^-^j jj^tion of ,modem*times, and it has accordingly 
 done so under the name of General or Gross Average. 
 But the attempts of legislators and judges to reduce 
 
 atSn|° it to practice by defining its applicability, have been 
 
 "o"^ attended with no little embarrassment, and have led 
 
 to diverse results. The difficulty springs from the 
 nature of the subject, and being inherent it is 
 unavoidable. The desideratum has been to limit 
 and define the scope of the principle in accordance 
 
 The restric- with its Spirit. On the one hand, as it is not every 
 jettison, though made " for the purpose of lightening 
 the ship," that should entitle the owner of the goods 
 to remuneration in this form, it became necessary to 
 restrict the rule by prescribing the condition requi- 
 
 Mdexten- g|^g ^q coufer the right of contribution. ^ On the 
 other hand, while the Rhodian ordinance was, in 
 terms, limited to goods voluntarily thrown over- 
 board, the principle on which it was founded 
 embraced other forms of injury or sacrifice suffered 
 for the common benefit, and it has accordingly been 
 extended far beyond the limits designated by the 
 terms in which it was originally expressed. Thus, 
 for example, it has been applied to goods damaged 
 or destroyed in the act of jettison, or in order to 
 accomplish it, or in consequence of it ; to goods lost 
 or injured by being unladen from the ship to enable 
 
CONTRACTS OF AFFREIGHTMENT. 253 
 
 her to take refuge in a port to wMch she was not ^^^ *• 
 destined, and into which she cannot enter without 
 being lightened; to the furniture of the ship ; and to 
 the ship itself. But each extension of the rule was 
 virtually a new rule, and, in turn, called for new 
 restrictions. The doctrine of general average, there- 
 fore, besides being in its nature perplexing, has thus 
 become complex. But no application that has been l*^^ ?ppJ'°|-; 
 made of the principle of contribution has led to more ^g. "^'^' 
 earnest discussion or a more remarkable discordance 
 of opinion than that made in favor of the ship-owner 
 where the cargo is saved by means of the voluntary 
 stranding of the ship. 
 
 The applicability of the principle to such a case, 
 with regard tp damages and expenses so incurred, 
 provided the vessel was got off and thus enabled to 
 complete her voyage, and under circumstances in 
 other respects favorable, has been universally 
 conceded. 
 
 But whether, when the vessel is lost, the rescued Not defeated 
 
 ' ' by loss of 
 
 goods are subject to contribution, is a question that ''^P' 
 has led to much disputation among the jurists of 
 other countries, and to conflicting judicial decisions 
 in our own. But on being at length brought under 
 the consideration of the Supreme Court of the United 
 States, the right of contribution in a case of voluntary 
 stranding was adjudged not to depend on the ulti- 
 mate fate of the ship, and the cargo was held liable 
 to contribute to the loss, notwithstanding the loss of 
 the ship(»). 
 
 (a) Col. Ins. Co. v. Ashley, 13 Peters's E., 331 (13 Curtis's Decis. 
 S. C, 176). 
 
254 ADMIEALTY JUEISDICTIQN. 
 
 vra^i. It ig a fundamental principle that to constitute a 
 case of general average, it is absolutely necessary 
 that the jettison or other form of sacrifice, whatever 
 it may be, should be voluntd/ry. But the application 
 of this principle in the instance of stranding, had been 
 found exceedingly perplexing. Where, for example, 
 on the one hand, a ship is intentionally run on shore 
 to escape capture by an enemy ; or where, on the 
 other hand, she is driven on shore by a tempest, in 
 spite of all efforts to keep her off — no doubt can 
 exist that the stranding in the first case is voluntary, 
 and in the second involuntary. But suppose, that 
 while the ship is irresistibly impelled towards the 
 shore, so as to leave no choice except with respect 
 to the particular spot where she shall strike, the 
 master merely directs her course so as to avoid a 
 rocky and highly dangerous part of the shore, upon 
 which, if left to the winds and waves alone, she 
 would undoubtedly be driven, and whence there 
 ' would be no prospect of escape for ship, cargo or 
 ^Mge^ crew, would this be a voluntary stranding? This 
 raen^aough question was presented for decision in the Supreme 
 kvlidlbie? Court of the United States, in the case of Ba/ma/rd 
 et al. V. Adams et al.(a), and received an affirmative 
 answer. 
 
 The question was elaborately and ably argued on 
 both sides. The counsel for the plaintiffs in error 
 insisted with great earnestness, and it seems not 
 unreasonable to believe with equal sincerity, that to 
 call that voluntary which was conceded to be unavoid- 
 able, and to denominate that a sacrifice of the ship 
 
 (a) 10 Howard's R., 270 (18 Curtis's Decis. S. C, 393). 
 
CONTRACTS OF AFFKEIGHTMENT. 255 
 
 for the preservation of the cargo, whicli in reality °°-^-,*- 
 was but a precaution pointed out by common sense, 
 and enjoined by common prudence, irrespective of 
 the cargo, and taken, not for the purpose of escaping 
 the impending disaster, but in the hope of rendering 
 it less destructive, would be simply absurd. The 
 court, however, by an ingenious process of reasoning, 
 tti an elaborate and able opinion delivered by Mr. 
 Justice GrEiEE, arrived, as already Stated, at the oppo- 
 site conclusion. The elements it deemed requisite Deflniuon 
 
 ■*■ of general 
 
 to constitute a case of general average, are stated by '"^'"■^''■ 
 the court in the following terms ; 
 
 " 1st. A common danger ; a danger in which ship, 
 cargo and crew all participate ; a danger imminent 
 and apparently ' inevitable,' except by voluntarily 
 incurring the loss of a portion of the whole to save 
 the remainder. 
 
 " 2d. There must be a voluntary jettison, jactus, or 
 casting away of some portion of the joint concern, 
 for the purpose of avoiding this imminent perU^ 
 perixyiM rnimmentis evitandi causa, or, in other words, 
 a transfer of the peril from the whole to a particular 
 portion of the whole. 
 
 " 3d. This attempt to avoid the imminent peril 
 must be successfal." 
 
 I am not aware that any just exception can be 
 taken to this statement ; but whether the case before 
 the court was properly adjudged to fall within the 
 described conditions, will probably appear question- 
 able to other minds as well as to that of Mr. Justice 
 Daniels, who felt constrained to declare his dissent 
 from the judgment of the court. 
 
256 ADMIRALTY JUEISDICTION. 
 
 voL^i. 'j'jjg principle of contribution for the reparation of 
 ae"eas?n^. marine disasters, seems to have been a favorite of the 
 grearexten" couxts, and there has undoubtedly been too great a 
 
 Bion In favor ' ^ ^ 
 
 of^ship-own- tendency to its extension, especially in favor of the 
 ship. He who embarks in the business of a common 
 carrier by water, voluntarily engages in a hazardous 
 pursuit, and he exacts a correspondent remuneration. 
 For the fulfilment of his contracts for the conveyance 
 of merchandise, the law justly requires of him the 
 exercise, at all times, of the requisite degree of skill 
 and care to guard against all losses that are avoidable 
 by consummate sagacity and vigilance. If, for the 
 safety of his ship, he casts the goods of the merchant 
 into "the sea, it is eminently and obviously just that 
 he should share the loss : but the obligation imposed 
 on the merchant, to share the ill fortune of the ship- 
 owner, except under very extraordinary circumstan- 
 ces, is, to say the least, not so readily discerned. It 
 can rarely happen that the means best adapted, in 
 case of extremity, to the preservation of the cargo, 
 are not also those most likely to insure the safety of 
 the crew of the ship, and those, moreover, which the 
 master ought, and, it may be presumed, therefore, 
 would consider himself bound to employ, in a like 
 emergency, if he had no cargo on board. Take, for 
 example, the stranding of the ship JBrutws, which, in 
 the above cited case of B(wnard v. Adams, was 
 held by the Supreme Court to entitle the owners 
 to levy a contribution on the cargo: the acting 
 master adopted the only expedient that afforded 
 any promise of safety, either to the lives of himself 
 and his crew, or to the ship, and had she been in 
 
CONTRACTS OF AFFREIGHTMENT. 257 
 
 ballast instead of being laden, lie would have been "h-^^- *• 
 guilty of criminal negligence if lie bad suffered ber 
 to be driven, as she must soon have been, broadside 
 upon shoals or rocks, where destruction would have 
 been inevitable ; when, by the simple act of slipping 
 the chains and giving a proper direction to her 
 course, by means of the helm, she could be, as she 
 was, safely grounded. 
 
 The case of TJie Hope, in Col. Ins. Co. v. Ashley, 
 the other case cited above, and nearly or quite every 
 other reported case of stranding would farnish an 
 example equally pertinent. May it not, then, without 
 unpardonable arrogance, be asked, where is the 
 justice or the expediency in such cases, of subjecting 
 the freighter to the burden of contribution ? 
 
 Contracts for the Convettance of Persons. 
 
 For reasons of the like nature with those above 
 assigned for abstaining from a comprehensive survey 
 of the rules of law pertaining to the subject of average 
 contributions, I shall speak still more sparingly of 
 contracts for the conveyance of passengers. The 
 only instance in which an admiralty suit founded on 
 this contract, appears to have been brought under 
 the revisory power of the Supreme Court, has already 
 been cited as a conclusive authority for enumerating 
 this among the subjects of admiralty jurisdiction(»). 
 
 One ground of defence in that case was, that the carrier may 
 libellant, who had been severely injured by an though %e 
 
 ' xi o J conTeyance 
 
 be gratui- 
 tous. 
 
 {a) The New World, 16 Howard's R., 469, and vide swpra, p. 26, 
 note(a). 
 
 33 
 
258 ADMIRALTY JURISDICTION. 
 
 TOL^i. explosion of the boiler of the New "World, being " a 
 oairier may gteamboat man," was, as such, in accordance with a 
 
 be liable, ' 77 
 
 Mnvlyanw general custom, carried gratuitously. In behalf of 
 tons. the respondents, it was argued that as no compen- 
 
 sation had been exacted of the libellant, .the law 
 imposed no duty on them to carry him safely : that 
 the master had no ■ authority to assume such an 
 obligation, and that none could result, therefore, 
 from his act in receiving the libellant on board: 
 that no benefit having been conferred on the res- 
 pondents proceeding from the libellant, no duty on 
 their part was implied, and he must be considered 
 to have, assumed the risk of his own transportation. 
 It was also further insisted that if the respondents 
 were responsible at all, it could only be for gross 
 negligence, which, it was asserted, had not been 
 proved. 
 
 Upon all these points the decision of the court 
 was in favor of the libellant. The custom to receive 
 steamboat men being proved to be general, the 
 owners must be supposed to have been aware of it, 
 and not having forbidden the master to conform to 
 it, they must be presumed to have acquiesced in it, 
 as a privilege tending to facilitate their business, and 
 beneficial to themselves. The master, therefore, had 
 authority to act under this custom, and thereby to 
 bind the owners. 
 In transpor- The libellant must accordingly be deemed to have 
 
 tation by 
 
 nSen"e ^^^^^ lawfuUy ou board, and that was sufficient. And 
 with regard to the extent of the obligation imposed 
 by law to convey the libellant safely, the court felt 
 no hesitation in applying to the case before it, the 
 
 negligence 
 is grosa. 
 
carrier. 
 
 CONTRACTS OF AFFREIGHTMENT. 259 
 
 important and stringent doctrine laid down in Ths °^f^ ^ 
 Philadelphia and Reading JR. H. Co. v. Derby (a), 
 whicli the court desired "to be understood to reaffirm, 
 as resting, not only on puUic policy, but on sound 
 principles of law." That doctrine is this: "Where 
 carriers undertake to convey persons by the powerful 
 and dangerous agency of steam, public policy and 
 safety require that they should be held to the greatest 
 possible care and diligence. And whether the con- 
 sideration for such transportation be pecuniary or 
 otherwise, the personal safety of the passengers 
 should not be left to the sport of chance or the 
 negligence of careless agents. Any negligence, in 
 such cases, may well deserve the epithet of gross." 
 
 The only remainiug inquiry, then, was whether p°^^f°oa°J,ia 
 the defendants were chargeable with negligence at 
 all ; and this inquiry was simplified by the following 
 provision contained in the act of Congress of July 
 Yth, 1838(5): "in all suits and actions against pro- 
 prietors of steamboats for injury arising to persons 
 or property from the bursting of the boiler of any 
 steamboat, or the collapse of a flue, or other dan- 
 gerous escape of steam, the fact of such bursting, 
 collapse, or injurious escape of steam shall be taken 
 as fuU^'MTia facie evidence sufficient to charge the 
 defendant or those in his employment, Vidth negli- 
 gence, until he shall show that no negligence has 
 been committed by him or those in his employ- 
 ment(<7)." 
 
 (a) 14 Howard's R., 468 (20 Ourtis's Decis. S. C, 291). 
 (6) 6 Stat, at Large, p. 306, § 13. 
 
 (c) The principle of this enactment — that of casting the hnrden of 
 proof on the carrier of passengers by land — had, however, been pre- 
 
260 ADMIRALTY JURISDICTION. 
 
 TOi^i. Tiiig enactment was declared by tlie court to be 
 
 directly applicable to the case; and the respondents 
 
 having failed to exonerate themselves from the 
 
 charge of negligence, the District Court (of the 
 
 Northern District of California) awarding $2500 
 
 damages to the libellant, was afSrmed. 
 
 Theory of The interest and importance of this case are en- 
 three de- -J^ 
 
 ie|ifgence hauced by the brief but forcible observations of Mr. 
 
 "We- Justice Ctjetis, in delivering the opinion of the court, 
 
 on what he denominates the "theory" of "three 
 degrees of negligence, described by the terms, slight, 
 ordinary and gross." This theory was transplanted 
 into the common law from some of the commentators 
 on the Roman law; but these commentators were 
 divided in opinion respecting its utility ; and by some 
 of the ablest of them, as well as of the commentators 
 on the civil code of France, it has been condemned 
 and repudiated, " as unfounded in principles of natu- 
 ral justice, useless in practice, and presenting inextri- 
 cable embarrassments and difficulties." "Recently," 
 moreover, " the judges of several courts have ex- 
 pressed their disapprobation of these attempts to 
 fix the degrees of diligence by legal definitions, and 
 have complained of the impracticability of applying 
 them." 
 
 In these expressions of disapprobation I understand 
 the court cordially to concur. 
 
 In the above mentioned case, reported in 14 
 Howard, the injury complained of was caused by 
 
 viously asserted by the Supreme Court of the United States, as a 
 principle of the common law, in the case of Scdtonstall v. Stokes, 13 
 Peters's R., 181 (13 Curtis's Decis. S. C, 114). 
 
CONTRACTS OF AFFREIGHTMENT. 261 
 
 collision on the defendants' railroad. The plaintiff, °^- *• 
 who was a stockholder, and the president of another 
 railroad company, was passing over the road of the 
 defendants at the invitation of their president, and 
 on this ground he was held, like the libellant in The 
 New World, to have been lawfully present, and 
 entitled to the immunities of an ordinary passenger. 
 The liabilities of a common carrier, by water and by 
 land, are essentially the same. 
 
262 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 CHAPTER V. 
 
 Bottomry and Respondentia Bonds. 
 
 Ajs^other species of contract, which:, as we have 
 seen, it is the business of courts of admiralty to 
 enforce, is that of maritime loans secured by express 
 hypothecation. 
 
 These loans have been in familiar use, as highly 
 important auxiliaries to commercial enterprise, from 
 a very early period. They were the subject of 
 express regulation by the Roman law: they are 
 recognized, and studiously provided for, in the mari- 
 time codes and ordinances of modern Europe : they 
 have been copiously treated by the Continental 
 jurists; and have been largely discussed in the 
 British courts, and in those of the United States. 
 But it is only within the last few years that some of 
 the principles by which they are governed have been 
 clearly defined, and some others for the first time 
 adopted and explicitly declared, either in England 
 or in this country. 
 Bottomry In the form of express hypothecation most 
 frequently resorted to, the instrument by which the 
 hypothecation is effected is denominated a lottomry 
 hond. It is a contract in the nature of a mortgage 
 pledging the ship (or hottom)', or the ship and 
 freight ; or the ship, freight and cargo ; as a security 
 
 bonds 
 
BOTTOMRY AND EBSPONDENTIA BONDS. 263 
 
 for the repayment of money loaned. Its conditions ^^■^- ^^ 
 are, that if the voyage is performed in safety, the 
 sum loaned, together with the stipulated interest, 
 shall be paid, either upon the completion of the 
 voyage, or at the expiration of some specified 
 period ; but that if the subject of the pledge is lost 
 by a peril of the sea, the lender shall lose his money 
 also. 
 
 Sometimes money is loaned, on the like conditions, 
 to the owner of the cargo or some part of it, upon 
 the pledge of that alone ; and the bond in that case 
 is called a respondentia bond, the borrower being 
 always personally respons'il>le(a). Indeed, the bond Ee^m- 
 does not, in England at least, uniformly, in express 
 terms, hypothecate the goods ; and in such cases it 
 is held, in the English courts, that no lien is im- 
 plied(5). The form said to be in common use in 
 this country, contains an express pledge, not only of 
 the particular merchandise or specie then laden on 
 board the ship, but of all such as shall be laden on 
 board on account of the borrower at any time 
 during the voyage ; thus embracing the return cargo, 
 obtained by means of the outward cargo(c). 
 
 As the risk incurred by the bottomry or respon- Eate of 
 
 '' . . •' ^ interest not 
 
 dentia lender is greater than in ordinary cases, the l^iJJylaws^ 
 rate of interest or premium, pretium pericuU, is 
 proportionally higher according to the circumstances 
 
 (a) 2 Blackstone's Commentaries, 457. 
 
 (6) Burk V. Fearon, 4 East's R., 319. 
 
 (c) Conrad v. The Atlantic Insurance Company, 1 Peters's R., 386 
 (7 Ourtis's Decis. S. 0., 637) ; Franklin Insurance Company v. Lord, 
 4 Mason's R., 248. 
 
264 ADMIRALTY JURISDICTION. 
 
 vOT^i. of the case, and tlie agreement of the parties ; and 
 it has always been understood that these contracts 
 are unaffected by municipal laws, regulating the rate 
 of interest. 
 
 to^ml^iM I*" ^ill readily be seen, therefore, that maritime 
 urance. j^^^^g ^^^^ a stroiig aualogy to contracts of marine 
 insurance. The risks assumed by the insurer, and 
 by the bottomry lender, are generally the same : the 
 money advanced in the one case, corresponds with 
 the sum agreed to be paid in the event of the loss in 
 the other : and the analogy holds good with respect 
 to the premium of insurance, and the maritime 
 
 be't^eirS interest. It will be seen, also, as was tersely said 
 
 m°nioan" by Mr. Justlcc THOMPSON ((3^), that "the essential 
 difference between a bottomry bond and a simple 
 loan is, that in the latter the money is at the risk 
 of the borrower, and must be paid at all events ; in 
 the former, it is at the risk of the lender during the 
 voyage, and the right to demand payment depends 
 on the safe arrival of the vessel." 
 
 Form and Thcrc is uo Settled form of contract in use for the 
 
 effect of the 
 
 purpose of maritime hypothecation, and sometimes 
 the instrument used is in the form of a bill of sale. But 
 whatever be the form — the occasion of borrowing, 
 the sum, the premium, the ship, the voyage, the 
 risks to be borne by the lender, and the subjection 
 of the ship itself as security for the payment, all 
 usually are, and ought always to be expressed(5). 
 The legitimate purpose and proper effect of a bot- 
 
 (a) Mr. Justice Thompson, in The Mary, 1 Paine's R., 671. 
 (6) Abbot on Shipping, Boston ed. of 1846, 205. 
 
 contract. 
 
BOTTOMRY AND RESPONDENTIA BONDS. 265 
 
 tomry or respondentia bond are to confer upon tlie cHiP. s. 
 lender, not 2ijus in re^ but only a jus ad rem', not 
 a right of property in the subject of the pledge, but 
 a specific lien or privilege which lie may enforce by 
 the process of a court of admiralty, and by that 
 means convert and appropriate the property to the 
 satisfaction of his claim(«). The intention of the 
 parties will therefore be presumed to have been in 
 accordance with this principle, and the instrument, 
 whatever may be its form, will receive a correspon- 
 dent construction if its terms will admit of it : and 
 for this purpose, stipulations not warranted by the 
 maritime law, or inconsistent with the nature of the 
 contract, may be disregarded; for it is a settled Maybe ^ 
 doctrine that a bottomry contract may be good in part.''"'*" 
 part and bad in part(^). And therefore where a 
 bottomry bond, executed by the master, purported 
 not only to bind the ship and freight, but to bind 
 the owners personally also, which, according to the 
 doctrine of the English admiralty, it could not 
 do, the latter stipulation was rejected as vicious, 
 and the bond was held valid as an instrument of 
 hypothecation notwithstanding(c). So, if the bond 
 has been taken for a larger amount than that which 
 could properly be made the subject of such a loan, 
 it is invalid only to the extent of the excess, and 
 
 (a) The Tobago, 5 Robinson's R., 194, 197 ; The Charles Carter, 4 
 Cranch, 328 (2 Curtis's Decis. S. C, 125). 
 
 (6) The Virgin, 8 Peters's R., 538 (11 Curtis's Decis. S. C, 208) ; 
 The Nelson, 1 Haggard's Adm. R., 169, 176 ; The Packet, 3 Mason's 
 R.,;255; The Atlas, 2 Haggard's Adm. R., 48; The Augusta, 1 
 Dodson's R., 283 ; The Hunter, Ware's R., 249. 
 
 (c) The Nelson, 1 Haggard's Adm. R., 169. 
 34 
 
266 ADMIRALTY JUEISDIOTION. 
 
 voL^i. -^y ijg upheld as to the residue of the sum loaned (a) . 
 But there must necessarily be some limit to this 
 sort of indulgence; and where the condition of 
 the bond was that the sum loaned, together with the 
 stipulated maritime interest, should be paid at the 
 expiration of thirty days after the safe arrival of 
 the ship ; " or, in case of the loss of the ship, then 
 within thirty days next after the account of such loss 
 shall be received in Calcutta or London," the 
 bond was held not to be a bottomry contract, 
 but an absolute mortgage upon usurious interest, 
 and void (5). 
 Eendered This spccies of coutract, like others, is rendered 
 fraud. void by fraud, and where a bottomry bond was 
 taken for more than the sum actually advanced for 
 the purpose of enabling the owner of the vessel to 
 recover the amount of the bond from the under- 
 writers, the bond was adjudged void ; and the 
 lender was moreover held to have lost his lien 
 upon the vessel for the sum which he had in fact 
 loaned(c). 
 md'^rw-^ Maritime hypothecations had their origin in the 
 ^ter. °^^ necessities of commerce. They have been said to be 
 " the creatures of necessity and distress(6?)." They 
 are of a high and privileged nature, and are held 
 in great sanctity by maritime courts. " They were 
 intended," said Lord Stowell, in a case before him, 
 " for the purpose of procuring the necessary supplies 
 
 (a) The Virgin, 8 Peters's R., 538 (11 Ourtis's Decis. S. C, 208j. 
 (6) The Atlas, 2 Haggard' sR., 48. 
 / (c) Carrington v. Pratt, 18 Howard's R., 63. 
 (d) The Kennersley Castle, 3 Haggard's R., 1, 7. 
 
BOTTOMRY AND RESPONDENTIA BONDS. 267 
 
 for ships which may happen to be in distress in chap, s. 
 foreign ports, where the master and the owners are 
 without credit; and where, unless assistance could 
 be secured by means of such instruments, the vessels 
 and cargoes must perish. It is important, therefore, 
 to the interests of commerce, that bonds of this kind 
 should be upheld with a very strong hand (a)." 
 
 (a) The Kennersley Castle, 3 Haggard's E., 1, 7. 
 
 There are many other cases, in which these securities are spoken of 
 in similar terms : but, strong as they are, they are indefinite ; and in 
 a late case before Dr. Lushington, that learned and able judge took 
 upon himself the useful task of defining them, and stated his apprehen- 
 sion of their practical import as follows : " Before, however, entering 
 upon the discussion of circumstances peculiar to this case, it may not 
 be unadvisable to consider what is meant by that dictum, so often cited, 
 and again urged in this cause, that bottomry bonds are of a high and 
 sacred character. AU legal engagements, all contracts sanctioned by 
 the law, are sacred ; that is, they are to be enforced by every court of 
 law and equity. The expression, therefore, so often repeated, must, I 
 think, have some other meaning more appropriate and peculiar to the 
 subject itself, than merely to denote the character which a bottomry 
 bond enjoys in common with other legal instruments. I may also 
 observe, that this expression, so often quoted, cannot refer to priority 
 of payment ; for of that, where the bond is admitted to be vahd, no 
 doubt is ever entertained. The only meaning which, with satisfaction 
 to my own mind, I can attach to this observation, is, that where once 
 the transaction is proved to have been clearly and indisputably of a 
 bottomry character, that is, where the distress is admitted or estab- 
 lished, the want of personal credit beyond question, and the bond in 
 all essentials apparently correct, then that under such circumstances 
 the strong presumption of law is in favor of its validity, and it shall 
 not be impugned save where there shall be clear and conclusive evidence 
 of fraud ; or where it shall be proved, beyond all doubt, that though 
 purporting in form to be a bottomry transaction, the money was, in 
 truth and in fact, advanced upon different considerations. And it 
 appears to me that this view is confirmed by the very nature of bot- 
 tomry transactions. There must be in all such transactions, the act 
 of the master, the agent of the owner, evinced by the execution of the 
 
master. 
 
 Power of the 
 master to liy- 
 
 268 ADMIRALTY JURISDICTION. 
 
 voL^i. These contracts are usually entered into by tlie 
 madf^by master in virtue of his implied authority as such, 
 and in discharge of his duty as the confidential agent 
 of the owner. It is true he does not ordinarily 
 w?/o?'°' * represent the cargo, as he does the ship and freight; 
 but in cases of accidental necessity, the law throws 
 this character upon him(a) ; and it is now a settled 
 doctrine, both in England and in this country, that 
 in such cases of involuntary agency he has authority 
 to hypothecate the cargo for necessary repairs and 
 supplies(J). 
 
 bond ; and the presumption is tliat he would perform his duty honor- 
 ably, and not unnecessarily subject the property of his principal to 
 heavy burthens. Again, the transaction taking place in difitajit coun- 
 tries, where it may be often difficult for the foreign merchant, who 
 advances on bottomry, to furnish adequate proof as to all parts of the 
 res gesta; this furnishes another reason for presumption in favor of a 
 bond necessarily signed by the master. It is for the general advantage 
 of the shipping interests of the world, that bottomry transactions should 
 not be rendered too difficult ; and in ordinary transactions of this kind 
 there is less reason to complain, because the interest of the owner can 
 never be affected, save, as I have already observed, by the act of his 
 own selected agent ; except, indeed, in the few cases of the original 
 master no longer having the command." The Vibilia, 1 W. Robinson's 
 B., 1. 
 
 (o) The Gratitudine, 3 Robinson's R., 240. 
 
 (6) Ibid. The Ship Packet, 3 Mason's R., 265 ; 3 Kent's Comm., 
 173; 351. In the admirable judgment pronounced by Lord Stowell, 
 in The Gratitudine, where the power of the master to bind the cargo 
 for supplies and repairs was for the first time expressly asserted, the 
 authority is said to result from the same consideration that applies to 
 the hypothecation of a ship, viz., the prospect of benefit to the pro- 
 prietor ; and that if the repairs produce no benefit, or prospect of 
 benefit to the cargo, the master cannot bind it. He seems also to 
 assume that this expedient could lawfully be employed only as a dernier 
 resort, when the necessary funds cannot be obtained upon the security 
 of the ship and freight alone. 
 
BOTTOMEY AND EESPONDENTIA BONDS. 269 
 
 But the master is not the owner of the property, °°^- ^• 
 so as to have a ri^ht to bind it at his own will and powe/of 
 
 '-' nypotheoa- 
 
 pleasure. Such a power would be liable to great ^ "i™'^'' 
 abuse ; for it might be used to the injury not only ™''^™'^' 
 of the owner by unnecessarily subjecting his pro- 
 perty to the charge of maritime interest, but to that 
 of other creditors, by giving a priority of payment 
 to one(«). Hypothecation, therefore^ can be valid 
 only when bottomed on necessity, and that necessity 
 must be twofold : first, a necessity of obtaiaing repairs 
 or supplies in order to prosecute the voyage ; and 
 secondly, a necessity of resorting to a bottomry bond, 
 from inability to procure the required funds in any 
 other way : for if the master has funds of the owner 
 in his possession, or if he can procure them upon the 
 credit either of the master or of the owners, or by 
 advances on the freight, or by passage money, he 
 is not at liberty to resort to a bottomry loan (5). 
 "Necessity," said Lord Stowell, in the case last 
 cited, " is the vital principle of hypothecation bonds, 
 and the absence of that necessity is their undoing ; 
 it is the destruction of the bond itself" 
 
 (a) The Hersey, 3 Haggard's Adm. R., 404, 407. 
 
 (6) The Hersey, 3 Haggard's Adm. E., 404, 407; The Fortitude, 
 3 Sumner's E., 228, 234 ; The Nelson, 1 Haggard's Adm. E., 169 ; The 
 Active, 2 Washington's E., 226. The master is not, however, devoid 
 of all discretionary power in the choice of means. The general prin- 
 ciple is, that he is to supply the wants of the ship at as»little sacrifice 
 as practicable ; and while this principle will, under some circumstances, 
 warrant him in using money on hoard belonging to third persons, it 
 also restrains him from doing so, when a greater sacrifice would be 
 incurred thereby than by having resort to a bottomry "loan. Thus, 
 the use, on an outward voyage to China or the East Indies, of Spanish 
 dollars, being the principal property on board, and shipped for the 
 
270 ADMIRALTY JURISDICTION. 
 
 VOT^i. This doctrine, as a general principle, is indisputa- 
 af'appL" ble, and indeed has always been conceded ; but the 
 
 tion of the ' . . . , . . 
 
 '"•*• casualties and emergencies incident to maritime 
 
 commerce are so diversified, as often to render the 
 application of the principle a matter of no little 
 difficulty. Conventional usage sanctions the use of 
 the term "necessaiy" to express very different 
 degrees of urgency. When employed in stating 
 the principle in question, moreover, as frequently 
 happens in other cases, it is often coupled with other 
 qualifying words, and sometimes the rule is enunci- 
 ated without employing this term at all. Thus it 
 has been said that the giving of a bottomry bond is 
 justifiable only in cases of " absolute necessitj''," of 
 " urgent necessity," of " great extremity," and of 
 " extreme pressure," etc. But notwithstanding the 
 occasional use by judges, speaking in reference to the 
 circumstances of particular cases, of these intensive 
 forms of language, no one has ever thought of deny- 
 ing that the existence of the twofold necessH/y above 
 mentioned was a sufficient warrant for a bottomry 
 loan. For the purpose, therefore, of diminishing the 
 practical difficulty attending the application of the 
 
 o?"the^^«Se! rule, Mr. Justice Story, in the case of Tlie Fortir 
 tude{a)^ undertook, with even more than his wonted 
 industry and self-devotion, the task of ascertaining, 
 by an exhausting review of the authorities bearing 
 upon the subject, the just import of the rule itself. 
 He first addressed himself " to the consideration of 
 
 purchase of \ return cargo, might defeat the object of the voyage. 
 The Packet, 3 Mason's K., 225, 
 (a) 3 Sumner's R., 228. 
 
BOTTOMRY AND RESPONDENTIA BONDS. 271 
 
 what, in the sense of the law, are necesswry repairs, •'hap. b. 
 for which, when ordered by the master, the owner 
 would be liable in case no bottomry bond has been 
 given(a)." His conclusion was, that the authority 
 of the master thus to bind the owner is not confined 
 to such supplies and repairs as are absohdely or 
 indispensably necessary ; but that it extends to such 
 supplies and repairs as are reasonably fit and proper 
 for the ship and voyage. This conclusion, as we 
 have already seen in a former chapter, is supported 
 by the most ample authority. Such then being the 
 rule with respect to ordinary debts incurred ' by the 
 master for repairs and supplies, it remained to be 
 determined whether the same rule was applicable 
 also to loans for the like objects upon bottomry. 
 Mr. Justice Stoey was clearly of opinion that it was. 
 He admitted that there was a " manifest difference 
 between that necessity which will justify repairs, 
 and that superadded necessity which will justify the 
 giving of a bottomry bond;" but he held this differ- 
 ence to consist not in the degree of the necessity 
 under which the master might be placed, of obtaining 
 funds by some means, but in his ability or inability 
 to meet the exigencies of the case by other means 
 than by resorting to a bottomry loan. 
 
 It must certainly be conceded that the doctrine 
 of this case conflicts in some degree with the 
 
 (o) For money advanced for such repairs or supplies in a foreign 
 port, the lender may maintain a suit in personam against the owner ; 
 and for materials or labor furnished, the material-man has a triple 
 remedy : by suit, in personam, against the master ; by a like suit 
 against the owner; and by a suit in rem, in the admiralty, against the 
 ship, to enforce the lien given him by the maritime law. The Forti- 
 tude, ubi supra. 
 
272 ADMIRALTY JURISDICTION. 
 
 voL^u impressions wHcli the language often employed as 
 well by judges as by elementary -writers, relative to 
 these contracts, is adapted to convey. Indeed, Mr. 
 Justice Stoet admitted this to be so ; but he never- 
 theless deemed his conclusions perfectly consistent 
 with previous adjudications. The stronger terms 
 usually applied to bottomry contracts, compared 
 with those applied to ordinary debts contracted by 
 the master for repairs and supplies, may probably 
 be ascribed in a considerable degree to a recollection 
 of the ^superadded" necessity required in the former 
 case ; and in laying' down the rule that the same 
 degree of necessity which would justify the master 
 in the one case as in the other, provided that in the 
 case of a bottomry bond there was no other resource, 
 the learned judge doubtless contemplated the exer- 
 cise, by the courts, of that extraordinary degree of 
 caution and scrutiny, in deciding upon the validity 
 of bottomry contracts, which a resort by the master 
 to so disadvantageous a means of obtaining funds is 
 calculated to inspire. It has often been remarked, 
 and the test seems to be imobjectionable, that the 
 authority of the master to bind the owiier, extends 
 only to such supplies and repairs as a discreet owner 
 might naturally be expected to order if present; 
 but cases may be conceived where his decision would 
 be likely to turn upon the question of his abUity to 
 obtain what might be reasonably fit and proper for 
 the ship and voyage, without having recourse to a 
 loan at an extraordinry rate of interest. 
 Noconflict The case of The Fortitvde was decided in 1838. 
 
 between the 
 
 heid^bjiir. Since that time additional volumes of reports of 
 
BOTTOMRY AND RESPONDENTIA BONDS. 273 
 
 decisions in the HigL. Court of Admiralty of England chap. s. 
 have appeared, containing several cases involving the 8™"°! and 
 validity of bottomry "bonds, in some of which the centEngiish 
 bonds were held to be invalid. In one of them(a) 
 it is said by the court, that " before a master can 
 exercise the extraordinary power of hypothecation, 
 he must show that there is an absolute necessity for 
 it, to secure the return of the ship ;" and in another 
 case(5). Sir John Nicholl speaks of the authority 
 of the master as being limited to cases " of absolute 
 necessity — strict necessity arising on the voyage." 
 But I am unable to discover anything in the circum- 
 stances of any of these later cases, which were 
 decided adversely to the bond-holder, that, in 
 reality, required the application of a more rigid rule 
 than that laid down in The Fortitude by Mr. Justice 
 Stoet. In TTie jReUance^ the bond was adjudged 
 void, not alone on the ground that there was no 
 sufficient necessity for it, but because, if there 
 was a necessity, it was occasioned by the lenders 
 themselves; the ship having been freighted and 
 insured from London to Calcutta and back, and the 
 lenders, who resided in Calcutta, and had been 
 employed by the master as agent, having, with a 
 view to their own profit, induced the master to 
 remain and undertake a series of voyages in that 
 part of the world, in defiance of letters from his 
 owners in England, directing him to return. In 
 another case, the bond, given at the Mauritius only 
 three days before the ship sailed, was pronounced 
 
 (a) The Reliance, 3 Haggard's Adm. R., 66, 74. 
 (6) The Bunnegan Castle, ib., 331. 
 
274 ADMIRALTY JUKISDICTIOTST. 
 
 — ^ ' invalid, on the ground that it was given without 
 necessity ; the sum which it' was pretended the 
 master stood in need of being inconsiderable, he 
 being part owner of the ship and proprietor of a 
 valuable cargo, and there being therefore no sufficient 
 reason for supposing that he could not have obtained 
 credit from a house with which he had had extensive 
 dealings ; the loan being, moreover, for a larger sum 
 than he had advertised for ; and the lender having 
 altogether omitted the usual precaution of inquiring 
 into the circumstances of the case, for the purpose 
 of ascertaining whether they were such as to justify 
 the loan. The case also presented unfavorable 
 features in other respects (a). In another case, the 
 bond, executed at Hobart Town, had been given in 
 part, at least, for the benefit of the owner's agent, 
 on the day before the vessel sailed, in consequence 
 of his threat to arrest the master and prevent the 
 ship from sailing, for advances previously made on 
 the credit of the master and owners ; no bottomry 
 bond having been contemplated, and the whole 
 
 (a) The Orelia, 3 Haggard's R., 75. 
 
 The practice of adyertising for bottomry loans seems to be usual, and 
 the omission of this' precaution by the master, appears to be regarded 
 in the English admiralty as ground for distrust (The Hersey, 3 
 Haggard's Adm. R., 404, 411). The advertisement referred to in the 
 text, and which was published in the Mauritius Gazette, was as follows : 
 
 " Saturday, 28th May, 1831. 
 " Wanted, to defray the necessary disbursements in this port, a sum 
 of about 3000 dollars, to be secured by bottomry on the ship and freight 
 of the Orelia, burthen, 382 tons, "W. Hudson commander, bound for 
 London. Offers will be received by Thomson, Pasmore & Thomson, 
 on Thursday next, 2d June, at 12 o'clock." 
 
BOTTOMRY AND RESPONDENTIA BONDS. 275 
 
 transaction Ibeing in fact " a mere contrivance to ^^££; ^• 
 attain an advantageous mode of remittance to London 
 without risk, and witli a premium of twenty per 
 cent(a)." 
 
 Two other cases, reported in the same volume(5), 
 in which the bonds were not sustained, were decided 
 upon special grounds, and shed little light upon the 
 question of necessity. Nor do the other cases of 
 bottomry reported by Mr. Haggaed, or the still 
 later ones reported by his successor, appear to 
 militate against the doctrine laid down by Mr. 
 Justice Stoet. Indeed it is inferrible from the 
 terms in which bottomry loans, in several of these 
 instances, are spoken of by the court, that there is a 
 tendency in the English" admiralty to treat them 
 even with greater favor than heretofore (c). 
 
 By the general maritime law, the master is pre- Maatemotin 
 
 JO 1 Jr general em- 
 
 cluded from entering into a bottomry contract in £?pothecate 
 
 ../.!*"" tome 
 
 the place where the owners, or a majority of them, P"t. 
 reside or are present ; and for this purpose, the 
 whole of England is considered as the residence of 
 an Englishman (c^. But although in the case last 
 cited, it was conceded by Lord Stowell that a 
 bottomry bond could in general be lawfully given 
 
 (a) The Hersey, 8 Haggard's R., 404. 
 
 (6) The Dunnegan Castle, 3 Haggard's R., 331; The Prince of 
 Saxe Cobourg, ib., 387. 
 
 (c) The Kennersley Castle, 3 Haggard's R., 1, 8 ; The Calypso, ib., 
 162, 165; The St. Catharine, ib., 250, 253; The Vibilia, 1 "W. Robin- 
 son's R., 1 ; The Trident, ib., 29 ; The Heart of Oak, ib., 204. 
 
 (d) Abbot on Shipping, Boston ed. of 1846, 198 ; Tlie Barbara, 4 
 Robinson's R., 1 ; The Radamanthe, 1 Dodson's R., 201 ; 3 Kent's 
 Coram., 171, 172 ; ITie Randolph, Gilpin's R., 457. 
 
276 ADMIRALTY JUEISDICTION. 
 
 » 
 
 voL^i. ]3y ^]jg master only in a foreign port, lie refuged to 
 apply the doctrine to the case of a Spanish ship^ 
 hypothecated in a Spanish port remote from the 
 place of the owner's residence ; the ship being at 
 the time in great distress while on her voyage to 
 England, and all correspondence between the differ- 
 ent ports of Spain bfeing exposed to almost certain 
 interruption. The law, he said, did not look to the 
 mere locality of the transaction, but to the extreme 
 difficulty of communicating with the owner. And 
 in a late case, Dr. Lttshtngton, the present distin- 
 guished judge of the High Court of Admiralty, 
 went so far as to observe, that in his apprehension, 
 the validity of bottomry bonds, does not depend 
 upon the mere locality of the residence of the owner, 
 but upon the absolute necessity of the case ; where 
 the master is in such a condition, that it is impossible 
 for him to meet the necessary disbursements, and he 
 has no means of procuring money but upon the 
 credit of the ship : and he accordingly upheld a 
 bond given in Portsmouth in England, by the 
 master of a ship, the owner of which resided in 
 Scotland(a). 
 
 The question was elaborately examined and dis- 
 cussed by Chief Justice Maeshall, in the case of 
 ^b1>u° may ^^ JRichmo'ndQ)) ; and he held, that admitting the 
 clte/?nL^ soundness of the English rule, which, however, is 
 
 state except , 0777 
 
 o^ertres* "^* ^"^ accordauce with the general maritime law of 
 Europe, still the several states of the Union ought, 
 
 (a) The Trident, 1 W. Robinson's R., 29. 
 (6) 1 Brockenborough's R., 396. 
 
BOTTOMRY AND RESPONDENTIA BONDS. 277 
 
 for this purpose, to be regarded as foreign with '^^^ ^^ 
 respect to each other. 
 
 Although in general a person to whom the ship is ^^fj;* °/ *" 
 
 consigned by the owner ought to make the necessary "ak^a'^bot. 
 
 • IT -,. ... T tomry bond. 
 
 advances, without demanding maritime interest, and 
 is not at liberty to act as agent of the owner, and 
 at the same time to take upon himself the character 
 and privilege of a stranger, yet Lord Stowell was 
 of opinion that cases might possibly arise in which 
 an angent could lawfully take the security of a 
 bottomry bond. " It can be no part of his duty to 
 advance money, without a fair expectation of being 
 reimbursed ; and if he finds it unsafe to extend the 
 credit of his employers beyond certain reasonable 
 limits, he may then surely be at liberty to hold hard, 
 and to say, ' I give up the character of agent,' and, 
 as any other merchant might, to lend his money on 
 bond to secure its payment, with maritime interest. 
 If, in such a case, he gives fair notice that he will 
 not make any further advances as agent, and affords 
 the master an opportunity to get the money else- 
 where, and the master is unable to do so, but is 
 obliged to come back to him for a supply, then he 
 is fairly at liberty, like any other merchant, to 
 advance the money on a security that is more satis- 
 factory to himself" His lordship added, moreover, 
 that he would not say that " the case might not go 
 further. If the agent had given credit for all the 
 disbursements of the ship, and found, contrary to his 
 expectations, that they amounted to more than he 
 calculated, and went beyond any advances which he 
 might reasonably be called upon to make on the 
 
278 ADMIRALTY JURISDICTION. 
 
 TOL^i. mere personal credit of his employers, and if there 
 was no time to look to other quarters for assistance, 
 he might possibly be justified in resorting to this 
 species of security, giving the earliest notice of the 
 necessity under which he acted. Under such circum- 
 stances he might not, perhaps, be out of the reach of 
 the protection which a bottomry bond would afford 
 him (a)." Such a power, however, it is obvious, is 
 peculiarly liable to perversion and abuse, and ought 
 to be regarded with distrust, and very cautiously 
 admitted(5). 
 tfae^i^io ^^ ^^ been held, also, that a bottomry loan, 
 SS?y * * otherwise unexceptionable, cannot be impeached on 
 the ground that it was made by a consignee of the 
 cargo ; and that it is not the less valid because there 
 was also a consignee of the ship at the same place, 
 if he refuses to make the required advances on the 
 credit of the ship-owner (c). But a bond executed 
 partlTwner. ^y ^^^ master to One part owner, for money advanced 
 by him for repairs, purporting to hypothecate the 
 share belonging to another part owner, has been 
 decided to be invalid (t^, 
 Sr^l""" When the validity of the bond is contested on 
 ?datiTe to the ground of necessitv, the burthen of proof, so far 
 as the fitness and propriety of the repairs or other 
 supplies are concerned, rests upon the lender(e) ; 
 
 (a) The Hero, 2 Dodson's R., 139, 144. 
 
 (6) Rucher v. Conyngham, 2 Peters's Adm. Dec, 295, 307. 
 
 (c) The Akxander, 1 Dodson's R., 278 ; The Nelson, 1 Haggard's 
 Adm. R., 169 ; The Rubicon, 3 Hagg. Adm. R., 9 ; The St. Catharine, 
 id., 250. 
 
 (d) The Randolph, Gilpin's R., 457. 
 
 (e) The Aurora, 1 Wheaton's R., 96 (3 Curtis's Decis. S. C, 477). 
 
 necessity 
 lies. 
 
BOTTOMRY AND RESPONDENTIA BONDS. 279 
 
 but when tMs necessity is once made out, if it is still ^°^^- ^• 
 objected that the master had other funds, or might 
 have obtained them by other less disadvantageous 
 means, the onus probandi lies on the owner (a). 
 
 But it is to be observed that, in deciding: upon the Due din- 
 
 ' o 1 gence on the 
 
 existence of the first branch of the twofold necessity fe?det and 
 
 on which the validity of the bond depends, the amnrmt 
 ^ A 7 necessity- 
 
 inquiry is not limited to the mere fact of actual «'^'='«'"- 
 
 necessity ; for while the court is bound to guard the 
 rights and interests of the owner, it is no less its 
 duty to protect those of the lender. If he shows, 
 therefore, that there was no want of reasonable dili- 
 gence on his part, for the purpose of ascertaining 
 whether the repairs and supplies were necessary or 
 not, and that so far as he was able, by due inquiry, 
 to ascertain the facts, there was an wppwrent necessity 
 for such repairs or supplies, the bond will be upheld, 
 even though, upon a more thorough investigation 
 of the facts at a subsequent period, it should be 
 doubtful whether the repairs or supplies were really 
 necessary(5). 
 
 It is necessary to the validity of a bottomry bond, The loan 
 
 i/ ■/ J 1 muat have 
 
 that the lender should have looked to it as his ^co^em^ 
 securitv for- advancing his money ; but it is not bottomry 
 
 J o J J security. 
 
 necessary that the money should have been advanced 
 
 (o) The Virgin, 8 Peters's K., 538 (11 Ourtis's Decis. S. C, 208) ; 
 Tke Fortitude, 3 Sumner's B., 228. 
 
 (6) The FoHitude, 3 Sumner's E.., 228; The Virgin, 8 Petersft R., 
 538 (11 Ourtis's Decis. S. C, 208). See, also, to precisely the same 
 eft'ect, the note, 3 Sumner, 228, of a case before the Judicial Committee 
 . of the Priyy Council in England, reported in the English Monthly 
 Magazine, February, 1839, and the recent cases of The Vibilia, 1 W. 
 Robinson's R., 1, and TTie Trident, id., 29. 
 
280 
 
 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 Talid if 
 made to re- 
 deem ship 
 from actaal 
 arrest. 
 
 Or to pay a 
 prior valid 
 bond. 
 
 Bond not 
 vitiated by 
 the accept- 
 ance of a 
 bill of ex- 
 cbange as 
 collateral 
 security. 
 
 at tlie time of the execution of the bond. If it was 
 advanced on the faith and understanding that bot- 
 tomry security was to be given, that is sufficient to 
 uphold the bond(ffi). But though a preexistent 
 debt cannot be directly converted into a bottomry 
 loan, yet if the ship is under actual arrest on account 
 of debts contracted for repairs or supplies, and the 
 master has no other means of obtaining her release, 
 this is a sufficient necessity to justify such a loan (5) ; 
 although a mere threat by the creditor to arrest the 
 ship would not be sufficient ; since it might be an 
 idle threat which he would never execute, and, until 
 executed, the peril would not act upon the ship(c). 
 A bottomry bond may also be lawfully given to pay 
 off a former one ; but in that case, the suqsequent 
 lenders are to be regarded virtually in the light of 
 assignees of the preceding bondholders, claiming 
 upon the same ground, and must therefore stand or 
 fall with the first hypothecation ((i). 
 
 It is not unusual for the master, at the time of 
 executing a bottomry bond, also to give to the 
 lender bills of exchange on the owner for the sum 
 borrowed ; a stipulation being inserted in the bond, 
 that if the bills are paid, the bond shall be void : 
 and this does not affect the validity of the bond, if, 
 in fact, the lender relied on it mainly for security. 
 
 (a) The Virgin, 8 Peters's R., 538 (11 Curtis's Decis. S. C, 208) ; 
 The Augusta, 1 Dodson's R., 283 ; The John and Alice, 1 Washington's 
 R., 293 ; La Ysabel, I Dodson's R., 273 ; The Hunter, Ware's R., 249 ; 
 The Hero, 2 Dodson, 139. 
 
 (6) The Aurora, I Wljeat. R., 96 (3 Curtis's Decis. S. C, 477). 
 
 (c) Ibid. (d) Ibid. 
 
BOTTOMRY AND RESPONDENTIA BONDS. 281 
 
 and would not have advanced his money without chap.s. 
 it{a). 
 
 The lender may lawfully insure the sum loaned <J,*™^* 
 
 • T*j_'j_ J J 1 * t ^ 'i ^ insurance on 
 
 m a distinct contract on his own account, but he the money 
 
 advanced. 
 
 has no right to have the sum paid for insurance 
 included in the bond. The master's power of 
 hypothecation is limited to advances necessary for 
 repairs and supplies, and maritime interest thereon 
 allowed as a compensation for maritime risk ; and 
 he has no authority to take off that risk by other 
 collateral engagements(5). 
 
 It has already been incidentally stated that the ownersnot 
 
 •z *f personally 
 
 maritime law of England does not enable the master, ™^' 
 by a bottomry bond, to bind the owner personally, 
 though it is otherwise by the maritime law of 
 other countries(c). In the case of TTie Tarta/r(d), 
 however. Lord Stowell said, " I apprehend that the 
 owners are always bound to a certain extent — to the 
 extent of their property in the ship." But this 
 remark was understood by the Supreme Court of ,^xcept to 
 
 •/ ^ the extent 
 
 the United States to refer to cases in which the pLd^ldf""* 
 subject of the hypothecation had been abstracted or ^^g^^jl'^^ 
 converted, and its proceeds appropriated by the 
 owner ; in which cases he would be held personally 
 responsible for its value, by a proceeding against 
 him, however, rather in the character of possessor 
 
 (a) The Zephyr, 3 Mason's R., 341 ; The Hunter, Ware's E,., 249 ; 
 The Jane, 1 Dodson's R., 461 ; The Augusta, 1 Dodson's R., 283 ; The 
 Tartar, 1 Haggard's Adm. R., 1 ; The Nelson, ib., 169, 179. 
 
 (6) The Boddington's, 2 Haggard's Adm. R., 422; The Rada- 
 manthe, 1 Dodson's R., 201. 
 
 (c) The Nelson, 1 Haggard's A(im. R., 169 ; 3 Kent's Comm., 355. 
 
 (d) 1 Haggard's Adm. R., 1, 13. 
 
 36 
 
282 ADMIEALTY JURISDICTION. 
 
 vOT^i. ili^nYi as o"wner(a). And in the same case it is 
 distinctly declared that, by the maritime law of this 
 country, as well as by that of England, the personal 
 liability of the owner extends no farther ; and even 
 though the terms of the bond should affect to bind 
 him personally, that part of the bond would be 
 inoperative. 
 Maritime With the exception of the definition of maritime 
 
 a^by tho loans, and the summary statement of certain general 
 principles pertaining to them, given at the com- 
 mencement of the chapter, what has thus far been 
 said upon the subject relates, as the reader will have 
 observed, to bottomry contracts entered into by the 
 master. But where the owner himself is the bor- 
 rower, as he may be, and sometimes is, the transaction 
 assumes, as will readily be seen, a more simple 
 character ; for the owner or part owner, to the extent 
 of his interest, may not only pledge his property by 
 a bottomry or respondentia contract, under the 
 circumstances which warrant the master in entering 
 into the like contract, but in any case, for the purpose 
 of raising money for the outfit, repair, or other 
 exigencies of his vessel, or for the purchase of a 
 cargo (5). "With respect to such contracts, therefore, 
 no question can arise as to the power of the borrower : 
 he acts, not as the m^ter must, if at all, in virtue of 
 an implied authority springing from necessity, but 
 in virtue of his title as proprietor of the subject 
 hypothecated, having dominion over it. 
 
 (a) The Virgin, 8 Peters's R., 538 (11 Curtis's Decis. S. C, 208). 
 ( 6 ) Abbot on Shipping, Boston ed. of 1846, 193 ; The Mary, 
 Paine's E., 671. 
 
BOTTOMKY AND RESPONDENTIA BONDS. 283 
 
 But the terms in whicli such contracts are spoken '^^^ ^■ 
 of by the elementary writers upon maritime law, panoses 
 seem to imply that in order to constitute a valid 
 maritime hypothecation even by the owner, in the 
 sense of the maritime law, and which may be enforced 
 by admiralty process, it is necessary that the money 
 should be lent for the purpose of being employed 
 in the business of maritime commerce. 
 
 It has already been remarked that these contracts 
 have their origin in the exigencies of early commerce, 
 and have been highly favored and vigorously upheld 
 to the present day as auxiliary to its successful prose" 
 cution. The lender is not subject to laws against 
 usury, and he is preferred to other creditors. There 
 seems to be a cogent propriety, therefore, in confining 
 these privileged contracts within the narrowest limits 
 compatible with their essential character, and in 
 restricting them to uses directly conducive, at least, 
 to the general interests of commerce, if not absolutely 
 indispensable to its prosperity. 
 
 But in the case of The Brig Draco(a)^ Mr. Justice [^^^^f' 
 SioEr took a different view of the subject. The ■'^*' 
 bond in that case, purporting to be a bottomry 
 bond, was given by the owner of the vessel in her ttoifby S*' 
 home port, and after she had sailed, for a loan at thoseeuritj 
 
 r J ' of monej 
 
 maritime interest, of $10,000, advanced, " not to ^7^6 
 
 r> • -\ T 1 • 1 pnrpofes of 
 
 fit out, or repair or supply the brig, or to purchase ^^^^f'P" 
 a cargo for her, or for any purpose connected with 
 the voyage, or navigation of the brig, but for the 
 general purposes of " the borrowers. The case was 
 
 (a) 2 Sumner's R., 157. 
 
284 ADMIRALTY JUKISDICTION. 
 
 TOL 1. ygjy g^ij argued, and it was strenuously insisted by 
 the counsel for the claimants, who were vendees 
 without notice, that the instrument in question was 
 not a bottomry bond in the sense of the maritime 
 law; but that the libellants were no other than 
 ordinary lenders of money, who had taken a mort- 
 gage of the vessel to secure their loan; and that 
 whether they had any lien as against the claimants, 
 must depend upon the principles governing mort- 
 gages, and not upon those relating to maritime 
 hypothecations. It was denied, therefore, that this 
 was a maritime contract; and as it is only of 
 such contracts that a court of admiralty can take 
 cognizance, it was insisted that the admiralty juris- 
 diction did not attach to the case before the court. 
 Mr. Justice Story admitted that the objection was 
 countenanced by "the language used in books of 
 authority ;" but he did not consider it certain that 
 " the authors had in view any such qualification " 
 as that which the counsel had labored to maintain : 
 and upon an elaborate review of the authorities, his 
 conclusion was that " there is not the slightest 
 ground to uphold the doctrine, that, in order to 
 constitute a bottomry bond, as such, in the sense of 
 the maritime law, it is necessary that the money 
 should be advanced for the necessities of the ship, 
 or for the cargo, or for the voyage." And he added, 
 " where it is given by the master, virtute offi,oii, it 
 must, in order to have validity, be for the ship's 
 necessities ; for the implied authority of the master 
 extends no farther. But where it is given by the 
 owner, as dominus riavis, he may employ the money 
 
BOTTOMRY AND RESPONDENTIA BONDS. 285 
 
 as Lie pleases. It is sufficient if tlie money be lent ^°££; ^• 
 on tlie bottom of the sMp, at the risk of the lender, 
 for the voyage. The true definition of a bottomry 
 bond, in the sense of the general maritime law, 
 and independent of the peculiar regulations of the 
 positive codes of different commercial nations, is, 
 that it is a contract for a loan of money on the 
 bottom of the ship, at an extraordinary interest, 
 upon maritime risks, to be borne by the lender for 
 the voyage, or for a definite period." He therefore 
 upheld the bond as a valid maritime hypothecation, 
 and maintained the admiralty jurisdiction over it. 
 
 So far as the question depended upon the cir- 
 cumstance that the money was borrowed by the 
 owner instead of the master, the decision is in 
 accordance with the later decisious even of the 
 English High Court of Admiralty((x), as well as 
 with those of our own courts ; and so far as the 
 objection was founded upon the fact that the 
 contract was made in the home port of the vessel, 
 there was enough in the antecedent decisions of the 
 Supreme Court of the United States to justify its 
 repudiation. 
 
 But the denial of any distinction between a 
 loan having no reference to maritime navigation or 
 commerce, and advances made for the repair or 
 outfit of the vessel, or the purchase of a cargo, 
 seems to have been questionable, on the ground 
 both of antecedent authority and of principle ; and 
 the decision is in direct conflict with what I infer 
 was conceded by the counsel, and with what was 
 
 (o) The Duke of Bedford, 2 Haggard s Adm. R., 294. 
 
286 ADMIEALTY JURISDICTION. 
 
 VOL 1. certainly assumed by the court as a 'settled and 
 unquestionable principle, in tbe case of The Duke of 
 Bedford just above cited. This case was decided a 
 few years prior to the case of TTie Draco / but the 
 report of it, though published in England, seems to 
 have been unknown to the counsel, as it probably 
 was to the court, in the case of The Draco. 
 
 In The Duke of Bedford, the bond was executed 
 in a foreign port, by the owner, who went out in 
 the vessel; and the question whether the owner 
 alone, the master being present, was competent to 
 hypothecate the vessel even for necessary supplies, 
 was treated as one still open to controversy, and, as 
 such, it was elaborately discussed by the court. 
 The authority of the owner was maintained ; but it 
 being further objected that a part of the money for 
 which the bond was given, was advanced to pay for 
 sea stores, and other articles which it was insisted 
 were not fit objects of bottomry, not being necessary 
 for the service of the ship ; " pour les d^pens de la 
 nef, s'il a besoin de vitualler" * * * "in caus4 
 necessitatis, pro servanda nave et bonis," according to 
 the general definition given of bottomry bonds by 
 writers on maritime law. Sir Christoehee RoBrNSOw 
 felt himself called upon to vindicate his decision 
 overruling the objection, by likening.the passengers 
 to whose subsistence the stores were to be appropri- 
 ated, to cargo, and the large payment made by them 
 of passage money, to freight : and with regard to 
 such parts of the supplies as might have been 
 " famished for daily consumption on land, and were 
 never mbjected to sea risk^'' he held them to be 
 
BOTTOMRY AND RESPONDENTIA BONDS. 287 
 
 distinguisliable from the other supplies, and not °°^' *■ 
 proper objects of a bottomry bond. 
 
 It is true that the admiralty jurisdiction of the 
 district courts is held to extend to all maritime 
 contracts ; while that of the English admiralty, in 
 matters of contract, was virtually limited to seamen's 
 wages and express hypothecations. It would have 
 been sufficient, therefore, if the bond in the case of 
 The Draco had been a maritime contract, although 
 it might not have been valid as a bottomry bond. 
 But if it was not a bottomry bond, it was clearly no 
 maritime contract at all, because it purported to be 
 nothing else ; and the decision is accordingly placed 
 upon no such ground. 
 
 It may not be easy to give a perfectly exact and 
 unexceptionable definition of maritime contracts, 
 in the sense requisite to bring them within the 
 American admiralty jurisdiction. But whatever 
 may be their distinctive character, it is obvious that 
 there can be no valid bottomry contract of which 
 this distinctive character does not form an element ; 
 because it is that which brings this species of contract 
 within the admiralty jurisdiction. 
 
 Mr. Justice Stoky, in his celebrated judgment in 
 the case of De Lovio v. Boit, has defined maritime 
 contracts to be those "which relate to the navigation, 
 business or commerce of the BQ&{a) ;" and I should 
 have supposed that this definition was intended to 
 refer to the objects to be accomplished by the 
 contract. From all that I have been able to learn 
 
 (a) 2 Gallison's R., 398, 475. 
 
288 ADMIRALTY JURISDICTION. 
 
 TOL^i. •Qpon the subject from other authorities, I should 
 have supposed, also, as was assumed in Tlie Duke of 
 Bedford^ that to constitute a bottomry or respon- 
 dentia contract, cognizable in the admiralty, it was 
 essential that the money lent should be advanced 
 for the repair or outfit of the vessel, or for the 
 purchase of the cargo, upon which it was lent, 
 and thus be subjected to maritime risk ; and my 
 conclusion would have been, that as the bond in 
 the case of Tlie Draco was devoid of both of 
 these constituent elements, it could not properly 
 be regarded as a bottomry bond. Largely as I 
 participate in the high respect universally entertained 
 for the judicial opinions of the learned, able and 
 eminently distinguished judge by whom the decision 
 in the case of Tlie Draco was pronounced, I cannot, 
 therefore, but entertain some doubt of its soundness. 
 It is true the same doctrine is substantially asserted 
 with respect to respondentia loans, in the opinion of 
 the Supreme Court delivered by Mr. Justice Stoey, 
 in the case of Oonrad v. Tke Atlantic Inswrance 
 Gompanyia) : but I cannot see that the case called 
 for its enunciation. In that case, the cargo had 
 been expressly assigned to the lender by a separate 
 instrument executed simultaneously with the bond. 
 It was not an admiralty suit, but an action of trespass 
 at common law, brought under a special agreement 
 between the Secretary of the Treasury in behalf of 
 the United States, and the plaintiflfe ; " in which the 
 sole question to be tried and decided," was to be, 
 
 (o) 1 Peters's R., 386, 436, 437 (7 Ourtis's Decis. S. C, 637). 
 
BOTTOMRY AND RESPONDENTIA BONDS. 289 
 
 " whether the United States, or the said Atlantic ohap^b. 
 Insurance Company, are entitled to said goods and 
 the proceeds thereof." Mr. Webster, one of the 
 plaintiff's counsel, apparently feeling the difficulty of 
 upholding the bond as a valid maritime hypotheca- 
 tion, insisted that it was wholly immaterial whether 
 it was a respondentia bond or not; because the 
 claims of the plaintiffs were secure by the common 
 law, in virtue of the assignment. Indeed, he expressly 
 admitted that the bond created no Men; but the 
 assignment, he contended, did more : it transferred 
 the right of property in the goods. It was upon 
 this ground that he relied ; and I cannot but think 
 it was the safer, if not indeed the only solid ground 
 for the ludgment of the court. In this case, as in Hypothe- 
 
 *' ° cation after 
 
 that of The JDraco^ the bond was executed after the f^^^^^ 
 vessel had sailed ; and it is true, also, that there is "°"'°'™''* • 
 respectable authority, though opposed to the high 
 authority of Emerigon, in support of the validity of 
 bonds so taken ; but it is only on the ground that 
 the money may be presumed to have been usefully 
 appropriated to things put at risk, or in paying 
 what was due on that accowit, -that their* advocates 
 have attempted their vindication (a). 
 
 It remains briefly to notice some additional prin- Lender not 
 
 '' _ responsible 
 
 ciples affecting maritime loans, whether negotiated cati?n''ot'the 
 by the master or by the owner. One of these Saned. 
 principles is, that the lender is not bound to see 
 to the due application of the money loaned. If, 
 therefore, the money was squandered, or applied to 
 
 (o) 3 Kent's Comm., 361. 
 
 37 
 
290 ADMIEALTY JURISDICTION. 
 
 TOL. 1. purposes for which loans of this description cannot 
 lawfully be made, the hypothecation will neverthe- 
 less remain valid, provided the lender has acted 
 throughout in good faith, and had reasonable grounds 
 for believing that the money was fairly borrowed (a). 
 oye^Xa '^^^ right to priority of payment secured to the 
 '^*°°" bottomry lender over other creditors, has already 
 
 been incidentally mentioned. His lien supersedes all 
 .other liens, except the lien of seamen for wages(h). 
 It is accordingly preferred to a prior mprtgage(c) ; 
 to the title of a vendee without notice((^ ; and is to 
 be satisfied before any prior insurance(e). And, 
 the ship-owner being personally liable for wages, if 
 the bottomry lender has been obliged to discharge 
 the seamen's lien on the vessel, he has a resulting 
 right over for reimbursement against the owner to 
 whom the ship has been delivered on stipulation or 
 ^riori^jost out of its proceeds(/). But the bond-holder is 
 bound to be vigilant in the enforcement of his high 
 privileges; for although statutes of limitation do 
 not extend to suits in the admiralty, the court ought 
 not, where the rights of third persons are concerned, 
 to lend its functions to enforce claims which have 
 been suffered to sleep for an unreasonable length of 
 
 (a) The Jane, 1 Dodson's K., 461 ; The Virgin, 8 Peters's B.,.538 
 (11 Curtis's Decis. S. C, 208). 
 
 (6) The Charles Carter, 4 Oranch's R., 328 (2 Curtis's Decis. S. 0., 
 125) ; The Hersey, 3 Haggard's Adm. R., 404, 407. 
 
 (c) The Duke of Bedford, 2 Haggard's Adm. R., 102; The Mary, 
 Paine's R., 671. 
 
 (d) The Draco, 2 Sumner's R., 157. 
 
 (e) 3 Kent's Comm., 358. 
 
 (/) The Virgin, ubi supra ; 1 Hagg. Adm. R., 62. 
 
BOTTOMRY AND EESPONDENTIA BONDS. 291 ' 
 
 time. " There is a principle of limitation in every chap. e. 
 system of jurisprudence, to be derived out of the 
 nature of things, which entitles' the court to avail 
 itself of the universal maxim, ' Vigilcmtibus, non 
 dormientiius^ subserviunt leges^ And in questions 
 of bottomry, more especially, the court is bound to 
 expect particular vigilance ; because, although bonds 
 of this kind are to be supported with a high hand, 
 when clear and simple, they are, in many respects, 
 things to be narrowly watched. Bottomry is a 
 transaction which affords great opportunities of col- 
 lusion ; and therefore, on the very account of the 
 importance given to these bonds, they are to be 
 pursued with very active diligence, in order that 
 the court may have the opportunity of considering 
 them in their recent origin, with a view to all 
 the circumstances on which their honest validity 
 depends((x)." In accordance with these just piin- 
 ciples, where the holder of a bottomry bond had 
 voluntarily deferred his claims until the vessel 
 had made several voyages, and had been taken 
 in execution by a common law judgment creditor, 
 the bottomry creditor was held to have lost his 
 priority(S). 
 
 With respect to this species of security, the ^^^'j'^Yhl 
 general legal maxim, j?r*t>?' in tempore potior vnjwre^ priority 
 is reversed ; the last bond in the order of time being 'o™"- 
 entitled to be first paid. This principle rests upon 
 the same ground of necessity as that which entitles 
 
 (o) Lord Stowell, in The 'Rebecca^ 5 Robinson's R., 94. 
 (6) Blaine, v. The Charles Carter, 4 Cranch's R., 328 (2 Curtis's 
 Decis. S. C, 128). 
 
292 ADMIRALTY JURISDICTION. • 
 
 TOT^i. ^jje bottomry lender to preference over ordinary 
 creditors ; since without the subsidiary aid of the 
 last bond, the property would be lost, both to the 
 owners and to the former bond-holders((^). And 
 this principle has been held to be applicable where 
 two bonds were executed at the same port, and only 
 five days intervened between the date of the former 
 and that of the latter(5). But in a case where three 
 several respondentia loans were made on the same 
 invitation, for the same repairs, and on the same 
 terms, by persons acting in concert, it was adjugded 
 that they were entitled to payment 'pro rata with- 
 out preference, although, from some unexplained 
 and apparently accidental cause, they bore different 
 dates(c). 
 The right to The riffht to exact maritime interest depends upon 
 
 maritime m- O X^ J^ 
 
 menceliTwi maritime risk ; and therefore if the proposed voyage 
 be abandoned before any such risk has been incurred, 
 the contract is turned into a simple and absolute 
 loan at ordinary legal interest(<;?). But the bond 
 attaches by the sailing of the vessel; and though 
 the voyage be broken up, whether by voluntary 
 abandonment or otherwise, the lender is entitled to 
 
 Bond be- his principal and maritime interest(e). It has been 
 
 comes due _, ^, 
 
 ?ngup''ome decided, also, that m such cases the bond becomes 
 laicT'the presently due, without regard to the time of pay- 
 
 (a) The Rhadamanthe, 1 Dodson's R., 201 ; The Eliza, 3 Haggard's 
 Adm. R., 87. 
 
 (6) The Betsey, 1 Dodson's R., 289. 
 
 (c) The Exeter, 1 Robinson's R., 173. 
 
 (d) 3 Kent's Oomm., 356. 
 
 (e) Id., 357; The Draco, 2 Sumner's R., 157, 193. 
 
BOTTOMRY AND EESPONDENTIA BONDS. 293 
 
 ment fixed by its tenns(<?) ; and the like consequence °°^- "• 
 has been held to follow, by analogy to the law of 
 insurance, from a transfer of the property(5). 
 
 A court of admiralty, within the sphere of its 
 jurisdiction, is bound to act upon the principles of 
 a court of equity, and to administer its remedies 
 aecordingly(c). It is restrained, moreover, by a 
 principle common to all courts, from lending its 
 aid to enforce contracts essentially vicious, or tainted 
 with fraud by extortion; and although bottomry 
 contracts have always been considered free from the 
 restraints imposed by laws against usury, and have 
 been held to depend chiefly on the agreement of the 
 parties, yet the court will reduce an extortions or premium 
 
 may be 
 
 exorbitant premium(c?). But this power ought to reduced. 
 be spariiigly and cautiously exercised. The money 
 is generally advanced for persons unknown, and 
 resident in a foreign country : it is advanced upon 
 an adventure which may totally fail of success, and 
 the money may be irrecoverably lost. The presump- 
 tion, therefore, is in favor of the original contract; and 
 the court should be inclined to take it as it stands, 
 and should not disturb it upon light ground(e). 
 
 As the risk is terminated, the maritime interest interest, 
 also ceases, upon the safe arrival of the ship ; but 
 the better opinion is that the lender is thenceforth 
 
 (a) The Draco, 2 Sumner's K., 157, 193. 
 (6) Id., 194. 
 
 (c) Franklinlnsurance Company y. Lord, 4 Mason's E., 248, 250. 
 
 (d) The Cognac, 2 Haggard's Adm., 377 ; The Packet, 3 Mason's R., 
 255; The Hunter, Ware's R., 249. 
 
 (e) The Zodiac, 1 Haggard's Adm. R., 320, 326. 
 
294 ADMIRALTY JURISDICTION. 
 
 voL^i. entitled to ordinary interest, not only on the 
 
 principal sum advanced, but upon the maritime 
 
 interest also, both being due, and forming one 
 
 aggregate deht(a). 
 
 d?flSlney, Whcrc there are several bonds, and one is secured 
 
 SlrahSed? on the ship and freight only, and one upon the ship, 
 
 freight and cargo, if the freight and the proceeds of 
 
 the ship are insufficient to answer the several bonds, 
 
 the court is bound to marshal the assets, and require 
 
 the deficiency to be made up out of the cargo(5). 
 
 Owner per- Although the right of the bottomry lender to 
 
 'oM^onoss repayment is made to depend upon the safety or 
 
 by fraud or ^ *' . . 
 
 miBoonduot. Jqss of the subjcct of the hypothecation, his engage- 
 ment to this effect is limited to what is denominated 
 maritime risk, or, as it is denominated by the conti- 
 nental writers, "fortuitous events;" and does not 
 extend, therefore, to losses occasioned by the default, 
 misconduct, or fraud of the borrower or his agents. 
 The lender is not to bear losses proceeding from 
 unjustifiable deviation, or from want of seaworthiness 
 of the ship, the inherent infirmity or unnecessary 
 transhipment of the cargo(c). 
 
 In such cases, the wrong-doer is personally liable ; 
 and in accordance with this principle, it is, by the 
 Eules of Practice in causes of admiralty and maritime 
 jurisdiction lately prescribed by the Supreme Court, 
 declared, that " in all suits in bottomry bonds, pro- 
 perly so called, the suit shall be m rem only against 
 the property hypothecated, or the proceeds of the 
 
 (a) TTie Packet, 3 Mason's R., 255. 
 
 (b) The Trident, 1 W. Robinson's R., 29, 35. 
 
 (c) 3 Kent's Comm., 360. 
 
BOTTOMRY AND EE8P0NDENTIA BONDS. 295 
 
 property in whosesoever hands the same may be ™^ ^ 
 found, unless the master has without authority given 
 the bottomry bond, or by his fraud or misconduct 
 has avoided the same, or has subtracted the property ; 
 or unless the owner has, by his own misconduct or 
 •wrong, lost or subtracted the property: in which 
 latter cases, the suit may be in personam, against the 
 wrongdoer." 
 
 It is only by the entire loss of the property 5'|S'\^'™''; 
 pledged, that the lender is subjected to the total "ffe^tseavei 
 loss of his money. His lien attaches to whatever is 
 saved in case of disaster, and to its proceeds ; sub- 
 ject, however, to the equitable claims of others for 
 an average contribution, in cases of jettison, ransom, 
 etc(«). 
 
 When money is borrowed at respondentia, upon 
 goods laden or to be laden on board a ship, and the 
 goods are lost, if it appear that they were of less 
 value than the sum advanced, the lender is entitled 
 to recover the difference in amount, with ordinary 
 interest, in a suit in personam against the borrower ; 
 but not the whole amount loaned, unless there is an 
 express stipulation in the bond to this particular 
 effect(J). 
 
 (a) 3 Kent's Commentaries, 360. 
 
 (6) Franklin Insurance Company v. Lord, 4 Mason's R., 248 ; 3 
 Kent's Comm., 357. 
 
296 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 lota, 
 
 CHAPTER VI. 
 
 Pilotage. 
 
 Who are pi- " The name of pilot, or steersman," says Lord Ten- 
 TEKDEN, "is applied either to a particular officer, 
 serving on board the ship during the course of the 
 voyage, and having charge of the helm and of 
 the ship's route; or to a person taken on board 
 at a particular place for the purpose of conducting 
 a ship through a river, road or channel, or from or 
 into port(a)." In England, and in this country, 
 there is no provision by law for the designation or 
 government of persons of the first description : but 
 the appointment, duties, responsibilities and privi- 
 leges of pilots of the second description are regulated, 
 in England, by ancient charters of incorporation, 
 empowering the corporators to enact by-laws ; and 
 in this country, by legislative acts. 
 
 The power conferred by the Constitution on Con- 
 gress to regulate commerce with foreign nations and 
 among the several states, comprises ample authority 
 to prescribe regulations on the subject of pilotage. 
 But laws for this purpose, having, when the Con- 
 stitution was framed, been already enacted by the 
 several maritime states of the Union, Congress 
 
 (a) Abbot on Shipping (Boston ed. of 1846), 265. 
 
PILOTAGE. , 297 
 
 deemed it inexpedient to exercise tliis power, except ^^^ ^■ 
 by the simple enactment, " That all pilots in the stS con- ^ 
 
 , cerning 
 
 bays, inlets, rivers, harbors and ports of the United ^dbyoon-*" 
 States, shall continue to be regulated in conformity ^"'"' 
 with the existing laws of the states respectively 
 wherein such pilots may be, or with such laws as 
 states may hereafter enact for the purpose, until 
 further legislative provision shall be made by Con- 
 gress(a)." This act remained unaltered until 1837, 
 when, for the purpose of guarding against a spirit 
 of monopoly which began to manifest itself, tend- 
 ing to diminish the enterprise, vigilance and fidelity 
 of pilots, it was enacted " That it shall and may be 
 lawful for the master or commander of any vessel 
 coming into or going out of any port situate upon 
 waters which are the boundary between two states, 
 to employ any pilot licensed or authorized by the 
 laws of either of the states bounded on said waters, 
 to pilot said vessel to and from said port ; any law, 
 usage or custom to the contrary notwithstanding(J)." 
 
 These two statutes, with the exception of an act 
 exempting pilots from militia service(c), are the 
 only laws touching the subject of pilotage, which 
 have hitherto been passed by the national Legislature. 
 
 The legislation upon the subject in the State of 
 New- York, commencing in 1784, and terminating 
 in the act of April 12, 1837, by which all former 
 acts inconsistent with it were repealed, has been 
 
 (a) Act of August 7, 1789, ch. 9, § 4; 1 Stat, at Large, 53. 
 (6) Act of March 2, 1837, ch. 22; 5 Stat, at Large, 271. 
 (c) Act of May 8, 1792, oh. 33, § 2; 1 Stat, at Large, 271. 
 
 38 
 
298 ADMIRALTY JURISDICTION. 
 
 TOL^i. elaborate and minute. It is restricted, however, to 
 vessels to and from the port of New- York, by way 
 of Sandy Hook. 
 uonaiity'of Thc constitutionallty of that provision of the act 
 im" of 1789, which adopts prospectively the laws of the 
 several states which might be thereafter enacted, 
 has been doubted, on the ground that it was an 
 unauthorized delegation of legislative power. This 
 objection was insisted on at bar in the case of 
 Hobart v. Drogan{a) ; but the court being of opinion 
 that the case before them was one of salvage and 
 not of pilotage, it was on that account unnecessary 
 to decide the question, and its decision was expressly 
 waived. 
 
 It has been supposed also, inasmuch as Congress 
 has not, by independent legislation, established a 
 system of pilotage, and expressly given the district 
 courts jurisdiction of cases arising under it, that the 
 cognizance of cases of pilotage belongs exclusively 
 pilotage'' 'to the state courts(^). But the admiralty and 
 oo^Kabie Ya2A\kva& jurisdiction of the courts of the United 
 States over suits for pilotage on the high seas, and 
 on waters navigable from the sea, as far as the tide 
 ebbs and. flows, has been expressly asserted by the 
 Supreme Court, as it had long before been asserted 
 and exercised in the District and Circuit Courts of 
 the United States for the District of Massachusetts (c). 
 "The jurisdiction of the District Courts of the 
 United States," say the Supreme Court, " in cases 
 
 (a) 10 Peters's R., 108 (12 Curtis's Decis. S. 0., 34). 
 (6) See 3 Kent's Comm., 3d ed., 176. 
 (c) The Ann, 1 Mason's R., 508. 
 
 district 
 courts. 
 
PILOTAGE. 299 
 
 of admiralty and maritime jurisdiction,* is not ousted "^"il" "" 
 by the adoption of tlie state laws by the act of 
 Congress. The only effect is to leave the jurisdiction 
 concurrent in the state courts; and, if the party 
 should sue in the admiralty, to limit his recovery to 
 the same precise sum, to which he would be entitled 
 under the state laws, adopted by Congress, if he 
 should sue in the state courts. The service is 
 strictly maritime, and falls within the principles 
 already established by this court in the case of Tlie 
 ITwmas Jefferson^ 10 Wheaton's K., 428, and 
 Peyroux v. Howard^ *? Pet. R., 324(a)." 
 
 The existence of this jurisdiction, both in rem 
 and in personam, is moreover expressly recognized 
 and virtually declared,' in the Rules of Practice in 
 cases of admiralty and maritime jurisdiction, lately 
 promulgated by the Supreme Court, by which it is 
 ordained that "In suits for pilotage, the libellants 
 may proceed against the ship and master, or against 
 the ship, or against the owner alone, or the master 
 alone, m persona/m(b). 
 
 Indeed, the jurisdiction of the English High Court 
 of Admiralty over suits of this description has never 
 been questioned, and has been repeatedly exer- 
 cised (c) ; and the mere fact that Congress, instead 
 of legislating in detail upon the subject, has thought 
 proper to adopt the pilotage regulations prescribed 
 
 (a) Hobart T. Drogan, 10 Peters's R., 108 (12 Curtis's Decis. S. 
 C, 34). 
 
 (b) See Appendix, Rule xiv. 
 
 (c) The Nelson, 6 Robinson's R., 227; The Benjamin Franklin, id., 
 350 ; The Bee, 3 Dodson's R., 498 ; The Ann, ubi supra. 
 
300 ADMIRALTY JURISDICTION. 
 
 VOL 1. })j t]ie several states, does not appear to furnish any- 
 valid ground for the denial of this jurisdiction to 
 the American courts of admiralty. 
 Eato of com- When the fees for the pilotage service are fixed by 
 
 pensation. 
 
 the state laws, these laws, as we have seen^ are alone 
 to be looked to for the measure of compensation. In 
 cases to which the state regulations do not extend, 
 as, for example, the piloting of a vessel through the 
 East river into New -York, unless there was an 
 express contract or established custom, the qitantum 
 meruit will govern. 
 
 There are but few reported decisions in the 
 admiralty which properly belong to the subject of 
 this chapter((rf). 
 To make In a case in the Circuit Court of the United States 
 
 pilotage a 
 
 l'h™,The"'^ for the District of Massachusetts(5), the vessel had 
 
 lien on the 
 ship, the 
 
 must^bo ^^^ sailed from Cork with a large number of passengers 
 ™her%lraon ostenslbly dcstiucd for Quebec ; but on approaching 
 
 acting as the . ..-.-,, 
 
 rrat''ot the ^"® American coast, the passengers insisted on being 
 °'"'"" carried to New -York or Philadelphia, alleging that 
 they had contracted with the charterer to be landed 
 at one of those ports. The master refusing to 
 comply with their request, they rose upon him, 
 drove him with, threats and violence to the cabin, 
 and having compelled the mate to take an oath that 
 he would carry the vessel into one of the above 
 
 (a) For the decisions defining the rights of pilots to claim as salvors, 
 see the chapter on Salvage. For a collection of the cases arising in the 
 state courts, under the state pilot laws, see Abbot on Shipping, Boston 
 edition of 1846, p. 2C6, note. For a full digest of the state laws on 
 this subject, see Mr. Blunt's valuable work, entitled " The Shipmaster's 
 Assistant and Commercial Digest." 
 
 (6) The Ann, 1 Mason's E., 508. 
 
PILOTAGE. 301 
 
 mentioned ports or into Boston, put Mm in com- ^^^- ^■ 
 mand. One of tlie crew of a fishing vessel was 
 afterwards engaged to pilot the schooner into 
 Boston; and having performed this service, he 
 instituted a suit in the admiralty against the 
 schooner to recover compensation. His demand 
 was resisted on the ground that he came on board 
 the vessel at the request of the mate and passengers, 
 who, it was insisted, had no authority to bind her, 
 and that he must therefore look to them for remu- 
 neration : and so the court decided. 
 
 No suit can be maintained for piloting a foreign ^°j^°™-^ 
 vessel into an enemy's port, it being a service forpSng 
 performed m aidme: the commerce and importation Tessei mto 
 
 Jr o -T an enemy^B 
 
 of the enemy(a). p°''- 
 
 Where a ship is detained with a pilot on board 
 at an intermediate place of quarantine, he is not l^ days. 
 entitled to charge as Zay days, the day on which 
 the vessel enters and leaves the place of quaran- 
 tine (^). 
 
 (a) The Benjamin Franklin, 6 Robinson's R., 350. 
 (6) The Bee, 1 Dodson's R., 408. This case, however, seems to 
 hare depended on the construction of the act of 52 George iii. 
 
302 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 ralty lien. 
 
 CHAPTER VIT. 
 
 Wharfage. 
 
 Wharfage, like pilotage, is, in this country, the 
 subject of local regulations, and by these the rates 
 of compensation to the wharfinger are prescribed. 
 
 It has been held in the courts of the United 
 Sanalmi- States, that in addition to the personal claim which 
 the wharfinger has upon the master and owner of a 
 ship for wharfage, he has also a lien on the ship 
 which may be enforced by admiralty process vn 
 rem. In a case decided by Judge Peters, he states 
 it to have been his practice to allow wharfage out 
 of proceeds, "as the wharfinger might detain the 
 ship untU payment(a) ;" and his example, in this 
 respect, was followed in the same court by the late 
 Judge IIoPKiNSOw(J). 
 
 This jurisdiction was maintained, in an early 
 case(c), by Mr. Justice Stoey, who held it to be 
 " fully supported in principle by the doctrines, as 
 well of the common law, as of the civil law, and by 
 the analogous cases of materials furnished and repairs 
 
 (o) Gardiner v. The Ship New Jersey, 1 Peters's Adm. Decisions, 
 223, 228. 
 (6) Johnson v. I%e Schooner M'Donough, Gilpin's R., 101. 
 (c) Ex parte Lewis, ^c, 2 Gallison's R., 483. 
 
WHARFAGE. 303 
 
 made upon the ship." "If it has been due," he chart. 
 added, " for a former voyage, or the wharfinger had 
 parted with his possession, the case would have been 
 entirely altered." 
 
 The existence of this lien has also been asserted 
 by the learned judge of the District of Maine («). 
 
 Mr. Justice Stoet also held, in the case above ^iJaXge? 
 cited, that the lien for wharfage or dockage was a ueS"^'''^* 
 privileged lien, having a priority over the bottomry 
 interest. In that case, the ship Jerusalem had ^eu?n"i8 
 been libelled on a bottomry bond, while lying at Tne^prcB^ 
 the petitioners' wharf, and had been sold by an ='"'''=^'='- 
 interlocutory order of the court. The petitioners 
 subsequently intervened, claiming payment, out of 
 the proceeds of the sale, of the dockage of the ship. 
 It appeared, however, that there had been a personal 
 contract between the wharfingers and the ship-owner, 
 for the payment of a specific rate of dockage, and an 
 order drawn on the ship's agents for the payment 
 thereof quarterly. The case presented the question, 
 therefore, whether the petitioners had not parted 
 with their lien ; and upon this question the learned 
 judge expressed himself as follows : " It did not 
 strike me, that upon principle, such a contract could 
 amount to a waiver of the lien ; because it was in 
 effect only ascertaining the rate of dockage, instead 
 of leaving it in uncertainty, and upon the footing of 
 a quantum ineruit^ or the usual rate of dockage. 
 But there is a series of authorities directly in point, 
 which decide, that 'where the parties enter into a 
 
 {a) The PUhe, "Ware's R., 354. 
 
304 ADMIRALTY JURISDICTION. 
 
 voL^i. personal contract for a specific sum, it is a discharge 
 of the implied lien resulting by operation of law ; 
 and I cannot find that these authorities have ever 
 been doubted or denied. I am free to confess, that 
 I am better satisfied with authorities, when I can 
 perceive the reason of them ; but sitting in a court 
 of admiralty, and "fexercising an equitable relief 
 against highly meritorious parties, I should not 
 choose collateraUy to overrule such explicit decisions. 
 I must therefore dismiss the present petition ; reserv- 
 ing, however, the right to reconsider these doctrines, 
 when they shall come directly in judgment upon an 
 original libel in reTnT 
 Lien not If a vcssel is secretly or wrongfully removed from 
 
 lost by the JO./ 
 
 thrvSei"^ a wharf, and afterwards, without fraud or force, 
 wh"fff brought back, the lien of the wharfinger is revived. 
 
 brought ° ' ■ . ° . 
 
 Thus, where a vessel which had befen levied on by 
 the marshal at the suit of the United States, but not 
 by him retained in actual possession, was removed 
 from the wharf without the knowledge of the wharf- 
 inger, and subsequently returned to the same wharf, 
 the wharfinger was held to be entitled to the payment 
 of the previous wharfage, out of the proceeds of the 
 subsequent sale under the execution(a). 
 Awharfln- Wheu a vessel is under arrest on admiralty 
 
 ger cannot i i /^ c» t . t 
 
 vlsse" when P^'ocess, the wharfiuger cannot enforce his lien by a 
 dy'of the"'"' detention of the vessel, but must apply to the court 
 for its allowance (5). 
 
 toewhartn- "^^^ remark of Mr. Justice Stoet in Mo parte 
 Lewis^ that if the wharfage had been claimed " for a 
 
 (o) Johnson v. The Schooner M'Donough, Gilpin's R., 101. 
 (6) The Phebe, Ware's R., 354. 
 
 back with- 
 out fraud or 
 force. 
 
 ger'9 lien. 
 
WHARFAGE. 305 
 
 former voyage, or the wliarfinger . had parted with °°^- ^■ 
 his possession, the case would have been entirely 
 altered ;" and the importance attached by Judge 
 HoPKiNsoN to the fact and attendant circumstances 
 of the departure and return of the vessel, in the case 
 of The M'-DonongJi, seem to infer an impression 
 entertained by both these judges, that the lien was 
 to be regarded rather as a common law lien depend- 
 ing on possession, than as an admiralty lien conferred 
 by the maritime law, and existing independently of 
 possession ; and yet, as we have seen, Mr. Justice 
 Stoet, in maintaining its existence, relied on its 
 supposed analogy to the lien of material-men, which, 
 in this country, is held to be given by the general 
 maritime law, and may be enforced without regard 
 to possession. 
 
 39 
 
306 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 CHAPTER VIII. 
 
 Agreements of Consoetship. 
 Nature of The frequent occurrence of shipwrecks and other 
 
 the contract ■*■ ^ ^ 
 
 ofMnsort- uiarine disasters on the coast of Florida and the 
 small islands adjacent, has led to the regular 
 employment of vessels, commanded and manned by 
 bold, enterprising and hardy seamen, stimulated by 
 the love of gain, and not insensible, it may be hoped, 
 to the claims of humanity, for the purpose of ren- 
 dering assistance to vessels in distress, and rescuing 
 life and property from the perils of the sea. These 
 vessels are called wrechers. The claims of their 
 owners, masters and crews, for services rendered, are 
 adjudicated iii suits for salvage, in the District Court 
 of the United States for the Southern District of 
 Florida, sitting in admiralty. 
 
 It is not unusual for the owners of vessels employed 
 in this business, with a view to prevent mischievous 
 competitions and collisions in the performance of 
 salvage services, to enter into stipulations with each 
 other, that the vessels owned by them respectively 
 shall act as consorts with each other in these 
 services, and share mutually with each other in the 
 moneys awarded as salvage, whether earned by one 
 vessel or by both. 
 
AGREEMENTS OF CONSORTSHIP. 307 
 
 The case of Andrews v. Wall and Greiger(a), ^^^ ^■ 
 had its origin iu a compact of this description. The 
 vessels concerned were the Globe and the George 
 Washington. For assistance rendered by the Globe 
 to the ship Mississippi and cargo, the sum of $5522.49 
 was decreed as salvage by the Superior Court of 
 the /Southern District of Florida. Andrews, the 
 appellant, was part owner of the Globe ; and "Wall 
 and Greiger, the appellees, were part owners of the 
 George Washington. 
 
 Wall and Greiger filed a petition in the court by 
 which the salvage had been awarded, representing 
 that they and J. A. Thouron were the owners of the 
 George Washington; that she had, for some time 
 past, been consorted with the Globe in the business 
 of wrecking, and was so at the time of the salvage 
 services rendered to the Mississippi, for which the 
 sum above mentioned had been awarded as salvage : 
 wherefore, they prayed that the portion thereof to 
 which, by the terms of the alleged agreement of 
 consortship, they were entitled, should be directed 
 to be paid to them. 
 
 The answer of Andrews admitted that, previous 
 to the salvage service in question, an agreement was 
 entered into between him, being then master of the 
 
 Globe, and Russel, master of the George 
 
 Washington, by which they were to divide their 
 earnings between themselves, their crews and owners, 
 in a certain proportion which the respondent speci- 
 fied : but he alleged that the contract was made for 
 
 (a) 3 Howard's R., 568 (15 Curtis's Decis. S. C, 555). 
 
308 ADMIRALTY JUEISDICTION. 
 
 TOL^i aji indefinite period ; that it was, however, considered 
 to be operative only so long as he and Russel should 
 continue on board their respective vessels ; and 
 when the service was rendered, Thomas Green, who 
 had before been mate of the Griobe, was master. 
 On this ground, the respondent insisted that the. 
 petitioners were not entitled to share in the salvage. 
 
 There was no evidence in support of the allegation 
 in the answer, that the agreement was to cease on 
 the change of masters ; and the court made an order, 
 directing the payment of $2455.64 to the petitioners. 
 
 From this order or decree, the respondent 
 appealed to the Court of Appeals of Florida, where 
 the decree was affirmed ; and he thereupon appealed 
 to the Supreme Court of the United States. 
 
 On the argument, it was objected: 
 
 1. That the record shows no subsisting contract 
 of consortship. 
 
 2. That a court of admiralty has no jurisdiction 
 of the case. 
 
 NotdiB- Touching: the first obiection, the court was of 
 
 solved by ° . 
 
 mS "' opinion, that the original agreement, although made 
 by the masters of the vessels, was to be deemed to 
 have been made on behalf of the owners and crews, 
 and to be obligatory on both sides until formally 
 dissolved by the owners. The mere change of 
 masters would not dissolve it, since in its nature it 
 was not a contract for the personal benefit of them- 
 selves, or for any peculiar personal services. It fell 
 precisely within the same rule as to its obligatory 
 force, as the contract of the master of a ship for 
 seamen's wages, or for a charter-party for the voyage, 
 
AGREEMENTS OF GONSORTSHIP. 309 
 
 ■whicli, within the scope of the master's authority, ^^^ ^• 
 binds the owner, and is not dissolved by the death 
 or removal of the master. Besides, the agreement 
 or stipulation for consortship, being for an indefinite 
 period, could be broken np or dissolved only upon 
 due notice to the adverse party; and the mere 
 removal of the master of one of the vessels, by the 
 owner thereof, for his own benefit or at his own 
 option, could in no manner operate, without such 
 notice, to the injury of the other. 
 
 Upon the question of jurisdiction, Mr. Justice 
 Stoet, in delivering the unanimous opinion of the 
 court, observed: 
 
 " The material and important question, therefore, S'fJlfadmi- 
 is, whether the agreement or stipulation of consort- '*"''■ 
 ship is a contract capable of being. enforced in the 
 admiralty against property or proceeds in custody 
 of the court. We are of opinion that it is a case 
 within the jurisdiction of the court. It is a mari- 
 time contract for services to be rendered on the sea, 
 and an apportionment of the salvage earned therein. 
 Over maritime contracts the admiralty possesses a 
 clear and established jurisdiction, capable of being 
 enforced m personam as well as in rem i as is 
 familiarly seen in cases of mariners' wages, bottomry 
 bonds, pilotage services, supplies by material-men 
 to foreign ships, and other cases of a kindred nature, 
 which it is not necessary here to enumerate. The 
 case ol Rcmisay v. Allegre, 12 Wheat., 611, contains 
 no doctrine, sanctioned by the court, to the con- 
 trary. It is within my personal knowledge, having 
 been present at the decision thereof, that all the 
 
310 ADMIRALTY JURISDICTION. 
 
 TOL^i. judges of the court, except one, concurred in the 
 opinion that the case was one of a maritime nature, 
 within the jurisdiction of the admiralty ; but that 
 the claim was extinguished by a promissory note 
 having been given for the amount, which note was 
 stm outstanding and unsurrendered. It became, 
 therefore, unnecessary to decide the other point. 
 
 The general doctrine had been previously asserted 
 in the case of The General Smith, 4 Wheat., 438 ; 
 and it was subsequently fully recognized and acted 
 upon by this court, in P&yrovm v. Howard, 7 Peters, 
 324. 
 
 Both objections were therefore overruled, and 
 the judgment of the Florida courts affirmed. 
 
 This is believed to be the only reported case 
 relating to consortship; and its importance and 
 interest, enhanced by the novelty of the subject, 
 seemed to demand something more than a mere 
 abstract of the points decided. 
 
SURVEY AND SALE OF SHIPS. 311 
 
 CHAP. 9. 
 
 CHAPTER IX. 
 
 Survey and Sale of Damaged Ships. 
 
 By the laws of most maritime nations, tlie master is ^^ p'Swe" 
 
 power 
 to sell his 
 
 authorized, in case of urgent necessity, to sell his shipinoLe 
 
 1 • mi • 1 • • "^ necessity, 
 
 snip. This doctrine is now firmly established in this 
 country, and, at length, after much doubt and pro- 
 tracted discussion, in England also. The principle 
 is, that the master will be justified in the exercise of 
 this authority, when he finds his ship in such a con- 
 dition, from any cause or combination of causes, as 
 from recent damage, imperfect construction, bad 
 material, old age and decay, that she cannot safely 
 proceed on her voyage without repairs, which he 
 has not the means of obtaining, or only at a cost 
 exceeding the amount which, looking at her probable 
 value after their completion, a prudent and discreet 
 owner would think it right to incur(a). 
 
 (a) Abbot on Shipping (Boston ed. of 1846), 9-21; The Sarah 
 Ann, 13 Peters's R., 387 (13 Ourtis's Decis. S. C, 215) ; The Petapsco 
 Insurance Comyany v. Southgate, 5 Peters's R., 604 (9 Ourtis's 
 Decis. S. C, 490) ; The Triton, 5 Mason's R., 465 ; Sarah Ann, 2 
 Sumner's R., 206 ; Robinson v. The Commonwealth Insurance Cotw- 
 pany, 3 Sumner's R., 220 ; 3 Kent's Oomm., 3d ed., 132 ; Johnson v. 
 Shippen, 2 Lord Raymond, 982, 984 ; Reid y. Darby, 10 East., 143 ; 
 Hayward v. Moulton, 5 Esp. N. P. C, 65 ; I^e Fanny and Elmira, 
 Edwards's R., 118; Macbumy. Leckie, 1 Bingham, 343; Soatnes\. 
 Sugrue, 4 Oar. & P., 282 ; Gardiner y. Salvador, 1 M. & R., 116 ; Reid 
 V. Bonham, 3 Broad. & Bing., 147 ; Robertson v. Clarke, 1 Bing., 445 ; 
 
312 ADMIRALTY JURISDICTION. 
 
 TOL^i. But the master is bound, before resorting to this 
 power, seriously and deliberately to try every other 
 expedient. It is a trust of great delicacy and high 
 responsibility, and, on account of its liability to 
 abuse, and with a view to the protection of all 
 parties concerned, it .is usually exercised in some 
 countries, under the superintendence and sanction of 
 some court or judge having jurisdiction of maritime 
 previoua affairs ; and a previous sentence of condemnation 
 tenoeofS- aud Sale of the ship as unfit for service, is obtained 
 
 demnation -'■ 
 
 some'^coun" by the master. In France such condemnation is 
 required, and is deemed sufficient to protect the title 
 of a iona fide purchaser, even when obtained by the 
 fraud of the master; the owners being left to seek 
 their remedy against him. No such jurisdiction is, 
 however, recognized by the common law courts of 
 
 Taiidity of England ; and condemnations thus made abroad, on 
 
 proceedings ,. . 
 
 for tua pur- the voluutary application ot the master, are not 
 
 pose denied J x: 5: i 
 
 lish^coi^fa admitted to have any binding force in any subsequent 
 
 law courts. 
 
 Royal Exchange Assurance Company v. Idle, 3 Broad. & Bing., 151, 
 S. 0., 8 Taunt., 755. 
 
 In the case of Scull v. Biddle (2 Wash. C. C. R., 150), Mr. Justice 
 Washington held the power of the master to sell his ship, to be 
 limited to cases of necessity occurring in a foreign country. In the 
 case of The Sarah Ann, above cited, Mr. Justice Stort expressed his 
 dissent from this doctrine ; holding that " if such an urgent necessity 
 does exist, as renders every delay highly perilous, or ruinous to the 
 interests of all concerned, the duty of the master is the same, whether 
 the vessel be stranded on the home shore, or on a foreign shore ; whether 
 the owner's residence be near, or be at a distance." On appeal, the 
 opinion of Mr. Justice Story on this point was expressly affirmed by 
 the Supreme Court. It was decided, also, that the power of the master 
 to sell the hull of his stranded vessel extends likewise to her rigging and 
 sails stripped from her, after unsuccessful efforts to get her afloat. The 
 Sarah Ann, 13 Peters, 387. 
 
SURVEY AND SALE OF SHIPS. 313 
 
 litigation respecting the facts upon whicli they pro- chap. 9. 
 fes3 to be founded(a). This practice, notwithstand- 
 ing, has for a long period prevailed even in the 
 British "West India islands ; and Lord Stowell, in 
 the case of The Fanny and ElmiraQ))^ speaks of it 
 thus : " There is a very convenient practice, which 
 obtains in the vice-admiralty in the West Indies, 
 where, the fact of distress being proved, the trans- 
 action is not left to the master, but a sale is ordered 
 under the superintendence of the court itself The 
 legal validity of such transfers has, however, been 
 contested in the courts of this country, and they 
 were not held to be good ; though the learned lord 
 who presided in the court where the decision took 
 place, might perhaps incline to consider it a defect 
 in the law of this country, that a practice so con- 
 ducive to the public utility could not legally be 
 maintained." 
 
 In a subsequent case(c), a cause of possession in 
 which he refused to restore to the original owner a 
 ship, which, after ineffectual attempts to obtain 
 money for the necessary repairs, was sold by the 
 master under the order of the vice-admiralty court 
 of the Mauritius, Lord Stowell observed : " What 
 then is the captain to do ? Common sense, as well as 
 the law, points out that he should in the first place 
 apply to the agent of the owner, which it appears 
 that he did. If the agent cannot or will not assist, 
 
 (a) Abbot on Shipping, Boston edition of 1846, p. 23 ; Hayward v. 
 Moulton, 5 Espinasse's N. P. C, 65. 
 (6) Edwards's R., 118. 
 (c) The Warrior, 2 Dodson's R., 288, 294. 
 
 40 
 
Stobt. 
 
 314 ADMIRALTY JURISDICTION. 
 
 TOT^i. and if himself and Ms owner are without any other 
 friends who are ready to come forward and furnish 
 him with the necessary supplies, what can he do 
 better than to make application to the court of 
 admiralty ? In some parts of the world the authority 
 of such courts is deemed conclusive, though it 
 certainly has been otherwise held by courts which 
 possess the controlling power within the British 
 territories. But the want of such jurisdiction I 
 have heard greatly regretted by some of the eminent 
 pereons who now preside in these courts." 
 Power of the "With rcspcct to the authority of the American 
 
 American „■,•-, • .I'-'Ti- 
 
 miJau°^M-" courts of admiralty to exercise this jurisdiction, we 
 Mr!^jJ{roe have already seen in the first chapter of this work, 
 that Mr. Justice Story, in his Commentaries on the 
 Constitution, has not hesited to include " surveys of 
 vessels damaged by the perils of the seas," within 
 his cautious enumeration of the subjects of the 
 admiralty jurisdiction of the courts of the United 
 States ; referring to the case of Jcmney v. The Co- 
 himhicm Insurcmoe Compawy (10 "Wheat. E., 412, 
 415, 418), as an authority for so doing. That was 
 an action at common law upon a policy of insurance 
 containing a clause declaring that if the vessel, 
 " after a regular survey, should be condemned for 
 being unsound or rotten, the insurers shall not be 
 bound to pay the sum hereby insured, nor any part 
 thereof." The vessel having sustained injuries in 
 her voyage from Alexandria to New Orleans, the 
 master called a survey upon her state and condition, 
 on his arrival at that port, under the laws of the 
 State of Louisiana, by the master and wardens of 
 
SUKVEY AND SALE OF SHIPS. 315 
 
 the port, by whom she was condemned as unworthy ^°i£: '• 
 of repairs, and ordered to be sold by auction. 
 
 The court entertained no doubt of the regularity 
 of the survey, as within the exception of the policy ; 
 but inasmuch as the state law did not expressly 
 confer the power upon the port-wardens to "con- 
 demn " vessels so circumstanced, it became a question 
 whether the casus foederis had, in this particular^ 
 been made out. Mr. Justice Johnson, in delivering 
 the judgment of the court, observed that it appeared 
 to be exercised in Louisiana as an incident to the 
 surveying power ; that in other parts of the world, 
 it was very generally exercised as an incident to the 
 admiralty power; but that under our system, the 
 admiralty jurisdiction could only be exercised under 
 the laws of the United States. The court, however, 
 disclaimed any intention "to intimate that the 
 power is one which cannot be exercised under 
 municipal regulations. On the contrary," it was 
 added, "there are many reasons for maintaining 
 that it may be so exercised untU Congress may 
 think proper to establish, some general rule upon 
 the subject, either as appertaining to commerce, or 
 within the admiralty jurisdiction." This case was 
 decided in 1825. 
 
 In the case of The Tilton{a), decided in 1830, Mr, 
 Justice Story, speaking of the doctrine of the 
 English common law courts, as to the want of this 
 jurisdiction in admiralty courts, took occasion point- 
 edly to declare his dissent from that doctrine. " I 
 
 (a) 5 Mason's R., 465, 474. 
 
316 ADMIEALTY JURISDICTION. 
 
 VOL 1. agree," he adds, " that in such a case the decree of 
 sale is not conclusive upon the owner, or upob third 
 persons ; because it is made upon the application of 
 the master, not in an adverse proceeding. But I 
 cannot but consider it as strictly within the admiralty 
 j urisdiction. It is prima facie evidence of a rightful 
 exercise of authority* but no more. The proceeding 
 being ex parte, cannot be deemed conclusive in favor 
 of the party promoting it. Upon a question of this 
 sort, I should incline to follow other authorities, and 
 to repose with more confidence upon those who are 
 accustomed to administer the maritime law in admi- 
 ralty courts. It does not appear to me that Lord 
 Stowell, with all his habitual caution in entertain- 
 ing jurisdiction, has considered such a sale an absolute 
 excess of judicial authority. Looking to the lan- 
 guage used by him in the cases of TJie Fa/nny and 
 Elmira (Edw. R., IIT), and TTie Warrior (2 Dods. 
 R., 288, 293, 295), I should draw the conclusion, 
 that but for the controlling authority of the courts, 
 which he was bound to obey, he would have affirmed 
 the jurisdiction. The doctrine of the Supreme 
 Court of the United States, as I gather it from the 
 case of Janney v. Ths Gohimhian Insurance Comr 
 pany (10 Wheat. K, 411, 418), is, that this is 
 properly a part of the admiralty jurisdiction." 
 
 The mode of instituting and conducting the 
 
 proceeding in question in the admiralty, is as 
 
 follows : 
 
 Me™iig?or "^^^ master prefers his petition to the court, 
 
 •'wp»?^ ° setting forth the facts and circumstances of the 
 
 case, and praying that a warrant may issue for the 
 
SURVEY AND SALE OF SHIPS. 317 
 
 survey and examination of the ship, by persons duly ohap.9. 
 competent in that behalf, who are to report as to 
 the true state and condition of the ship. If they 
 report her unfit to go to sea, and unworthy of repair, 
 a second petition, or "libel of information," is pre- 
 ferred to the court, praying that the ship may, by 
 a decree of the court, be condemned as unfit for 
 further service, and, together with her boats, tackle, 
 apparel and furniture, be ordered to be sold by the 
 marshal of the court : whereupon a monition issues, 
 to show cause why this should not be done ; and no 
 person appearing in opposition, or no sufficient cause 
 being shown, it is adjudged and decreed accord- 
 ingly(a). 
 
 The exemplification of the record of condemna- Evidence or 
 
 . T 1 . decree of 
 
 tion and sale m a foreign court of admiralty, is the '"im- 
 proper if not the only admissible evidence of the 
 proceeding(J). 
 
 (a) See Dorr v. The Pacific Insurance Company, 7 Wheat., 581 (5 
 Curtis's Decis. S. 0., 338). 
 
 (6) Ibid. The authority conferred by the third section of the "Act 
 for the government and regulation of seamen in the merchant service," 
 on the judge of the district court, on the application of the master 
 acting upon the requisition of the mate and a majority of the crew, 
 " to issue his precept " to three competent persons, requiring them to 
 examine the vessel, and report to him as to her fitness to proceed on 
 her voyage, can hardly be considered as pertaining to the admiralty 
 jurisdiction of the district court. The act, in terms, embraces only 
 vessels setting out on a foreign voyage, and not having yet left the 
 land ; but similar examinations, upon the like requisition, are also made 
 in foreign ports. See The William, Harris, Ware's R., 367. 
 
318 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 CHAPTER X. 
 
 Disputes Between Part-Owners. 
 
 Suits for the adjustment of disputes between part- 
 owners, relative to the possession and employment 
 of ships, constitute the subject of another branch of 
 the acknowledged jurisdiction of the admiralty. 
 The rights, powers, duties, obligations and liabilities 
 of part-owners, as such, as well inter sese as in 
 respect to third persons, form an interesting subject 
 of inquiry which has given rise to much discussion. 
 But it will best accord with the design of this work, 
 to treat of the subject only so far as it falls within 
 the scope of the admiralty jurisdiction(a). 
 
 Property in a ship may be acquired by two or 
 more persons, either by building it at their own 
 expense, or by purchase of a part thereof of the 
 sole owner, or by the joint purchase of the whole 
 of another person. But in whatever way the title 
 may be acquired ; and whether it be acquired at 
 one and the same time, in virtue of one and the 
 same instrument, or at different times, and under 
 different instruments, the parties, in the absence of 
 
 (a) It is discussed at large by Mr. Justice Story in his Commenta- 
 ries on the Law of Partnership, § 415 -439. 
 
PART-OWNERS. 319 
 
 all positive stipulations to the contrary, become ch^.io. 
 
 TenantB in 
 
 entitled thereto, as tenants in common and not as common, 
 
 and not Joint 
 
 joint tenants. tenants. 
 
 This is in accordance with the doctrine that the 
 jus oecresceTidi has no existence among merchants, 
 or in the business of commerce and navigation ; and 
 it accordingly follows that each part-owner of a ship 
 can sell only his own proper share thereof, and that 
 upon the death of one part-owner, his executors and 
 administrators become tenants in common of the 
 ship with the survivors(a). 
 
 A personal chattel belonging to several persons 
 cannot be advantageously enjoyed by all the 
 proprietors, without their common consent and 
 agreement ; and as the best means of inducing such 
 common consent and agreement, the law in general 
 declines to interfere in their disputes, leaving it to 
 themselves, either to enjoy their common property 
 by agreement, or to suffer it to remain unenjoyed, or 
 perish by their dissension. But ships " are built to 
 plough the sea, and not to lie by the walls ;" and 
 commercial nations consider their actual employment 
 as a matter, not merely of private advantage to their 
 owners, but also of public benefit to the state, and 
 therefore have laid down certain positive rules in 
 
 (a) See Story on Partnership, § 415 - 417, and the authorities there 
 cited. But there may be a partnership, as well as a co-tenancy in a 
 vessel ; and a partner, acting in that character, may sell the whole 
 vessel ; and the vendee, in a case free from fraud, will acquire an 
 indefeasible title to the whole ship. The relation of co-tenants being 
 however, the general relation between ship-owners, and that of partners 
 being the exception, the latter relation requires to be specially shown. 
 3 Kent's Coram., 3d ed., pp. 154, 155. 
 
320 ADMIRALTY JURISDICTION. 
 
 voi^i. order to favor ttis employment, and to prevent 
 the obstinacy of some of the part-owners from 
 condemning the ships to rot in idleness. It 
 sometimes, indeed, happens that several persons 
 become part-owners of a ship, under an express 
 agreement among themselves, defining the mode 
 of its employment ; or, that they unite in the 
 appointment of an agent, to whom they delegate the 
 management of their common concern, and who, by 
 a very intelligible figure of speech, is called the 
 ship's husband (a). In such cases, the mutual rights 
 and obligations of the parties are to be determined 
 by resort to the compact and agreement between 
 them, and are to be enforced accordingly. But 
 when the enjoyment of the property has not been 
 thus settled by the parties, then it is that the law 
 interposes to regulate it. 
 
 (o) Abbot on Shipping, Boston ed. of 1846, 125. 
 
 Mr. CoLLYKR thus describes the proper functions and powers of a 
 ship's husband : " In order to administer the aflairs of the ship with 
 unanimity, it is usual to appoint a ship's husband. He is either a part- 
 owner or a stranger, and may be ajipointed by writing or parol. His 
 duties are to see to the proper outfit of the vessel ; to have a proper 
 master, mate and crew ; to see to the fiirnishing of provisions and 
 stores ; to see to the regularity of all the clearances from the custom- 
 house ; to settle the contracts ; to enter into proper charter-parties, or 
 engage the vessel for general freight ; to settle for freight, and adjust 
 arrearages with the merchant; to preserve proper certificates and 
 documents, in case of future disputes with insurers and freighters, and 
 to keep regular books of the ship. But without special powers, he 
 cannot borrow money generally for the use of the ship, though he 
 may settle accounts and grant bills for them, which will form debts 
 against the concern. Nor can he, without special authority, insure 
 the ship." CoUyer on Partnership, B. 5, ch. 4, § 4, 2d ed. 
 
PAET-OWNERS. 321 
 
 The ordinances upon this subject of the several chakio. 
 commercial nations of continental Europe are diflFer- cisagree- 
 
 ■*■ ment among 
 
 ent, and all of them differ from the law of England, CtdluT' 
 ■which possesses this important advantage over them dioMon or 
 — that while, in common with them, it authorizes '■''"^■ 
 the majority in value to employ the ship " upon 
 any probable design," it takes care, at the same time, 
 to secure the interest of the dissentient minority 
 from being lost in the employment of which they 
 disapprove, by exacting security for her safe 
 return(a). But on the other hand, the minority 
 cannot derive the slightest advantage from the 
 employnient of the ship, and are not entitled to 
 any compensation for her diminished value occasioned, 
 by the natural wear and tear of the voyage ; whereas 
 the foreign laws and ordinances, while they give to 
 the majority the right to impose the burthen of 
 sharing the expenses upon the minority, entitle the 
 latter, at the same time, to share fully in the profits 
 of the voyage or adventure. This has led Mr. 
 Justice Stoet to express a doubt of the supposed 
 superiority of the common law rule(5). 
 
 The usual and most effectual mode of enforcing the Remedy of 
 
 ' '-' minority. 
 
 rights of the minority in this respect, in England, is 
 by application to the Court of Admiralty for a war- 
 rant to arrest the ship, and to detain her in custody 
 until those who desire to send her on a voyage give 
 a stipulation in a sum equal to the value of the shares 
 of those who disapprove of the adventure, either to 
 
 (a) Abbot on Shipping, 127. 
 (6) Story on Partnership, § 431. 
 
 41 
 
322 ADMIRALTY JURISDICTION. 
 
 TOL 1. bring back and restore to them the ship, or pay 
 them the value of their shares. When this is done, 
 the dissentient part-owners bear no portion of the 
 expenses of the outfit, and are not entitled to share 
 in the profits of the undertaking ; but the ship sails 
 wholly at the charge and risk, and for the profit of 
 the other owners(a). 
 ml^riiy"' But, subject to the condition of giving such 
 security, the authority of the majority in value to 
 regulate the concerns of the ship is absolute ; and, 
 therefore, when the minority happen to be in pos- 
 session, and refuse to employ it, the majority are 
 entitled to a similar warrant to obtain possession of 
 the ship, and of her certificate of registry, and send 
 her to sea, upon giving the required stipulation(5). 
 SiTof dlr. When the part-owners are equally divided in 
 bftweT™' opinion upon the question whether the ship shall be 
 
 equal part- 
 
 whSror employed m any voyage or adventure whatsoever, 
 shaii'beem? the law, lookiug to the Considerations of commercial 
 policy already mentioned, gives effect, through the 
 like admiralty process, and upon the like condition, 
 to the will of those who are in favor of her employ- 
 ment(c). 
 Eight of the A maiority of the foregn iurists maintain that 
 
 minority to u ./ o J 
 
 ISpJagSnat ^^^^ ^^^ opiuion of the minority ought to prevail, 
 
 the majority, whcn in favor of employing the ship; and this 
 
 doctrine, though not the point in judgment, was 
 
 (a) The Peggy, 4 Robinson's R., 304; The Apollo, 1 Haggard's R., 
 306, 312; Abbot on Shipping, 127. 
 
 (6) See last note, and Marriott's Pormiilary, 337. 
 
 (c) Abbot on Shipping, 131 ; Story on Partnership, § 435 ; 3 Kent's 
 Comm., 3d ed., 153, 156. 
 
PART-OWNERS. 323 
 
 asserted by the Supreme Court of tlie United States chap^io. 
 in The Steamboat Neio Orleans v. Plw&bus{a)^ and 
 is reiterated by Mr. Justice Stoey in bis Commen- 
 taries on Partnership (5). I cannot find that this 
 doctrine has been adopted in the English admiralty ; 
 but with this exception, the principles above stated 
 have long been firmly established in that court ; and 
 they have been uniformly approved, and to some 
 extent acted upon, in the courts of the United 
 States (c). 
 
 But it sometimes also happens in the case of equal „" the'^IdmS 
 
 11 ^ 1 • • n raltytoorder 
 
 part-owners, that the owner oi each moiety is equally » s^ie- 
 willing to have the ship employed in some voyage 
 or adventure, but they differ as to the voyage; 
 or, that each is ready to take the whole ship for a 
 voyage to be planned by himself, but he will not 
 engage with the other in any voyage whatsoever. 
 "What is to be done in such cases? In point of 
 private right, they stand upon a footing of perfect 
 equality ; and their respective views and wishes are 
 alike in accordance with the requirements of public 
 policy. There is no ground, therefore, upon which 
 the claims of the one party can justly be preferred 
 to those of the other ; but to leave the ship to rot 
 
 (a) 11 Peters's R., 175 (12 Ourtis's Decis. S. 0., 391). 
 
 (6) Story on Partnership, § 428. But see ib., § 434, which seems 
 scarcely reconcilable with what is said in § 428. 
 
 (c) The Sisters, 4 Robinson's R., 257 ; The New Draper, ib., 287 ; 
 The Experiment, 2 Dodson's R., 38; The Apollo, 1 Haggard's R., 
 306; The Pitt, ib., 240; The John of London, ib., 342; The Mar- 
 garet, 2 Haggard's R., 276; The Petrel, 3 Haggard's R., 299; The 
 Logan, otherwise Mimax, ib., 418 ; Willings et al. v. Blight, 2 Peters's 
 Adm. Decis., 286. 
 
324 ADMIRALTY JURISDICTION. 
 
 ^^'^- at the wharf, -would be consonant neither with the 
 interests of the parties, nor with the general interests 
 of commerce and navigation. A sale of the ship, 
 and a division of the proceeds among the owners, 
 under a decree of the proper court, at the instance 
 of either of the dissentient parties, seems therefore 
 to be the only remedy adapted to the case. This is 
 the remedy provided by the Ordinance of France 
 of 1681, and some of the continental writers seem to 
 consider it a principle of the general maritime law. 
 But although according to the terms of the com- 
 mission granted to the judge of the English Court of 
 Admiralty, the jurisdiction of that com-t extends to 
 all matters which concern owners and proprietors of 
 ships, as such, it was asserted by the Court of King's 
 Bench in the reign of George the Second, that the 
 Court of Admiralty has no authority to compel a 
 sale in any case of disagreement whatever between 
 part-owners ; and as that court possessed the power 
 to enforce its opinions by prohibition, the Court of 
 Admiralty, without, however, otherwise disclaiming 
 this authority, has declined to exercise it(a). 
 
 In this country this power has been asserted, 
 and in two reported cases, at least, has been 
 exercised by the courts. In the early case of 
 Skinner v. The Sloop HopeQ)), in the District Court 
 of the United States for the District of South 
 Carolina, Judge Bee decreed a sale, on the petition 
 of the owner of one moiety, against the owner of 
 the other moiety of the vessel. And in the case of 
 
 {a) See Story on Partnership, §§ 435, 438. 
 (6) Bee's Adm. R., p. 2. 
 
PART-OWNERS. 325 
 
 Damis and Brooks v. Ths Brig Seneca^ where the °^^ ^''• 
 owners were equally divided in opinion, each wish- 
 ing to employ the brig upon a distinct voyage, the 
 learned judge of the District Court of the United 
 States for the Eastern District of Pennsylvania, 
 having, in an elaborate opinion, decided against 
 the jurisdiction (a), his judgment was reversed by 
 Mr, Justice Washington on appeal to the circuit 
 court. The case was fully and ably discussed at 
 the bar ; and Mr. Justice Washestgion, at the con- 
 clusion of his judgment, frankly acknowledged that 
 his opinion was very different when the cause was 
 opened; for that he "had read that which was 
 pronounced in the district court by the learned 
 judge of that court, with an entire conviction of its 
 correctness." But the argument before him, and 
 his own more mature reflections upon the subject, 
 had led him to the clear conviction that the Ordi- 
 nance of Louis XIV was to be regarded not as a 
 mere matter of positive regulation, but, "as con- 
 stituting a part of the maritime law of nations ; 
 that it is in itself a wise and equitable provision ; 
 that it is not inconsistent with the commercial state 
 of this country, or with any law which should 
 govern the court ;" and he accordingly felt himself 
 " not only at liberty, but bound to adopt and apply 
 it to the case " before him. He therefore reversed 
 the decision of the district court, and decreed a 
 sale of the vessel(^). 
 
 (a) Gilpin's R., p. 10. 
 
 (6) Davis and Brooks v. The Brig Seneca, 18 American Jurist, for 
 January, 1838, p. 486. The opinion of Mr. Justice Washington is 
 
326 ADMIRALTY JURISDICTION. 
 
 VOL. 1. ]y[i.. Justice Stoet strenuously maintains the ' 
 soundness, expediency and even necessity of this 
 doctrine. He considers it as falling clearly within 
 the constitutional grant of judicial power over " all 
 cases of admiralty and maritime jurisdiction ;" and 
 as sustained by reasoning which it is difficult to over- 
 turn, unless " by disregarding the common usages 
 which have prevailed among maritime nations from 
 an early period, and which constitute the. basis of 
 the general maritime law, as well as of positive 
 codes, which affirm and enforce it. The right " he 
 adds, "to order a sale of property subjected to its 
 jurisdiction, is clearly a matter within the com- 
 petency of a court of admiralty, and, indeed, is 
 familiar in practice, in order to prevent irreparable 
 mischiefs or impending losses. Analogy, therefore, 
 is clearly in its favor ; and unless some limitation or 
 exception can be asserted to exist, either in the 
 origin, or constitution, or practice of the court 
 itself, it will not be a very satisfactory mode of 
 disposing of the question, for a court of common 
 law to assert, upon its own mere dictum^ without 
 any reasoning in support of it, that the Court of 
 Admiralty has a right in cases of disputes between 
 part-owners of ships, to take a stipulation, but not 
 to order a sale. Such language would seem more 
 like an edict than a judgment, and to promulgate an 
 arbitrary distinction, rather than a rational inter- 
 pretation of the jurisdiction of another court." 
 
 quoted, in extenso, in a note to § 439 of Mr. Justice Story's excel- 
 lent work on Partnership. 
 
PART-OWNERS. 327 
 
 The inconvenience arising in England from the chap.io. 
 denial to the High Court of Admiralty of any 
 power to direct the sale of a ship, as a means of 
 preventing ruinous dissensions between equal part- 
 owners, is well illustrated by a recent case, in which 
 that court refused to change the possession of a ship 
 at the petition of the owners of a moiety thereof, 
 although the owners of the remaining moiety had 
 refused to give security for the safe return of the 
 vessel, and persisted in leaving her in a situation 
 where she was becoming daily deteriorated. The 
 learned judge considered himself bound by ante- 
 cedent decisions ; and he observed, also, that in form- 
 ing his opinion, he could not leave out of the con- 
 sideration the consequences that might ensue, if he 
 assumed the power to decree the possession of the 
 vessel to be given up as prayed. If, in the case 
 before him, he acceded to the application of a 
 moiety of the interests in the ship, he could not 
 refase, upon any subsequent application, to grant 
 possession to the owners of interests less than a 
 moiety. The same principle, as it appeared, would 
 equally apply in both cases. Another consequence 
 would be, that in each case the court would have to 
 consider the grounds upon which the particular 
 motion in each case was founded, and to determine 
 what course was most beneficial for the employ- 
 ment of the vessel (a). 
 
 The form of remedy in cases of controversy 
 between part-owners, is by a warrant of arrest 
 
 (o) The Elizabeth and Jane, 1 W. Robinson's R., 278. 
 
328 ADMIRALTY JURISDICTION. 
 
 TOLL against the ship, and a monition to the adverse 
 party. When the proceeding is instituted loj the 
 majority of the owners, for the purpose of obtaining 
 the possession and control of the ship, there is, if 
 they appear to be entitled to it, a decree of possession 
 in their favor, provided they enter into a stipulation 
 with one or more sufficient sureties, in a sum equal 
 to the value of the shares of the dissentient owners, 
 for the safe return of the ship. 
 
 When the minority institute a suit for the purpose 
 of obtaining security, the ship is held in custody 
 under the warrant, until the required bail is given ; 
 whereupon the warrant is simply superseded, and 
 the ship released. 
 
 The stipulation should be for the true value ; for 
 it is a substitution for the property itself, and con- 
 templates no other object than the return of the 
 ship, or, in default thereof, the payment of the 
 stipulated sum at all events. Regarding it in this 
 light. Lord Stowell refused to entertain a claim 
 for a deduction after the loss of the vessel, on the 
 ground that, as it was alleged, the dissentient owner, 
 alfter obtaining security, had subjected his co-owners 
 to losses by vexatious proceedings and malicious 
 representations concerning the ship(a). 
 
 The amount of the bail is generally agreed upon 
 by the parties. When this is not done, appraisers 
 are appointed by the court to estimate the value of 
 the shares on account of which the bail is to be 
 given. 
 
 (a) The Apollo, 1 Haggard's R., 306. 
 
Blon of the 
 
 master. 
 
 PAKT-OWNERS. 329 
 
 Suits by the majority of the part-owners to obtain ohap.io. 
 possession of the ship, are denominated causes of 
 possession, or possessory suits ; a name, however, not 
 restricted to these suits, as we shall see in the next 
 chapter, where the distinction between possessory 
 and what are, or formerly were denommatedpetitory 
 suits, will be explained. 
 
 It sometimes happens that the master is a minor di'p™ 
 
 r^ Bion o: 
 
 part-owner, and that the owners of the remaining 
 shares wish to remove him from his command of 
 the ship, although there may be no disagreement 
 between him and them concerning her employment, 
 or as to the particular service in which she shall be 
 employed. It has been held that in such cases 
 some special reason must be shown for the interpo- 
 sition of the court, as that " the master is irregular 
 in his accounts with his owners," the common law 
 upon general principles being inclined to maintain 
 the possession of a proprietor in the vessel(a). But 
 where the master is not a proprietor, all that the 
 court requires is, that the majority of the owners 
 should declare their disinclination to continue him in 
 possession (5), In such cases, the master, in refusing 
 to surrender the possession of the vessel to her 
 lawful owners, is regarded simply as a wrong-doer(c). 
 The form of the remedy in either case, is a warrant 
 of arrest and monition as above stated. 
 
 (a) The New Draper, 4 Robinson's R., 235. 
 (6) The New Draper, ubi supra. 
 
 (c) Oases of this latter description belong, therefore, to the class of 
 cases treated of in the next chapter. 
 
 42 
 
330 ADMIRALTY JURISDICTION. 
 
 YOL. 1. 
 
 • CHAPTER XL 
 
 Suits to Enfoeoe the Right of Possession or op Peoperty 
 IN A Ship, against an Adverse Holder. 
 
 Petitory as FoEMERLY, and Until no very distant period, the 
 
 ■well as pos- ' ./ jr ) 
 
 formeriy™"' High Court of Admiralty of England exercised an 
 
 cognizable ... -.,,-.., ^ . ,. 
 
 jOj^the Eng- undisputed jurisdiction ot controversies respecting 
 rally. sMps, depending as well upon mere questions of 
 disputed title, as upon the right of possession when 
 the title was undisputed, or was otherwise clear. 
 " It is certainly true," said Lord Stowell, in the 
 case of The Warrior(a), " that this court did 
 formerly entertain questions of title to a much 
 greater extent than it has lately been in the habit of 
 doing. In former times, indeed, it decided without 
 reserve upon all questions of disputed title, which 
 the parties thought proper to bring before it for 
 lion reswot- adjudicatlou. After the restoration, however, it was 
 
 ed to cause of . „ 
 
 SrproS informed by other courts, that such matters were 
 '"'°°" not properly cognizable here ; and since that time 
 it has been very abstemious in the interposition 
 of its authority. The jurisdiction over causes of 
 possession was still retained ; and although the 
 highest tribunals of the country denied the right of 
 
 (a) 2 Dodson's R., 288. See, also, The Aurora, 3 Robinson's R., 
 135, to the same effect. 
 
POSSESSORY AND PETITORY SUITS. 331 
 
 this court to interfere in mere questions of disputed chap^h. 
 title, no intimation was ever given by them that the 
 court must abandon its jurisdiction over causes of 
 possession," 
 
 The efforts which the court, under these circum- 
 stances, was constrained to make, on the one hand, 
 so to execute the jurisdiction which remained to it 
 as to render it effective and beneficial, and, on the 
 other, by no means to transcend the limits which 
 the common law courts had thought proper to pre- 
 scribe, were attended, as, indeed, they could not fail 
 to be, with great embarrassments and unavoidably 
 led to unsatisfactory results. What was anciently 
 understood to constitute the precise boundary line 
 between causes of possession and petitory suits (as 
 those which concerned the question of title were 
 termed), it is probably impossible at this day exactly 
 to ascertain. It is probable, also, that it was at no 
 time very clearly defined. From the nature of the 
 case, it could hardly have been otherwise ; and the 
 supposition that it was not, is, moreover, strengthened 
 by the accounts which we have of these two forms 
 of proceeding. " If," says Bkown, " the party in a 
 possessory cause preceived, from the inspection of 
 the proofs therein, that he had no prospect of suc- 
 cess in the question of property, he might decline 
 the contest ; but his adversary, for the better con- 
 firmation of his title, might proceed in the petitory, 
 and obtain final sentence therein. But if he did, 
 he must libel anew, and produce fresh proof, unless 
 the evidence of the witness produced in the posses- 
 sory had extended to a proof of property. On 
 
332 ADMIRALTY JURISDICTION. 
 
 TOL^i. tiie otter hand, the party defeated in the possessory- 
 cause might proceed possibly with success in the 
 petitory, in which the proceedings were similar to 
 those in other maritime causes ; and sureties were to 
 be given by the successful party in the possessory, for 
 restoring the goods, if there should be a decree 
 entered against him in the petitory, at least if the 
 defeated entered a protest that he intended so to 
 proceed." 
 
 In deciding beforehand between the two forms of 
 action, the suitor probably had to encounter a dijBi- 
 culty no less insuperable than that which, to the cost 
 of so many suitors, and to the opprobrium of the 
 common law, has been experienced in deciding 
 between the action of trespass, and that of trespass 
 on the case. Lord Stowell, himself, with all his 
 remarkable perspicacity, and after repeated trials, 
 seems scarcely to have succeeded, even to his own 
 satisfaction, in laying down any precise rule by 
 which the particular nature of controversies of 
 the sort under consideration could be certainly 
 determined; and a critical review of the cases 
 decided by him. would show, to say the least, a 
 want of entire consistency in the application of the 
 principles by which he professed to be governed. 
 What these principles were, will most satisfactorily 
 be shown by a brief extract from his judgment in one 
 of the last cases of this description which came before 
 him. The ship had been chartered by the owners 
 in London, to the master, to carry a cargo of wine 
 (to be taken in at the island of Madeira) to the 
 West Indies. On her arrival at St, Christopher's, 
 
POSSESSORY Am) PETITORY SUITS. 333 
 
 whither she had sailed from Madeira, she encoun- ^°i£: "• 
 tered a storm, and was stranded on the beach. A 
 correspondence ensued between the master and the 
 owners, relative to the disaster, and to the measures 
 to be taken in respect to the ship; and she was 
 eventually sold by the master to a merchant of 
 St. Christopher's, to whom, " acting as agent for his 
 owners and underwriters," he executed a bill of sale 
 of the ship. After the lapse of two years she 
 returried to Liverpool in the service of the purchaser, 
 with a load of lumber, and was there arrested in a 
 cause of possession at the suit of her former owners, 
 who insisted that the sale by the master at St. Kitt's 
 was unauthorized, fraudulent and void. 
 
 Lord Stowell, after stating the facts and circum- 
 stances of the case as they appeared before him, 
 said : " The case then is, in reality, an inquiry into 
 the title of the present asserted proprietor to hold 
 the ship ; and the first, I had almost said the only 
 question is, how far this court is authorized to make 
 this inquiry, and provided with due powers to 
 make it with efifect. The court is, certainly, in the 
 habit of transferring possession from the actual 
 holder, sometimes by his own movement, some- 
 times at the instance of other courts, which have 
 no direct power for that purpose ; but it considers 
 itself, and is bound to consider itself, as moving 
 within very narrow limits, if it proceeds at all 
 originally upon a question of title. It, undoubtedly, 
 would not be inclined, in any case, to transfer a 
 possession without regarding the title of the party 
 who claims the transfer ; it -must be satisfied that 
 
334 ADMIRALTY JURISDICTION. 
 
 TOL^i. ]ie jg potior in jv/re ; and it must be in cases ex- 
 tremely simple that it acts on a merely preferable 
 title, to be reached by his own judgment. Where 
 the possession is gained by force and violence, or 
 by fraud manifest upon the very face of the trans- 
 action ; or where the party in possession is avowedly 
 entitled only as a minor owner in opposition to the 
 majority of interests, there the court feels no 
 hesitation ; but where a course *of transactions in- 
 volving fraud is objected, it declines entering into 
 the question, and leaves it to be determined by the 
 inquiry of courts, which have ampler means of 
 arriving at the real truth, and the real justice of the 
 case; for there may be some incidental matters, 
 such as repairs, and other expenses, requiring the 
 application of equitable principles which this court 
 may not feel itself competent to administer. I may, 
 therefore, lay it down as a rule for the conduct of 
 this court, that it is only in simple cases, in cases 
 speaking for themselves, that it can act with effect ; 
 but in those which, being complex, require a long 
 and minute investigation, it cannot proceed with 
 safety. 
 
 " To which of these classes does the present case 
 belong? I have no hesitation in saying, to the 
 latter class. Here is a series of transactions, charged 
 on the one side to be fraudulent, and on the other, 
 denied to have the slightest intermixture of fraud 
 in them. Many documents are produced, and some 
 are not forthcoming, which, upon such a question, 
 ought to be produced. It is not, then, for this 
 court, under these circumstances, to proceed the 
 
POSSESSOEY AND PETITORY SUITS. 335 
 
 lengtli of a judicial determination; but if I am chap. u. 
 called upon for an opinion, which, after what I 
 have said, must be considered rather extra-judicial, 
 I can say confidently, that I see nothing that im- 
 peaches the title of the purchaser. li appears that 
 there was ample authority to the captain to sell, 
 both by the conduct of the parties at home, and by 
 the circumstances in which the property was placed. 
 It appears also to me, that in the sale, all due 
 caution was used, and all due attention shown to 
 the interest of the former owners, and that the 
 previous authority of the master was fully confirmed 
 by subsequent recognitions and approvals. This is 
 my genera] view of the case. Another court may, 
 on further evidence, determine my opinion is in- 
 correct ; but under the conviction of my mind, it 
 is proper for me to hold my hand, and to desist 
 from ulterior measures. I shall not disturb the 
 possession. 
 
 " In this state of the case, I shall not say anything 
 upon the matter of costs. I will allow a time for 
 the former owners to go into another court ; and if 
 that court should be of opinion with me, that this is 
 an unjust molestation, I shall think that the present 
 possessor will be entitled to his full expenses, and to 
 demurrage. If, on the other hand, it should appear, 
 what I do not think it can upon this evidence, that 
 he is a tortious possessor, then the original owners 
 must be indemnified. I will suffer the cause to 
 stand over for the space of one fortnight, for the 
 purpose of ascertaining whether any proceedings are 
 instituted in any other tribunal." 
 
336 ADMIRALTY JUEISDICTION, 
 
 VOL 1. The reporter ^dds, iu a note, that no further 
 application was made to the court in the cause, and 
 the warrant of arrest was ultimately superseded (a). 
 The principles here enunciated by Lord Stowell 
 were expressly adopted and implicitly followed by 
 his immediate successor, Sir Christopher Robinson, 
 in two reported cases of which he declined to 
 entertain jurisdiction, leaving the possession undis- 
 turbed, on the ground that they involved questions 
 of adverse title(5). 
 
 It will be remarked that Lord Stowell, not 
 content with demonstrating the actual want of 
 jurisdiction in the case before him, took occasion 
 also, in justification of his habitual " abstemiousness," 
 to refer to the want in the High Court of Admiralty 
 of those " ampler means of arriving at the real truth, 
 and the real justice of the case," possessed by other 
 courts. But within the last few years the former 
 jurisdiction of the court has been restored, and these 
 means have been supplied by an act of parliament. 
 Former By the 3d & 4th Victoria, chap. 65, entitled "An act 
 
 Jurisdiction " i x ' 
 
 by Mi'^of to improve the practice and extend the jurisdiction 
 par lament. ^^ ^^^ High Court of Admiralty of England," it 
 
 is enacted (section 4) "That the said Court of 
 Admiralty shall have jurisdiction to decide all 
 questions as to the title to or ownership of any ship 
 or vessel, or the proceeds thereof remaining in the 
 registry, arising in any cause of possession, salvage, 
 damage, wages or bottomry, which shall be instituted 
 in the said court after the passing of this act." 
 
 (a) The Pitt, 1 Haggard's R., 340. 
 
 (6) The John, 2 Haggard's R., 305 ; 7%e Fruit Preserver, id., 181. 
 
POSSESSORY AND PETITOEY NOTES. 337 
 
 This enactment, it is presumed, was designed ch^h. 
 virtually to abolish, the distinction between posses- 
 sory and petitory actions, and to empower the court 
 to entertain jurisdiction, under the form of a " cause 
 of possession," of all suits instituted Ijy the rightful 
 owner or person claiming to be such, for the purpose 
 of obtaining possession of a ship alleged to be 
 unlawfully withheld from him, whatever might be 
 the nature of the defence set up to the action. But thTcou?' 
 the act, in restoring to the Court of Admiralty in othlr 
 
 . . respects. 
 
 jurisdiction over questions of adverse title to vessels, 
 removed also the other impediment stated by Lord 
 Stoweli,, to the exercise of that jurisdiction, by 
 providing the means possessed by the courts of 
 common law and equity, of arriving at the truth and 
 enforcing justice. It empowers the court, in its 
 discretion, to summon before it, and examine wit- 
 nesses by word of mouth, whether their previous 
 examination by deposition has been taken or not. 
 Notes of evidence taken vwa voce are required to be 
 taken down in writing, for the purpose, in case of 
 appeal, of being certified to the appellate tribunal, 
 and are declared to be admissible as evidence on the 
 hearing of the appeal. Instead of the previous mode 
 of examining witnesses before a commissioner, on 
 written interrogatories, the act empowers the com- 
 missioner (who is to be an advocate of the High 
 Court of Admiralty, or a barrister-at-law, of not less 
 than seven years' standing) to take evidence by 
 word of mouth (the oath being administered by 
 himself, instead of being administered in court, as 
 formerly) ; the parties, their counsel, proctors or 
 
 43 
 
338 ADMIEALTY JURISDICTION. 
 
 TOT^^i. agents being allowed to be present and to examine 
 and cross-examine tbe witnesses. The judge and 
 tlie commissioner are authorized to require the 
 attendance of witnesses and the production of papers 
 and books, by writ in the form of a svhpcena ad 
 tesUflcandnim or of svipoena daicea tecum. AU the 
 provisions of the actx)f 3 & 4 William IV., " For the 
 further amendment of the law, and better adminis- 
 tration of justice," with respect to the admissibility 
 of the evidence of interested witnesses, are also 
 extended to suits in the Court of Admiralty. The 
 court is, moreover, empowered to kward issues on 
 questions of fact to be tried before the superior 
 courts of common law at nisi j^ius, and to direct 
 new trials. And the act also invests the judge with 
 authority from time to time to make such rules, 
 orders and regulations respecting the practice and 
 mode of proceeding of the court, and the conduct 
 and duties of the officers and practitioners therein, 
 as to him shall seem fit, subject, however, to 
 the approval or disapproval of Her Majesty in 
 councLl(a). 
 
 (a) The constitution of the High Court of Admiralty has, by these 
 enactments, been strongly assimilated to that of the American courts. 
 The power conferred upon the English court, of directing issues of fact 
 to be tried by a jury, is not understood, however, to belong to our 
 courts ; but, on the other hand, they are empowered, by one of the 
 Rules of Practice lately prescribed by the Supreme Court, to " refer 
 any matters arising in the progress of the suit, to one or more com- 
 missioners to be appointed by the court, to hear the parties, and 
 make report therein." And such commissioner or commissioners are 
 invested with " all the powers in the premises which are usually given 
 to, or exercised by, masters in chancery, in references to them, 
 including the power to administer oaths to, and examine the parties 
 
POSSESSORY AND PETITOEY SUITS. 339 
 
 To wliat extent, precisely, the High Court of chap.ii. 
 Admiralty considers its jurisdiction enlarged by this 
 act, in respect to questions of contested title to ships, 
 we have not the means of determining:. It seems J^quitawe 
 
 o title disre- 
 
 to have been a settled principle in the court, previous ^'■'^"^ 
 • to the passage of the act, that it was " bound down 
 to decide on the legal title, without taking notice of 
 equitable claims," whether the equitable title was set 
 up as a ground for the active interposition of the 
 court against the legal owner in possession, or by 
 way of defence (a) ; and it appears, by a case since 
 decided, that this principle is still adhered to by 
 the court, notwithstanding its enlarged powers and 
 modified constitution (5). 
 
 and witnesses touching the premises." It will be perceived, therefore, 
 that the American courts are provided with all the means of investiga- 
 tion possessed by courts of equity. 
 
 (a) The Sisters, 5 Robinson's R., 155. The following, in addition 
 to those already cited, are the reported cases arising in the English 
 admiralty, before the passage of the late act, under this branch of juris- 
 diction : The Guardian, 3 Robinson's R., 93 ; The Aurora, ib., 133 ; 
 The New Draper, 4 Robinson's R., 235 ; The Peggy, ib., 304 ; The 
 Johan Sigismund, Edwards's R., 242. This case decides that the court 
 will not interpose, in the case of a foreign ship, between foreigners. 
 See Reuter, 1 Dodson's R., 22 : This was also a foreign ship ; but it 
 being shown that a decree of possession had already been made by the 
 judiciary of the country to which the ship belonged, jurisdiction was 
 entertained, and possession decreed. The Experimento, 2 Dods. R., 
 38 : This was likewise a foreign vessel ; but the libeUants being British 
 subjects, jurisdiction over the case was asserted on that ground ; Lord 
 Stowell saying, moreover, that in such a case he felt warranted in 
 examining " a little " even into the question of title. The decision, 
 however, was adverse to the libellants. The Paiiridge, 1 Haggard's 
 R., 81 ; The Logan, 2 Hagg. R., 418. 
 
 (6) The Valiant, 1 W. Robinson's R., 64. 
 
340 ADMIRALTY JURISDICTION. 
 
 TOL^i. This brief exposition of the footing on which the 
 o?™ecrart8 admiralty iurisdiction over controversies relative to 
 
 oftheUnited . 
 
 States. ^Q possession and ownership of ships rests in 
 England, I have deemed necessary for the purpose 
 of elucidating the footing on which it stands in this 
 country. And I shall conclude my observations 
 upon the subject by a brief extract from the able 
 and learned judgment pronounced by Mr. Justice 
 Stokt in the only reported case, as far as I know, 
 falling within this branch of jurisdiction which has 
 been decided in our courts. It will be seen that it 
 really turned upon a question of adverse title, and 
 that had the suit been instituted in the High Court 
 of Admiralty of England, jurisdiction of the case 
 would probably have been declined upon that 
 ground. The schooner had sailed from IS'ew-York 
 in ballast, bound to Conwayborough in the State of 
 North Carolina, and was stranded on the beach near 
 the banks of Chickamacomico. While lying on the 
 beach, she was advertised and sold by order of the 
 master. She was afterwards sent with a cargo to 
 Boston, and was there arrested by the former 
 owners, on the ground that the sale was unnecessary, 
 illegal and collusive, and that they had not therefore 
 been divested of their title and right of possession. 
 Judge StoBT, after referring to the general views 
 expressed by him in the case of De Lovio v. Boit, 
 relative to the extent of the admiralty jurisdiction 
 in this country, and to the course of decision in the 
 English admiralty respecting this particular class of 
 cases, expressed himself as follows : " I am not aware 
 that this distinction between petitory and possessory 
 
POSSESSORY AND PETITORY SUITS. 341 
 
 suits (somewhat analogous to the distinction in chap.u. 
 actions respecting the realty, between droitural and 
 possessory suits), has, in point of jurisdiction, ever 
 been admitted in the actual practice of the courts 
 of the United States, sitting in admiralty. It stands, 
 as far as I have been able to trace it, upon no prin- 
 ple, unless it be that titles derived from the common 
 law shall be nowhere litigated, except in courts of 
 common law ; a proposition that, carried to its full 
 extent, would prostrate the entire jurisdiction of the 
 admiralty in instance causes. Indeed, the titles to 
 ships principally depend upon the maritime law, as 
 recognized and enforced in the common law; and 
 the admiralty does little more in instance cases, than 
 to carry into effect the declarations of the maritime 
 law, so recognized and enforced. No doubt exists, 
 that the admiralty possesses authority to decree 
 restitution of ships wrongfully withheld from the 
 owners ;' and if so, it ought to possess plenaiy juris- 
 diction over all the incidents. That was the clear 
 opinion of Lord Hale, in JRadley v. Egglesfidd (1 
 Yent., 173, 308), which was afterwards confirmed 
 by the whole court; and it was there said, that 
 when the admiralty hath original cognizance of the 
 principal matter, it hath also cognizance of the 
 incidents thereto. The same case is reported in 
 other books, and particularly in 2 Saund. K., 260, 
 and in Lev., 26, where the doctrine is stated at large. 
 It had been decided in the same way in the reign of 
 Queen Elizabeth (Anon. Cro. Eliz., 685) ; and the 
 
 " ' Ex 'parte Blanshard, 2 Bam. & Cresw., 244. 
 
342 ADMIRALTY JURISDICTION. 
 
 vOT^^i. doctrine is so reasonable in itself, that the difficulty- 
 is to conceive how it ever could have been questioned. 
 In the exercise of the prize jurisdiction, it has been 
 constantly admitted to the largest exent. 
 
 " In cases not strictly of prise, but partaking of 
 their nature, as in cases of illegal captures in viola- 
 tion of our neutrality, the courts of the United 
 States have . never hesitated to inquire into and 
 decide the title, however complicated.' In cases of 
 salvage and bottomry, a like course has been adopt- 
 ted," as well as in cases of seizure for forfeitures. ' 
 But what is still more directly applicable, in case of 
 marine torts, the Supreme Court has gone at large 
 into the question of proprietary interest, and has 
 moulded its final decree according to the ultimate 
 rights established by the parties. Rose v. Himely 
 ( 4 Cranch, 241) is an instance full of intricate and 
 perplexing inquiries on this very point of title. 
 
 "For myself, meaning to speak with all due 
 deference for the judgment of others, I feel bound 
 to confess my inability to perceive any sound dis- 
 tinction, as to the point of jurisdiction, between 
 petitory and possessory suits. If there were a series 
 of American decisions on the subject, which in 
 
 '"See Talbot v. Janson, 3 Dall., 133; Bel Col v. Arnold, 3 Dal., 
 383 ; V Invincible, 1 Wheat. R., 257 ; The Alerta, 9 Cranch, 359 ; 
 The NicestTa Senora de la Caridad, 4 "Wheat. R., 497 ; The Antelope, 
 10 Wheat. R., 66; The Santa Maria, 7 Wheat. R., 490. 
 
 '" The Mary Ford, 3 Ball., 188; The Adventure, 8 Cranch, 221; 
 The Blaireau, 2 Cranch, 240. 
 
 "" TheMara, 8 Cranch, 417; The Flattsburgh, 10 Wheat. R., 133; 
 The Antehpe, 10 Wheat. R., 66 ; 11 Wheat. R., 413 ; 12 Wheat R., 
 546. 
 
POSSESSORY AND PETITORY SUITS. 343 
 
 point of authority ought to control my judgment, ™^- "• 
 I should cheerfully bow to them. One cannot, 
 indeed, but feel the truth of the language of Lord 
 Tenteedem-, that this jurisdiction of the Court of 
 Admiralty is a most useful part of the jurisprudence 
 of the country.' As such, I cannot but think 
 that it ought not to be surrendered but upon princi- 
 ples too clear to admit of judicial doubt(ffl)." 
 
 The admiralty jurisdiction of petitory as well as 
 of possessory suits is recognized, and, by implica- 
 tion affirmed by the Rules of the Supreme Court, 
 regulating admiralty proceedings(5), and has at 
 length been expressly and unequivocally asserted in 
 a formal judgment of that court, referring with 
 approbation to the decision and adopting the reason- 
 ing of Mr. Justice Stokt in Tlie Tilton{G). 
 
 The question may now therefore be regarded as 
 definitely settled. 
 
 " ' In Ex parte Blanshard, 2 Bam. & Cresw., 244." 
 
 (a) The Tilton, 5 Mason's R., 465. 
 
 (6) See Appendix, Rule xx. 
 
 (c) Ward v. Peck, 18 Howard's R., 267. 
 
344 ADMIRALTY JURISDICTION. 
 
 TOL. 1. 
 
 CHAPTER XII. 
 
 Salvage. 
 
 Salvage constitutes an important subject of the 
 admiralty jurisdiction; and this jurisdiction may be 
 exercised as well in persoTia/m, as m rem(a). 
 
 Suits in admiralty for salvage have been, of 
 frequent occurrence in this country, as weU as in 
 England ; and the general principles pertaining to 
 the subject having thus been repeatedly brought 
 under discussion in our courts, may now be con- 
 sidered as settled. These principles may be con- 
 veniently arranged under the following heads : 1. 
 Who may become salvors; 2. What constitutes a 
 salvage se]*pice; 3. The amount of salvage to be 
 allowed, and the manner of its distribution ; 4. By 
 what acts of the salvor his claim to salvage is for- 
 feited. 
 
 (a) The Hope, 3 Robinson's E.., 215 ; The Trelavmey, id., note ; 
 The Schooner Boston, 1 Sumner's R., 328, 341 ; Brevoort v. The 
 Fair American, 1 Peters's Adm. Decis., 87, 94 ; Rule xix of the new 
 Rules of Practice in causes of admiralty and maritime jurisdiction, by 
 which it is declared, that " In suits for salvage, the suit may be in 
 rem, against the property saved, or the proceeds thereof; or in per- 
 sonam, against the party, at whose request and for whose benefit 
 the salvage service has been performed." 
 
SALVAGE. 345 
 
 CHAP. 12. 
 
 1. Who mat become salvors. 
 
 Lord Stowell has defined a salvor to be " a per- 
 son who, without any particular relation to a ship 
 in distress, proffers useful service, and gives it as a 
 voluntary adventurer, without any preexisting 
 covenant that connected him with the duty of em- 
 ploying himself for the preservation of that ship(«)." 
 This definition, it will be seen, excludes all persons 
 who are under any legal obligation, expressed or 
 implied, to render assistance (^). And it has accord- 
 ingly been uniformly held that the officers and crew seamen, 
 of the ship, whatever may have been the perils or 
 hardships or gallantry of their services, are not, 
 under ordinary circumstances, entitled to claim as 
 salvors ; for they are bound by their contract to 
 exert themselves to the utmost for the safety of the 
 ship and cargo. But it has been decided in this 
 country that if, before the service was rendered, 
 the connection of the seamen with the ship had been 
 defacto^ or by operation of law dissolved(<?), or, it 
 
 (a) The Neptune, 1 Haggard's R., 227, 236. 
 
 (6) It is true that the contract of seamen is not dissolved by ship- 
 wreck, and that they are entitled to compensation out of the fragments 
 of the ship or cargo which they have contributed by their exertions 
 to save, though no freight has been earned. But though this com- 
 pensation has sometimes been denominated salvage, it has come at 
 length to be regarded strictly as wages, and as constituting a mere ex- 
 ception to the general rule that wages are dependent on freight. Vide 
 supra, page 105. 
 
 (c) Mason v. The Blaireau, 2 Cranch's R., 240 (1 Curtis's Decis. 
 S. C, 479). 
 
 44 
 
346 ADMIRALTY JURISDICTION. 
 
 TOL^i. seems, if the services exceed the proper duty of a sea- 
 man(a), he may be permitted to claim as a legal 
 salvor. Thus, where a ship was abandoned in despair, 
 on the ocean, by the master and the crew, with the 
 exception of one ^eaman who was left on board 
 either by accident or design, and who cooperated 
 with others, by whom the ship was afterwards found, 
 in bringing her into port, he was allowed by the 
 court to share in the salvage (5). 
 puots. The same principles are applicable to pilots, who 
 
 cannot entitle themselves to salvage for services 
 rendered, however meritorious, while acting in the 
 strict line of their duties; but if they perform 
 salvage services beyond the line of their appropriate 
 duties, or under circumstances to which those duties 
 do not justly attach, they are to be regarded as 
 standing in the same relation to the property as any 
 other salvor. Thus, in the case oiHdbart v. Drogan^ 
 just cited, the brig Hope, bound from Havana, 
 to Mobile, with a valuable cargo, on her arrival, in 
 the month of January, off Mobile Point in the Gulf 
 of Mexico, took a pilot on board, by whom she was 
 safely conducted in the evening to a place within the 
 harbor where pilots are usually discharged, and where 
 the pilot left her. Having proceeded some distance 
 
 (o) Hobart v. Drogan, 10 Pet. R., 108 (12 Curtis's Decis. S. C, 
 34) ; Hand v. The Schooner Elvira, Gilpin's R,, 60. 
 
 (6) Mason v. The Blaireau, ubi supra. In the English admiralty 
 the opposite doctrine prevails. The mariner is held entitled to wages, 
 but not to salvage. The Neptune, 1 Haggard's R., 227 ; The Reliance, 
 2 W. Robinson's R., 119 ; The Star (before the Hon. Alexander 
 Stewart, in Vice-Admiralty Court of Nova Scotia), 14 Law Rep., 
 (4 N. S.), 487. 
 
SALVAGE. 347 
 
 up tlie bay, she there came to anchor, about six miles ^h^ 12. 
 within the Point. In the night the wind rose to a 
 violent gale, in the course of which the Hope parted 
 her cables, and was driven back by the force of the 
 winds and waves, below the Point, where she grounded 
 among breakers. The gale increased, and the brig 
 being thrown upon her beam ends, the masts and bow- 
 sprit were cut away. The master and crew, to save 
 their lives, took to the long boat, and made their escape 
 to the shore, leaving the Hope and her cargo at the 
 mercy of the winds and waves. Two days after- 
 wards, the libellants, all of whom were pilots of the 
 outer harbor of Mobile, having in the meantime 
 made unsuccessful efforts to board the Hope, at length 
 succeeded in doing so, and were the means of saving 
 the vessel and cargo. The vaMe of the brig and 
 cargo was about $15,000; and the district court 
 decreed one-third of the value to the libellants as 
 salvage. On an appeal to the Supreme Court, it 
 was contended that the libellants, being pilots, were 
 not entitled to salvage ; but the court overruled the 
 objection, and affirmed Ijie decree of the district 
 court, considering the exertions made by the libel- 
 lants as an enterprise strictly of salvage, and not of 
 pilotage. The proper duty of a pilot consists in 
 navigating the ship over his pilotage ground. It 
 therefore necessarily presupposes that the ship is 
 capable, in point of crew, equipments and situation, 
 of being navigated, although she may, perchance, 
 be in distress, or laboring under difficulties. To go 
 to the rescue of a wrecked vessel, and undertake the 
 task of saving her or her cargo, when she is wholly 
 
348 ADMIRALTY JURISDtexiON. 
 
 TOL^i. innavigable, is no more the duty of pilots than of 
 other persons. In such cases, pilots, as such, have 
 no official connection with the vessel, and are under 
 no obligation to hazard their lives and property, and 
 apply their labor for her deliverance. If they do 
 so, it is clearly a salvage, and in no just sense a 
 pilotage service. The rights with respect to salvage 
 of all other persons standing in any official relation 
 to the property saved, are regulated by the same 
 principles which govern the right of pilots (a). 
 ptwenger.. Neither is a passenger, in general, to be allowed 
 salvage for any assistance he may afford to a vessel 
 in distress ; it being the duty, as well as the interest, 
 of all persons on board to contribute their aid on 
 such an occasion. But a passenger is not bound to 
 remain on board the ship in the hour of danger, but 
 may quit it, if he has an opportunity to do so; 
 much less is he required to take upon himself any 
 responsibility as to the conduct of the ship. And, 
 therefore, when a ship bound to the West Indies, 
 having struck upon the shoals of Chichester, in a 
 gale of wind, was deserted by the master, who took 
 with him part of the crew ; and a person on board 
 as passenger, who had commanded vessels in the 
 same trade, took command of the ship by the desire 
 of the passengers, and with the consent of the mate 
 and the remainder of the crew, and carried her back 
 in safety to Kamsgate harbor, he was permitted to 
 
 (o) Le Tigre, 3 Wash. R., 565 ; The Aquila, 1 Robinson's R., 39 ; 
 The Frederick, 1 W. Robinson's R., 17 ; The Belle, Edwards's R., 66. 
 
SALVAGE. 349 
 
 recover a considerable sum for extraordinary services ™^ ^''• 
 performed, and responsibility incurred(a). 
 
 When salvage services are performed by an Apprentices, 
 apprentice to the owner of tbe vessel, the salvage 
 due for such, services is to be awarded, not to the 
 master, but to the apprentice (S). But salvage siares. 
 earned by a slave, belongs to his master(c). 
 
 If salvors, in prosecuting their enterprise, them- second 
 selves fall into distress, and are relieved by other 
 salvors, they do not lose their original right to 
 salvage ; but the second set of salvors partake in the 
 salvage only according to their merit. Nor can 
 second salvors lawfully make it a condition of giving 
 assistance, that the original salvors shaU abandon all 
 claims to salvage(c?). And if property, abandoned 
 by the master and crew, be taken possession of by 
 one set of salvors, a second set have no right to 
 interfere with them, and become participators in the 
 salvage, unless it appears that the first would not 
 have been able to ejffect the salvage without their 
 aid ; a salvor in possession, in the act of effecting a 
 salvage, and with sufficient means, having a lien or 
 a qualified property in the thing saved(e). But 
 
 (a) The Two Friends, 1 Robinson's R., 272 ; Newman v. Walters, 
 3 Boss. & Pull., 613. See, also. Bond t. The Brig Cora, 2 Washing- 
 ton's R., 80, 87 ; The Branston, 2 Haggard's R., 3 ; Abbot on Ship- 
 ping, Boston ed., 1846, 666. 
 
 (6) Mason v. The Blaireau, 2 Cranch's R., 240 (1 Curtis's Decis. S. 
 C, 479). 
 
 (c) Ibid. 
 
 (d) The Henry Ewebank and Cargo, 1 Sumner's R., 400. 
 
 (e) The Schooner Elvira, Gilpin's R., 60 ; The Maria, Edwards's 
 R., 175 ; The Charlotte, 2 Haggard's R., 361 ; Dantzic Packet, 3 
 Haggard's R., 383. 
 
It must be 
 maritime* 
 
 350 ADMffiALTY JURISDICTION. 
 
 TOT^^i. prior salvors have no right, while the master is in 
 command, to interfere in respect to farther assistance, 
 or attempt to exclude subsequent salvors ; and such 
 misconduct impairs their title to salvage (a). 
 
 2. What constitutes a salvage service. 
 
 Salvage has been defined to be " the compensation 
 allowed to other persons, by whose assistance a ship 
 or its loading may be saved from impending peril, 
 or recovered after actual loss (J). 
 
 But to constitute a case of salvage within the 
 admiralty jurisdiction, the service must be a mari- 
 time service ; that is to say, it must have been ren- 
 dered in saving property on the sea, or wrecked on 
 the coast of the sea, including, however, waters navi- 
 gable from the sea and within the ebb and flow of 
 tide(c). This definition, it will be seen, admits of great 
 diversity in the actual predicaments of the property 
 in relation to which salvage services may be rendered. 
 It matters .not whether the vessel, when met with 
 at sea, has been deserted by her officers and crew ; 
 or whether they still remain on board, in peril or 
 distress. And in cases occurring on the coast, it 
 matters not whether the vessel be irretrievably 
 stranded, or only aground ; or whether she be sunk 
 or afloat. If the case be one demanding assistance, 
 and it be effectually rendered, in saving the vessel 
 
 (a) Dantzic Packet, 3 Haggard's R., 383. 
 (6) Abbot on Shipping, Boston ed. of 1846, 659. 
 (c) The Schooner Emulous, 1 Summer's K., 207, 210; The Brig 
 Healy, 4 Washington's R., 651 ; Waring v. Clarke^ 5 Howard, 431. 
 
SALVAGE. 351 
 
 or cargo, or any part of either, from impending chap. 12. 
 destruction or loss, that is sufficient. Neither is it 
 important in either case, whether the service was 
 rendered spontaneously or by request ; or whether 
 with or without a previous contract between the 
 owner or his agent, and the salvors ; or whether, in 
 case of a previous contract, the rate or amount of 
 compensation for the labor and services to be per- 
 formed was agreed upon, or left to be determined 
 by the quantum Tneruerunt. The service, whether 
 rendered spontaneously or by request, is a salvage 
 service ; and the contract, if there is one, is a salvage 
 contract, and the compensation a salvage compen- 
 sation (a). 
 
 (a) The Emulous, 1 Sum. R., 208, 210; Peischr. Ware, 1 Cranch's 
 K., 447 (2 Ourtis's Decis. S. C, 145) ; Stratton v. Jarvis, 8 Peters's 
 R., 4 (11 Ourtis's Decis. S. C, 3) ; Hobart t. The Hope, 10 Peters's 
 R., 108 (12 Ourtis's Decis. S. 0., 34) ; Houseman v. The North Caro- 
 lina, 15 Peters's R., 41 (14 Ourtis's Decis. S. C, 10) ; The United 
 States V. The Amistad, id., 518 (14 Ourtis's Decis. S. 0., 156) ; Rowe 
 
 T. The Brig , 1 Mason's R., 372 ; The Ewebank, 1 Sumner's R., 
 
 400; Clarke Y. The Brig Healy, 4*Washington's R., 651; Stevens-^. 
 The Argus, Bee's R., 170 ; Booth v. The Schooner L'Esperance, id., 
 92 ; Crowelv. The Brothers, id., 136 ; Schultz v. The Nancy, id., 139 ; 
 Taylor v. The Friendship, id., 175 ; 1 Adm. Decisions, 31-103 ; 2 id., 
 278-287, 356-383, 424. The cases, except the first, are here cited 
 without much regard to order, chiefly for the purpose of illustrating the 
 diversities of character of which salvage cases are susceptible, or rather 
 as specimens of the various descriptions of cases in which salvage has 
 been or may be awarded. It would be easy to extend the list from the 
 reports of decisions in our own courts, and especially from the very 
 valuable reports, with which it may be presumed most lawyers are 
 familiar, by Gallison, Mason, Sumner and Story, of cases decided 
 in the First Oircuit by Mr. Justice Stoky. Those who are disposed to 
 pursue the subject, will naturally resort also to Robinson's, Edwards's, 
 Dodson's, Haggard's, and W. Robinson's Reports of Oases decided in 
 the English Court of Admiralty. 
 
352 ADMIEALTY JUEISDICTION. 
 
 voL^i. Contracts of ttis nature, however, are not held 
 trMteTor"' obligatory by courts of admiralty upon the owners 
 unless, etc. of the property saved, unless it clearly appears that 
 no advantage was taken of their situation, and that 
 the rate of compensation Is just and reasonable. In 
 that case, the stipulated rate of allowance will 
 generally be adopted and enforced by the court, as 
 just and conscientious(«). 
 must^h^Y'r ^^^ salvage is a compensation for actual services 
 ^eeneffeo rendered, and is allowed in consideration of a benefit 
 conferred on the person whose property is saved. 
 Unless, therefore, the property was in fact saved by 
 being brought into some port of safety, by those 
 who claim as salvors, or by their aid, however 
 meritorious may have been their intentions, and 
 however heroic or perilous may have been their 
 conduct, salvage will not be allowed (5). And in 
 case of a vessel imbedded in a field of ice which 
 was afloat and rapidly drifting in Delaware bay, 
 which had with difficulty been boarded by the 
 libellants, who continued, on board two days at the 
 peril of their lives, making great exertions to extri- 
 cate the vessel, the claim of salvage was accordingly 
 rejected, on the ground that her ultimate escape was 
 providential, and not in any degree fairly attributa- 
 ble to the exertions of the libellants. 
 
 Where a salvage has been effected by a part of a 
 
 (a) The Emulous, 1 Sumn. R., 207 ; Bearse t. 340 Piffs of Copper, 
 1 Story's R., 314. 
 
 (6) Talbot T. Seeman, 1 Cranch's R., 1 (1 Curtis's Decis. S. C, 331) ; 
 The Henry Ewebank, 1 Sumner's R., 400, 416, 417 ; Clarke t. The 
 Brig Healy, 4 Washington's R., 651. 
 
SALVAGE, 353 
 
 ship's crew, the rest remaining on board the salvor chap. 12. 
 ship ; if the latter were equally ready to engage in formed by' 
 
 1 • T • 1 -I part of a 
 
 the service, they are entitled to share equally with S'',-,,"'* 
 the others in the reward(a). ■ ''"'"■ 
 
 To warrant a claim for salvage, the danger to the mutt be°^" 
 
 • -»/r imminent. 
 
 property saved must be real and imminent. Mere 
 speculative danger is insufficient ; but it need not be 
 such that escape from it by other means was 
 impossible (5). 
 
 3. The Amount of Salvage to be Allowed, and the 
 Manner and Ratio of its Distribution. 
 
 In cases of recapture from a public enemy, Amount 
 the proportion of the recaptured property to be case of " 
 
 -*-■»■ ■»- ± ± ti recapture. 
 
 adjudged to the recaptors as salvage, is prescribed 
 
 by the statute law of the United Statesfc). In all in other 
 
 •^ ^ ■' eases dis- 
 
 other cases, the amount of compensation is to be "*'""'"y-' 
 determined by the sound discretion of the court, 
 under all the circumstances of the case(<I). This General 
 
 . principles 
 
 discretionary authority is, however, to be exercised Seuon*' 
 
 • 1 Tj_"i j_» ^ * • ^ jy i ^ the court is 
 
 in subordination to certain general principles lounded regulated. 
 in public policy, and under the guidance of judicial 
 precedents. The service is of a highly meritorious 
 character : it consists in saving life and property 
 
 (a) The Baltimore, 2 Dodson's R., 132 ; Bmd v. The Brig Cora, 2 
 Washington's R., 80 ; Mason et al. t. The Blaireau, 2 Cranch's R., 240 
 (1 Ourtis's Decis. S. 0., 479). 
 
 (6) Talbot V. Seeman, 1 Cranch's R., 1 (1 Ourtis's Decis. S. 0., 331). 
 
 (c) Act of March 3, 1800 ; 2 Stat, at Large, ch. 14. 
 
 (d) Talbot V. Seeman, 1 Cranch's R., 1 (1 Curtis's Decis. S. C, 
 331) ; 3 Kent's Comm., 3d ed., 245 ; Abbot on Shipping, Boston ed. of 
 1846, 664. 
 
 45 
 
354 ADMIRALTY JUEISDICTIOlSr. 
 
 VOL 1. about to perisli at sea, often at the imminent peril 
 of the salvor. The interests of society, therefore, 
 require that the strongest inducements should be 
 held forth for its performance ; and it is accordingly 
 a settled principle that it is to be liberally rewarded. 
 The reward should be such as not only to afford an 
 ample remuneration to the salvor for the risk of life 
 and property, and for the labor, privations and 
 hardships encountered, but so liberal as to furnish a 
 sufficient incentive to similar exertions by others(a). 
 " The principles on which the Court of Admiralty 
 proceeds," said Sir William Scott, in the case of 
 TTie WUliam JBeckfordQ))^ " lead to liberal remune- 
 ration in salvage cases ; for they look not merely to 
 the exact qvxmitum of service performed in the case 
 itself, but to the general interests of the navigation 
 and commerce of the country, which are greatly 
 promoted by exertions of this nature. The fatigues, 
 the anxiety, the determination to encounter danger 
 if necessary, the spirit of adventure, the skill and 
 dexterity which are acquired by the exercise of that 
 spirit, all require to be taken into consideration. 
 
 " What enhances the pretensions of salvors most, 
 is the actual danger which they have incurred : the 
 value of human life is that which is, and ought to 
 be principally considered in the preservation of other 
 men's property ; and if this is shown to have been 
 
 (o) Mason v. The Blaireau, 2 Oranoh's K., 240 (1 Curtis's Decis. 
 S. C, 479) ; The Ewebank, 1 Sumner's R., 400, 413 ; Tyson v. Prwr, 
 1 Gallison's R., 133 ; Bond v. The Brig Cora, 2 Washington's R., 80 ; 
 The William Beckford, 3 Robinson's R., 355 (Phila. ed. 1804, 286). 
 
 (6) 3 Robinson's R., 355. 
 
SALVAGE. 355 
 
 hazarded, it is most highly estimated." But, on the "^^fl: ^''• 
 other hand, it is not to be forgotten that the title of 
 the owner is not divested by his misfortunes ; and 
 that after the claims of private justice, and the 
 demands of public policy and humanity are satisfied, 
 he is entitled to what remains of his property. It 
 is not less a settled principle, therefore, that the 
 allowance for salvage is not to be unreasonably 
 large. Within the limits imposed by these general 
 principles, the amount of salvage to be awarded is 
 the just result of a combination of considerations. 
 The value of the property saved, the degree of hazard 
 in which it was placed, the promptitude, intrepidity 
 and address displayed, the danger to life and health 
 incurred, and the amount of labor actually performed 
 by the salvors, are the chief elements of this combi- 
 nation, and, among them, the hazard to life is the 
 most important. If the property saved is of great 
 value ; or, if it was in a condition apparently hopeless 
 but for the interposition of the salvors; or, if the 
 service was undertaken with alacrity, and executed 
 with a high degree of energy and skill ; or, if it 
 involved extraordinary peril, or required severe 
 and exhausting labor, the retribution ought to be 
 proportionally liberal. The opposite of either of 
 these circumstances ought, consequently, to produce 
 the opposite effect(a). And although the court has 
 no power to remunerate the mere preservation of 
 
 (a) Talbot v. Seenian, 1 Cranch's K., 1 (1 Curtis's Decis. S. 0., 
 321) ; Tyson v. Prior, 1 Gallison's E., 133; Bond v. The Brig Cora, 
 2 Washington's B., 80 ; The William Beckford, 3 Robinson's R., 355 
 (Phila.ed. ofl802, 286). 
 
allowed in 
 cases of 
 derelict. 
 
 356 ADMIRALTY JURISDICTION. 
 
 V0I.1. lifg^ ygt^ if it is accompanied by the preservation of 
 property also, it may be taken into consideration in 
 determining the amount of remuneration for the 
 latter service (a). 
 Amount , It secms to have been a rule of the maritime law, 
 in cases of derelict, to allow one-half to the salvors ; 
 although Lord Stowell appears to have entertained 
 considerable doubt upon this point, and expressly 
 asserts that if such a rule ever existed, it had become 
 obsolete (5). Mr. Justice Stoet, in one case, speaks 
 of the ancient existence of the rule and its continuance 
 to the close of the reign of Charles II., as unquestion- 
 able ; and he even considered it as still subsisting. 
 As a limit upon judicial discretion in ordinary cases, 
 he thought it a safe and salutary rule. He admitted 
 however that it had become a flexible rule, but 
 he denied that it ought to bend to slight circum- 
 stances(c). In another case, fifteen years afterwards, 
 he tefers to it as the well-known and favored rule in 
 cases of derelict, which, although not inflexible, was 
 rarely deviated from, except in cases of very extra- 
 ordinary value, or of very slight hazard (<?) ; and he 
 has reasserted it in stro^ig terms, in two subsequent 
 cases(e.) Independently of the great authority of 
 Mr. Justice Stoet himself, it appears to be somewhat 
 questionable whether there is any sufficient warrant 
 
 (a) The. Aid, 1 Haggard's K., 83. 
 
 (6) The Aquila, 1 Robinson's R., 37, 45. 
 
 (c) 1 Mason's R., 372; Rowe v. The Brig and Cargo, 1 
 
 Mason's R., 272. 
 
 (d) The Boston and Cargo, 1 Sumner's R., 328. 
 
 (e) The Henry Ewebank, 1 Sumner's R., 400, 411 ; Sprague v. 140 
 Barrels of Flour, 2 Story's R., 195. 
 
SALVAGE. 357 
 
 for the positive language in which he has asserted chap^w. 
 and defined the supposed rule. Lord Stowell, as 
 we have seen, declared it to be obsolete, if it ever 
 existed. In a case of derelict in the Supreme Court 
 of the United States, no reference is made to any 
 such rule, and the rate of compensation awarded in 
 the court below, was reduced from three-fifths to 
 two-fifths(a). In a meritorious case of unquestionable 
 derelict, Mr. Justice Washington seems not to have 
 been aware of the existence of such a rule(Zi) ; and in 
 a case of this nature before Judge Bee, he awarded 
 one-third of the net proceeds of the property as 
 salvage, remarking that in other cases of derelict, 
 attended with greater danger and exertion, he had 
 sometimes given one-half, but added, nevertheless, 
 that this was no general rule, and that every case 
 must be judged of according to circumstances(c). 
 On the other hand, an impression seems always to 
 have prevailed to a considerable extent, both in 
 England and in this country, not, certainly, that in 
 cases of derelict, the salvors were entitled, dejure, to 
 one-half, but that cases of this description were to be 
 regarded as a distinct class, in which the salvors 
 were entitled to a more liberal remuneration than in 
 other cases of equal pretensions in other respects; 
 and that prima fade, a moiety was to be consid'cred 
 as the proper allowance. Thus, Judge Bee, in 
 another case(t?), says: "I have always considered 
 
 (a) TheBlaireau, 2 Cranch's R., 240 (1 Ourtis's Decis. S. C, 479). 
 (6) The Cora, 2 Washington's R., 8. 
 
 (c) The Leander, Bee's R., 260. 
 
 (d) Cross V. The Bellona, Bee's R., 139. 
 
358 ADMIRALTY JURISDICTION, 
 
 '^°^:.^' cases of derelict as different from other claims for 
 salvage, and have invariably decreed one-half by 
 way of compensation. Circumstances may induce 
 me, on future occasions, to give less : I would not, 
 therefore, be understood as laying this proposition 
 down universallyP 
 
 Neither is it to be inferred from the distinct 
 assertion by Mr. Justice Stokt of the existence of 
 this rule, and the commendation bestowed on it by 
 him, that he was in the practice of applying it 
 without a thorough examination and mature con- 
 sideration of the circumstances of the case before 
 him. No judge ever inquired more earnestly and 
 patiently, or discriminated more nicely. In the 
 very case above referred to(a), in which he ex- 
 pressed himself most strongly in favor of the rule, 
 and which, if not technically a case of derelict, he 
 considered to be, at least, a case of qvxisi derelict, 
 he affirmed the decree of the district court, adjudg- 
 ing only two-fifths to the salvors. In another of the 
 cases above cited(3), he says : " Cases may occur of 
 such extraordinary peril and difficulty, of such ex- 
 alted virtue and enterprise, that a moiety, even of 
 a very valuable property, might be too small a pro- 
 portion; and on the other hand, there may be cases, 
 where the service is attended with so little difficulty 
 and peril, that it would entitle the parties to little 
 more than a quantum meruit for work and labor. 
 These are exceptions (and others might be stated) 
 
 (a) The Boston and Cargo, 1 Sumner's R., 328. 
 
 (6) Rowe T. The Brig and Cargo, 1 Mason's R., 372, 378. 
 
SALVAGE. 359 
 
 to the operation of the rule, which may perfectly chap. 12. 
 consist with its general obligatory force." He con- 
 sidered the rule, therefore, to be a flexible one as 
 "well in favor of the salvor as against him ; and in the 
 case of Srprague v. 140 Barrels of Flov/r{a), the 
 remaining case decided by him, and above cited, he 
 adjudged a moiety of the gross proceeds, charging 
 the costs and expenses exclusively on the other 
 moiety. This is said to be the highest salvage com- 
 pensation ever given in the English admiralty in 
 cases of derelict(5). There is, however, one re- 
 ported case in which two-thirds was given, the value 
 of the property saved being £3400; but there were 
 in that case two successive sets of salvors, and the 
 ship had sunk in the mean time. No allusion was, 
 however, made to this circumstance by Lord 
 Stow:ell, as one of the grounds of this extra- 
 ordinary liberality (c) ; and even in a case of money 
 found derelict, no owner appearing, one-half was 
 adjudged, in the English admiralty, to the salvor((f). 
 In a case involving na great danger. Lord Stowell 
 gave three-fifths, the total value of the ship and 
 cargo being £1900. It was a case of derelict, and 
 Lord Stowell said that if there had been consider- 
 able danger, he should have given what the court 
 was in the habit of giving in cases of derelict, an 
 entire moiety(e). Under this state of the law, it 
 
 (a) 2 Story's R., 195. 
 
 (b) The Frances Mary, 2 Haggard's R., 89. 
 
 (c) The Jonge Bastian, 5 Robinson's R., 322. 
 
 (d) The King v. Property Derelict, 1 Haggard's R., 383. 
 
 (e) The Fortuna, 4 Robinson's R., 193. 
 
relict. 
 
 360 ADMIRALTY JURISDICTION. 
 
 voL^i. becomes important to ascertain what constitutes a 
 case of derelict in the sense of the maritime law. 
 Ste8°dJ. I* ^^ heen said by Lord Stowell to be " by no 
 means necessary to constitute derelict, that no 
 owner should afterwards appear. It is sufficient 
 that there has been an abandonment at sea by the 
 master and crew, without hope of recovery ; with- 
 out hope of recovery, because a mere quitting of 
 the ship for the purpose of procuring assistance 
 from the shore, or with the intention of returning 
 to her again is not an abandonment ;" and he quotes, 
 apparently with approbation, the definition of Sir 
 LEOLrPTE Jenkins : " Boats, or other vessels forsaken 
 or found on the seas without any person in them(a)." 
 Mr. Justice Stoet affirms that " it is insufficient to 
 constitute derelict, that the vessel should be aban- 
 doned ; but the abandonment should be without 
 the hope of recovery, and without the intention of 
 returning to the vessel(J)." In a subsequent case, 
 which was simply that of a vessel found at sea 
 without any person on board, the same eminent 
 judge held it to be clearly a case of derelict in the 
 sense of the maritime law ; and he adopted the 
 definition of Sir Leoline Jenkins, above quoted, 
 as " the true definition in its broad and accurate 
 sense." Eeferring to the language of Sir William 
 SooTT, in the case of The Aquila, he remarked, 
 that instead of the words " without hope of re- 
 covery," as used by him to distinguish a temporary 
 
 (a) The Aquila, 1 Eobinson's K., 37. 
 (6) Tyson v. Prior, 1 Gallison's K., 133. 
 
SALVAGE. 361 
 
 absence from a permanent abandonment, it might chap. 12. 
 have been more accurate to say, " without any in- 
 tention to return ;" since the spes recuperandi might 
 exist, even though the abandonment was without 
 such intention(a). 
 
 In another case before Mr. Justice Stoey, the 
 schooner Boston, being on a voyage from Baltimore 
 to Portland, was run down in the night by another 
 vessel, which kept on her way. The Boston filled 
 with water, and being supposed to be in a sinking 
 condition by the master and crew, seven in number, 
 they took to the long boat in haste, and were picked 
 up by the schooner Magnolia, about an hour after- 
 wards, and at the distance of about three miles from 
 the Boston. At the suggestion of her master, the 
 master of the Magnolia continued to lie to until 
 daybreak, for the purpose of looking out for the 
 Boston, which was then descried from mast-head, 
 about eight miles distant, and was with difficulty 
 towed into harbor in the course of the next three 
 days. Mr. Justice Story was of opinion that this 
 might be considered as a case of derelict, or if not 
 technically such, as a case of quasi derelict equally 
 meritorious; and he affirmed the decree of the 
 district court, adjudging two-fifths of the value of 
 the vessel and cargo to the salvors(^). 
 
 From the foree:oing definitions and illustrations, vesseia 
 
 '-' ° ' deserted, to 
 
 it may be inferred, that a vessel found deserted at pwm™adi, 
 sea, is to be deemed, prima facie, derelict ; and if 
 no claimant appears, or if there is no proof that the 
 
 (a) Rowe v. The Brig and Cargo, 1 Mason's R. 272, 
 
 (6J The Boston and Cargo, 1 Sumner's R,, 328, 
 46 
 
362 ADMIRALTY JURISDICTION. 
 
 vra^i. master and crew tad left her in quest of succor, or 
 with the intention of returning, she is to be so 
 adjudged. 
 Amount of Jq cases othcr than of derelict, and which are not 
 
 salvage m ' 
 
 S',em^ characterized hj very extraordinary features, the 
 amount of salvage allowed may be said to have 
 fluctuated between *one-eighth and one-half; and it 
 may be added that one-third seems to have been the 
 amount most frequently adjudged(a). When the 
 property saved is of very small bulk in proportion to 
 its value, as money or precious stones, cceteris parSms^ 
 a less proportion is awarded. Thus in a case of 
 shipwreck on the coast, where the libellants, four in 
 number, at great peril, boarded the wreck, in a boat, 
 and took off the passengers and crew, together with 
 $25,000 in money, one-fifth was allowed as salvage(5). 
 In some instances a gross sum has been allowed, 
 bearing no declared proportionate relation to the 
 value of the property saved. Thus in the case of 
 the WilUam Beckford{c), in which the ship and 
 cargo were valued at ,£17,64:0, £1000 was adjudged 
 to the active salvors, and £50 to the owners of the 
 boats and small vessels employed in the service ; and 
 in the case of the JEm,ulous{d), $850, being a little 
 more than one-seventh, was allowed. So in the case 
 of TJie Nancyie) (in the report of which, however, 
 the value of the property saved is not mentioned), 
 
 (a) The Emulous, 1 Sumner's R., 207, 213 ; and see the Reports of 
 cases determined in the admiralty in England and in the United States, 
 passim. 
 
 (6) The Friendship, Bee's R., 175. 
 
 (c) 3 Robinson's R., 355 (Phila, ed, of 1802, 286). 
 
 (d) 1 Sumper's H., 208, (e) Bee's R., 139. 
 
SALVAGE. 363 
 
 was given. The amount of salvage, it has chap. 12. 
 been said, is to be determined with exclusive refer- sawage'Sot 
 
 , affecved by 
 
 ence to the circumstances existing at the time when ^enS™"' 
 the service is rendered ; and ought not, therefore, to 
 be affected by subsequent events not foreseen or 
 anticipated, tending to show that the real danger to 
 the property saved was either greater or less than 
 the apparent danger(«). 
 
 It is the established usage of the High Court of SfragMobe 
 Admiralty of England to take the value of the ship eqnaipV 
 
 */ <~> J- portions by 
 
 and cargo, and assess the amount of the remunera- omIo"."'^ 
 tion upon the whole, each paying in due proportion. 
 The parties are not permitted, therefore, to aver 
 that the services were of greater importance to the 
 ship than they were to the cargo, and therefore that 
 the ship should bear the greater burthen, or vice 
 versa. Such a distinction, if acknowledged, would, 
 in many cases, lead to questions of great nicety, 
 which it would be difficult for the court to adjust. 
 Silver and bullion, however, are excepted from this a^l^Vof 
 rule, upon the consideration that these are more bumon.' 
 easily rescued and preserved than more bulky 
 articles of merchandise (J). In limiting the state- 
 ment of the exception to silver and bullion, I have 
 adhered to the authority cited, such being the 
 language of Dr. Ltjshingtow. It is presumed, how- 
 ever, that the exception would be extended to other 
 articles of small bulk and great comparative value, 
 as precious stones, jewelry, etc. 
 
 The apportionment of salvage among the several 
 
 (a) The Emulous, 1 Sumner's R., 215. 
 (6) The Emma, 2 W. Robinson's R., 315. 
 
364 
 
 ADMIRALTY JURISDICTION. 
 
 TOL. 1. 
 
 Distribution 
 of salvage 
 compensa- 
 
 Owners of 
 salvor ship 
 entitled to 
 share. 
 
 parties entitled to share in it, is often an embarrass- 
 ing as well as delicate and responsible task. Like 
 the determination of the gross amount to be allowed, 
 it may be said in general to rest, within certain 
 limits founded in considerations of public policy and 
 sanctioned by usage, in the sound discretion of the 
 court. The subject has been examined and dis- 
 cussed by Mr. Justice Stoet, both upon principle 
 and authority, with his accustomed fullness, learning 
 and ability. The circumstances of the case before 
 him were such as to invite, and indeed to require, a 
 comprehensive survey of the subject, and it may 
 safely be asserted that all the light of which it 
 appears to be susceptible is shed upon it by his 
 judgment(a). 
 
 When, as is generally the case, salvage is effected 
 by the instrumentality of one or more vessels, the 
 owners, though they cannot properly be denominated 
 salvors, are entitled to a share of the salvage on 
 account of the exposure of their property to danger 
 and loss. Stoppage on the ocean to save the pro- 
 perty of another, is a deviation from the voyage, 
 which discharges the underwriters (5) ; and for this 
 
 (a) The Henry Ewebank, 1 Sumner's R. 400. 
 
 (6) Ibid., 336, 425 ; Bond v. The Cora, 2 "Washington's E., 80. 
 But the maritime law, looking to the general interests of commerce, 
 does not prohibit the master from deviating to save property in 
 distress, if, in the exercise of a sound discretion, he deems it fit to do 
 so : as between himself and the owners, the usage of the world has 
 clothed him with this authority. (Ibid.) A stoppage for the purpose 
 of saving life, is a high moral and christian duty, and is not a devia- 
 tion which will exonerate the underwriters. (Ibid.) See, also, Tlie 
 Nathaniel Hooper, 3 Sumner's R., 542, 578, 579. 
 
SALVAGE. 365 
 
 risk incurred, the owner is entitled to be indemnified. chap^i2. 
 "But the law does not stop short with a mere 
 allowance to the owner of an adequate indemnity 
 for the risk so taken. It has a more enlarged policy 
 and a higher aim. It looks to the common safety 
 and interest of the whole commercial world in cases 
 of this nature; and it bestows upon the owner a 
 liberal bounty and reward, to stimulate him to a 
 just zeal in the common cause, and not to clog his 
 voyages with narrow instructions, which should 
 interdict his master from any salvage service. The 
 law has a wise regard to considerations of this 
 nature ; and it offers, not a premium of indemnity 
 only, but an ample reward, measured by an enlight- 
 ened liberality and forecast (a)." This view of the 
 subject is in accordance with that taken by Chief 
 Justice Marshall, in delivering the opinion of the 
 Supreme Court, in a case where he observes that 
 the same policy which awards a liberal remuneration 
 to captains and crews, ought to extend to all owners 
 the same rewards, for a service which deserves to be 
 encouraged; and it is surely no reward to a man, 
 made his own insurer without his own consent, to 
 return him very little more than the premium he 
 had advanced (Zi). Mr. Justice Stoet also suggests 
 that the extension to owners of the same pi-inciples 
 of remuneration that are applied to officers and 
 seamen, is further recommended by the strong 
 inducement it furnishes to the latter " not to desert 
 
 (a) The Henry Ewebank, 1 Sumner's B., 400, 425. 
 
 (6) Tlie BZaireaw, 2 Oranch's K., 240(1 Curtis's Decis. S. C, 479). 
 
366 ADMIRALTY JURISDICTION. 
 
 TOL^i. their own proper duty to tlieir owner, and his 
 interests, for selfish purposes, by making them share 
 only in subordination to, and in connection with, 
 those interests." 
 
 In the case of The JBlcdreau, the Supreme Court 
 adjudged to the owners of the salvor ship one-third 
 of the amount of salvage allowed. 
 
 In the case above cited, decided by Mr. Justice 
 Washington, after grave consideration, he awarded 
 to the owner the same proportion ; and it was 
 adopted by Mr. Justice Story in the case before 
 him, not only as suitable to the circumstances of 
 that particular case, but as, in his opinion, constituting 
 the true general rule of remuneration: not a rule 
 absolutely inflexible, and not to yield to any extra- 
 ordinary merits, or perils, or losses on the part of 
 owners ; for cases may exist in which one-half might 
 with propriety be allowed to the owner, as had 
 sometimes been done. 
 Allowance ^g bctwecu thc mastcr and the other officers, the 
 
 to the master ' 
 
 usual course has been to allow the master a larger 
 proportion than the mate, and this even when the 
 mate has been put in command of the salved ship. 
 Under ordinary circumstances, the proportion com- 
 monly allowed to the master has been double that 
 of the mate. This is deemed to be just, on the 
 ground that the master, in 4)ermitting the salvage 
 enterprise, takes upon himself a great responsibility 
 to his owners, and also to the shippers of the cargo. 
 But here again the rule is not inflexible; and in 
 case of great perils, sacrifices and hardships incurred 
 by the mate, as commander of the actual salvors, 
 
 and mate- 
 
SALVAGE. 367 
 
 his proportion is permitted to approach nearer to ohap.i2. 
 that of the master(a). Upon this principle, a larger 
 share, amounting to about two-thirds of the amount 
 awarded to the master, was, by the Supreme Court 
 in one case(^), and by Mr. Justice Washington in 
 another(c), allowed to the mate. 
 
 As between the master and the crew, the usual to the crew 
 
 ' coUeoiiTely. 
 
 practice has been to allow to the former about one- 
 fourth of the salvage, after deducting the proportion 
 adjudged to the owner. This was done in the two 
 cases last cited. 
 
 Where the pretensions of the seamen composing Distribution 
 the crew are very unequal, it is usual to discriminate "ew. 
 between them. But it is against the policy of the 
 maritime law to make what may be felt to be 
 invidious distinctions in this respect upon light 
 grounds; and the amount allowed as salvage is 
 deemed to be much more important than the ratio 
 of apportionment. This principle is applicable to 
 cases in which several vessels and crews are con- 
 cerned in the salvage service(d). 
 
 The freighter of the salvor ship is not entitled to freighter 
 salva2:e, unless, being on board at the time of the to salvage, 
 
 <D f ' ct ^ ^ unless, etc. 
 
 salvage enterprise, he consented to it, and thus dis- 
 charged the owner from the responsibility incurred 
 by deviating from the voyage(i?). 
 
 (a) The Henry Ewebank, 1 Sumner's R., 400, 429. 
 (6) The Blaireau, ubi supra. 
 
 (c) The Cora, 2 Washington's R., 80, 87. 
 
 (d) The Henry Ewebank, 4 Sumner's R., 400, 433 ; The Cora, 2 
 Washington's R., 88 ; The Jonge Bastian, 5 Robinson's R., 322. 
 
 (e) The Cora, 2 Washington's R., 80 ; The Nathaniel Hooper, 3 
 Sumner's R., 542, 577-581 ; The Blaireau, ubi supra. 
 
368 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 4. By what acts op the salvor his eight to salvage is 
 forfeited. 
 
 It is an important and ■well settled principle that 
 a salvor forfeits all claim to compensation by the 
 embezzlement of any part of the property saved, 
 and this principle has been distinctly affirmed by 
 the Supreme Court of the United States (a) ; and it 
 matters not whether the act of embezzlement was 
 committed at sea, or after the property has been 
 brought into port, • or even while it was in the cus- 
 tody of the officers of the court(Zi). Salvage may 
 also be forfeited by other aggravated misconduct on 
 the part of the salvor, such as spoliation, smuggling, 
 or gross neglect(c). 
 °ew/of™* -'■^ * cause of salvage, the officers and crews of 
 Sedicom- the vessels concerned, on both sides, are admitted, 
 
 petent wit- , ' • p p • i • 
 
 ex necessitate, to testify to facts occurrmg at the time 
 of the service, and which, from the nature of the 
 case, are not susceptible of distinct and independent 
 proof; and in our courts, salvors have been deemed 
 competent, although parties to the suit, and without 
 releasing their interest. Their evidence is, however, 
 to be received with caution and distrust(c?). In a 
 case in the English admiralty, decided in 1790, the 
 testimony of the master, the mate, and some of the 
 crew of the salvor ship, although parties, was also 
 
 (a) The Blaireau, ubi supra. 
 
 (6) The Blaireau, ubi supra; The Boston and Cargo, 1 Sumner's 
 B., 328. 
 
 (c) The Bella Corunnes, 6 Wheaton's R., 152 (5 Cond. R., ). 
 
 (d) The Boston and Cargo, 1 Sumner's R., 328, 343 ; The Ewebank, 
 ib., 400, 432. 
 
SALVAGE. 369 
 
 received(a). But in another case, whicli occurred a chap-w. 
 year later, there was a petition to dismiss two of the 
 plaintifis, composing a part of the crew of the ship, 
 and who, it is stated, had also executed releases of 
 their claim to any share of salvage(5). The suit of ^^^^^""^ 
 the salvor may be in rem against the property 
 saved, or the proceeds thereof; or in personann 
 against the party at whose request and for whose 
 benefit the salvage service has been performed (c). 
 
 All those who are entitled to share in the salvage co-saivors 
 
 1 T T • 1 • T 1 all to be 
 
 ought to be made parties to the suit ; and the proper ™»<ie p"- 
 course is to make them so by name in the libel, in 
 order to avoid the inconvenience of subsequently 
 bringing their names properly before the court to 
 enable it to make a just distribution. The libel 
 may, however, be filed by the master, or owner, or 
 both, in behalf of themselves and of the officers and 
 crew of the salvor ship. When, however, the crew 
 are not thus made parties, either by name or by 
 description, they may file a supplemental libel or 
 petition referring to the original libel, and asserting 
 their rights as co-salvors. But although there should 
 be but one libel of co-salvors, if there are several 
 sets of salvors, as the officers and crew, of different 
 vessels, by whom distinct salvage services have been 
 rendered, it is proper that their respective claims to 
 remuneration should be asserted in distinct euits(<i). 
 
 (a) The. Sara Bamardina, 2 Haggard's R., 151, n. 
 (6) The Pitt, 2 Haggard's R., 149, n. 
 
 (c) See Appendix, Rule xix. of the Rules of Practice in cases of 
 admiralty and maritime jurisdiction. 
 
 (d) The Boston and Cargo, 1 Sumner's R., 328 ; The Ship Henry 
 Ewebank, 1 Sumner's R., 400, 408. 
 
 47 
 
370 ADMIRALTY JURISDICTION. 
 
 TOL. 1. 
 
 CHAPTEK XIII. 
 
 . Collision. 
 
 The law exacts of the master and crew of every 
 vessel, whether at sea or in port, constant care and 
 vigilance to avoid collision with other vessels ; and 
 any degree of negligence in this respect, which 
 becomes, however unintentionally, the cause of 
 damage ' to others, the maritime law considers as a 
 dereliction of bounden duty, entitling the sufferer to 
 reparation in daniages. For injuries of this descrip- 
 tion, the common law courts afford a remedy by a 
 personal action against the master and the owner ; 
 but the more usual and effectual form of redress is 
 by a proceeding in the instance court of admiralty, 
 technically called a cause of damage, civil and mari- 
 time, against the guilty ship(a). 
 
 (a) By the fifteenth rule of the Rules of Admiralty Practice, it is 
 declared that " In all suits for damage by collision, the libellant may 
 proceed against the ship and master, or against the ship alone, or against 
 the master or the owner alone, in personam." 
 
 These remedies must not be understood to be confined to cases 
 where the injury is inflicted while one or both of the vessels is under 
 headway. A collision, in the legal sense, may occur while both are 
 moored. Thus, if a vessel enter a dock at high tide and be impru- 
 dently moored outside of a smaller vessel, and at ebb tide, for want of 
 sufBcient water to keep her erect, careens over and crushes the smaller 
 vessel, this is an injury by collision, for which a remedy may be sought 
 in a court of admiralty. - The Lake, 14 Law Rep. (4 N. S.), 669, decided 
 in the C. C. for the District of Pennsylvania. 
 
COLLISION. 371 
 
 In the case of Tlie Wbodrop Lord Stowell classi- chap. is. 
 fies cases of collision, and lays down the rules, with 
 respect to the parties by whom the loss is to be 
 borne, as follows : " In the first place, it may happen 
 without blame being imputable to either party, as 
 where the loss is occasioned by a storm or other 
 vis major. In that case the loss must be borne by 
 the party on whom it happens to light ; the other not 
 being responsible to him in any degree. Secondly, 
 a misfortune of this kind may arise, where both 
 parties are to blame, where there has been a want 
 of diligence on both sides ; in such case the rule of 
 law is, that the loss must be apportioned between 
 them. Thirdly, it may happen by the misconduct 
 of the suffering party only ; and then the rule is that 
 the sufferer must bear his own burthen. Lastly, it 
 may have been the fault of the ship which ran the 
 other down ; and in this case the innocent party 
 would be entitled to an entire compensation from 
 the other(ffl)." 
 
 Each of these several descriptions of cases requires 
 a brief commentary, and I propose to notice them 
 in the inverse order of their enumeration above. 
 
 When the collision is attributed exclusively to the i. coiusion 
 
 proceeding 
 
 fault of the ship that ran the other down, accordmg [^7pf^,f^f°° 
 to the general maritime law, and formerly by the ^e^elSe! 
 law of England, the injured party is entitled to full 
 compensation out of all the property of the owners as 
 well as of the master of the guilty ship, on the 
 ground that they are answerable for the conduct of 
 
 (a) Dodson's Ad. R., 83. 
 
372 ADMEBALTY JUEISDICTION. 
 
 voL^i. tjig persons employed by themselves, and over whom 
 the suffering party had no control. But Holland 
 having innovated upon this rule by exempting per- 
 sons interested in the navigation of that country 
 from liability beyond the value of their own pro- 
 perty put at hazard, viz., their ship, freight, apparel 
 and furniture, England followed her example(a), and 
 it has since been adopted also in our own country(5). 
 The English statute exempts the ship-owner from 
 liability for injuries done to other vessels without 
 his fault, beyond his property in the ship, freight, 
 apparel and furniture ; and it has been held in the 
 English Court of Admiralty that fishing stores of a 
 Greenland ship are liable for damage done by colli- 
 sion, as appurtenances to a ship of that descrip- 
 tion(c). By the American act, the liability of the 
 ship-owner for loss or damage occasioned by collision, 
 tfec, "without the privity or knowledge of such 
 owner," is limited to " the amount or value of the 
 interest of such owner in such ship or vessel, and 
 her freight then pending." The language of the 
 two acts respectively seems to be essentially equiva- 
 lent in import, and not likely therefore to lead 
 to any diversity of construction with respect to their 
 scope. The above mentioned decision relative to 
 the stores of a ship employed in the whale fishery, 
 it will be seen, did not, strictly speaking, turn on the 
 language of the statute, the question being whether 
 these stores, which were neither " freight, apparel or 
 
 (a) 53 Geo. in., ch. 159. 
 
 (6) Act of March 3, 1851, ch. 43, §§ 3, 4 ; 9 Stat, at Large, 635. 
 
 (c) The Dundee, 1 Hagg. Adm. R., 109. 
 
COLLISION. 373 
 
 furniture," were not virtually a part of the ship, as chap. is. 
 appurtenant thereto. 
 
 To sustain a claim to full indemnity for injury by ^are"t?'7». 
 collision, two things must concur: the collision 8?on°,?2''' 
 
 ' quired* 
 
 must have been caused by the fault of the opposite 
 party, and there must have been no want of ordi- 
 nary care to avoid it on the part of the complainant. 
 "The established rules of nautical practice, as 
 explained by professional men, the usages and 
 regulations of particular ports and rivers, the state 
 of the wind, the tide, and the light, the degree of 
 vigilance of the masters and crews, and all other 
 circumstances bearing upon the conduct and manage- 
 ment of both vessels," are to be considered in 
 deciding upon these points. But, although there 
 are certain rules respecting the management of 
 vessels, which have been adopted by courts as 
 positive rules of law, the neglect of them by one 
 party will not dispense with the exercise of ordinary 
 care and caution by the other(a). 
 
 This principle extends, also, to the conduct of the sairering 
 suffering party after the collision; and if by wilful ™ij£'° 
 neerlierence or supineness, losses are mcurrea, ■wnicn, sequential 
 
 o O r f damages 
 
 by seasonable exertions might easily have been £^7/„^°^. 
 avoided, no compensation for such losses is allowed. "^°°°°" 
 Thus, where a vessel lying at anchor in the Thames, 
 had a piece knocked out of her side by the anchor, 
 standing " a-cock-bill," of a descending vessel, and 
 was immediately run ashore in consequence of her 
 leaking; no effort having been made, during two 
 
 (a) Abbot on Shipping, Boston ed., 311, 312. 
 
374 ADMIRALTY JUEISDICTION. 
 
 VOL 1. tides, to stop tte leak, whicli the court was of 
 opinion might easily have been done ; a claim for 
 damage done to the cargo, in consequence, was 
 rejected on this ground, as well as because the 
 damage occurred on the land(a). 
 faiifofTuf. Where the collision has been caused by negli- 
 
 fcrer alone. ^^^^^ ^^ ^^^^ ^^ ^j^yj ^^ ^^^ ^^^^ ^£ ^-^^ libcUant's 
 
 vessel, subsequent misconduct on the part of the 
 opposite party, in not having attempted to ascertain 
 whether some assistance might not have been ren- 
 dered towards saving the disabled vessel, will not 
 bring the case within the rule of apportionment., 
 But in a case of this kind, where the conduct of the 
 master of the ship proceeded against had been 
 clearly reprehensible, Sir John Nioholl condemned 
 her owner and his bail in all the costs and expenses 
 of the suit(5). 
 8ion from" Where there has been a want of diligence or skill 
 BWes.™ " on both sides, it is the settled rule of the general 
 maritime law of Europe to apportion the loss 
 between the two culpable ships, and this, not pro 
 rata according to their respective values, but in 
 equal moieties. In the case of TTie Woodrqp, as we 
 have seen, it was declared by Lord Stowell to be 
 also the rule of the English Court of Admiralty, and 
 it was unequivocally recognized by the House of 
 Lords in Hay v. Le JVerve, on appeal from the 
 judgment of the Court of Session in Scotland. It 
 was further adjudged that each party should pay 
 
 (a) The Bolides, 3 Haggard's R., 367. 
 
 (b) Th6 Celt, 3 Haggard's R., 321, 327. 
 
COLLISION. 375 
 
 his own costs(a). It is laid down as unquestionable chap^is. 
 by Chancellor Kent(5), and by Mr. Justice Stoet(c), 
 and in a very recent case it has at length been 
 expressly declared and adopted by the Supreme 
 Court of the United States, as the rule " the most 
 just and equitable, and as best tending to induce 
 care and vigilance on both sides, in navigation((^)." 
 The justice of this rule of equal apportionment 
 between two culpable vessels, has been severely 
 questioned ; and considering the great disparity in 
 the degree of culpability which may well happen 
 to be, and often is attributable to the respective 
 parties, the rule must be conceded to be extremely 
 defective, as a means for the attainment of particular 
 justice. But its expediency and substantial equity, 
 as a general rule, though it has been aptly called a 
 rusticimi judiciimi, have been vindicated and main- 
 tained by very able writers, and by the highest 
 judicial authorities, on account of the difficulty of 
 determining the comparative measure of blame 
 chargeable upon each party, and the tendency of 
 the rule to insure vigilance on the part of those 
 
 (a) 2 Shaw's Scotch Appeal Cases, 395 ; a full abstract of this case 
 is given in Abbot on Shipping, 303 et seq. That the rule in question 
 requires an equal apportionment seems to be clear. It was unques- 
 tionably BO understood by Lord Stowell in The Woodrop, and by 
 the House of Lords in the case of Hay v. Le Nerve. 
 
 (6) 3 Kent's Comm., 3d ed., 231. 
 
 (c) Story on Bailments, § 608. 
 
 (d) The Catharine^ 17 Howard's R., 170 (21 Curtis's Decis. S. C, 
 434, 439). The fault imputed to the libellant's vessel (the San Louis) 
 was that, being close-hauled, she lufled instead of keeping her course; 
 that imputed to the respondent's vessel, havmg the wind free, was, that 
 she had no sufficient look-out. 
 
376 ADMIKALTY JURISDICTION. 
 
 Toi^i, nyiio iiave the charge both of large and small 
 vessels(a). 
 
 The commoQ law rule is, that if the plaintiff, in a 
 suit to recover damages arising from collision, is 
 shown to have been in any degree in fault, he is 
 entitled to no remuneration. This state of the law 
 leads, it will be observed, both in this country and 
 in England, to this remarkable result : that what in 
 one court is regarded as an injury entitling the 
 sufferer to redress, is held by another court of the 
 same country, possessing a concurrent jurisdiction, to 
 furnish no title to reparation. 
 IV. From We havc seen that by the law of England, as 
 Sent? " expounded by Lord Stowell, where the collision is 
 purely fortuitous, no right of action accrues from it 
 in favor of either party. But by the law of most of 
 the maritime states of Europe, as understood and 
 interpreted by Lord Tenterden, differing in this 
 particular from the Roman law, the rule of mutual 
 contribution is applied also to this class of cases now 
 under consideration (5). It cannot have escaped 
 the observation of any intelligent reader who has 
 attentively perused the first chapter of this work, 
 that the controversy which long agitated the 
 Supreme Court touching the extent of the constitu- 
 tional grant of admiralty jurisdiction, has finally 
 resulted in the conclusion that the framers of the 
 Constitution had no exclusive reference to the 
 
 (a) See AbbotonShipping, Boston ed. of 1846, pp. 304, 305, 306; 
 3 Kent's Commentaries, 231. 
 (6) Abbot on Shipping, Boston ed., 1846. 
 
COLLISION. 377 
 
 jurisprudence either of England or of the -maritime chap. is. 
 states of the continent of Europe, but that in 
 deciding upon the limits of this branch of their 
 jurisdiction, and also in determining the principles 
 and rules "which should regulate its exercise, the 
 courts of the United States might rightfully resort 
 indiscriminately to either of these . sources for 
 guidance, being responsible only for a considerate 
 and discreet exercise of this discretionary authority. 
 Assuming that the rule of contribution prevailed 
 on the continent of Europe, to a greater or less 
 extent, with respect to the description of cases under 
 consideration, it follows, therefore, that the American 
 courts were at liberty to adopt either that or the 
 English rule, according as the one or the other 
 should, on mature consideration, appear to be the 
 more eligible. In the exercise of this discretion, the 
 Supreme Court has lately pronounced in favor of 
 the English rule of leaving the loss resulting from 
 collision, imputable to no fault on either side, finally 
 to rest where it happens to light, as being, in the 
 judgment of that court, " more just and equitable, 
 and more consistent with sound principles " than the 
 opposite rn\e(a). Such, therefore, is now the estab- 
 lished rule of the maritime law of the United 
 States, which, with respect to each of the four 
 species of collision enumerated by Lord Stowell, 
 is thus rendered accordant with that of England(5). 
 
 (a) Stainback v. Rae, 14 Howard's K., 532, 538 (20 Curtis's Decis. 
 S. C, 321, 325). 
 
 (6) This is the rule also prescribed by the Commercial Code of 
 Trance. Its language is " En cas d'abordage de navires, si I'evenement 
 
 48 
 
378 ADMIRALTY JURISDICTION. 
 
 TOL^i. But t}je continental codes and jurists recognize a 
 Ss^eratawe fifth description of cases, wMch seems never to have 
 been thought of in the English Court of Admiralty, 
 as a distinct class in which the sufferer could, by 
 possibility, be entitled to reparation in any form. 
 It is that in which the collision was the result of 
 mismanagement on the part of one or both of the 
 parties concerned, and might therefore have been 
 avoided ; yet, it is nevertheless impossible to learn 
 to whose fault it is imputable. In this case, also, 
 the loss is, by these codes, equally apportioned 
 between the parties. This class of cases, it is true, 
 is noticed by Mr. Bell in his Commentaries on 
 Commercial Law, and he intimates his approbation of 
 the rule applied to it, as one founded in justice and 
 sound policy («). But the observations of Sir 
 Cheistophee RoBrNSON in The Catharine of Dover, 
 which arose subsequently, clearly infer that this rule 
 had acquired no foothold in the English admiralty (i), 
 and in the recent case of The Maid of Auchland, 
 the language of Dr. Lushington to the like effect is 
 perfectly explicit. Cross actions had been brought ; 
 and in asking the opinion of the masters of the 
 Trinity House upon the controversy, he observed : 
 " If you say that the blame attaches to both, then 
 the damage must be divided ; but if you say that 
 you cannot tell which is to blame, then I must 
 dismiss both." In pronouncing his judgment he 
 accordingly said ; " the court cannot come to a 
 
 a et'e purement fortuit, le domage est supports, sans repetition, par 
 celui des navires qui I'a eprouvfe." Code de Commerce, art. 407. 
 (a) 1 Bell's Comm., 579, 581. (6) 2 Haggard's E., 145, 154. 
 
COLLISION. 379 
 
 satisfactory conclusion as to which was to blame, chap^is. 
 and this homes open to me only one course, namely, 
 to dismiss both actions(a)." 
 
 The question has not yet been brought to the 
 consideration of the Supreme Court of the United 
 States, and has not therefore, in this country, been 
 definitively determined. But it has lately occupied 
 the attention of several of the district judges and 
 American writers; and in one instance, occurring 
 in the District of Ohio, the judge of that district 
 deemed it necessary explicitly to decide it. The 
 earliest expression of judicial opinion I have met 
 with relative to it is that of Judge Ware, in Tlie 
 Scioto just above cited, in which he spoke of the rule 
 of apportionment as applicable as well to the case 
 of inscrutable fault as to that of inevitable accident. 
 Mr. Justice Stoet, referring to the observations of 
 Mr. Bell upon it, and prior to the case of The 
 Maid of AvxMand, expresses the opinion that " If 
 the question is still open to controversy, there is 
 great cogency in the reasoning of Mr. Bell in favor 
 of adopting the rule of apportioning the loss between 
 the parties. Many learned jurists support the justice 
 and equity of such a rule ; and it has the strong aid 
 of Pothier and Emerigon ;" citing Pothier, Avaries, 
 n. 155 ; 1 Emerig. Assur. ch. 12, 314(J), Chancellor 
 Kent, in terms somewhat too strong, speaks of it 
 as a rule " universally declared by all the foreign 
 ordinances and jurists." In Wells v. Tlie Bay State, 
 Judge Betts is reported to have referred to the rule 
 
 (a) 6 Notes of Cases, 240. (6) Story on Bailments, § 609. 
 
380 ADMIRALTY JUKISDICTION. 
 
 TOL^i. Qf apportionment in cases of inscrutable blame as 
 one of the established rules of decision in the 
 District Court for the Southern District of New- 
 York, and he, on that occasion, it seems, for the first 
 time, applied this rule to the case of mutual fault(a). 
 Under this state of authority, Mr. Flanders states 
 this to be the American rule (5). More recently 
 it has, upon full consideration, been held to be 
 so by Judge Leavitt, of the District Court for 
 the District of Ohio(c) ; and in a very late case, the 
 able and learned judge of the Northern District of 
 New-York did not hesitate to declare the rule of 
 apportionment to be applicable alike to the case 
 of inscrutable and of mutual femlt(d). 
 
 Should the question be carried for decision to the 
 Supreme Court, it will be for that tribunal finally 
 to determine whether in the case in question the rule 
 of apportionment prevalent on the continent of 
 Europe shall be adopted in this country, or, as in 
 the case of unavoidable collision, and in accordance 
 with all the analogies of our jurisprudence, the 
 English rule shall be preferred. It is not at all sur- 
 prising that in England where the preponderance of 
 the common law is so decided, that even the Court 
 of Admirality should never have thought it worth 
 while to consider whether, with respect to a species 
 of controversy of which the courts of common law, 
 
 (a) 6 New-York Legal Observer, 201. 
 (6) Flanders's Mar. Law, §§ 357, 358. 
 
 (c) Lucas V. T/ie Thomas Swan, 3 Amer. Law Rep., 569. 
 
 (d) Jarvis T. The State of Maine, reported in the New-York 
 Tribune. 
 
COLLISION. 381 
 
 possess a concurrent jurisdiction, it was expedi- oh^ap.i8- 
 ent to adopt from foreign codes a particular rule 
 at open war with that universal principle of the 
 common law which forbids the award of damages 
 to a suitor who fails to establish the truth of his 
 allegations against his adversary. But, anomalous 
 as the rule must be admitted to be, it ought not to 
 be hastily condemned. It is in reality less objec- 
 tionable than to a mind imbued with the prin- 
 ciples of the common law it is likely, at first blush, 
 .to appear. This class of cases is understood to 
 embrace all those in which, while from their overt 
 aspect it is palpable that by reasonable diligence 
 and ordinary skill on both sides, the catastrophe 
 might have been avoided, yet, from the lack of 
 explanatory evidence, or from its contradictory 
 import, it is impossible to ascertain the particular 
 nature of the fault committed, or else, when this is 
 done, to determine at whose door it lies. And it 
 must be conceded that of the great multitude of 
 actions for damages suffered by collision that of late 
 have been prosecuted in our courts, a considerable 
 proportion have assumed a shape so questionable 
 and perplexing as to render them incapable of satis- 
 factory solution, and any judgment pronounced in 
 favor of either party little better than a random 
 guess. It is true this uncertainty sometimes attends 
 other forms of action, and that in the courts of 
 common law the verdicts which jurors are required 
 to find are sometimes of this character. But there 
 are reasons, founded both in the inherent nature of 
 the controversies in question, and, to some extent, 
 
382 ADMIRALTY JURISDICTION. 
 
 voL^i. also in the character of the witnesses upon whom 
 reliance must chiefly be placed, that distinguish 
 these controversies, in this respect, from all others, 
 and have rendered them proverbial for contradic- 
 tory testimony. 
 
 Exactly of the kind I have described was the 
 case above cited of The Maid of AucMcmd in the 
 English Court of Admiralty, in which neither the 
 master of the Trinity House nor the distinguished 
 judge could " come to a satisfactory conclusion as to 
 which was to blame," and he accordingly dismissed 
 the action ; just as a jury in a like case, in a court of 
 law, would have been obliged to pronounce in favor 
 of the defendant, on the ground that the plaintiff, 
 holding the affirmative of the issue, had failed to 
 establish his right of remedy by preponderant evi- 
 dence. Now, it is clear that in the opinion of Dr. 
 LusHrcirGTON it was as probable that either one of the 
 parties was to blame as the other, and that both 
 might have been in fault. They stood before the 
 court, therefore, morally, upon a footing of perfect 
 equality, and had the judge considered himself at 
 liberty to enforce this equality by decreeing an equal 
 contribution to repair the damages sustained, he 
 would probably have gladly exercised the power, 
 for it must be conceded that there is something in 
 the rude equity of such a judgment that accords 
 with our sense of justice. 
 The^bnrthen In a cause of damage for injury sustained by 
 jm the libel- coHigioQ^ ^hc burtheu of proof to establish the 
 charge of negligence or want of skill, rests in 
 general upon the libellant. In other words, in 
 
COLLISION. 383 
 
 order to entitle him to reparation, there must be a ^^^ is- 
 prepondlrance of evidence in his favor(a). But 
 where it is shown that the vessel charged as the 
 wronar-doer omitted an ordinary and proper measure Proof of the 
 
 o 1/ X J. omiaslun of 
 
 of prevention, the Lurthen is on her to show that SonKs," 
 the collision was not owing to her neglect, but would f^^/f'"** 
 have happened, nevertheless, if the precaution had 
 been taken. Thus, where the respondent's vessel 
 was intentionally left at her moorings in a harbor, 
 to encounter an approaching gale, without any person 
 on hoa/rd, and during the night she dragged her 
 anchors, and ran foul of the libellant's vessel, it was 
 held to be incumbent on the respondents to show 
 that the misfortune was not attributable to this 
 cause (5). 
 
 A like principle has recently been asserted by 
 the Supreme Court of the United States in very 
 emphatic terms, with respect to the non-observance 
 of the precautions against collision enjoined by the 
 act of Congress of July Y, 1838, "to provide for the 
 better security of the lives of passengers on board 
 of vessels propelled in whole or in part by steam." 
 
 In the case before the court, which was that of a 
 collision between two steamboats on the Mississippi 
 river, about ninety-five miles above the port of New 
 Orleans, the respondent's vessel had omitted to carry 
 the lights required by this act, and the court decided 
 that this alone was sufficient to cast upon the respon- 
 
 Ca) The Catharine of Dover, 2 Haggard's R., 145, 153. 
 
 (6) Clapp y. Young at al., decided in the District Court of the 
 United States for the District of Massachusetts, Feb., 1843 (6 Law 
 Keporter, 111). This, it will be observed, was an action in personam.- 
 
384 
 
 ADMIEALTY JUEISDICTION. 
 
 TOL. 1. 
 
 Crews ad- 
 mitted as 
 witnesses. 
 
 The rights 
 of the par- 
 ties depend 
 on the laws 
 of the coun- 
 try where 
 the collision 
 occurs. 
 
 Injured 
 party held 
 not entitled 
 to damages 
 for loss of 
 probable 
 profits. 
 
 dents the burthen of proof to show that the injury- 
 done by their steamer was not jfche consequence of 
 the omission(«). 
 
 In causes of collision, as in those of salvage, the 
 persons composing the crew of the vessels concerned 
 are admitted, eoa necessitate, as witnesses(5). 
 
 When a collision occurs in a port of a foreign 
 country, the rights and responsibilities of the par- 
 ties are to be determined according to the laws 
 of that country as interpreted by its courts. On a 
 writ of error, in a suit at common law, to the Circuit 
 Court of the United States for the District of Co- 
 lumbia, the defendants- were accordingly held by the 
 Supreme Court to be exempt from liability for the 
 damage done to the plaintiffs' vessel in the port of 
 Liverpool, on the ground that the collision was 
 attributable to the fault of a licensed pilot on board, 
 and having the charge of the defendants' vessel(c). 
 The case just cited adjudicates, also, another impor- 
 tant principle, viz., that the actual damage sustained 
 
 (a) Waring v. Clark, 5 Howard's K., 441 (16 Curtis's Decis. S. C, 
 456). Mr. Justice Wayne, in delivering the opinion of the court, took 
 occasion, also, to say that " the act of 1838, in all its provisions, is 
 obligatory upon the owners and masters of steamers navigating the 
 waters of the United States, whether on waters within a state or 
 between states, or waters running from one state into another state, 
 or on the coast of the United States, between the ports of the same 
 or different states." The provisions of this act, and also of an act 
 passed August 30, 1852, designed to prevent collisions of vessels, will 
 be noticed in the sequel. 
 
 (b) The Catharine of Dover, 2 Haggard's R., 145 ; The Celt, 3 Hag- 
 gard's R., 321, 325 ; and such is the established practice in the courts 
 of the United States. 
 
 (c)Smi«Av. Conrfry,l Howard's R., 28 (UCurtis's Decis. S.O., 487). 
 
COLLISION. 385 
 
 at the time and place of the injuiy, and not the chap, is. 
 profits which might probably have been realized if 
 the collision had not occurred, constitutes the just 
 measure of damages to be awarded to the injured 
 party. 
 
 In a subsequent case, however, this rule seems to ^"i" 
 have been unsatisfactory to a majority of the court, 
 and to have been greatly qualified and impaired, if 
 not altogether subverted. It was an action on the 
 case (the admiralty jurisdiction not having then been 
 declared to extend beyond tide waters), for damage 
 done by collision between the steamers of the 
 respective parties on the River Ohio. The plaintiflfe' 
 vessel was sunk, but was afterwards raised and 
 repaired ; and it was held, Chief Justice Taney and 
 Justices Cateoit and Daniel dissenting, that the 
 plaintiffi were entitled to recover a sum sufficient, 
 not only to defray the expenses of raising and 
 repairing their vessel, without any deduction of new 
 materials in place of old, as in cases of insurance, but 
 to compensate them also for the loss of Jwr probable 
 earnings in the meantime. WiUicmison and al, v. 
 Ba/rrett et al., 13 Howard's R., 101. See, also, The 
 Betsey Oaines (2 Haggard's Ad. R., 18), a case in 
 which a vessel having been run down while engaged 
 in a salvage service, which she was thereby rendered 
 unable to complete, damages were awarded to her 
 owners on this account ; Lord Stowell not assenting 
 to the objection that the court could not inquire into 
 the consequential damages, but adding also, that in 
 the case before him, the claim, in fact, was not a 
 mere claim for consequential and probable advantage 
 49 
 
386 ADMIRALTY JUEISDICTION. 
 
 TOL^i. only, for the vessel was actually in the pursuit of 
 earning that which it had been stipulated she should 
 receive. So, also, where a fishing smack having been 
 disabled by collision from pursuing her voyage from 
 London to Norway to receive a cargo of lobsters, in 
 consequence whereof her owners were obliged to 
 hire another smack for that purpose, damages were 
 decreed for the amount of freight paid for the vessel 
 substituted(a). 
 
 It will be noticed that in neither of the English 
 cases were the damages merely conjectural, as in the 
 American case just above cited, and that there is 
 therefore a marked difference between the latter 
 and the two former. 
 theBea" Thc frcqucnt occurrence of collisions, so often 
 
 destructive to life as well as property, among the 
 vessels composing the vast merchant marine of 
 Great Britain, naturally led to the early adoption 
 of certain general rules of the sea, for the manage- 
 ment of vessels, adapted to prevent these disasters. 
 These rules were few in number and simple in their 
 requirements, and, as it was only by their strict 
 observance that they could be rendered efficacious, 
 they have at all times been firmly upheld and 
 rigorously enforced by the British courts as rules of 
 law. Being in themselves well suited to their 
 purpose and unobjectionable, and it being of great 
 importance, moreover, that there should be unifor- 
 mity, where, on account of the intimate commercial 
 relations between the two countries, contrariety 
 would be so hurtful, they have, from time to time, 
 
 (a) The Yorkshireman, 2 Haggrrd's Ad. B., 30, note. 
 
COLLISION. 387 
 
 been recognized and enforced as obligatory also in chap. is. 
 this country. UntU tlie introduction of steam navi- 
 gation tbese rules were of course designed exclusively 
 for the management of vessels propelled by wind. 
 Those of a technical character were in fact but 
 conventional nautical usages ; and not having been 
 authoritatively reduced to precise terms, they have 
 been variously expressed by dififerent judges and 
 elementary writers, insomuch that, as experience 
 has demonstrated, a person having but a shadowy 
 and Ul defined apprehension of their real import, 
 on meeting, in books, with the same rule enunciated 
 in different language, may mistake each repetition 
 for an additional rule. The rest being general 
 principles deducible from the nature of the subject 
 and excogitated by judges, may be called judicial 
 rules. The following enumeration embraces the 
 more important of the rules to which I have referred. 
 
 It will of course be understood that they are 
 applicable only when, without their observance, 
 there would be danger of collision; and it is 
 accordingly unnecessary thus severally to qualify 
 the statement of them. 
 
 1. A vessel havina; the wind free is bound to take bahibo 
 
 O V XS8 ELS 
 
 all proper measures to get out of the way of a 
 vessel that is close-hauled; or, as the rule is ex- 
 pressed in a recital preceding certain rules promul- 
 gated in 1840 by the Corporation of Trinity House 
 respecting steamers, "A vessel having the wind fair 
 shall give way to one on the wind." It imposes a 
 general obligation, without prescribing any particular 
 means by which the object is to be accomplished. 
 
388 ADMIRALTY JURISDICTION. 
 
 Toi^i. It follows, therefore, that the choice of means is 
 left to the party charged with the duty and respon- 
 sible for its skilful performance. He is to determine 
 for himself, from a careful consideration of all the 
 circumstances, on which side of a close-hauled vessel 
 he will pass, and such is the judicial interpretation 
 of the rule(a). He is bound to decide seasonably 
 
 (a) The Gazelle, 5 Notes of Cases, 101 ; The Osprey, 17 (7 N. S.) 
 Law Reporter, 384; 18 id., 181. 
 
 I am aware that in one of the reported judgments of the Supreme 
 Court of the United States, which will be noticed in the sequel, there 
 is a dictum which seems to assert it to be the duty of the vessel having ■ 
 the wind free, on meeting a close-hauled vessel, to avoid her by 
 diverging to the right, and that she will be held in taxilt if she does 
 not. 
 
 Such an interpretation of the rule, it wiU be seen, is very far from 
 being in accordance with its language, which is not only silent with 
 respect to the mode of fulfilling the duty enjoined, but, by its gene- 
 rality, infers an unlimited option with respect to the means to be 
 employed. It is a rule of long standing, that has very often been men- 
 tioned injudicial tribunals, and, as we shall see, was a few years ago 
 formally and solemnly reasserted by the English Trinity House Cor- 
 poration. It would be strange, therefore, if it was really designed to 
 convey the meaning ascribed to it in the case to which I have alluded, 
 that it should never have been stated in language adapted to convey 
 that meaning; and still more strange would it be that in no one of the 
 multitude of cases in which it has been applied in the English Court 
 of Admiralty has such an interpretation been given to it. On the 
 contrary, the construction uuequivocally put upon it in that court is 
 that which I have ascribed to it. In The Gazelle, above cited, Dr. 
 LusHiNGTON (addressing the elder brethren of the Trinity House), 
 speaking of " the rules which have been laid down for the navigation 
 of vessels, by the Trinity House Board," said : " The first regulation 
 is, that sailing vessels having the wind free shall give way to those on 
 the wind. By the term giving way is meant, I apprehend, they shall 
 get out of the way by whatever measures are proper for the purpose, 
 either by porting or starboarding the helm, as the occasion may 
 require." But the case before the court was that of a steamer meet- 
 
COLLISION. 389 
 
 as well as wisely ; and so strict is the accountaHlity chap^is. 
 to which, he is held by law for any injury he may 
 
 ing a close-hauled vessel. Dr. Lushington therefore proceeded to 
 speak of the correspondent rule which had been laid down by the 
 Trinity Masters with respect to steamers, which, as we shall see, is 
 expressed in the same language as that relative to sailing vessels. 
 " What, then," he said, " is the meaning of the term giving way 1 I 
 have already stated my own impression, that it means getting out of 
 the way by any measures that the occasion may require ; and I am 
 not aware of any expression that has fallen from any of the gentlemen 
 by whoml have so often been assisted in these cases, that it means 
 putting the helm to port under all circumstances.'' The Gazelle on 
 seeing the sailing vessel (a schooner) immediately ported her helm ; 
 and the persons in charge of her were pronounced by the Trinity 
 Masters to be in fault for so doing under the circumstances, and it 
 was so adjudged by the court. Nothing could be more explicit than 
 this ; and Judge Sprague, whose masterly analysis of the cardinal 
 nautical rules in The Osprey evinces at once his well known perspicacity 
 and his great familiarity with the subject, in noticing a review of 
 this case in the London Law Magazine, assumes it to be indubitable 
 that " The vessel close-hauled must keep on (whichever tack she may 
 be on), and the vessel free must avoid her ; and in performing this 
 duty, she may go to either side, or take any measures that are ex- 
 pedient." The dictum in question does not appear to have had any 
 influence upon the decision of any subsequent case in the Supreme 
 Court ; nor has it been repeated by any judge of that court, unless 
 the comprehensive language of Mr. Justice McLean in The Oregon v. 
 Rocca, 18 Howard's R., 570, and again in Ward v. Chamberlin, very 
 lately decided by him on appeal in the Circuit Court for the Southern 
 District of Ohio, is an exception. I have met with no evidence, 
 moreover, of any actual nautical usage conformable to this dictum. 
 It appears, therefore, to have originated simply in misapprehension, 
 and the adoption and enforcement of it by a judicial tribunal would 
 be simply an act of arbitrary judicial legislation. It may be presumed, 
 therefore, that no such innovation will receive the deliberate sanction 
 of the Supreme Court until it shall have been legalized by Congress. 
 Indeed, with respect to steamers, which by the decisions both of 
 that court, and of the High Court of Admiralty of England, are 
 placed, in most respects, on the same footing as sailing vessels going 
 free, the option I have awarded to sailing vessels has been repeatedly 
 conceded. 
 
390 ADMIEALTY JUEISDIGTION. 
 
 VOL 1, ^Q ^Q tjjQ other vessel, that in an action therefor he 
 
 is required, contrary to the general rule, to show 
 
 freTw'tad* affirmatively that all possible skill was used on his 
 
 m^wabie." part to prevent the collision. But, on the other 
 
 hand, the opposite party is bound to abstain from 
 
 h^tad"to°°" doing anything that may increase the difficulty of 
 
 couSe." passing safely, and must therefore keep his course (a). 
 
 In the, Jast of the cases just cited the, rule was 
 
 applied against a vessel coming down before the 
 
 wind, at ^eai,' to speak a close-hauled vessel, and it 
 
 was, held ijthiat the entire duty of so maneuvering as 
 
 to avoid a collision, devolved on the former, it being 
 
 the duty of the latter to keep her course. 
 
 2. When both vessels are going by the wind, the 
 vessel on the starboard tack.(b) shall keep her 
 wind(c), and the one on the larboard tack((^) bear 
 up, by putting her helm to port, thereby passing 
 each other on the larboard hand. 
 
 (o) The Catharine, 17 Howard's R., 170 (21 Ourtis's Decis. S. C, 
 434). This case, while it distinctly recognizes the duty imposed by 
 the rule on the vessel going free, asserts, also, very explicitly, the 
 correlative obligation on the part of the close-hauled vessel to keep 
 her course, and that she is to be held responsible for the consequences 
 if this is not done. The Gazelle, 5 Notes of Cases, 101 ; The George, 
 id., 368 ; The City of London, 4 id., 40. In here citing English de- 
 cisions relative to steamers, it is proper to advertise the reader that 
 steamers are placed, by the English Court of Admiralty, on precisely 
 the same footing, with respect to the rule now in question, as sailing 
 vessels. Indeed, so far as this rule is concerned, I am not aware 
 of any discriniination between them by the American courts. The 
 Osprey, 17 Law Reporter (7 N. S.), 384; The Clara M. Porter, 18 
 Law Reporter (8 N. S. ), 678. 
 
 (6) That is to say, having the wind on her starboard or right side. 
 
 (c) Persevere in her course. 
 
 (d) Having the wind on her larboard or left side. 
 
COLLISION. 391 
 
 This rule, unlike the first, relates to vessels meeting ^^tli "• 
 on a footing of equality. As from the nature of the «>« ^^^ 
 case, neither can alter her course except to leeward, 
 and as such an alteration would unavoidably occasion 
 a loss of time, there would be great danger, if there 
 were no rule designating the party of whom this 
 sacrifice should be required, that each would perse- 
 vere in the hope that the other would give way, or 
 else that both would give way, and in either event, 
 that they would be brought into contact. Originally 
 it was a matter of pure indifference on which party 
 the duty should be devolved ; but it was of infinite 
 importance that the party should be designated by 
 a rule, universally known, and in the highest degree 
 obligatory. This has been done by the rule under 
 consideration, and by the constant and rigorous 
 enforcement of it by judicial tribunals, it is theoreti- 
 cally perfect. It contemplates two vessels moving 
 abreast, or nearly so, on converging lines ; and it is 
 self-evident that a seasonable observance of the rule 
 in such a case, could not fail to be effectual. And 
 yet, collisions between vessels thus circumstanced, 
 sometimes happen. 
 
 In the darkness of night the parties may fail to 
 descry each other at all, or one or both of them may 
 mistake the other's course until it is too late. The 
 best safeguard against this is proper and sufficient 
 lights, and a constant and vigilant look-out. 
 
 It was found by experience also that the obli- 
 gations imposed by the strict terms of the rule were 
 sometimes rendered perplexing and nugatory by the 
 difficulty of seasonably discovering whether the 
 
392 ADMIRALTY JURISDICTION. 
 
 VOT|^i. approaching vessel was or was not, in fact, close- 
 cfroumstan. hauled. For the purpose of diminishine; the danger 
 
 ces, vesBel ■'■■'■ c o 
 
 bSaM taJk arising from this cause, it was adjudged in the 
 g?™ way. English Court of Admiralty that a close-hauled 
 vessel on the larboard tack, laboring under this 
 difficulty when there was reason to apprehend a 
 collision, ought to give way to a vessel on the 
 starboard tack, and was to be held blamable for not 
 doing so, although the latter might at the time be 
 sailing with the wind free(a). This, it will be 
 seen, though commonly called an exception, is, in 
 reality, an extension and virtually a modification of 
 Qnaiwca- the rule, for it results in this : that a close-hauled 
 
 tions of tho 
 
 ™ie- vessel on the larboard tack is bound to give way to 
 
 an approaching vessel on. the opposite tack, which, 
 for aught that can be seasonably discerned, ina/y he 
 also close-hauled. This modification, however, was 
 by no means designed as a relaxation of the first 
 rule, requiring a vessel having the wind free to avoid 
 a vessel on either tack that is close-hauled. Those 
 in charge of her can be under no mistake as to her 
 predicament, and must take care to fulfil the obliga- 
 tion it imposes. Nor is it to be inferred that this 
 modfication in any degree absolves the vessel on the 
 larboard tack from endeavoring, by all means in her 
 power, to ascertain whether the approaching vessel 
 is also close-hauled ; for if she should be going at 
 large, it would be far safer for the former to keep 
 her course, lest by giving way, she might only 
 increase the danger of collision, should the former 
 
 (a) The Ann <f Mary, 2 Wm. Robinson's R., 189. 
 
COLLISION. 393 
 
 endeavor to pass, as she •would have a rigM, under ohap^is. 
 the first rule, to do, on the starboard hand. In view 
 of the source of danger here indicated, I cannot 
 refrain from observing that however just and proper 
 it may be to leave the persons in charge of the 
 vessels having the wiiid, free to decide for themselves 
 on which side of a vessel on the wind they will pass, 
 it is certainly advisable that, as a general rule, they 
 should go to the right as in passing another vessel 
 going at large. 
 
 It was found, also, that the vessel on the larboard 
 tack sometimes improperly omitted to give way 
 because the approaching vessel appeared to be so 
 leeward as to inspire the hope that this precaution 
 might prove unnecessary. In analogy to the principle 
 just mentioned, it was therefore, with unquestionable 
 propriety, held to be the duty of the vessel on the 
 larboard tack to give way to a vessel on the starboard 
 tack at once, without considering whether she is one 
 or more points to leeward(a). 
 
 3. When both vessels have the wind large or 
 abeam, they shall pass each other on the larboard 
 hand, and for this purpose each shall put her helm 
 to port (5). 
 
 This rule, like the second, applies to vessels meet^ 
 ing on terms of equality ; but for obvious reasons 
 
 (a) The Traveller, 2 Wm. Kobinson's R., 197. 
 
 (6) Wm. Robinsou's R., 488. The propriety and great utility of 
 this rule has never been doubted in the American courts. As we shall 
 see in the sequel, it has, both in this country and in England, been 
 applied to steamers in passing each other. Indeed, it was expressly 
 enjoined thirty years ago by an act of the Legislature of the State of 
 New-York. 
 
 50 
 
394 ADMIRALTY JUEISDICTION. 
 
 TOL^i. Qf justice and expediency it casts the duty of guard- 
 ing against collision, not arbitrarily on one of them, 
 but equally on both. The course of each may con- 
 veniently be varied, and by requiring this to be 
 done in opposite directions — each turning to the 
 right,' — ^the inconvenience is equally shared, and the 
 object is more certainly attained. 
 
 4. A vessel in motion is bound, if possible,^ to 
 steer clear of a vessel- at anchor(a). 
 
 This rule is stringently enforced in the, English 
 Admiralty, In the case just cited, Sir Johk 
 NiCHOLL, speaking of a case falling within this rule, 
 said, " nothing can ia such a case excuse her (the 
 vessel in motion) from making compensation but 
 unavoidable accident, nothing but that vis motQor^ 
 which no human skill or precaution could have 
 guarded against or prevented." It is unsparingly 
 applied also in this country(5). In the last of the ■ 
 cases just cited, it is said that when a steamer (c) is 
 about to enter a harbor, great caution is required. 
 Ordinary care, under such circumstances, will not 
 Iirfou"of excuse a steamer for the wrong done, A vessel 
 aSoho?'-^ running foul of another at anchor, is prima fade 
 answerable, auswcrable, aud the judgment of the court m an 
 action for damages wUl depend on the sufficiency of 
 the excuse, if any, offered for so doing(^. But 
 
 (a) The Giralmo, 3 Haggard's R., 199. 
 
 (6) McCready v. Goldsmith, 18 Howard's R., 89; ITie New-York 
 T. Rea, id., 223 ; Culberfson v. Shaw, id., 584. 
 
 (c) In all the cases cited in the last note the injury -was done by a 
 steamer ; but the rule is the same, and is to be applied with equal 
 rigor against sailing vessels. 
 
 (d) Lincoln v. Hallock, 14 Law Reporter (4 N. S.), 555, 
 
COLLISION. 395 
 
 where a schooner came to anchor in the Eiver St. chap. is. 
 Clair, in a rapid current, and all hands went to sleep 
 below, a descending scow was held excusable for 
 running foul of her, it appearing that there was no 
 want of proper effort on the part of the scow to 
 avoid the schooner(a). 
 
 In a case promoted a few years ago in the English ^1°^"™°' 
 Court of Admiralty by tjae owner of a vessel that exhibit'^ 
 had been run down while lying at anchor by another 
 sailing vessel, it became necessary to decide whether 
 the former was not in fault for not exhibiting a 
 light. She had cast anchor in a track frequented 
 by ships, in a dark night and at a stormy season of 
 the year. Dr. LusHEsraTON said the question had 
 often been discussed in the court, and upon consider- 
 ation he decided that there was no general rule 
 requiring vessels at anchor to exhibit a light, but 
 that under the circumstances of the case before him 
 this ought to have been done, and he held the 
 omission to be inexcusable. But it appearing also 
 that the colliding vessel was at the time running 
 under a full press of canvass about six knots an 
 hour, he adjudged her also to be in fault, and 
 divided the damage(5). 
 
 The introduction of vessels propelled by steam steamer., 
 constituted a new and important era in navigation, 
 and rendered it necessary to consider and determine 
 whether, andif so, to what extent, and with what 
 modifications, the foregoing rules were properly 
 applicable to them. The question was twofold: 
 
 (a) The Petrel, 18 Law Reporter (8 N. S.), 185. 
 (6) The Victoria, 3 W. Robinson's R., 49. 
 
396 ADMIRALTY JUEISDICTION. 
 
 "^°^- ^- 1. In -what manner steamers ought to be required 
 to demean themselves towards sail vessels ; and 2. 
 By what rules they ought to be governed with 
 respect to each other. 
 
 Their obvious superiority over vessels deriving 
 their impetus from sails, in point of navigability and 
 power, led to the judicial establishment of the fol- 
 lowing principle, which it will be seen is but an 
 extension of the spirit of the first of the preceding 
 rules : 
 
 5. Vessels propelled by steam are required to 
 take all possible care, by the use, if necessary, of all 
 the means which they possess, to keep clear of sail- 
 ing vessels (a). 
 
 In a case adjudicated many years ago in the 
 English Court of Admiralty, Sir John Nicholl 
 took occasion to state the considerations and prin- 
 
 (o) I have not hesitated to state the rule thus broadly because it 
 appears to be clearly deducible from numerous judicial decisions of the 
 highest authority in England as well as in this country, and because 
 the principle it asserts, as it is understood and enforced in this coun- 
 try, could not be adequately defined by language less comprehensiye. 
 Like the first rule enumerated above, it imposes a general duty with- 
 out indicating the manner in which it is to be performed, and like that 
 rule, it infers, therefore, a right to choose the means to be employed ; 
 and as, by the terms in which it is expressed, it makes no discrimi- 
 nation between vessels on the wind and those having the wind firee, 
 it embraces literally the latter as well as the former. In the United 
 States, such we shall see is its actual interpretation and efiect. In 
 England, however, as the rule was ultimately settled by judicial deci- 
 sions, while steamers were permitted to choose on which side they 
 would pass a close-hauled sailing vessel, the latter being bound to keep 
 her course, they were required, on meeting a vessel going at large, to 
 put the helm to port, the latter being required to do the same, thus 
 passing each other larboard and larboard, after the manner of two 
 sailing vessels both going at large. 
 
COLLISION. 397 
 
 ciples by whicli, in his opinion, courts ought to be chap. is. 
 governed in deciding upon the responsibility of 
 steamers for injuries done to sailing vessels by colli- 
 sion, to the effect following : He thought the owners 
 of sailing vessels had a right to expect that steamers 
 wiU take every possible precaution, and that they 
 were in his opinion bound to use the utmost care. 
 Steamers, he observed, were a new species of vessels, 
 and called forth new rules and considerations : they 
 were of vast power, liable to inflict great injury, — 
 and particularly dangerous to coasters, — if not 
 carefully managed; yet they might at the same 
 time, with due vigilance, easily avoid doing damage ; 
 for they are much under command, both by altering 
 the helm, and by stopping the engines. In the case 
 before him, the Steamer Perth ran foul of the 
 libellant's brig, while running at the rate of twelve 
 miles an hour, in a dense fog, and in a track fre- 
 quented by coasters. The Perth did not see the 
 brig, until she was close upon her, when the crew of 
 the latter shouted "keep your helm hard a-port." 
 This order was given on board the Perth, and had 
 the beneficial effect of preventing her from striking 
 the brig a-midships, though not of preventing the 
 collision. But no order was shown to have been 
 given to stop the engines. Sir John Nioholl, after 
 summarily stating the facts, and the principles of 
 law which in his apprehension ought to govern the 
 decision, requested the opinion of the two Elder 
 Brethren of the Trinity House who were in atten- 
 dance, whether the steamer was answerable for the 
 damage, or whether she was completely exonerated, 
 
398 ADMIRALTY JURISDICTION. 
 
 TOL^i. ag having done all in her power to avoid tne colli- 
 sion ? Tlie Senior Trinity Master replied, that they 
 were of opinion that, considering the fog and other 
 circumstances, the steamer ought to have reduced 
 her speed one-half: such precaution was due to the 
 safety of other vessels; and as soon also as the 
 shouting was heard,''the engines should have been 
 stopped. By their own experience, they knew that 
 a steamer could be stopped in nearly her own length ; 
 and had the engines of the Perth been stopped, the 
 force of the blow would at least have been much 
 weakened. In accordance with this opinion, the court 
 condemned the Perth in the damages and costs(«). 
 
 And in another case, where the British Union, a 
 sail vessel, had been run down by the steamboat 
 Shannon, there being some conflicting evidence 
 relative to the course of the wind at the time of the 
 collision, the Trinity Masters, by whom the court 
 was assisted, observed, " that the state of the wind 
 was of no great importance, as the Shannon, not 
 receiving her impetus from sails, but from steam, 
 should have been under command ; that steamboats, 
 from their greater power, should always give way ; 
 that they were satisfied the Shannon had seen the 
 British Union, and that the Shannon was to blame ; 
 and the court decided accordingly(5). 
 
 These views of the obligations and liabilities of 
 steamers have ever since prevailed in the English 
 Court of Admiralty, and have been in this country 
 fully sanctioned and repeatedly applied by the 
 
 (a) The Perth, 3 Haggard's R., 414. 
 
 (b) The Shannon, 2 Haggard's R., 173. 
 
Eel. 
 
 COLLISION. 399 
 
 Supreme Court of the United States(a). In The chap.i8. 
 Oregon sr. Rocca (one of tlie cases just cited), it is 
 said: "The rule of this court is, when a steamer 
 approaches a sailing vessel, the steamer is required 
 to exercise the necessary precaution to avoid a 
 collision ; and if this be not dLOixQ, prima facie, the 
 steamer is chargeable with the fault." In accordance 
 with this principle, it has been held that a steamer 
 is censurable for unnecessarily coming into dangerous steamer to 
 proximity to another vessel, and if a collision ensue coSng''into 
 
 ■»■ " ' dangerous 
 
 in consequence, is answerable for the damages Sg "esi" 
 arising therefrom without any other fault on her 
 part. Thus, where a steamer had, without necessity, 
 run so near to a flat-boat, that by an unexpected 
 sheer of the latter, caused by an eddy, it was 
 brought into contact with the former, the steamer 
 was adjudged to be accountable for the damage(5). 
 And where a steamer thus culpably puts a sailing 
 vessel in imminent peril, and a collision ensues, she 
 will be held whoUy accountable, even though it be 
 shown that the master of the sailing vessel, in the 
 
 (a) Newton r. Stebbins, 17 Howard's R., 86 (21 Curtis's Decis. S. 
 C, 510) ; Propeller Monticello v. Mollison, 17 Howard's R., 152 (21 
 Curtis's Decis. S. C, 423) ; Feck v. Sanderson, 17 Howard's R., 178 
 (21 Curtis's Decis. S. C, 439) ; Fretz v. Bull, 12 Howard's R., 466 
 (19 Curtis's Decis. S. C, 249) ; Propeller Genesee Chief v. Fitzhue, 
 12 Howard's R., 443 (19 Curtis's Decis. S. C, 233) ; McCready t. 
 Goldsmith, 18 Howard's R., 89 ; Steamer New -York v. Rea, id., 223; 
 Steamer Oregon v. Rocca, id., 570; Crocket v. Newton, id., 681; 
 CuihberUon v. Shaw, id., 584; The Northern Indiana, 16 Law 
 Reporter, 433. 
 
 (6) Fretz v. Bull, 12 Howard's R., 466 (19 Curtis's Decis. S. 
 C, 249). 
 
400 ADMIRALTY JURISDICTION, 
 
 VOL 1. alarm of tlie moment, failed to give an order which 
 
 rated'by''L might have prevented the collision. In the case 
 
 fartmommt hcforc the Supreme Court, in which this point was 
 
 ZSun^g" adjudicated, Ch. J. Taney observed: "Nor do we 
 
 deem it material to inquire whether the order of the 
 
 captain at the moment of the collision, was judicious 
 
 or not. He saw the steamer coming directly upon 
 
 him — her speed not diminished, nor any means 
 
 taken to avoid a collision. And if, in the excitement 
 
 and alarm of the moment, a different order might 
 
 have been more fortunate, it was the fault of the 
 
 propeller to have placed him in a situation where 
 
 there was no time for thought, and she is responsible 
 
 for the consequences. She had the power to pass 
 
 at a safer distance, and had no right to place the 
 
 schooner in such jeopardy, that an error of a moment 
 
 might cause her destruction and endanger the lives 
 
 of those on board. And if an error was committed 
 
 under such circumstances, it was not a fault(«). 
 
 Obligation We have seen that in the English Court of 
 
 of steamers "^ 
 
 thefr^'eed Admiralty, steamers are held responsible for 
 damages done by collision on the ground alone that 
 they were at the time running at a high rate of 
 speed in a dense fog, or dark night, and in a track 
 frequented by coasters. "It may be a matter of 
 convenience^" said Dr. Lttshington, in Tlie Rose, 
 "that steam vessels should proceed with great 
 rapidity, but the law will not justify them in pro- 
 ceeding with such rapidity if the property and lives 
 
 (a) Propeller Genesee Chief v. Fitzhue, 12 Howard's R., 443 (19 
 Curtis's Decis. S. C, 233). 
 
COLLISION. 401 
 
 of other persons are thereby endangered(a)." This chap. is. 
 is the rule also in the courts of this country, and in 
 Newton V. StMinsi}))^ the observation of Dr. LtrsH- 
 iNGTOK just recited was expressly adopted by the 
 Supreme Court as expressive of what it deemed to 
 be the true doctrine on the subject. In several 
 later cases it has accordingly been enforced by that 
 court, in an important and instructive case in the 
 Northern District of ]S'ew-York(c). An attempt 
 has also been made by Congress, as we shall see 
 in the sequel, to fortify it by legislation. 
 
 The power belonging to steamers, of retarding, 
 arresting and even reversing their motion, imposes 
 on them a persistent obligation to use this power 
 whenever it may be rendered effective for the pur- 
 pose of avoiding or mitigating a collision with 
 other vessels. 
 
 The cases already cited afford various illustrations 
 of this, and there are other reported cases to the 
 like effect. Thus, where a steamer in descending the 
 River Thames in the night, on descrying a sailing 
 vessel beating up the river, immediately put her 
 helm to port, while yet in doubt as to the course of 
 the approaching vessel, and a collision ensued, she 
 was held to be in fault for not having eased her 
 engines and slackened her speed for the purpose of 
 ascertaining the course of the sailing vessel and 
 then being governed by circumstances. "True it 
 
 (a) Wm. Robinson's R., 3. 
 
 (6) 10 Howard's R., 586 (18 Curtis's Decis., S. C. 510). 
 (c; McCready v. Goldsmith, 18 Howard's R., 89 ; 37ie New -York, 
 id., 223 ; The Northern Indiana, 16 Law Reporter (6 N. S.), 433. 
 51 
 
402 
 
 ADMIRALTY JUEISDICTION. 
 
 voL^i. ig^» observed Dr. LtrsHiNaTON, "that wlien two 
 steamers are approachmg eacli other, it has been 
 ruled over and over again that they are to pass 
 larboard and larboard; but I never yet heard it 
 laid down that where a steam vessel is going down 
 the river and discovers a sailing vessel coming up 
 with an adverse wiiid, the steamer is immediately 
 to port her helm, before she discovers what course 
 such vessel is upon (a). 
 
 While it had long been a settled rule in England 
 
 Bnles pre- 
 scribed by 
 
 House reia- that upou the meeting: of a steamer and a sailing 
 
 live to ■■■ o ° 
 
 live to 
 steamers. 
 
 vessel close-hauled on either tack, the latter was 
 ordinarily to keep her course and the former take 
 the requisite measures to pass her safely, and for this 
 purpose might change her course either to the right 
 or to the left, according to circumstances, — so lately 
 as the year 1848, there was no fixed rule for 
 the management of steamers and sailing vessels 
 going at large in passing each other under circum- 
 stances requiring precaution for the purpose of 
 avoiding collisions, nor was there any rule for the 
 guidance of steamers in passing each other under 
 like circumstances. But in the year above mentioned 
 the elder brethren of the Trinity House(Zi) saw fit 
 
 (a) TM James Watt, 2 Kobinson's R., 270. See also The Birken- 
 head, where the same principle was applied iu the case of a collision at 
 sea, the steamer being a steam frigate. 
 
 (6) An ancient corporation composed of ship masters, having 
 authority to prescribe regulations for the management of merchant 
 vessels, for the purpose of avoiding collisions, and some of whom 
 generally, if not always, give their attendance in the High Court of 
 Admiralty, on the hearing of actions for collisions, to assist the judge, 
 when required, in the decision of questions demanding professional skill. 
 
COLLISION. 403 
 
 to take the subject into consideration for the purpose, chap. is. 
 as they state, of providing " a rule for the observance " 
 of steamers " when meeting other steamers^ or sailing 
 vessels going at large," and they devised and pro- 
 mulgated the following, viz: 
 
 " When STEAM VESSELS on different courses must 
 unavoidably or necessarily cross so near that by con- 
 tinuing their respective courses there would be risk 
 of coming in collision, each vessel shall put her 
 HELM TO PORT, SO as always to pass on the lakboard 
 side of each other. 
 
 "A steam vessel passing another in a narrow 
 channel, must always leave the vessel she is passing 
 on her larloard hand (a)." 
 
 (a) 1 Wm. Kobinson's R., 488. As this instrument contains a 
 recital of the cardinal rules previously in force respecting sailing 
 vessels, and is often referred to in the discussion of nautical questions, 
 it seems not amiss to copy it entire as it appears in Robinson, though 
 it is by no means calculated to give a favorable impression of the in- 
 telligence of its authors. It is as follows : 
 
 Navigation of Steam Vessels. 
 
 Tkinitt House, London, > 
 30 October, 1840. \ 
 
 The attention of this corporation having been directed to numerous, 
 severe, and in some instances fatal accidents, which have resulted from 
 - the collision of vessels navigated by steam, and it appearing to be in- 
 dispensably necessary, in order to guard against the occurrence of 
 similar calamities, that a regulation should be established for the 
 guidance and government of persons entrusted with the charge of such 
 vessels; and, 
 
 Whereas, the recognized rule for sailing vessels, that those having 
 the wind fair shall give way to those on the wind ; — 
 
 That when both are going by the wind, the vessel on the starboard 
 tack shall keep her wind, and the one on the larboard tack bear up, 
 thereby passing each other on the larboard hand ; — 
 
 That when both vessels have the wind large or abeam, and meet, 
 
404 ADMIRALTY JUEISDICTION. 
 
 vOT^i. After so formal and explicit a preamble it seems 
 not a little extraordinary that its authors should 
 have come so far short of the promise it held out. 
 With respect to one of its specified objects, that of 
 providing for the case of the meeting of steamers, 
 the rule is sufficiently intelligible and exact ; but if 
 it was really desigaed to provide a rule for the 
 meeting of a steamer and a sailing vessel going at 
 large, its language, to say the least, is most unfor- 
 tunate. Such, indeed, is the view taken of it by 
 Dr. LusHiNGTOiT in The Friendsia)^ which occurred 
 soon afterwards; though he courteously and very 
 ingeniously sought to supply the deficiency by con- 
 struction, it is obvious that he felt himself under the 
 necessity of devising a rule from analogy adapted 
 to the case in question ; and in The Oii/y of London 
 
 they shall pass each other in the same way on the larboard hand, to 
 effect which two last mentioned objects, the helm must be put to 
 port; — 
 
 And as steam vessels may be considered in the light of vessels navi- 
 gating with a fair wind, and should give way to sailing vessels on the 
 wind on either tack, it becomes only necessary to provide a rule for 
 their observance, when meeting other steamers or sailing vessels going 
 at large. 
 
 Under these considerations and with the object before stated, this 
 board has deemed it right to frame and promulgate the following rule, 
 which, on communication with the Lords Commissioners of the Ad- 
 miralty, the elder brethren find has been already adopted in respect 
 of vessels in her majesty's service, and they desire earnestly to im- 
 press upon the minds of all persons having charge of steam vessels 
 the propriety and urgent necessity of a strict adherence thereto, viz : 
 
 [Here follows the rule given in the text.] 
 
 By Order, 
 
 J. HERBERT, Secretary. 
 (a) 1 Wm. Robinson's R., 478. 
 
COLLISION. 405 
 
 (4 Notes of Cases, 40), lie subsequently stated char is. 
 explicitly, that the rule contained no direction at 
 all with respect to sailing vessels. In former cases 
 steamers had been repeatedly compared, in general 
 terms, by his predecessors and by the Trinity Mas- 
 ters, to sailing vessels going at large. It was obvious 
 that steamers ought not, when meeting sailing vessels 
 with the wind free, to be placed on a more advan- 
 tageous footing than they, and the English judges do 
 not appear to have seriously considered whether it 
 was expedient to place them on a footing less advan- 
 tageous, by requiring the sailing vessel to keep her 
 course, and casting upon the steamer exclusiv^ely the 
 requisite precaution to avoid collision; and it was seugfin™' 
 accordingly held that each should put her helm to ''"y l'>f1|^^ 
 port, and pass the other on the larboard hand, 8t°e^lrs°tl 
 according to the long established rule with respect Seim. ^ 
 to sailing vessels going at large (a). Under this 
 state of the law in England, and before any explicit 
 judicial decision had been made upon the point in 
 this country, a case arose in the District Court for the 
 District of Massachusetts, which, in the opinion of 
 the able and learned judge of that court, required 
 him to determine it ; and after a very lucid analysis '^J^^^ll^^, 
 of the principles pertaining to the subject, his con- Sill^coS. 
 elusion was that it was the duty of a steamer meet- 
 ing a sailing vessel going at large to keep out of her 
 way by a resort to all necessary and practicable 
 means, being restricted to going neither to the right 
 or left, or to any other particular measure ; and he 
 
 (a) The City of London, 4 Notes of Cases, 40. 
 
406 ADMIRALTY JUEISDICTION. 
 
 TOL^i. accordingly held that a steamer descending Boston 
 harbor and meeting an ascending brig with a free 
 wind, had a right to put her helm to starboard for 
 the purpose of passing, and that the brig was wrong 
 in puting her helm to port, it being her duty to keep 
 her course, and allow the steamer to pass on either 
 side as she might see fit. He was of opinion, more- 
 over, that such was in fact the general usage on the 
 American coast (a). Since this decision, pronounced 
 
 (a) 17 Law Reporter (7 N. S.;, 384. "All cases," said Judge 
 Sprague, " may be comprised in two classes : first, when vessels meet 
 on terms of equality ; second, when they meet on terms of inequality. 
 The first comprises three cases, namely : 
 
 1. Two sailing vessels, both going free. 
 
 2. Two steamers. 
 
 3. Two sailing vessels, both close-hauled. 
 
 To all these cases one simple rule may be applied, namely, both go 
 to the right. This rule is partly arbitrary and partly founded in sub- 
 stantial reasons. It is arbitrary so far as it directs to the right rather 
 than to the left ; but in requiring both parties to take measures, as far 
 
 as practicable, to get out of the way, it is founded in principle." 
 ******* 
 The second class above mentioned, viz., where vessels meet on terms 
 of inequality, embraces two cases at least, viz : 
 
 1. Two sailing vessels, one free and the other close-hauled. 
 
 2. A steamer and a sailing vessel, the latter being close-hauled. 
 Here the rule is, that the vessel having the advantage must keep 
 
 out of the way, and the other must keep her course. 
 
 Judge Sprague next proceeded to examine the case before him — 
 that of a sailing vessel going free meeting a steamer — for the purpose 
 of determining to which of these two classes it belonged, and he very 
 clearly demonstrated that the steamer had a decided advantage over 
 the sailing vessel. "A steamer," he observed, "can oftentimes turn 
 in a shorter time and space, and check, stop or reverse her motion, in 
 a manner which the sailing vessel cannot. The motive power of the 
 one is under human control, and at all times available ; that of the 
 other is not." The case then being, in fact, one of inequality. Judge 
 Sprague was of opinion tliat the general principle applicable to such 
 cases ought to apply. 
 
COLLISION. 407 
 
 in 1854, the rule it asserts tas, in several cases, been chap^is. 
 expressly sanctioned by the Supreme Court and 
 may now be regarded as the settled law of this 
 country (ci^). The rule adopted by the High Court 
 of Admiralty, on the other hand, has been affirmed 
 and established as a rule of law by act of Parlia- 
 ment(^). This conflict is to be regretted. "What- 
 
 (a) Peck V. Sanderson, 17 Howard's R., 178 (21 Curtis's Decis. S. 
 0., 439) ; The Monticello, 17 Howard's R., 152 (21 Curtis's Decis. S. 
 C, 423); Crocket t. Rocca, 18 Howard's R., 581 ; The Monticello, 17 
 Howard's R., 152 (21 Curtis's Decis. S. C, 423). 
 
 (6) Tlie Merchant Shipping Act, 17,and 18 Vic, ch. 104, § 296, re- 
 quires all vessels, whether steamers or sailing vessels, whether on the 
 larboard (or as the act expresses it, on the port) or on the starboard 
 tack, and whether close-hauled or not, when meeting under circum- 
 stances involving danger of collision, to put the helm to port so 
 as to pass on the larboard ("port") side of each other, "unless the 
 circumstances of the case are such as to render a departure from the 
 rule necessary in order, to avoid immediate danger, and subject also to 
 the proviso that due regard shall be had to the dangers of navigation, 
 and, as regards sailing ships on the starboard tack close-hauled, to 
 the necessity of keeping such ships under command." The only in- 
 novation of importance introduced by the act upon the rules previously 
 enforced in the English Court of Admiralty, the learned reader will 
 perceive consists in this : that it peremptorily directs steamers and 
 sailing vessels with a free wind, when meeting a sailing vessel close- 
 hauled, to turn to the right, unless there be special and cogent reasons 
 for diverging in the opposite direction, instead of leaving them at 
 liberty in all such instances to decide for themselves, ad libitum, on 
 which hand they would pass. It is true the act in terms also 
 directs that when two close-hauled vessels meet, the helm of that on 
 the starboard as well as that on the larboard tack shall be put to port. 
 But this injunction subject to that of the proviso enjoming it upon 
 those in charge of the vessel on the starboard tack not to lose com- 
 mand of her, can have been intended to signify little more than the 
 former rule required, viz., that the vessel on the starboard tack should 
 keep her course, or, in other words, keep her helm to port, where it 
 must necessarily have previously been put to enable her to maintain 
 
408 ADMIEALTY JQRISDICTION. 
 
 TOL^i. gygj. jjjg^y ^^Q tHought of thc coiiiparative merit of the 
 Amei'ican and English rule, it must be conceded that 
 the latter is hardly reconcilable with the original, 
 and, for many years, the only general rule established 
 in the High Court of Admiralty, requiring steamers 
 by all practicable means to keep out of the way of 
 saUing vessels, for* in effect it limits the previous 
 rule, except as the expression of a general obligation 
 resting at times upon all vessels alike, to vessels that 
 are close-TiavIed. Nor does it seem altogether consis- 
 tent with some of the previous applications of this 
 rule in the English Court of Admiralty, or, especially 
 with the strong language used by that court in 
 several of the earlier cases, when defining the 
 obligations and responsibilities of steamers. 
 
 In this country the original rule remains unim- 
 paired. Care must be taken, however, by persons 
 entrusted with the management of sailing vessels, 
 not to overrate the responsibilities of steamera. 
 They are not required to perform impossibilities, 
 and are by no means answerable, of course, for the 
 consequences of every collision that may occur 
 between them and sailing vessels, notwithstanding 
 the compliance of the latter with the rule requiring 
 them to keep their course. For example : where a 
 steamer failed, from no fault on her part, to see a 
 sailing vessel till they were too near to allow the 
 steamer to change her course, and as soon as the 
 
 her course. The clearly expressed regulations prescribed by the act 
 have the inestimable merit of the greatest attainable simplicity, where 
 complexity must be Unavoidably mischievous, and well deserve the 
 careful consideration of the American Congress. 
 
COLLISION. 409 
 
 sailing vessel was discovered, stopped, and was in chap^is. 
 the act of backing when the collision took place, she 
 was held not to be responsible (a). 
 
 Experience has demonstrated that a larsre propor- Look-om 
 
 ^ ^ _ _ a i i required bf 
 
 tion of the collisions that occur proceed from the ''"'• 
 want of a sufficient watch or look-out on deck, and 
 this precaution is accordingly rigorously exacted of 
 all vessels, insomuch that the want of it is prima 
 facie evidence that a collision in the night was 
 occasioned thereby(J), It has been adjudged, also, 
 that in a place much frequented by vessels, it is not 
 an excuse for the want of a proper look-out, that all 
 hands were employed in reefing, there being no 
 unusual emergency (c). The importance which 
 the law justly attaches to the observance of this 
 precaution, renders it highly desirable that no mis- 
 apprehension should prevail with respect to what it 
 is that constitutes a proper look-out. On this point 
 the court took occasion, in TJie Genesee Chiefs to 
 lay down what it deemed to be the true rule, as 
 follows : " By a proper look-out, we do not mean yj^^ 
 merely persons on the deck who look at the light, but 
 some one in a favorable position to see, stationed 
 near enough to the helmsman to communicate with 
 him and receive communications from him, and 
 exclusively employed in watching the movements 
 of vessels which they are meeting or about to pass." 
 
 (a) Peck V. Sanderson, 17 Howard's K., 173 (21 Curtis's Deeis. 
 S. C.,439). 
 
 (6) See the case last cited. 
 
 (c) The Catharine v. Dickinson, 17 Howard's R., 152 (21 Curtis's 
 Decis. S. C, 423) ; The Northern Indiana, 16 Legal Reporter (6 N. 
 S.), 433. 
 
 52 
 
 ■Uffl- 
 
 cient. 
 
410 ADMIKALTY JURISDICTION. 
 
 voL^i. ^n^ in j'Tie Northern Indiana, the case last above 
 cited, it was held, by Judge Hall that the mate of 
 a large steamer carrying passengers was not a 
 proper person to be employed, or to take it upon 
 himself to act as a look-out, he being charged by his 
 of&ce as mate with a multiplicity of other duties; 
 and also that the interior of the pilot-house is not a 
 proper station for a look-out. Judge Hall further 
 held that a contract entered into by the owners of 
 a steamer with the post-office department, for the 
 transportation of the mail, furnishes no apology for 
 proceeding at a rate of speed which would otherwise 
 have been inadmissible. 
 Universality There is ouB great pervading principle to which, 
 
 of the obli- ^ . -, - , . /»i 
 
 f void" col- oetore concludmg this summary review of the 
 nautical rules devised to prevent the collision of 
 ships, it is necessary explicitly to state. It is this : 
 That it is the duty of persons entrusted with the 
 navigation of vessels, of whatever description — a 
 duty enjoined by law as well as humanity, to avoid 
 a collision with other vessels, if possible. It follows, 
 as a corollary from this obligation, that no navigator 
 is bound or has a right pertinaciously to adhere to 
 a rule of the sea, when he would incur the danger 
 or increase the probability of a collision by so doing. 
 If he clearly foresees that disastrous consequences 
 are likely to ensue from such a course, having power 
 to avoid them, he is bound to exert this power. 
 This principle is forcibly illustrated in a case of col- 
 lision decided a few years since in the English Court 
 of Admiralty, in which it appeared that upon the 
 meeting of a close-hauled vessel on the larboard 
 
 avoid col- 
 lisioa. 
 
COLLISION. 4ll 
 
 tack, and a vessel going free on the starboard tack, chap. is. 
 both vessels persevered, and a collision having 
 ensued in consequence, both were adjudged to be in 
 fault, and the damages were equally apportioned 
 between them (a). It will be seen by this decision 
 that no fault, however gross on the part of one 
 vessel, was supposed to absolve the other from the 
 paramount obligation under consideration. Dr. 
 LusHiNGTOH", in a previous case, after laying down 
 this principle, illustrated it as follows : " If a steam 
 vessel, for instance, should be nearing another sailing 
 vessel, and such vessel should be steered erroneously, 
 if the master of the steamer should wilfully say, 
 " this vessel is steering wrong, but we will keep our 
 course," and a collision should ensue in consequence, 
 I should undoubtedly hold that the steam vessel was 
 to blame (i). 
 
 The reasonableness and necessity of this principle 
 as an additional safeguard against the repetition of 
 those appalling calamities by which, especially of 
 late, the sensibilities of the public have been so 
 frequently and so severely shocked, cannot but be 
 readily conceded, and the man who, confiding in the 
 superior strength of his vessel or reckless of conse- 
 quences, can withhold a cheerful obedience to the 
 high duty it imposes, is unfit for a navigator. The 
 principle has, in several instances, been more or less 
 distinctly recognized by the American courts. It is 
 
 (a) ne Commerce, 9 English Admiralty E., 288. In a note 
 Bubjoined to the report, this decision is stated to have been unani- 
 mously aflBrmed on appeal by the Judicial Committee of the Privy 
 Council. 
 
 (b) The Hope, 1 W. Robinson's R., 154, 157. 
 
412 ADMIRALTY JURISDICTION. 
 
 TOL^i. nevertheless to be applied -with, cautious reserve, 
 Sra to bl" and only when it is manifest that a resort or longer 
 applied. adherence to the cardinal rules enumerated in this 
 chapter would be disastrous, or, at best, but fruitless, 
 and when there is apparently a probability of 
 escape or mitigation by disregarding them. This 
 caution is inculcated in a case recently decided in 
 the Supreme Court, and I gladly avail myself of the 
 language of the learned and able judge by whom the 
 judgment was pronounced, as an expression at once 
 clear and authoritative of all that I deem it 
 necessary to add upon this subject. "It must be 
 remembered," observes Mr. Justice Cttbtis, "that 
 the general rule is, for a sailing vessel, meeting a 
 steamer, to keep her course, while the steamer takes 
 the necessary measures to avoid a collision. And 
 though this rule should not be observed when the 
 circumstances are such that it is apparent its observ- 
 ance must occasion a collision, while a departure 
 from it will prevent one, yet it must be a strong 
 case which puts the sailing vessel in the wrong for 
 changing the rule. The court must clearly see, not 
 only that a deviation from the rule would have 
 prevented collision, but that the commander of the 
 sailing vessel was guilty of negligence or a culpable 
 want of seamanship in not perceiving the necessity 
 for a departure from the rule, and acting accord- 
 ingly(a). 
 
 It is time now to notice certain legislative enact- 
 ments relating to this subject contained in two acts 
 of Congress designed mainly to guard more effectu- 
 
 (a) Crocket v. Newton, 18 Howard's R., 581. 
 
COLLISION. 413 
 
 ally against destruction by fire and explosion on oh^is. 
 board of steamers carrying passengers, and also 
 certain nautical regulations prescribed in pursuance 
 of one of these acts. 
 
 The first is that of July 7, 1838, by the tenth 
 section of which it is enacted " That it shall be the 
 duty of the master and owner of every steamboat, 
 running between sunset and sunrise, to carry one 
 or more signal lights, that may be seen by other 
 boats navigating the same waters, under the penalty 
 of two hundred dollars(a)." 
 
 The act of August 30, 1852, requires " That on 
 any such steamers [steamers carrying passengers], 
 navigating rivers only, where from darkness, fog, 
 or other cause, the pilot on watch shall be of opinion 
 that, the further navigation is unsafe, or from acci- 
 dent to or other derangement of the machinery of the 
 boat, the engineer on watch shall be of opinion that 
 the farther navigation of the vessel is unsafe, the 
 vessel shall be brought to anchor, or moored as soon 
 as it prudently can be done: Provided, That if the 
 person in command shall, after being so admonished 
 by either of such officers, elect to continue such 
 voyage, he may do the same ; but in such case, 
 both he and the owners of such steamer shall be 
 answerable for all damages which shall arise to the 
 person of any passenger and his baggage from said 
 cause in so pursuing the voyage, and no degree of 
 diligence shall in such case be held to justify or 
 excuse the person in command, or said owners(Z»)." 
 
 (a) Ch. 191, § 10; 5 Stat, at Large, 306. 
 (6) Ch. 106, §28; 10 Stat, at Large, 72. 
 
414 ADMIRALTY JURISDICTION. 
 
 voL^i. The last clause, it will be seen, is, to some extent, 
 a modification, and, pro tanto, a repeal of tte act 
 of MarciL 3, 1851, ch. 43, limiting tKe liability of 
 the ship-owner to the value of his ship (a). 
 
 The act of 1851 is, in like manner, further modi- 
 fied by the 30th section of the act under considera- 
 tion, which is as follows : " That whenever damage 
 is sustained by any passenger or his baggage from 
 explosion, fire, collision, or other cause, the master 
 and the owner of such vessel, or either of them, 
 and the vessel, shall be liable to each and every per- 
 son so injured, to the full amount of damage, if it 
 happens through any neglect to comply with the 
 provisions of law herein prescribed, or through 
 known defects or imperfections of the steaming ap- 
 paratus, or of the hull ; and any person sustaining 
 loss or injury through the carelessness, negligence, 
 or wilful misconduct of an engineer or pUot, or 
 their neglect or refusal to obey the provisions of 
 law herein prescribed as to navigating such steamers, 
 may sue such engineer or pilot and recover damages 
 for any such injury caused as aforesaid by any such 
 engineer or pUot (5)." 
 
 The act of 1838, above cited, initiated a system 
 of inspection of steamers by persons appointed for 
 that purpose, and the system was greatly amplified 
 by the last above cited act of 1852. In addition to 
 the inspectors of hulls and boilers required by the 
 
 (a) Vide supra, p. 245. 
 
 {b) Act of August 30, 1852, ch. 106 ; 10 Statutes at Large, 72. 
 
COLLISION. 415 
 
 act of 1838, and, with some modifications, con- chap. is. 
 tinned by the ninth section of the act of 1852, the 
 eighteenth section of this act directs the appoint- 
 ment by the President, with the advice of the 
 Senate, of nine " Supervising Inspectors :" and by 
 the twenty-ninth section it is made " the duty of the 
 Supervising Inspectors to establish such rules and 
 regulations, to be observed by all such vessels in 
 passing each other, as they shall from time to time 
 deem necessary for safety; two printed copies of 
 which rules and regulations, signed by the said 
 inspectors, shall be furnished to each vessel, and shall 
 at all times be kept up in conspicuous places on such 
 vessels, which rules shall be observed both night and 
 day. Should any pilot, engineer or master of any 
 such vessel neglect or wilfully refuse to observe the 
 foregoing regulations, any delinquent so neglecting 
 or refusing shall be liable to a penalty of thirty 
 dollars, and to all damage done to any passenger, in 
 his person or baggage, by such neglect or refusal ; 
 and no such vessel shall be justified in coming into 
 collision vrith another if it can be avoided." 
 
 In pursuance of the duty enjoined by this section, 
 the Supervising Inspectors have established the 
 following rules and regulations to be observed by 
 steamers in passing each other : 
 
 "All pilots of steamers navigating seas, gulfs, 
 bays or rivers (except rivers emptying into the Gulf 
 of Mexico or their tributaries), when meeting or 
 passing each other, shall, as they approach each 
 other, observe the following regulations : 
 
 " EuLE I. The pilot of a descending vessel, if in 
 
416 ADMIEALTY JUEISDICTION. 
 
 voL^i. a narrow river or channel,' shall check her engine, 
 using only so much steam as shall be necessary to 
 keep her steerage, and if no signal be given, each 
 shall pass to the right or on the larboard side of the 
 other ; but if this mode of passing shall be deemed 
 unsafe by either vessel, the pilot objecting shall give 
 reasonable notice By a distinct and strong stroke of 
 the bell, repeating the same, if necessary, at short 
 but distinct intervals, which the other shall answer, 
 as soon as heard, by a similar stroke of the bell, 
 and they shall pass each other to the left instead 
 of the right. But if a passage by each other is 
 unsafe or impracticable, by reason of the narrow- 
 ness of the channel or from some other cause, the 
 pilot of the vessel first in such channel shall riog 
 her bell rapidly, and the other if not already in the 
 channel, shall give way and let her pass ; but if both 
 are in the channel, the ascending vessel shall give 
 way to the descending vessel, and no vessel shall be 
 justified in coming into collision with another if it 
 be possible to avoid it. 
 
 " Rule II. Should the pilot of either vessel fail to 
 make or answer the signal prescribe^, or should a 
 signal be answered erroneously, both vessels shall 
 be immediately stopped. When a vessel is running 
 in a fog, it shall be the duty of the pilot to cause a 
 beU to be struck, or the steam whistle to be sounded 
 every two minutes. This rule shall be observed by 
 all pilots, in all seas, gulfe, lakes, bays and rivers." 
 
 The act empowers the inspectors to grant licenses 
 to persons to act as pilots and engineers; and it 
 forbids the employment, on board steamers carrying 
 
COLLISION. 417 
 
 passengers, of any unlicensed person in either of these ^^^- ^'• 
 capacities, except for the purpose of temporarily 
 filling vacancies that occur during the voyage (a). 
 
 Innovations upon the established nautical rules, 
 tending to impair their certainty and simplicity, 
 ought, if at all, to be very sparingly made, and only 
 upon the most mature consideration : but the qualifi- 
 cation introduced by these new regulations of the 
 rule peremptorily requiring vessels to pass each 
 other on the larboard hand seems to be reasonable 
 and likely to be beneficial. It is limited, it will be 
 observed, to vessels meeting in a narrow river or 
 channel. The duty enjoined on the pilot of a vessel 
 running in a fog extends to all waters, and seems 
 entitled to unqualified approbation. The new regu- 
 lations are applicable only to American vessels pro- 
 pelled wholly or in part by steam, and carrying 
 passengers(5), and do not embrace public vessels, 
 nor vessels not exceeding one hundred and fifty tons 
 burthen used wholly or in part in navigating 
 canals (c). 
 
 There is one reported decision of the Supreme *-^^ 
 Court in a case of collision, which I have not hitherto 
 deemed it advisable to cite, and which I would 
 gladly pass over in silence, were I not constrained 
 by a sense of duty to notice it for the purpose of 
 pointing out the numerous and dangerous errors it 
 contains. 
 
 (a) Subdivision 10 of § 9. 
 
 (6) Act of Aug. 30, 1852, oh. 106, § 1 ; 10 Stat at Large, 61. 
 
 (c) Id., § 42, p. 75. 
 
 53 
 
418 ADMIRALTY JUEISDICTION, 
 
 TOIL 1. These errors are so gross as to be readily detected 
 by a reader already familiar with nautical usages, 
 and if they had emanated from a less authoritative 
 source there would be less necessity for warning even 
 the uninitiated against them. But the judgments 
 of judicial tribunals are reported and published for 
 the express purpose of communicating authentic 
 instruction to those who stand in need of it, and 
 that to which I have alluded was pronounced by a 
 court from whose decisions there is no appeal. It is 
 the case of St. John v. Paine, reported in 10 
 Howard's K., 557 (18 Curtis's Decis. S. C, 503). 
 The court saw fit, through Mr. Justice Nelson, by 
 w:hom the judgment of the court was pronounced, 
 to lay down the following as " among the nautical 
 rules applicable to the navigation of sailing vessels, 
 viz: A vessel that has the wind free, or sailing 
 before or with the wind, must get out of the way 
 of the vessel that is close-hauled, or sailing by or 
 against it; and the vessel on the starboard tack has 
 a right to keep her course, and the one on the lar- 
 board tack must give way or be answerable for the 
 consequences. So, when two vessels are approach- 
 ing each other, both having the wind free, an'd 
 consequently the power of readily controlling their 
 movements, the vessel, on the larboard tack must 
 give way, and each pass to the right. The same 
 rule governs vessels sailing on the wind approaching 
 each other, when it is doubtful which is to wind- 
 ward. But if the vessel on the larboard tack is so 
 far to windward that, if both persist in their course, 
 the other will strike her on the lee side abaft the 
 
COLLISION. 419 
 
 beam or near tlie stern, in tliat case the vessel on *^hap.i8. 
 the starboard tack should give way, as she can do 
 so with greater facility and less loss of time and 
 distance than the other. Again, when vessels are 
 crossing each other in opposite directions, and there 
 is the least doubt of their going clear, the vessel on 
 the starboard tack should persevere in her course, 
 while that on the larboard tack should bear up or 
 keep away before the wind." 
 
 The firet proposition of the learned judge is true, 
 and, even without the repetition evincing so laudible 
 a desire to make himself the more readily understood 
 by landsmen, is, in itself, intelligible. It ought, 
 however, to have been terminated by a period 
 instead of a semicolon, followed by " and," unless, 
 indeed, it was really designed to predicate what 
 follows, of two vessels in the predicament before 
 mentioned, namely, the one going at large and the 
 other close-hauled. If so, it is altogether fallacious 
 and even preposterous. But it was doubtless 
 designed to refer to two vessels, both close-hauled, 
 approaching each other, and so nearly abreast that, 
 by continuing their respective courses, they would 
 be likely to meet. There is nothing in the language 
 used, however, to indicate this intention, while its 
 improper grammatical connection with the first rule 
 is calculated to mislead. But the rule, as stated, 
 is not only defectively expressed — it is also errone- 
 ous. The rule respecting close-hauled vessels is not, 
 as we have seen, that the one " on the starboard 
 tack lias a right to keep her course ;" it is that she 
 is hound to keep her course ; and for the obvious 
 
420 ADMIRALTY JUEISDICTION. 
 
 ■raui. an^ conclusive reason that the rule would otherwise 
 be nugatory, for it is only by this means that the 
 duty imposed on the other vessel is rendered 
 effective in preventing a collision. By the very 
 terms of the supposition, neither can change her 
 course to windward ; and if both were to alter their 
 course, it could oilly be towards each other. To 
 those who understand the true rule, this is too 
 obvious to admit of mistake. 
 
 The next rule laid down by the learned judge 
 relates to vessels " both having the wind free, and 
 consequently having the power of readily controlling 
 theii' movements :" and of such vessels it is asserted 
 that " the vessel on the larboard tack must give 
 way, and each pass to the right." 
 
 As we have already seen, there is no rule of 
 navigation more firmly established than this : that 
 when two vessels going at large meet, each is to 
 diverge to the right. The .obligation is mutual, as 
 it ought to be, for the very reason so inconsistently 
 assigned for this erroneous version of the rule— 
 "both having the power of readUy controlling their 
 movements," and for the additional reason that the 
 object is, by this means, more certainly attained. 
 
 "The same rule," continues the learned judge, 
 "governs vessels sailing on the wind and approach- 
 ing each other, when it is doubtful which is to 
 windward." Now, this language can have no 
 legitimate meaning, except what we are to presume 
 it was intended to assert by the second rule, begin- 
 ning with the words " and the vessel on the starboard 
 tack." The words " when it is doubtful which is to 
 
COLLISION. 421 
 
 windward," can only be regarded as a Ibad substitute chap. is. 
 for the words when ih&re would otherwise he da/ng&r 
 of a collision^ or other equivalent words^ This, 
 therefore, is but a repetition, though doubtless 
 unconsciously made, of the second rule. But what 
 shall be said of the next rule laid down by the 
 court ? " But if the vessel on the larboard tack is 
 so far to windward," &c. The least that can truly 
 be said of it is, that it is but an exception to the 
 rule, the repetition of which has just been mentioned. 
 This rule, like all other nautical rules,, is designed 
 for practical use, to accomplish a beneficial end, and 
 it is to be interpreted and applied accordingly. Its 
 object is to prevent a collision, likely otherwise to 
 ensue, between two vessels gradually approaching 
 each other by convergent courses. From its very 
 nature, therefore, as already observed, it is applicable 
 only to vessels moving abreast, or very nearly so. 
 If either of the vessels is so far to the windward of 
 the other, that, by persevering in their respective 
 courses, they will run clear of each other, nothing 
 is required of either. But the rule casts the res- 
 ponsibility of determining this question upon the 
 vessel on the larboard tack, and points out the mode 
 by which, if seasonably adopted, any apparent 
 danger of collision may be avoided. She is bound, 
 therefore, not only to decide it properly, but, when 
 circumstances permit, seasonably. When the other 
 vessel is or may be seen, and her course ascertained 
 at a distance, if there appears to be the least danger 
 of a collision, the vessel having the larboard tack is 
 not to wait to ascertain the probable point of 
 
422 ADMIRALTY JURISDICTION. 
 
 voL^i. contact, as whether or not " the other mil strike her 
 abaft the beam or near the stern" (a point not 
 likely to be ascertainable until it is too late to profit 
 by the knowledge), but she is bound in season, to 
 prevent collision in any form, to give way before 
 the wind and pass the other on the larboard hand. 
 And what is said*by Mr. Justice Nelsoh" of the 
 obligation resting upon the vessel on the starboard 
 tack, can be applicable only to a case where the 
 other vessel, from whatever cause, has failed season- 
 ably to perform her duty. It is in reality, therefore, 
 but a consequence flowing from a general principle, 
 comprising, and sometimes superseding all other 
 nautical rules, viz : that the obligation to endeavor, 
 when necessary, by all suitable and practicable 
 means, to avoid collision — a disaster in its nature so 
 perilous and often destructive to human life as well as 
 to property of great value — rests, at all times and 
 under all circumstances, upon all persons entrusted 
 with the nianagement of vessels employed in navi- 
 gation. No degree of unskilfulness or misconduct 
 on the one side, therefore, can exonerate the other 
 from this duty. Nautical rules are framed to point 
 out and enforce the most feasible means of attaining 
 the end in view ; but when they are rendered 
 nugatory by non-observance on the part of him 
 whose duty it is to put them in practice, it devolves 
 on the other party to do what he can to avert the 
 danger by supplying the deficiency. This is the 
 nature of the duty devolving upon the vessel on 
 the starboard tack, in the contingency mentioned 
 by Mr. Justice Nelboht. But to enjoin it on her as 
 
COLLISION. 423 
 
 a general duty, correlative to that enjoined by the chap. is. 
 established rule for the government of the vessel on 
 the larboard tack, would be in the highest degree 
 objectionable, for that would be, by implication, to 
 authorize and invite the latter intentionally to await 
 the close approach of the former, in order to deter- 
 mine upon which of the two the duty devolved. 
 The dangerous tendency of this declaration is 
 enhanced by the reason assigned for requiring the 
 vessel on the starboard tack to give way, viz., that 
 " she can do so with greater facility and less loss of 
 time and distance than the other," as if it were 
 a mere question of convenience, and otherwise 
 mattered little which of the two vessels gives way 
 to the other ; whereas the rule requiring the vessel 
 on the larboard tack to give way at once, and the 
 other to keep her wind — a rule of so much utility 
 as to have been supposed to deserve the appellation 
 of " the golden rule" — will lose all its value when it 
 ceases to be rigorously enforced. To render it 
 beneficial, it must be held absolutely obligatory as 
 long as it remains practicable ; and when obedience 
 to it has been deferred, whether wrongfully, or from 
 darkness or other accidental cause, until, by the 
 near proximity of the two vessels, it can no longer 
 be obeyed with any reasonable prospect of success, 
 as will generally if not always be the case by the 
 time they they get so near each other that the 
 precise point of threatened contact may be discerned, 
 then, indeed, the obligation devolves upon the vessel 
 on the starboard tack to give way, not because " she 
 can do so with greater facility and less loss of time 
 
424 ADMIRALTY JURISDICTION. 
 
 VOL.1, and distance," but for 'the more cogent reason that 
 there remains no other means of preventing the 
 impending catastrophe. The remaining rule, nomi- 
 nally the sixth, laid down by the court, is but 
 another apparently unconscious reiteration, in some- 
 what less objectionable words, of the second ! 
 
 Here then we have promulgated by the Supreme 
 Court of the United States what purports to be, 
 and what Mr. Justice Nelson doubtless supposed to 
 be, an envmieraticm of no less tha/n six distinct laws 
 of the sea relating to a svhject of momentous con- 
 cern, but in reality comprising only four, namel/y, 
 the first three emimerated in tlie foregoing chapter, 
 one of which is here erroneousT/y amd another 
 falsely stated, and a fowrth altogether imiaginary 
 and fraught with danger. Is it not due to humanity 
 that these mischievous heresies should at once be 
 unequivocally repudiated by the high tribunal from 
 which they emanated? Not one of the rules laid 
 down had any specific application to the case before 
 the court, nor, had they been genuine, could they 
 have had any legitimate influence on its determina- 
 tion. This remarkable exposition was therefore 
 wholly gratuitous, and is doubtless attributable to 
 a desire to instruct the ignorant, and especially to 
 furnishan authoritative guide to the inferior tribunals. 
 It would have been strange if the extraordinary 
 confusion of ideas of which it is the offipring had 
 not pervaded also the review of the particular case 
 before the court, and exerted a baneful influence 
 on its decision ; and we accordingly find this to be 
 the case. The collision took place on Long Island 
 
COLLISION. 425 
 
 Sound between the steamer Neptune and the schooner ^jhap. is. 
 lole, in the night. The lole was sailing with " a 
 fresh wind," was " nearly close-hauled," and on the 
 starboard tack. She was first seen by the Neptune 
 at a distance of about one-fourth of a mile, and, as 
 it was alleged in behalf of the Neptune, dead 
 ahead. The Neptune thereupon put her helm to 
 starboard for the purpose of passing the lole to 
 windward, and thus leaving her to pursue her course. 
 The collision that immediately ensued "was ascribed 
 by the persons in charge of the Neptune to a sudden 
 change of course on the part of the lole by luffing. 
 This movement was denied by those in charge of the 
 latter, who also insisted that the direction in which 
 she was proceeding when first seen from the Neptune 
 was to windward of that of the latter. Upon both 
 these points the court were of opioion that there 
 was a preponderance of evidence in favor of the 
 lole. But, said Mr. Justice Nelsow, the Neptune 
 " was in fault in attempting to pass the lole to wind- 
 ward. Even admitting that she was not mistaken 
 in the position of this vessel, and that she was dead 
 ahead, it was the duty of the Neptune to lea/r 
 away{a), and to pass on the larboard side. As we 
 have seen, the observance of no one of the rules of 
 navigation is more strongly recommended or more 
 steadily enforced, in the admiralty, than this one, 
 where two vessels are approaching in opposite 
 directions, and there is danger of a collision." 
 
 (a) This is a nautical phrase having reference to the wind, and is, 
 I imagine, exclusively applicable to sailing vessels. 
 54' 
 
426 ADMIRALTY, JURISDICTION. 
 
 voL^i.' The charge of ignorance or wilful misconduct 
 against the pilot, which immediately follows this 
 passage in the judgment of the court, doubtless 
 priginated, as it finds its only countenance, in this 
 same misapprehension. It is true that what Mr. 
 Justice Nelson so erroneously supposed to be the 
 rule applicable to the case before the court has, as 
 we have seen, since been established in England by 
 act of Parliament as a universal rule; but the 
 application of it made in the case under considera- 
 tion was at that time entirely novel, in direct 
 opposition to highest judicial authority even in 
 England, and it still remains without a shadow of 
 support in this country. 
 
ASSAULTS, ETC. 427 
 
 OHiP. 14. 
 
 CHAPTER XIV. 
 
 Assaults, Beatin&, False Imprisonment, etc. 
 
 The admiralty possesses an unquestioned jurisdic- 
 tion of suits for the redress of private injuries to 
 the rights of personal security and personal liberty, 
 committed on the high seas; and the appellation 
 "high seas" is held, in this country, as we have 
 seen, to comprehend all waters navigable from the 
 sea, and which are affected by the ebb and flow of 
 the ocean tides. 
 
 Injuries to the person may be committed on ship- 
 board, by one mariner on another ; by a mariner on 
 a passenger ; by a passenger on a mariner ; or by 
 one passenger on another. Generally, however, 
 those wrongs which form the subject of this chap- 
 ter are inflicted by the masters or other officers of 
 vessels on seamen ; and they are unhappily of no 
 very uncommon occurrence. 
 
 Partaking somewhat of the boisterous nature of 
 the element on which their lives are mainly passed, 
 seafaring men are apt to be choleric in temper, and 
 consequently rash and violent in language and con- 
 duct. It is not surprising therefore that masters of 
 ships, being from necessity armed by law with very 
 ample authority over the mariners on board, should 
 sometimes abuse their power. In such cases the 
 injured party, on his return to port, may seek repa- 
 
428 
 
 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 Master's 
 power of 
 coercion 
 founded in 
 the exigen- 
 cies of mari- 
 time pur- 
 suits. 
 
 ration by admiralty process in personcmi^ in a cause 
 of damage, against the aggressor (a). 
 
 Between the contract with the mariner for his 
 services on shipboard, and ordinary contracts for 
 the hireof labor, there is this essential difference : 
 that while in the latter cases the law affords no 
 remedy for neglect or refusal to perform the stipu- 
 lated service, except an action for the recovery of 
 damages, in the former cases the employer is armed 
 with the power of direct and forcible coercion. 
 
 This power has its origin in the nature of the 
 business to which the engagement of the mariner 
 relates, and of the services which he undertakes to 
 render. Emergencies often occur in the navigation 
 of vessels, requiring a promptitude of decision 
 affording no time for consultation, and admitting of 
 no delay in the execution of the measures which 
 the exigencies of the case require. It is necessary, 
 
 (a) And by the act of Congress of March 3, 1835, oh. 40, § 3 (4 
 Stat, at Large, 776), " if any master or other ofiBcer of any American 
 ship or vessel on the high seas, or on any other waters within the 
 admiralty and maritime jurisdiction of the United States, shall, from 
 malice, hatred or revenge, and without justifiable cause, beat, wound 
 or imprison any one or more of the crew of such ship or vessel, or 
 withhold from them suitable food and nourishment, or inflict upon 
 them any cruel or unusual punishment, every such person so offending 
 shall, on conviction thereof, be punished by fine not exceeding one 
 thousand dollars, or by imprisonment not exceeding five years, or by 
 both, according to the nature and aggravation of the offence." 
 
 " Malice," in the above enactment, signifies wilfulness, or a wilful 
 intention to do a wrongful act ; and to constitute the oftence described, 
 there must also be the absence of justifiable cause. United States v. 
 Taylor, 2 Sumner's R., 584. 
 
 The word " crew " includes as well the officers as the common sea,- 
 men of the ship or vessel. United States v. Winn, 8 Sumn. R., 209. 
 
ASSAULTS, ETC. 429 
 
 therefore, that all matters relating to the navigation ceap.u. 
 of the ship, and to the preservation of good order 
 on board, should be under the supreme direction of 
 a single person. This authority is accordingly 
 entrusted to the master, who thus becomes charge- 
 able with the safety of the ship, and of the lives 
 and property on board, and he is held personally 
 responsible for any loss or injury that may happen 
 to the ship or cargo through his negligence or 
 misconduct. But to enable him to acquit himself 
 properly of this important trust, and to sustain so 
 great a responsibility, it is absolutely essential that 
 he should be invested with ample authority over the 
 mariners on board, and that he should have a right 
 to compel prompt obedience to his orders. It is 
 universally conceded, therefore, that in case of dis- 
 obedience of his reasonable commands, or of riotous, 
 disorderly or insolent conduct, the master of a 
 merchant ship may subject the offender to corporal 
 punishment. 
 
 His authority, in this respect, has been likened 
 to that of a parent over his child, and that of a 
 master over his apprentice or scholar(a) ; but unlike 
 that of a parent, it extends only to the correction 
 of such negligence or misconduct of mariners as 
 relate strictly to their duties as such, or tend to the 
 subversion of the discipline of the ship: for the 
 master is not a general censor morurni over his 
 crew (5) : and the penal infliction upon the mariner 
 
 (a) Abbot on Shipping, Boston ed. of 1846, 233. 
 (6) Bangs t. Little, Ware's R., 506. 
 
430 ADMIKALTY JUKI8DICTI0N. 
 
 voL^i. may, under some circumstances, be lawfully carried 
 fXo^tr to an extent which the law would not tolerate in 
 ment'°°°' *^® ^^® ^^ ^^ apprentice, and may be administered 
 in the form of imprisonment as well as of personal 
 « may be chastisement(a). It may be exercised on the spot, 
 lubsTMn't- ^^^ *^® purpose, wheh necessary, of compelling 
 ^' instant obedience ' or desistance ; or subsequently, 
 
 with a view to deter the delinquent from the repe- 
 tition of his offence, and others from following his 
 example (5). 
 
 Concerning this extraordinary power, so liable to 
 abuse, some of the ancient maritime codes of conti- 
 nental Europe are studiously silent, leaving its 
 existence to be inferred, and its exercise to be justi- 
 fied, from necessity and usage. By the ordinance of 
 Louis XIV., it is carefully limited and defined(c). 
 In England, and in this country, there are no statut- 
 able regulations upon the subject. 
 Tobeeier- But though thc powcr is admitted, and its just 
 
 cised with , iiti ii nii ... 
 
 ^"dffdu- exercise upheld by the laws of both countries, it is 
 not an arbitrary or unregulated, but a discretionary 
 power, which the law watches with a jealous eye. 
 It behoves the master, therefore, to be very careful 
 in its exercise, and not to make it a pretext for 
 cruelty and oppression. No punishment can be 
 lawfully inflicted, unless for reasonable provocation 
 or cause ; and it must be moderate, and just, and 
 proportionate to the nature and aggravation of the 
 
 (a) 7^ Agincmri, 1 Haggard's R., 271, 273. 
 (6) The United States v. Freeman, 4 Mason's R., 505, 512. 
 (c) See Butler v. M'Lalkn, Ware's R., 219; Abbot on Shipping, 
 Boston ed. of 1846, 234. 
 
 and just dia- 
 crimiaation. 
 
ASSAULTS, ETC. 431 
 
 offence. The law does not permit the master to chap. 14. 
 gratify a brutal spirit of revenge, or to inflict cruel 
 or unnecessary punishments. It allows no excess, 
 either in the mode, or the nature, or the object of 
 the punishment. It upholds the exercise of the 
 authority only when it is for salutary purposes ; not 
 when it arises from caprice, or when it is prompted 
 by gross or vindictive passions, or personal dislike(a). 
 Unless, therefore, the master is able to show, not 
 only that there was sufficient cause for chastisement, 
 but also that the chastisement was reasonable and 
 moderate, the mariner may recover damages com- 
 mensurate with the injury received(5). 
 
 When the master is on board, the right to inflict ThemMter 
 punishment pertains exclusively to him, and it can- onboW, 
 
 r r J 7 authorized 
 
 not be lawfully exercised by any subordinate officer, puSftaient. 
 even for improper behavior to himself personally, 
 without the authority or sanction of the master, 
 express or implied(c). In the absence of the mas- inhi.ab- 
 
 S6IICO tllfi 
 
 ter, from the necessity of the case, the officer on l°^^,l^i 
 board next in rank is clothed with his authority and TofveTonthe 
 
 next officer 
 
 rights, so far as they are necessary for the due per- i^'^t. 
 formance of the ship's duties(6?). It must be added 
 also, that in those cases which sometimes occur, where 
 
 (a) The United Staies\. Freeman, 4 Mason's E., 505, 512 ; Thomas 
 V. White, 1 Peters's Adm. DecU., 168 ; Rice v. The Polly and Kitty, 
 
 2 id., 420. 
 (6) Abbot on Shipping, 235; 4 Mason's R., 512; Elwell v. Martin, 
 
 Ware's K., 53. 
 
 (c) Thomas v. Lane, 2 Sumner's R., 1, 11 ; United States v. Taylor, 
 id., 584, 587; United States v. Hunt; 2 Story's R., 120, 125. 
 
 (d) Ibid. ; Elwell v. Martin, Ware's R., 53. But, it is presumed, 
 no further. The mate or other inferior officer would haye no right, 
 therefore, in the absence of the master, to punish for a past offence. 
 
432 
 
 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 In case of 
 sudden and 
 pressing 
 emergency, 
 the mate 
 may enforce 
 obedience, 
 although the 
 master is on 
 board. 
 
 Inferior 
 officers not 
 refponsible 
 for punish- 
 ment 
 
 inflicted by 
 them by 
 order of 
 the master, 
 except in 
 gross cases. 
 
 Master 
 
 bound to 
 
 protect 
 
 seamen 
 
 from 
 
 violence. 
 
 instant obedience to tlie orders of the mate is neces- 
 sary ; such as orders to take in sail in a sudden 
 squall, or to cut aw^ay the rigging or spars, or to go 
 aloft on a sudden emergency, the mate may instantly 
 enforce obedience by the application of all the force 
 required to produce prompt obedience. But such 
 an exercise of authority is to be justified by necessity 
 alone ; and the force so used is not so much a punish- 
 ment for the offence of disobedience as it is a means 
 of compelling the performance of a pressing duty, 
 admitting of no delay(»). 
 
 The inferior officers of the ship, as well as the 
 common seamen, are subject to the commands of 
 the master ; and therefore, if the mate, under the 
 direction of the master, assist in the infliction of 
 punishment, he is to be held excusable, unless the 
 infliction was clearly unjust or grossly excessive(5). 
 
 Not only is the general authority to inflict punish- 
 ment on shipboard restricted to the master, without 
 any power of delegation to another ; but he is bound 
 to prevent, as far as he is able, any undue exercise 
 of authority by his subordinate officers, and any 
 abuses, injuries and trespasses by them. If he is 
 present when any such officer takes it upon himself 
 to inflict chastisement upon a mariner, if he do not 
 interpose to restrain it\, he will be deemed to have 
 assented to and encouraged it; and if it was im- 
 proper in its nature and character, or unjustifiable 
 under the circumstances, he will be held responsible 
 in damages. He cannot excuse himself on the 
 
 (o) United States v. Taylor, 2 Sumner's R., 584, 587. 
 (6) Butler v M'Lallen, Ware's R., 219. 
 
ASSAULTS, ETC, 433 
 
 ground of courtesy to his officers, or of the supposed ^^^ "• 
 necessity of upholding their authority and the 
 discipline of the ship. He is bound, it is true, to 
 support his officers in the proper discharge of their 
 duties, and to maintain the discipline of the ship ; 
 but he is also to take care that the crew are not 
 made victims to the passions, the insolence, or the 
 caprices of the officers under his command (a). 
 The law enioins upon the master temperate sobriety ana 
 
 V X X self-control 
 
 demeanor and decent conduct towards seamen, "fthe^"' 
 Disorder, disobedience and mutiny, the offences jSinedby" 
 most likely to call for the exercise of the master's 
 authority to inffict personal chastisement, are not 
 unfrequently caused by his own violence and mis- 
 conduct; and in deciding on the sufficiency of any 
 defence he may oppose to a charge of unlawful 
 violence, the court may rightfully scrutinize his 
 own habits, disposition and conduct. If he has 
 wantonly originated a quarrel, he must be careful 
 in assuming to punish I'etorts which he has himself 
 provoked. Even when the punishment is merited, 
 and in itself justifiable, he has no right to accompany 
 its inffiction with insult and contumely ; and if he 
 do so, the court will take care, by its judgment, to 
 admonish him " that passion is not to be indulged 
 in the infliction of punishment ; and that he who 
 has to command others is not fully prepared for the 
 duties of that station, unless he in some degree com- 
 mand himself(3)." And if the master so far forget 
 
 (a) Thomas v. Lane, 2 Sumner's R., 1, 11. 
 
 (6) Abbot on Shipping, Boston ed. of 1846, 238 ; Thomas v. White 
 1 Peters's Adm. Decisions, 186 ; Lord Stowell, in The Agincourt, 
 1 Haggard's R., 271, 289. 
 
 55 
 
434 ADMIRALTY JURISDICTION. 
 
 voL^i. ti^e decorum and responsibilities pertaining to his 
 may beheld station, as voluntarilv to become a participant in 
 
 accountable n i • i • i '^^ -i 
 
 in example disordcrlj conduct on board nis snip, ne will be 
 Mnductl*''^ held to a more rigid accountability for any punish- 
 ment he may inflict for misconduct in others, which 
 he has thus encouraged by his own example(«). 
 bJiun'd'in In S'll cases of alleged misconduct coming to the 
 casl^to " knowledge of the master through the report of 
 
 make due ^ o ± 
 
 Kar'tne'^ othsrs, or which may possibly admit of extenuation, 
 due inquiry should precede the act of punishment ; 
 and, therefore, the party charged should have the 
 benefit of that rule of universal justice, of being 
 heard in his own defence. A punishment inflicted 
 without the allowance of such benefit, is in itself 
 a gross violation of justice (^). It is an act of 
 tyranny calculated to arouse the resentment of the 
 rest of the crew, and to diminish their respect for 
 the master, and their confidence in his justice. A 
 previous inquiry and hearing of the accused are not 
 only in many cases necessary for the purpose of 
 ascertaining the truth, but are attended with the 
 further advantage of affording time for passion to 
 subside, and judgment and conscience to prevail. 
 
 It is a standing rule of the East India Company, 
 that no penal infliction shall take place on board 
 their ships, under the sole authority of the captain, " 
 though the captains employed are generally a very 
 respectable body of men ; but must be sanctioned 
 by the report of a court of inquiry, composed of the 
 
 (a) Jarvis v. The Captain and Mate of the Ship Claiborne, Bee's 
 R., 248 ; 1 Peters's Adm. Decisions, 186. 
 
 (b) The Agincourt, 1 Haggard's R., 271, 274. 
 
ASSAULTS, ETC, 435 
 
 principal officers of the ship, and the whole proceed- chap. u. 
 ings are to be finally reported to the governor of the 
 company, upon the return of the ship(a) ; and it 
 has been said to be the duty of the captain to avail 
 himself of the advice of others, and to have the 
 result entered on the log, because he thereby pre- 
 vents himself from acting solely on his own feelings, 
 which may be excited; and to be his interest, 
 because it furnishes evidence in his favor, to be used 
 on the day of trial (J). 
 
 Attempts on the part of the master to justify ^fSt" 
 what would otherwise be deemed undue severify, condStrto 
 
 '' justify sever- 
 on account of antecedent offences, are, in general, pjn'fshment 
 
 entitled to little favor. Over by-gone acts, not offend", not 
 
 •^ ^ ' to be regard- 
 
 punished when they took place, time has thrown a fav^"'' 
 
 species of condonation, as well as a degree of ob- 
 scurity 'and indistinctness in the evidence of the 
 manner and circumstances of their commission. 
 The impunity of former offences may also have con- 
 tributed to produce their repetition ; and the 
 admission of this mode of defence leads, moreover, 
 to a great accumulation of expense, bearing hard 
 upon a seaman in the exertion of his legal right to 
 enforce his claims. A recent act may, nevertheless, 
 be justly visited by a more serious punishment than 
 would be due to it standing perfectly alone, if ante- 
 cedent acts of the same kind had proved the exist- 
 ence of habits too dangerous to be passed over 
 
 (a) The Lowther Castle, 1 Haggard's R., 385 ; TTie AgincouH, 1 
 ■ Haggard's R., 274. 
 
 (6) Murray^. Moutrie, 6 0. & P., 471 ; Abbot on Shipping, Boston 
 ed. of 1846, 233, note. 
 
436 
 
 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 But never- 
 theless ad- 
 missible if 
 the recent 
 and past 
 acts are of 
 a kindred 
 nature. 
 
 The mode 
 and the in- 
 strument of 
 punishment 
 to 1)e deter- 
 mined by 
 usage and 
 discretion. 
 
 Oautton 
 used In ad- 
 ministering 
 punishment. 
 
 The master 
 is authorized 
 in extreme 
 cases to im- 
 prison sea- 
 men in a 
 common jail 
 in a foreign 
 port. 
 
 upon the repetition. Evidence of such acts ought 
 not, therefore, to be excluded. But the act should 
 properly be one " allied in nature to those which it 
 follows : an act of theft will not prove a habit of 
 drunkenness ; and if an act of mutiny is charged, it 
 should be mutinous conduct of a former date that 
 alone can be invoked with propriety to aggravate 
 the charge of a mutinous disposition(a)." 
 
 The particular mode and instrument of punish- 
 ment which may lawfully be used is left to be 
 determined by common usage, and by the humane 
 discretion of the person who has the right to com- 
 mand its application(5) ; but the master has no right 
 to employ deadly weapons, except in self-defence, or 
 to quell a mutiny(c). 
 
 The master, and others acting under his orders, 
 are responsible for the exercise of due care in the 
 infliction of lawful punishment; and if by reason of 
 their harsh and inconsiderate conduct the offender 
 receive a serious injury, as the dislocation of an arm, 
 they are answerable for the actual damages thus 
 sustained, but not for vindictive damages(c?). 
 
 The authority of the master to confine an offend- 
 ing seaman on board the ship, by putting him in 
 irons, or otherwise, when his conduct and a just 
 regard to good discipline render it expedient, is 
 unquestionable; but whether the master can law- 
 
 (a) The Agincourt, 1 Hagg. Adm. R., 271, 275, 280; The Lowther 
 Castle, ib., 384, 387. 
 
 (6) 1 Haggard's Adm. R., 274. 
 
 (c) Jarvis v. The Master, f c. of the Claiborne, Bee's R., 248. 
 
 (d) Elwell V. Martin et at., Ware's R., 55. 
 
ASSAULTS, ETC. 437 
 
 fully imprison a mariner on shore, in a foreign port, ohap-u. 
 has been doubted. In a case before the Circuit 
 Court of the United States for the District of 
 Massachusetts, it became necessary to consider and 
 decide this question. The decision of the court 
 affirmed the existence of the power, in certain cases, 
 and where the proper correction or punishment 
 cannot be effectual without it on shipboard(a). 
 
 (a) Untied States v. Ruggles, 5 Mason's R., 192. The question is 
 of so much importance, and the opinion of the court upon it, as 
 delivered by Mr. Justice Stort, is so instructive, that no apology will 
 be required for inserting it entire. 
 
 " There is another point," he observed, " on which the court is 
 called to express an opinion. In the present case, the master not only 
 forced the seaman on shore, but he caused him to be confined and 
 imprisoned in the common jail at St. Pierre's, under circumstances of 
 such great exposure and severity as cannot be justified. It is said that 
 the law does not clothe the master with any authority to imprison the 
 seaman, for disobedience or misconduct, in a common jail in a foreign 
 port ; and that the imprisonment, if necessary or proper, must be on 
 board the ship. I am aware that it has been doubted by very able 
 judges, whether the law does authorize such an imprisonment on shore 
 in a foreign port. My opinion, however, is, upon the most mature 
 deliberation, that it does authorize it ; but I am also of opinion that the 
 authority arises, and can be exercised only in cases of flagrant offences, 
 where there is a positive necessity of removal of the party ofiending, 
 from the ship, to some place of safety on shore. The authority is of a 
 very delicate and summary nature, and is justified only by the same 
 necessities which clothe private persons in other cases with extraordi- 
 nary powers. Cases may easily be conceived where the authority may 
 be indispensable for the safety of the ship, cargo and crew. Suppose 
 a mutiny in port, with an intent to murder the officers, or to embezzle 
 the cargo, and the conspiracy be so extensive that the mutineers can- 
 not be sufiered to remain on board, but at the imminent hazard of the 
 lives of the officers and the property on board. The master must have, 
 as I think, a right, under such circumstandes, to remove them from the 
 ship, and to imprison them as well for punishment and safety, if he 
 does not choose, as he may, to dismiss them altogether from the 
 
438 ADMIRALTY JURISDICTION. 
 
 voL^i. The seaman, in common with all other men, is 
 bou"d"to°' subject to higer moral obligations than that of 
 
 obey unlaw- ^ -,, tit />!•• 
 
 raaSZand obedience ; and the duty of submission may be su- 
 iii??"' perseded by the right of self-defence. The mariner 
 
 Blrain and , 
 
 master ""^ IS not bouud to obey an unlawful command, and 
 
 employment. But in such a case, the imprisonment must be with the 
 intent to take them again on board the ship for the voyage, or to bring 
 them home, and not with the intent merely to punish them, and at the 
 same time to dissolve their connection with the ship. The master can 
 punish only to promote good discipline, and to compel obedience to 
 lawful orders on board the ship. He is not clothed with judicial 
 authority to sentence seamen to punishment for their offences. The 
 law has conceded that authority to the regular tribunals of the country, 
 acting in the common forms of justice, and upon a trial of facts by a jury. 
 While, therefore, I admit that a master may, in extreme cases, imprison 
 a seaman in a foreign port (for no such authority is pretended to exist 
 in a domestic port), I think the authority is confined to extreme cases, 
 and cannot be justified when a more moderate punishment on shipboard 
 would be effectual and safe. The notion so commonly entertained, 
 that a master may, at his pleasure, for slight offences, imprison his 
 seamen in a foreign jail, is utterly unfounded in law. It is well known 
 that there is, in warm climates, great danger to the healths and lives 
 of seamen in these miserable and loathsome places ; and a power to 
 imprison there, is often a power of life or death. It is high time that 
 'masters should understand that they are criminally liable for such 
 wanton abuses of authority. If a seaman should lose his life by 
 confinement and exposure in such a jail, through the instrumentality 
 of the master, without justifiable cause, the master is responsible, as 
 in other cases, for homicide. One of the strongest reasons against the 
 exercise of the authority is, that the seamen are thus put utterly out 
 of the control and supervision of the master. It is his duty to watch 
 over them with paternal attention as long as they belong to the ship ; 
 and he has no right to delegate his authority or custody to jailers 
 or turnkeys in a foreign country." 
 
 See, to the like effect, Wilson et al. v. The Brig Mary, Gilpin's R., 
 31 ; Magee etal. v. The Master and Owners of the Ship Moss, ib., 219. 
 
 The result of Mr. Justice Story's opinion seems to be, that although 
 the power exists in theory, yet that it is justly subject to restrictions 
 so stringent as to render it practically nugatory. In the case supposed 
 
ASSAULTS, ETC 439 
 
 may resist any force to wMch the master may resort chap, u. 
 to compel obedience ; and if the master is about to 
 commit an unlawful act, especially if it be a felony, 
 a seaman may lawfully restrain him. So if the 
 master assault a seaman, without cause, the seaman 
 may, in self-defence, restrain him with so much force, 
 and so long as is necessary for this purpose(a). 
 
 A passenger on board a ship may sue the master a passenger 
 
 ^ ^ may main- 
 
 in the admiralty for an assault committed by him ^t'^am^^ 
 at sea. The jurisdiction in this instance, as in all Sauuat 
 
 Bea. 
 
 cases of tort, arises from the place where the injury 
 was committed. "Looking to the locality of the 
 injury," said Sir William Scott, in a case of this 
 sort, " that it was done on the high seas, it seems 
 to be a fit matter for redress in this court(5)." 
 
 But there are cases in which the master may law- Limits of the 
 
 «/ masters 
 
 fuUy subject a passenger to forcible restraint or 
 coercion. The law upon this subject is very clearly 
 and satisfactorily stated, and justly applied, by the 
 learned judge of the United States for the Eastern 
 District of Pennsylvania, in a case recently decided 
 by him. "The law," he observed, "invests the 
 master with a necessary control over his passengers. 
 
 by him, of a conspiracy to murder the officers of the ship, or to embezzle 
 the cargo, so extensive as to be uncontrollable by the aid of those who 
 remain faithful to their duty, prudence would seem clearly to dictate 
 the peremptory discharge of the conspirators, instead of first inflam- 
 ing their eyil passions by ignominious imprisonment, and then 
 receiving them again on board for the return voyage. 
 
 fa) United States v. Thompson, 1 Sumner's R., 168, 172 ; United 
 States V. Cassidy, 2 Sumner's R., 583, 584. 
 
 (6) The Ruckers, 4 Robinson's R., 73 j Chamberlain \. Chandler, 
 3 Mason's R., 242. 
 
 master's 
 authority 
 over 
 passengers. 
 
440 ADMIRALTY JURISDICTION, 
 
 voL^i. jje jjfia,y make proper regulations for their govern- 
 ment, sucli as may insure their safety, promote the 
 general comfort, and preserve decent order; and 
 these regulations he may enforce by all temperate 
 and needful exercise of power. But here his 
 authority over his passengers finds its limits, and he 
 is a trespasser if he goes beyond it. He must show- 
 not only a breach of regulation before venturing to 
 use force towards any one of them, but also that 
 there was a clear necessity for the exercise of force. 
 He is not to punish an infraction of mere police 
 rules, by striking a passenger with his fist, or beat- 
 ing him with a rope's end ; still less is he to do this 
 before he has exhausted all milder and less degrad- 
 ing means of vindicating the order of the ship. 
 Courteous request, patience, and renewed remon- 
 strance, or reprimand, and, at last, just so much 
 restraint, and if that be unavailing, just so much 
 force, and no more, as the exigency may call for : 
 these are the legitimate rights of the captain over 
 his passengers." Judge Kane said, moreover, that 
 he had "no hesitation in adding, that no punish- 
 ment higher than a reprimand should ever be in- 
 flicted on a passenger, without a conference with 
 the other oflicers of the ship, and the entry of the 
 facts on the log-book;" except in cases of urgent 
 necessity, where the right to use force was virtually 
 resolved into that of self-defence. In the case 
 before the court, the libellant was a steerage pas- 
 senger from Rotterdam to the United States, on 
 board a vessel commanded by the respondent. One 
 of the regulations for the government of the pas- 
 
ASSAULTS, ETC. 441 
 
 sengers forbade the use by them of any canvass, ch^i4. 
 cordage, or other article of property belonging to 
 the ship, without permission. The libellant, it was 
 alleged, had more than once infringed this regula- 
 tion, and had been reprimanded in consequence. 
 On the occasion when the violence complained of 
 was committed^ he was charged by the master with 
 using a small piece, or rag, as some of the witnesses 
 called it, of tarred canvass, for the purpose of 
 kindling a fire to cook his dinner ; and although, as 
 the witnesses testified, he repeatedly and distinctly 
 denied the charge, the master snatched the burning 
 canvass from the fire, and with it struck the libel- 
 lant several blows in the face ; and while he was in 
 the act of retreating, gave him several blows with 
 the fist, which caused his nose to bleed. The 
 master, not content with what he had done, re- 
 paired to the cabin, and soon returned with a small 
 cord, with which he inflicted on the libellant severe 
 chastisement. Damages to the amount of $100 and 
 costs were awarded to the libellant (a). 
 
 I have met with no express adjudication affirming 
 the right of one passenger to seek redress in a court 
 of admiralty for an assault at sea, committed by a 
 fellow passenger ; but the principle above mentioned 
 seems to be equally applicable to such a case. 
 
 A case of marine assault and battery against the when a 
 
 , cause of 
 
 master of a vessel, which arose several years ago, in ^^'s^ 
 the District Court of the United States for the b'y'"a'd™e'! 
 
 (a) Kranskopp v. Ames, decided August, 1840, in the District 
 Court for the Eastern District of Pennsylvania (7 Penn, Law Jour- 
 nal, 77). 
 
 56 
 
442 ADMIRALTY JURISDICTION. 
 
 TOT^i. District of Maine, turned upon the personal capacity 
 of the libellant to maintain a civil suit. He was a 
 slave in the island of Guadaloupe, and was on board 
 the vessel, on her voyage to this countiy, in the 
 capacity of a servant of his master's son, Eugene, a 
 youth of seventeen years of age. While at sea, the 
 libellant was assaulted and beaten by the master, 
 for refusing to perform a service which he was 
 directed to execute. On the arrival of the vessel in 
 the State of Maine, he instituted a suit in the 
 admiralty for this injury ; and the question was 
 whether the civil disabilities to which he was subject 
 in Guadaloupe continued to attach to him in a state 
 of the American Union, where slavery was not 
 tolerated. Upon an elaborate and learned review 
 of the authorities bearing upon the subject, Judge 
 Ware decided that he was competent to maintain 
 his suit (a). 
 A receipt is In accordauce with the indulgent principles which 
 
 not a bar , '-' ^ ■'■ 
 
 Msauufcte' govern courts of admiralty in deciding upon the 
 rights of seamen, a receipt by a seaman on receiving 
 the sum due to him for wages, stating that it was 
 , "in full for all services and demands, for assault, 
 battery and imprisonment, against the owner and 
 officers," has been held to be no bar to a suit for an 
 assault, battery and imprisonment(i). 
 
 Punishment It is proper, in conclusion, to observe that, while 
 
 not to be i i n i . 
 
 Ifight'offe'i! ^pon the one hand, the master is bound to treat the 
 sailor with the forbearance and lenity due to his 
 
 (a) Pollydore v. Prince, Ware's R., 402. 
 (6) Thomae v. Lam, 2 Sumner's R., 1. 
 
 ces. 
 
ASSAULTS, ETC. 443 
 
 humble condition, his usefulness, his hard and ill- chap.u. 
 requited service, and his proverbial indiscretion, and Sd to 
 not to be " extreme to mark what is done amissCffl") ■" pons"™"'™ 
 
 \ / 5 la cases of 
 
 on the other hand, he is entitled to the indulgent "unLUent. 
 consideration and construction of his own conduct 
 when acting under honest impulses. I gladly avail 
 myself of the language of the learned judge of the 
 District of Maine, in stating what appear to be the 
 just deductions of the authorities upon this subject. 
 " When it is apparent," said he, " that punishment 
 has been merited, I have never been in the habit of 
 attempting to adjust very accurately the balance 
 between the magnitude of the fault and the quantum 
 of punishment. Unless unusual and unlawful instru- 
 ments have been used, or there have appeared clear 
 and unequivocal marks of passion on the part of the 
 
 (a) Lord Stowell, in ITie New Phmnix, Haggard's Adm. R., 199. 
 The case of Morris v. Cornell, in the District Court of the United States 
 for the District of Massachusetts (6 Law Reporter, 304), affords a good 
 illustration of the just import of this remark. One of the acts of 
 assault and battery complained of, occurred as follows : The libellant, 
 Morris, in an altercation with another of the crew, was using profane 
 language. On being told by the captain not to swear, he retorted that 
 he had heard him, the captain, swear; and in reply to the captain's 
 inquiry what he referred to, he answered he had heard him damn the 
 man's eyes. The captain thereupon, in a rage, seized him violently, 
 pulled out some of his hair, and inflicted a blow which left a mark on 
 the eye. The learned judge held the assault to be unjustifiable, 
 and awarded damages on account of it ; and in remarking upon this 
 part of the case, said, that when properly checked for swearing, Morris 
 was wrong in retorting on the captain, but that the provocation was 
 not great, and there was no exigency — no emergency. The captain 
 was bound to suppress his passion. If unable to control himself, he 
 was unfit to command others. It was his duty to set an example of 
 calmness and self-possession. 
 
444 ADMIRALTY JURISDICTION, 
 
 Toi^i. captain, or the punishment has been manifestly 
 excessive and disproportionate to the fault, I have 
 not thought myself justified in giving damages. It 
 would be holding the master to tod severe a rule, to 
 amerce him in damages, because in a case where 
 punishment was deserved, he may, in the opinion of 
 the court, have somewhat exceeded the limits of a 
 moderate and reasonable punishment. The nature 
 of the subject does not admit of any precise and 
 exact measure ; and the court cannot, without great 
 injustice, make of its judgment a bed of Procrustes, 
 and require of all masters an exact conformity with 
 it. Something is to be conceded to the excitement 
 of the occasion under which the master is required, 
 by the duties of his office, to exercise this authority ; 
 some consideration allowed to the general chp,racter 
 and temper of the man who is the subject of punish- 
 ment ; some latitude for differences of judgment, and 
 something presumed in favor of a rightful and proper 
 exercise of discretion ; and when the propriety and 
 legality of correction of some kind is made to appear, 
 it lies on the libellant to show that the punishment, 
 under all the circumstances of the case, was clearly 
 exce8sive(a)." 
 
 Consequential Injitriks. 
 
 The right of resort to admiralty process, for the 
 redress of personal injuries committed on the high 
 seas, has in this country been held not to be limited 
 
 (a) Butler t. M'LaUen, Ware's R., 219, 230. And see, to the same 
 effect, Elwell v. Martin, ib., 53, 62. 
 
ASSAULTS, ETC. 445 
 
 to trespasses against the person, but to extend also chap.i4. 
 
 to suits for the recovery of consequential damages 
 
 resulting from tortious acts. The admiralty juris- came of 
 
 diction over cases of this nature was asserted and "uei treat- 
 ment, held 
 
 maintained by Mr. Justice Stokt, in an eloquent SwiTby''" 
 and forcible judgment pronounced many years ago. 
 The case was well calculated to quiet even plausible 
 scruples, had it afforded room for them, as to the 
 power of awarding reparation for the outrages 
 complained of. The libellants, being a husband, 
 wife and children, were passengers on board the 
 ship Pearl from the island of Nookoo to Boston; 
 and during the voyage, they were continually treated 
 by the captain with wanton cruelty, insult and 
 indecency. 
 
 Judge Stoet said that the contract with the 
 master which led to the injuries for which the 
 libellants sought redress, was in itself a maritime 
 contract for the conveyance of passengers on the 
 high seas ; and the wrongs complained of were gross 
 ill treatment and misconduct in the course of the 
 voyage, while on the high seas, by the master, in 
 violation of stipulations necessarily implied in his 
 contract, of the duties of his office, and the rights 
 of the libellants under the maritime law. The 
 jurisdiction of courts of admiralty over torts com- 
 mitted in personam on the high seas had never, to 
 his knowledge, been doubted or denied by the courts 
 of common law, and had often been recognized by 
 adjudications in the admiralty. 
 
 The jurisdiction resulted from the locality of the 
 wrong, and not from its nature ; and it could make 
 
446 ADMIRALTY JURISDICTION. 
 
 TOL^i. jjQ difference, in point of principle, whether the 
 injury was direct or consequential, whether it be an 
 assault and imprisonment, or a denial of all comforts 
 and necessaries, and a course of brutal insult and 
 maltreatment, whereby the health of the party is 
 materially injured, or he is subjected to gross igno- 
 miny and mental * suffering. His conclusion was, 
 that upon both authority and principle the suit was 
 well founded in point of jurisdiction. 
 
 With respect to the principles of abstract justice 
 involved in a case like that before him, after remark- 
 ing upon the almost unlimited power of the maste? 
 of a ship over the welfare of all on board, and the 
 difficulty, by physical or moral force, of resisting 
 the manifestation of a malignant temper on his 
 part, his honor observed : " In respect to passengers, 
 the case of the master is one of peculiar responsi- 
 bility and delicacy. Their contract with him is not 
 for mere ship room, and personal existence on board ; 
 but for reasonable food, comforts, necessaries and 
 kindness. It is a stipulation not for toleration 
 merely, but for respectful treatment, for that deli- 
 cacy of demeanor which constitutes the charm of 
 social life, for that attention which mitigates evils 
 without reluctance, and that promptitude which 
 administers aid to distress. In respect to females, 
 it proceeds yet farther : it includes an implied stipu- 
 lation against general obscenity and that immodesty 
 of approach which borders on lasciviousness, and 
 against that wanton disregard of the feelings which 
 aggravates every evil, and endeavors by the excite- 
 ment of terror, and cool malignancy of conduct, to 
 
ASSAULTS, ETC. 447 
 
 inflict torture upon susceptible minds." After enu- chap^m. 
 merating a series of acts of the nature intimated, 
 the learned judge added : " It is intimated that all 
 these acts, though wrong in morals, are yet acts 
 which the law does not punish ; that if the person 
 is untouched, if the acts do not amount to an assault 
 and battery, they are not to be redressed. My 
 opinion is that the law involves no such absurdity. 
 It is rational and just. It gives compensation for 
 mental sufferings occasioned by acts of wanton injus- 
 tice, equally whether they operate by way of direct 
 or of consequential injuries. In each case, the con- 
 tract of the passengers for the voyage is in substance 
 violated. I do not say that every slight aberration 
 from propriety or duty, or that every act of 
 unkindness or passionate folly, is to be visited with 
 punishment; but if the whole course of conduct be 
 oppressive and malicious, if habitual immodesty is 
 accomplished by habitual cruely, it would be a 
 reproach to the law if it could not award some 
 recompense." There was a decree against the 
 respondent for four hundred dollars damages(«). 
 
 In a subsequent case in the same court, it was held ;*''j^^;™ , 
 that a father might maintain a suit in the admiralty, {SnaSeby 
 
 , -y , , .a father for 
 
 in the nature of an action per quod servtUum arm- ^^^^^^i\^ 
 sit, for the tortious abduction or seduction of his »^»'=«''° <"• 
 minor son on a voyage on the high seas ; for although 
 the tortious act originated on land, it was a continu- 
 ing tort(5). The same doctrine had been laid down, 
 
 (a) Daniel Chamberlain and others v. Chandler, 3 Mason's R.. 242. 
 (6) Plummer v. Webb, 4 Mason's K., 380. 
 
 B son. 
 
448 ADMIRALTY JURISDICTION. 
 
 voL^i. a, year or two previous, by the judge of the United 
 
 States for the District of Maine; and the action was 
 
 tto mil?r ^^^^ ^0 be maintainable,' although the son, at the 
 
 inmaterf time of the abduction, was not an inmate of his 
 
 his father's > i • ■« 
 
 family. father's family, and although he had been left mamly 
 
 tOv support himself by his own labor, unless it also 
 
 appeared that the father had abandoned all care of 
 
 him(a). 
 
 ofTheThf" ^^ ^ subsequent case the liability for this descrip- 
 
 uibie!" tion of tort was held, by Mr. Justice Story, to 
 
 What con- extend also to the ship-ownet; and that the charge 
 
 Ibdttotion. of abduction was sufficiently established by showing 
 
 that the minor had run away from another vessel, 
 
 under circumstances implying notice to the master 
 
 that the shipment was unauthorized by the father, 
 
 and against his will. The just measure of damages 
 
 in such a case he held to be, the amount of the 
 
 wages which the son was earning on boai'd the other 
 
 vessel at the time of the abduction, down to the 
 
 termination of the voyage ; and the additional sum 
 
 of $50, to cover extra expenses and losses(5). 
 
 Employ. In a case where the minor son of the libellant 
 
 meat of a 
 
 SJuauit oa liad, without the knowledge of the master, secreted 
 the master, himsclf ou board a whale ship until after she had 
 sailed, and was subsequently employed on board 
 during the voyage, the case was treated by the 
 learned judge of the United States for the District 
 of Massachusetts as one of implied contract, and 
 wages were decreed(c). 
 
 (a) Steele v. Thacher, Ware's R., 91. 
 
 (6) Sherwood v. Hall et at., 3 Sumner's R., 127. 
 
 (c) Luscom V. Osgood, 7 Law Reporter, 132. 
 
SPOLIATION AND DAMAGE, 449 
 
 CHAP. 15. 
 
 CHAPTEE XV. 
 
 Spoliation and Damage. 
 
 Depeedatiows upon the rights of property, commit- Definition, 
 ted on the high seas, whether by destruction, pillage, 
 damage, unlawful seizure or restraint, constitute 
 another description of wrongs falling within the 
 admiralty and maritime jurisdiction of the courts of 
 the United States. 
 
 Suits for injuries of this nature are technically 
 called causes of spoliation, civil and maritime (a). 
 They most commonly occur in time of war, and 
 consist in hostile aggressions committed either by the 
 public armed vessels, or, more frequently, by priva^ 
 teers, acting, or pretending to be acting, under the 
 authority of the belligerents. They may, and not 
 unfrequently do, also happen both in time of war and 
 of peace, by means of illegal captures in the nature 
 of prize jure lelli^ made under color of instructions 
 given to the commanders of national vessels, in 
 pursuance of statutes, or other public ordinances, 
 authorizing the exercise of belligerent rights to a 
 limited extent ; or by means of unauthorized sei- 
 zures, or other unlawful proceedings for the enforce- 
 ment of mere municipal forfeitures. They sometimes 
 
 (a) The Hercules. 2 Dodson's R., 353, 369, 370: "cawa sTpolii 
 civilis et maritiina." 
 
 51 
 
450 ADMIRALTY JURISDICTION. 
 
 voL^i. also consist in mere piratical depredations, or of 
 wanton marine trespasses partaking more or less of 
 that character ; though it has been argued in our 
 courts that, in cases of piracy, the private injury is 
 remedy not merged in the public crime. But it has been 
 ^Jlfy.'*''' otherwise expressly decided by the Supreme Court 
 of the United States. The common law doctrine of 
 merger was held to be inapplicable; and " whatever," 
 said the court, " may have been the barbarous doc- 
 trines of ancient times about converting goods 
 piratically taken nnto droits of the admiralty, the 
 day has long since gone by since it gave way to a 
 more rational rule, and the party dispossessed was 
 sustained in his remedy to reclaim property as not 
 divested by piratical capture (a). 
 Captures When, howcvcr, a capture is madie jure ielU, by a 
 
 cogn'iz»we^ shlp of war, or by a private armed vessel acting under 
 naisofcap- a belligerent commissiou, the case is one oi prize: 
 
 tor's countrv. ^ ' ^ ' 
 
 and it is a settled principle of the law of nations, 
 that the cognizance of all questions of prize belongs 
 exclusively to the tribunals of the country to which 
 the captors belong, and from which they derive their 
 authority to make captures. No neutral nation has 
 a right to inquire into, or decide upon, the validity 
 of such capture, even though it should concern pro- 
 perty belonging to its own citizens or subjects, unless 
 its own sovereign or territorial rights are violated. 
 The seizure, as prize, vests the possession in the 
 sovereign of the captors, and subjects the property 
 
 • 
 
 (a) Manro t. Almeida, 10 Wheaton's R., 473 (6 Curtis's Decis. S. 
 C, 485); and see also, to the like effect, The Hercules, 2 Dodson's K., 
 353, 375 
 
 tor's country, 
 
SPOLIATIOiT AND DAMAGE. 451 
 
 to tte exclusive jurisdiction of his courts; and this chap. is. 
 right attaches not only where the captured property 
 is brought within the territory of the capturing 
 power, but also when it is carried into a neutral 
 territory. As incident to the prize jurisdiction, the th^°^lebo 
 prize court may and ought to take cognizance also of a'neutLi"'" 
 any claim which the owner of the captured property 
 may have to damages on account of the capture(a). 
 If it is definitively pronounced rightful, it becomes 
 the acknowledged act of the sovereign himself; and 
 the parties who made the capture are completely 
 justified as to all foreign nations, however repugnant 
 it may seem to have been to the laws of nations. 
 The acts done under the authority of one sovereign 
 can never be subject to the revision of the tribunals 
 of another sovereign ; and if the citizens or subjects 
 of a neutral country are injured by such acts, it 
 belongs to their own government to demand redress, 
 and not to judicial tribunals to administer it(^). 
 
 (a) This claim is to be asserted in the prize proceedings instituted 
 at the instance of the captor for the condemnation of the captured 
 property ; or if no such proceeding is instituted, as is sometimes the 
 case, when the captor himself has become convinced of the invalidity 
 of the capture, or the captured property has been lost by recapture or 
 otherwise, the injured party may, in such case, himself become the 
 primary actor, by calling on the captor to proceed to adjudication, and 
 at the same time invoking the justice of the court to award damages, 
 if the capture shall be adjudged to have been tortious. 
 
 (b) Story's Comm. on the Constitution, 528 ; L'Invincible, 2 Galli- 
 son's K., 29, 36, 44; S. C, aflBrmed on appeal, 1 Wheaton's R., 238 (3 
 Curtis's Decis. S. C, 532) ; The United States v. Peters, 3 Dallas's R., 
 121 (1 Curtis's Decis. S. C, 127) ; Hudsonv. Guesiier, 4 Cranch, 293 
 (2 Curtis's Decis. S. C, 107) ; Rose v. Himely, 4 Cranch, 241 (2 Curtis's 
 Decis. S. C, 87) ; The Alerta, 9 Cranch, 359 (3 Curtis's Decis. S. C, 
 379) ; The EatreUa, 4 Wheaton, 298 (4 Curtis's Decis. S. C, 406). 
 
452 ADMIRALTY JURISDICTION. 
 
 VOL 1. Por these reasons it has been held that no suit 
 neutral"" ^^^^i ^^ general, be maintained in the courts of a 
 therefore, Heutral country, for torts committed on the high 
 
 incompetent . , . -■ • 
 
 tos^""*"" ^^^ upon the property of its citizens, by a cruiser- 
 regularly commissioned by a foreign power, whether 
 such cruiser be a national or a private armed vessel 
 
 S^prile"* And this has been held to be equally true in cases 
 
 irio8iby°re- of subsequent recapture; for although the right to 
 adjudicate upon captured property, as prize, remains 
 only while the property continues in the actual or 
 constructive possession of the sovereign of the captors, 
 and is lost by recapture, escape, or voluntary dis- 
 charge, yet the right of awarding damages upon the 
 application of the original owner is not thereby 
 impaired ; while, on the other hand, this could not 
 be done by a tribunal of the neutral power, without 
 taking cognizance of the capture itself, and thereby 
 of the question of prize, over which, originally, it 
 could not assert any jurisdiction (a). 
 
 hivoivfnl a B'lt cases involving the sovereignty and rights of 
 
 violation of jij"_/> !• i ,t i 
 
 neutrality ueutral uatious lorm an exception to the general 
 
 form an ex- . . ..,.. n i > 
 
 caption. doctrine of the exclusive jurisdiction of the courts 
 of the capturing power over prizes ; and if a cap- 
 ture has been made within the territorial seas of a 
 neutral country, or by a privateer illegally equipped 
 in a neutral country ; or by persons who could not, 
 
 (a) L'Invincible, 2 Gallison's R., 29, 39 ; S. C, 1 Wheaton's R., 
 238 (3Curtis's Decis. S. C, 532) ; La Amistad de Rues, 5 "Wheaton, 385 
 (4 Curtis's Decis. S. C, 673). The doctrine of these cases is not in 
 accordance with the principles which seem to have been assumed in the 
 early cases of Glass v. Tlie Betsey, 3 Dallas's R., 6 CI Curtis's Decis. S. 
 C, 74), and Del Col t. Arnold, 3 Dallas's R., 333 (1 Curtis's Decis. 
 S. C, 248) ; but the doctrine is now firmly established. 
 
SPOLIATION AND DAMAGE. 453 
 
 ■without violation of their allegiance to a neutral chap.ib. 
 country, act under a belligerent commission, such 
 capture is invalid, and the property, to whomsoever 
 belonging, may be rightfully restored to the owner 
 by the prize courts of such neutral country, when 
 voluntarily brought into its ports(a). In such cases, 
 restoration, together with costs and expenses, alone 
 can properly be awarded(5). 
 
 (a) L'lnvincible, ubi supra; La Conception, 6 Wheaton's R., 235 
 (5 Curtis's Decis. S. C, 72) ; Santissima Trinidad, 7 Wheaton's R., 
 283 (5 Curtis's Decis. S. C, 268) ; The Gran Para, 7 Wheaton's R., 
 471 (5 Curtis's Decis. S. C, 302). 
 
 (6) La Amistad de Rues, 5 Wheaton's R., 385 (4 Curtis's Decis. S. 
 C, 673). " We are now," say the court, " called upon to give general 
 damages for plunderage ; and if the particular circumstances of any 
 case shall hereafter require it, we may be called upon to inflict exem- 
 plary damages to the same extent as in ordinary cases of marine torts. 
 We entirely disclaim any right to inflict such damages, and considei it 
 no part of the duty of a neutral nation to interpose, upon the mere 
 footing of the law of nations, to settle all the rights and usages which 
 may grow out of a capture between belligerents. Strictly speaking, 
 there can be no such thing as a marine tort between belligerents. 
 Each has an undoubted right to exercise all rights of war against the 
 other ; and it cannot be matter of judicial complaint that they are 
 exercised with severity, even if the parties do transcend those rules 
 which the customary laws of war justify. At least they hare never 
 been held to be within the cognizance of the prize tribunals of neutral 
 nations. The captors are amenable to their own government exclu- 
 sively for any excess or irregularity in their proceedings ; and a 
 neutral nation ought no otherwise to interfere than to prevent captors 
 from obtaining any unjust advantage by a violation of its neutral 
 jurisdiction. A neutral nation may, indeed, inflict pecuniary or other 
 penalties on the parties for any such violation, but it then does it 
 professedly in vindication of its own rights, and not by way of 
 compensation to the captured. Where called upon by either of the 
 belligerents to act in such cases, all that justice seems to require is, 
 that the neutral nation should fairly execute its own laws, and give 
 no asylum to property unjustly captured. It is bound, therefore, to 
 
454 
 
 ADMIRALTY JURISDICTION. 
 
 VOL. 1. 
 
 So also 
 captures by 
 privateers 
 pronounced 
 unliiwfiil by 
 courts of 
 captor's 
 country. 
 
 Distinction 
 between 
 wrongful 
 seizures 
 
 jure beUi^ 
 and oilier 
 maritime 
 seizures - 
 
 It seems, also, that where a capture has been 
 made by a privateer acting under a belligerent com- 
 mission, and the courts of the captor's country have 
 decided that the capture was tortious, and therefore 
 not sanctioned by the captor's sovereign, the pri- 
 vateer, and also her owners, when subsequently 
 found in the territories of the neutral country, may, 
 under some circumstances, be subjected to damages 
 in its court8(a). 
 
 The distinction is nowhere clearly drawn, so far 
 as I can discover, between seizures on the high seas 
 which are to be considered as captures made jure 
 helU or quasi jure belli, cognizance whereof belongs 
 to the prize jurisdiction, and those seizures which 
 are to be regarded as mere marine trespasses falling 
 within the civil or instance jurisdiction of courts of 
 admiralty: and in a case before Mr. Justice Liv- 
 ingston, in the Circuit Court of the Southern 
 District of New- York, some difficulty appears to 
 have been felt by him in deciding to which of these 
 classes the case pertained. It was a suit for damages 
 
 restore the property if found within its own ports ; but beyond this, 
 it is not bound to interpose between the belligerents.'' 
 
 As between the belligerents, a capture made in neutral waters is 
 valid. Its invalidity can be asserted by the neutral power alone, on 
 account of the violation of its neutrality. The Ann, 3 Wheaton's R., 
 435 (4 Curtis's Decis. S. C, 253). 
 
 A capture made by citizens of the United States, of property belong- 
 ing to the subjects of a country in amity with the United States, 
 wherever the capturing vessel may have been equipped, or by 
 whomsoever commissioned, will be restored. The Bella Corunnes, 
 6 Wheaton's E., 152. 
 
 (a) Ulnvincible, 1 Wheaton's R., 238 (3 Curtis's Decis. S. C, 
 532J. 
 
SPOLIATION AND DAMAGE. 455 
 
 by the owner of a Haytian schooner and her cargo, chap. is. 
 and the master, mate, supercargo, and one of the 
 mariners of the vessel, against the owners of an 
 American private armed brig. The schooner was 
 boarded on her voyage from Port-au-Prince to 
 Bermuda, near the close of the last war with Eng- 
 land, by a crew sent for the purpose of search and 
 examination by the commander of the brig. Having 
 ascertained her neutral character, and the regularity 
 of her papers, which employed about ten minutes, 
 the crew of the brig, instead of returning to their 
 own vessel, continued two hours on board the 
 schooner; during which time they plundered the 
 libellants of valuable property, beat the supercargo 
 and one of the mariners, destroyed some of the 
 schooner's papers, and on leaving her carried away 
 the rest. In consequence of the loss of her papers, 
 she was afterwards seized by a British armed vessel, 
 and a large sum was paid for her ransom. It was 
 for these injuries that the suit was instituted : and 
 doubts having been expressed at the hearing, 
 whether if such cases were cognizable in the district 
 court, they were so in virtue of the powers which 
 it possesses as a prize, or of those which belong to 
 it as an instance court. Judge Livingstok, waiving 
 the expression of any opinion on this point, held it 
 to be immaterial, inasmuch as the district courts 
 possess, under the Constitution and laws of the 
 United States, all the powers of a court of ad- 
 miralty, whether considered as an instance or a 
 prize court, unlike the High Court of Admiralty of 
 England, which, merely as such, has no jurisdiction 
 
456 • ADMIRALTY JURISDICTION. 
 
 TOL^i. QYgj. prizes ; so that it was unimportant to determine 
 under what particular branch of the jurisdiction of 
 the district court the case before him was cognizable, 
 as the court must have a right to inquire into, and, 
 if justice requires it, to award damages in all cases 
 of marine trespass or tort(a). The case was carried 
 by appeal to the Supreme Court ; and the question 
 of jurisdiction was by that court no otherwise 
 noticed than by the remark that "the jurisdiction 
 of the district court to entertain this suit, in virtue 
 of its general admiralty and maritime jurisdiction, 
 and independent of the special provisions of the 
 prize act of the 26th of June, 1812, ch. lOY, has 
 been so repeatedly decided by this court, that it 
 cannot be permitted again to be judicially brought 
 into doubt(5). The distinction does not appear, 
 therefore, to be in any other respect essential in our 
 courts, than as it concerns the form of the proceed- 
 ing proper to be instituted for the confiscation of 
 the property seized, when sent in for adjudication. 
 In a case of the capture by an American vessel of 
 war of a Spanish privateer, under the piracy acts, 
 the proceeding appears to have been by information 
 in rem, in the ordinary form of proceeding to 
 enforce a municipal forfeiture; although, with re- 
 ference to the applicability of the doctrine of 
 exemption on the ground of probable cause, the 
 Supreme Court " deemed it to stand upon the same 
 analogy as captures strictly ^We 5eSi(c)." 
 
 (a) The Amiable Nancy, Paine's R., 111. 
 
 (6) 3 Wheaton's R., 546 (Curtis's Decis. S. C, 287). 
 
 (o) J%e Palmyra, 10 "Wheaton's R., 1 (7 Curtis's Decis. S. 0., 1). 
 
SPOLIATION AND DAMAGE. 457 
 
 The aggressive rights which belligerent nations chap.i5. 
 are authorzied to exercise on the high seas, through 
 their lawfully commissioned cruisers, are, like other 
 rights, to be so used as to cause no unnecessary 
 harm to persons or property subjected to their 
 exercise. Under 'certain reasonable limitations, 
 those by whom these rights are enforced proceed 
 at their peril, and are liable for all injuries and 
 losses occasioned by their own misconduct, and by 
 that of those under their command. This liability 
 extends to the owners as well as the commanders of 
 private armed vessels. 
 
 Many cases have occurred in our courts illustrative 
 of these principles, of which the case last cited will 
 be seen to be one(a). The right of detention for The right of 
 
 1 T T ii' • 1 search un- 
 
 examination is an unquestionable beUigerent riffht, "miteti.ex. 
 
 T- O O 7 cept 8s to 
 
 which may be lawfully exercised, in good faith, and ^tS' 
 in conformity with the principles just stated, over 
 every vessel, except a national vessel, which a belli- 
 gerent cruiser meets on the ocean, for the purpose of 
 ascertaining her national character and her con- 
 duct(5) ; but in exercising the right of capture, the 
 law exacts discrimination, and holds the captor 
 responsible for wrongs committed through negli- 
 gence, as well as through malice. But it is a settled 
 
 (a) See, also, inter ah, The Lively, 1 Gallison's R., 315 ; Bel. Col. 
 T. Arnold, 3 Dallas's R., 333 (1 Curtis's Decis. S. 0., 248) ; The 
 Eleanor, 2 Wheaton's R., 345 (4 Curtis's Decis. S. C, 129); The 
 Anna Maria, 2 Wheaton's R., 327 (4 Curtis's Decis. S. C, 122); 
 The Ulpino, 1 Mason's R., 91 ; The George, ib., 24 ; Maley t. Shat- 
 tuck, 3 Cranch's R., 458 (1 Curtis's Decis. S. C, 642). 
 
 (6) The Eleanor, 2 Wheaton's R., 345 (4 Curtis's Decis. S. C, 129) ; 
 The Anna Maria, 2 Wheaton's R., 327 (4 Curtis's Decis., S. C, 122). 
 58 
 
458 
 
 ADMIRALTY JURISDICTION. 
 
 TOL^i. principle of the law of prize, that probable cause 
 fauseexcns- wiU iiot odIv cxcuse, but cveii in some cases justify a 
 
 ea capture of ^„ 
 
 neutral pro- capturc. If there be probable cause, the captors 
 are entitled, as a right, to exemption from dama- 
 ges ; and if the case be one of strong and vehement 
 suspicion, or requires further proof to entitle the 
 claimant to restitution, the law proceeds yet farther, 
 and gives the captors their costs and expenses in 
 proceeding to adjudication (a). This rule has been 
 held to embrace captures made by American vessels 
 under the act of Congress of March 3, 1819, 
 entitled "An act to protect the commerce of the 
 United States, and to punish the crime of piracy ;" 
 and seems to have been considered by the court to 
 extend to all seizures on the high seas, " under laws 
 authorizing the exercise, to a limited extent, of belli- 
 gerent rights (Z*)." But the right to protection on 
 this ground may be forfeited by misconduct subse- 
 
 Probabie oueut to the act of capture (c). The rule does not 
 
 cause not a « . -, . . i 
 
 i?mere"°" ^PPv ^^ CEscs of scizurc. Under mere municipal 
 SreTSn- laws, as by a collector of customs for infringement 
 
 less made so 
 
 by statute, of the rcveuue laws, except where probable cause 
 is by some statute declared to be a ground of 
 exemption from damages. In such cases the party 
 who makes the seizure, seizes at his peril : if con- 
 demnation follows, he is justified; if an acquittal, 
 
 (a) TJie Apollon, 9 Wheaton's R., 362 (6 Curtis's Decis. S. C, 88). 
 
 (6) The Marianna Flora, 11 Wheaton's R., 1 (6 Curtis's Decis. 
 S. C, 497) ; The Palmyra, 12 Wheaton's R., 1 (6 Curtis's Decis. S. 
 C, 497) ; 3 Stat, at Large, 510, 600. 
 
 (c) The George, 1 Mason's R., 24; The Anna Maria, 2 Wheaton's 
 R., 327 (4 Curtis's Decis. S. C, 122). 
 
SPOLIATION AND DAMAGE. 459 
 
 then lie is responsible in damages, unless lie can sliel- ^'hap. ib. 
 ter himself under the protection of some statute(a). 
 
 Probable cause has been defined to be less than whateon- 
 
 , ^ 1 • 1 atitutea pro- 
 
 evidence which would justify condemnation, but ""^"^ '"'™°' 
 sufficient to warrant suspicion(5). 
 
 It has been held that where a capture is in itself 
 justifiable, no responsibility is incurred by sending 
 in the captured vessel for adjudication, although it 
 should, upon investigation, clearly appear that the 
 owners are entitled to restoration((?). We have 
 already seen that the owner of captured property 
 is permitted, in his character of claimant in the prize 
 proceedings against his property, not only to insist 
 on its restoration, but also to claim such damages as 
 he may be entitled to, in the event of the capture 
 being adjudged tortious((^). 
 
 This is equally true of mere municipal seizures ; claimant 
 
 J- "^ •*■ ' cannot sue 
 
 and therefore the owner of the property seized ^p^ZnTth^ 
 cannot resTilarly institute an independent cause of ?« «to "^ 
 
 ^ ^ ^ -»■ ^ ^ against his 
 
 damage m personam, against the seizing officer, p^p'^y- 
 during the pendency of the proceeding m rem, for 
 the enforcement of the supposed forfeiture (e). And 
 if, in such proceeding, damages are claimed, and not 
 awarded, it is presumed that no suit could subse- 
 quently be maintained for their recovery(/). The 
 injured party, in cases of marine tort, may enforce 
 
 (o) The Apollon, 9 Wheaton's R., 362 (6 Curtis's Decis. S. C, 88). 
 
 (b) The George, 1 Mason's R., 24. 
 
 (c) The Marianna Flora, ubi supra, 1 ; S. C, 3 Mason's R., 166. 
 
 (d) Vide supra, p. 451, note a. 
 
 (e) The ApoUon, 9 Wheaton's R., 362 (6 Curtis's Decis. S. C, 88). 
 (/) See Carter v. American Insurance Company, 3 Peters's R., 307 
 
 . ■ Curtis's Decis. S. C, 427). 
 
460 ADMIRALTY JURISDICTION. 
 
 vOT|^i. jjjg remedy in a court of admiralty, by the arrest of 
 the wrong-doer, including, in the case of privateers, 
 the owners of the offending vessel ; by attachment 
 against the offending vessel, except national vessels, 
 or against other goods and chattels of the offender, 
 or by foreign attachment against his credits and 
 effects in the hands of third persons(a). 
 Me^™«;n The owners, not being participants in torts com- 
 mitted by the commanders and crew of private 
 armed vessels, and being only constructively liable 
 therefor, are bound only to the extent of the actual 
 injuries and personal wrongs sustained by the parties 
 aggrieved, although, in cases of gross and wanton 
 outrage, the original wrong-doers may justly be 
 visited, in the form of vindictive damages, with the 
 punishment due to such lawless conduct. But in no 
 case do the probable profits of an unfinished voy- 
 age form a proper element in the estimate of damar 
 ges. Such a rule would be so uncertain in itself, 
 and subject to so many contingencies and difficulties, 
 as to render it inadmissible. The prime cost or 
 value of the property lost, at the. time of the loss, 
 with all charges, and the premium of insurance 
 where it has been paid ; and in case of injury the 
 diminution of value by reason of the injury, with 
 interest on such valuation, constitute the true mea- 
 sure of remunerative damages(5). 
 
 (a) Manro v. Almeida, 10 Wheaton's R., 473 f6 Ourtis's Decis. S. 
 C, 485) ; Vhwincible, 2 Gallison's R., 29, 40. Rules of Practice in 
 Cases of Admiralty and Maritime Jurisdiction, Appendix, Rule ii. 
 
 (6) The Amiable Nancy, 3 Wheaton's R., 562 (4 Curtis's Decis. 
 S. C, 287) ; The Anna Maria, 2 Wheaton's R., 327 (4 Curtis's Decis. 
 
SPOLIATION AND DAMAGE. 461 
 
 S. 0., 192); La Amistad de Rues, 5 "Wheaton's K., 385 (4 Curtis's CHAP. 16. 
 Decis. S. C, 673); Del. Col. t. Arnold, 3 Dallas's R., 333 (1 Curtis's 
 Decis. S. 0., 248) ; The Lively, 1 Gallison's R., 315. In this case, 
 damages, including demurrage, were awarded against the commander 
 of an American privateer. The subject of damages in cases of marine 
 tort was maturely considered and fully discussed by Mr. Justice 
 Stort, both upon authority and principle. 
 
INDEX. 
 
 A. 
 
 Faob. 
 
 Abduction of minor, suit for by father maintainable, 447 
 
 Act of God. [See Affreightment, contracts of.] 
 
 Admiralty Jurisdiction, extent of, 1-72 
 
 original, vested exclusively in District Courts, 1 
 
 conferred by act of February 26, 1845, 6 
 
 authority of Congress to confer, 7 
 
 notice of, in 1st edition of this work, explained, 7-13 
 
 Genesee Chief, case of examined, 13-18 
 
 nature of, 18 
 
 in cases arising ex contractu, 19-32 
 
 conflicting decisions concerning, 22 
 
 contracts of marine insurance, 24 
 
 to what contracts it extends, 25 28 
 
 general average, decisions concerning, 26, note. 
 
 conveyance of passengers, 28, note. 
 
 average, ib. 
 
 does not extend to petty traffic in small boats, 29 
 
 nor to mere preliminary contracts, 31 
 
 in cases arising ex delicto, 32 
 
 between foreigners, 34 
 
 in cases of salvage, 34-38 
 
 of bottomry, 38 
 
 for wages, not entertained in the English admiralty without 
 
 consent of minister, if it can be obtained, 38-41 
 
 nor in controversies between part-owners, 41 
 
 maintainable in the American courts, 43-47 
 
 intervention of third persons against proceeds, 48-66 
 
 right of, by lien holder, unquestionable, 49 
 
464 INDEX. 
 
 Faox. 
 Admiralty Jurisdiction (Continued) : 
 
 does not belong to general creditor, 50 
 
 English decisions and statutes,- 3 & 4 Vict., concerning, ... 50-56 
 
 American decisions concerning, 58-66 
 
 pendente lite, 66-62 
 
 common law jurisdiction of State courts not abridged by grant of, to 
 
 tJ. S., 75, note (c) 
 
 of captures, confined to the courts of captor's country, 450 
 
 Affreightment, Contracts of, cognizable in the admiralty, 26, 162, 167, note. 
 
 not cognizable in the English admiralty, 161 
 
 what contracts are embraced under this denomination, 168 
 
 for conveyance in a General Ship, eyidenced by. a BUI of Lading, 168 
 
 by Charter-party, or memorandum of charter, 169 
 
 by whom made, 169 
 
 may be by parol, 170 
 
 stipulations usually contained in, 170 
 
 in the form described, bill of lading also signed, 171 
 
 rights and obligations of owner and freighter, in such cases same as 
 
 in the case of a general ship, 172 
 
 return cargo liable for the whole freight, 173 
 
 charterer at liberty to take in goods of third parties, or to underlet, 173 
 
 extent of shipper's liability to owner in such cases, 173 
 
 measure of damages recoverable by charterer for breaking up the 
 
 voyage, , 173 
 
 when charterer to be deemed owner for the voyage, 174-184 
 
 when intention of parties doubtful, general owner to be deemed 
 
 owner for voyage, 180 
 
 sub-shipper has a lien on the ship, although charterer is constituted 
 
 owner for voyage, 184 
 
 no lien created by false bill of lading, ^ 187 
 
 when lien of owner on goods for the stipulated freight to be deemed 
 
 to have been waived, 188 
 
 lading and storage of cargo, 193 
 
 duty of master relative to commencement and prosecution of voyage — 
 
 consequences of deviation, 194, 195 
 
 continuance of owner's responsibility vmtil delivery of goods, 195 
 
 delivery of goods, how made, 196 
 
 ship-owner and master deemed common carriers and held responsible 
 
 as such, 197 
 
 responsible for all losses except for those occasioned by the act of 
 
 God, or of the public enemy, 198 
 
 losses arising from " perils of the seas " usually excepted in bills of 
 
 lading, 199 
 
INDEX. 465 
 
 Affreightment, Contracts of (Continued): ^'^™' 
 
 just import of the phrase, perils of the seas, - 196 
 
 burthen of proof of, lies with the ship-owner, 205 
 
 lightning deemed a peril of the sea, 205 
 
 also Are from other cause except negligence, 206 
 
 recent acts of Congress limiting owner's responsibility, 206 - 212 
 
 theft, embezzlement, robbery, not perils of the seas, 213 
 
 owner answerable for all except inevitable accidents, 213 
 
 when answerable for losses occasioned by leaks, worms, rats, 
 
 unseaworthiness, 214 
 
 when for losses by rocks and shallows, 216 
 
 in such cases, omission to employ pilot deemed negligence, 217 
 
 for losses by striking an anchor, 218 
 
 by frost, 219 
 
 by collision, 220 
 
 by being forcibly taken in tow, 220 
 
 not answerable for losses by action of the tide, 220 
 
 answerable for losses by want of ventilation, 221 
 
 act of God must be proximate cause, 221 
 
 owner answerable for theft, in cases of shipwreck, 222 
 
 unless perhaps by pirates or robbers acting forcibly and feloniously, 224 
 
 in cases of shipwreck, master bound to forward goods, 224 
 
 no right to surrender his authority to wreckers, 225 
 
 jettison, in case of necessity, an act of God, 225 
 
 unless of goods stowed on deck, 225 
 
 limitation of responsibility by special contract or notice, 225 - 232 
 
 owner liable, notwithstanding notice, for gross negligence or misfeas- 
 ance, 231 
 
 in cases of notice, burthen of proof of negligence on shipper, 232 
 
 when shipper bound to disclose value of goods, 233 
 
 liability of ship-owners modified by usage, 233 
 
 evidence of usage, when and for what purposes admissible, 235 
 
 inadmissible to control express contract, 238 
 
 must be clearly shown and uniform, 240 
 
 rule of damages against ship-owners, 240 - 245 
 
 owner's responsibility Umited by act of Congress to value of the ship, 
 
 unless, &c., 245 
 
 action on, by whom to be brought, 246 
 
 when by consignee, 247 
 
 Assaults, Beating, &o., actions in personam for, cognizable in the admi- 
 ralty, 32, 427 
 
 against master for abuse of authority, 428 
 
 foundation, nature and extent of master's power of coercion over mari- 
 ners, 428-446 
 
 59 
 
466 INDEX. 
 
 Paqs. 
 Assaults, Beatings, &c. (Continued) : 
 
 right of passenger to sue for in the admiralty, 445 
 
 whether suit for by one passenger against another cognizable in the 
 
 admiralty, 441 
 
 action for by slave, maintained, 441 
 
 recceipt in full for by mariner, no bar to action for, 442 
 
 no punishment allowed for slight offences, 442 
 
 master in general entitled to indulgent construction in suits for, 443 
 
 action by passenger against master maintained for cruel treatment not 
 
 amounting to assault, 445 
 
 by father for tortious abduction or seduction of minor son, although 
 
 not an inmate of his family, 447 
 
 what constitutes abduction, 448 
 
 [See Master.] 
 Average, General. [See General Average.] 
 
 B. 
 
 Bail. [See Stipulation.] 
 
 Bill of Lading, use and contents of, 168 
 
 [See Affreightment, contracts of] 
 Bond. [See Stipulation — Costs.] 
 
 Bottomry and Respondentia Bonds, cognizable in the admiralty, 262 
 
 definition of, 262 
 
 exempt from the restraints of usury laws, 263 
 
 their analogy to contracts of marine insurance and variance from com- 
 mon loans, 264 
 
 form of, 264 
 
 may be valid in part and bad in part, 265 
 
 their origin and privileged nature, 266 
 
 just import of the doctrine that they "are of a high and sacred charac- 
 ter," 267,note. 
 
 commonly made by the master, 268 
 
 may include the cargo, 268 
 
 master's power to make, limited to cases of necessity, 269 
 
 difficulty in applying the rule, 270 
 
 its just import, as expounded by judge Story, 270 
 
 his doctrines not impugned by recent decisions of the 
 
 English High Court of Admiralty, 272 
 
 master's power to hypothecate in home port, 275 
 
 in U. S. exists in ports of another State, 276 
 
 right of agent for owner to take, 277 
 
 of consignee of the cargo, 278 
 
 part owner incompetent to take, 278 
 
INDEX. 467 
 
 Bottomry and Respondentia Bonds (Continued^ : 
 
 on whom lies the burthen of proof in suits on, 278 
 
 due dUigence on the part of the lender, and apparent necessity suf- 
 ficient, 279 
 
 the form of security must have been originally looked to by lender, . . 279 
 valid when made to redeem ship from arrest, or to pay prior valid 
 
 hypothecation, 280 
 
 not vitiated by acceptance of collateral security, 280 
 
 money paid for insurance of sum loaned, not to be included in, 281 
 
 owner not personally bound by, except, &c., 281 
 
 owner may borrow on bottomry without security, 282 
 
 subject to what limitations, 283 
 
 case of The Draco, 283 
 
 lender, rights not affected by misapplication of money lent, 289 
 
 priority of over all other liens, except of seamen for wages, and for 
 
 wharfage, 290, 303 
 
 lost by laches, 290 
 
 last bond entitled to priority over former, 291 
 
 maritime interest commences with actual sailing of ship, 292 
 
 when bond becomes due before stipulated time of payment, 292 
 
 exorbitant interest, power of court to reduce, 293 
 
 ordinary interest recoverable on from termination of risk, 293 
 
 marshaling of securities, 294 
 
 owner personally liable in case of loss by fraud, 294 
 
 in case of partial loss, lender entitled to payment out of effects saved, 295 
 
 advertisement for loan on, 274, note. 
 
 c. 
 
 Captcke, effect of on mariner's right to wages, 147 
 
 made jure belli in what tribunals cognizable, 450 - 454 
 
 Cargo, whether, when the property of the ship-owner, subject to lien for 
 
 mariners's wages, 110 
 
 lading and storage of, 193 
 
 delivery of, 195 
 
 Charter-Party, derivation of the name, 169, note. 
 
 Collision, actions for, cognizable in the admiralty, 32, 370 
 
 no liability created by subsequent misconduct, 374 
 
 suffering party must appear to have taken ordinary care to avoid, 373 
 
 in actions for, burthen of proof rests on libellant, 382 
 
 but proof of the omission of any proper precaution sufficient, 383 
 
 crews of the vessels competent witnesses in actions for, 384 
 
 laws of foreign countries govern cases of, occurring therem, 384 
 
 damages for loss of profits on voyage allowed in suit for, 385 
 
468 INDEX. 
 
 Faox. 
 
 Collision (Continued) : 
 
 rules of navigation applicable to cases of, 385 - 417 
 
 not to be stubbornly adhered to, 410 
 
 owner's liability for, limited by statute, 372 
 
 proceeding from fault of colliding vessels alone, 371 
 
 from fault of sufi'erer alone, 374 
 
 of both parties, 374 
 
 from unavoidable accident, 376 
 
 inscrutable fault, '. 378 
 
 vessel running foul of another at anchor prima facie liable, 394 
 
 vessel at anchor bound to exhibit a light, 395 
 
 rules prescribed by Trinity House, 402 
 
 look-out required, 409 
 
 what constitutes a sufficient, 409 
 
 acts of Congress, relative to, 412 
 
 rules prescribed by Supervising Inspectors, 415 
 
 St. John v. Paine, examined, 417 - 420 
 
 Common Carriers, carriers by sea for hire deemed to be, 197 
 
 Condemnation, lien for wages not extinguished by, in case of restoration, 113 
 
 Consignee op Cargo, may take a bottomry bond, 277 
 
 may maintain action for breach of contract of affreightment, 247 
 
 Consignor of Cargo, when action maintainable by, 247 
 
 CoNSORTSHiP, Agreement of, cognizable in the admiralty, 26, 309 
 
 nature of the contract, 309 
 
 not dissolved by change of master, 308 
 
 Contracts Maritime, what are to be so deemed, 25-32 
 
 Cook, Ship's, deemed a mariner, 107 
 
 Cooper, Ship's, deemed a mariner, 107 
 
 D. 
 
 Damages, measure of in actions on contracts of affreightment, 240, 245 
 
 forcoUision, 372, 385 
 
 Derelict, what constitutes, 360 
 
 award of salvage in cases of, i 356 
 
 Deviation from voyage by master, when voluntary, releases seamen from 
 
 further service, 150-159 
 
 E. 
 
 Engineers on board steamers deemed mariners, 108 
 
 F. 
 
 Fisheries, statute regulations respecting persons employed in, 123, note. 
 
 Firemen on board steamers, deemed mariners, 108 
 
 Foreigners, jurisdiction of courts of admiralty, in suits by, 34-47 
 
INDEX. 469 
 
 PAflU. 
 
 G. 
 
 General Average, limited jurisdiction of admiralty over, 26, note. 
 
 history of doctrine of, 251 
 
 in cases of stranding, 253 
 
 not defeated by loss of ship, 253 
 
 definition of by S. C 255 
 
 General Ship, 168 
 
 [See Affreightment, contracts of.] 
 
 Genesee Chief, observations on the case of the, 7-16 
 
 Globe, observations on the case of the, 87 - 103 
 
 I. 
 
 Insurance, Marine, contracts of, whether cognizable in the admiralty, 24 
 
 Interest, Maritime, not affected by usury laws, 263 
 
 terminates with the voyage, 293 
 
 after termination of until payment, simple interest accrues, 294 
 
 Intervention of third persons pro interesse suo, 48-72 
 
 who entitled to intervene pendente lite, 66-72 
 
 whether all such as may intervene against surplus proceeds, 66 
 
 right of, less limited in instance than in prize cases, 65 
 
 enlarged in England by recent legislation, 56 
 
 mortgagees may intervene, but not general creditors, 56, 64 
 
 attaching creditors allowed to intervene in case of municipal seizure, — 70 
 against surplus proceeds, 46-66 
 
 J. 
 
 Jurisdiction. [See Admiralty Jurisdiction.] 
 
 L. 
 
 Lading and Stowage, master's duty relative to, 193 
 
 Lakes, within the admiralty jurisdiction of the United States, 13, 17 
 
 act of February 26, 1845, respecting, 6 
 
 authority of Congress to pass, 5-18 
 
 trial by jury under, 18 
 
 M. 
 
 Mariners, who are deemed such, 71 
 
 claims of especially favored, 109 
 
 regulations respecting, employed in the fisheries, 123, note. 
 
 when entitled to quit their employment at pleasure, 127 
 
470 INDEX. 
 
 Paok. 
 Mariners (Continued) : 
 
 entitled to one-third of wages earned at intermediate port, 128 
 
 to three months' pay when discharged abroad, 128 
 
 answerable for embezzlement, &c., 137 
 
 have no lien for wages earned on unlawful voyages, unless, &c., 138 
 
 released by spontaneous deviation, 158 
 
 Mariner's Wages, fourfold remedy for, 109 
 
 whether lien for extends also to the cargo when the property of the 
 
 ship-owner, 110 
 
 priority of the lien for over all other claims, 112 
 
 lien for not impaired by intermediate voyages, 113 
 
 not extinguished by condemnation of vessel, 113 
 
 remains entire in case of partial restoration after capture, 114, 147 
 
 no lien for in favor of master, 115 
 
 highest rate of, recoverable when no agreement in writing, 117 
 
 in such case not forfeited by desertion, 121 
 
 how forfeited, 129-138 
 
 by absence and desertion,] 129 - 136 
 
 gross misconduct, 131 
 
 neglect and disobedience, 133 
 
 habitual drunkenness, 134 
 
 attempt to create revolt, 135 
 
 embezzlement, subject to contribution for, 137 
 
 not for slight offences, 131 
 
 for quitting ship involuntarily, or on account of cruel treat- 
 ment, or by imprisonment abroad, 136 
 
 master empowered to remit forfeiture, 136 
 
 underwriters liable for, after abandondment, 138 
 
 not affected by sickness, 139 
 
 nor by expenses of medical attendance, 139 
 
 whether by death on voyage? 140 
 
 claim for wages earned not extinguished by, 140 
 
 dependent on freight, 141 
 
 unless when loss of is occasioned by owner qr master, 141 
 
 or by shipwreck when something is saved, 142 
 
 earned on outward voyage, not affected by subsequent loss of vessel,. . 144 
 
 outward voyage when ended, 144 
 
 not affected by loss of vessel if freight has been advanced, 147 
 
 nor by capture if followed by restoration, 147 
 
 release under seal not conclusive against, 159 
 
 acceptance of bill of exchange or draft for, effect of, 160 
 
 second mate becoming first, entitled to the wages of his predecessor, 135, note. 
 
INDEX. 471 
 
 Pagb. 
 
 Master, authority of lo bind the owners for supplies and repairs, 73 
 
 in the home port, 75 
 
 in a foreign port, 77 
 
 personally answerable for supplies and repairs, unless, &c., 75 
 
 acquires no lieu for wages, 115 
 
 has a lien on freight for disbursements, 115 
 
 has a remedy in the admiralty in personam for wages, 115 
 
 and for disbursements, 116 
 
 required to make agreements in writing with seamen, 117 
 
 penalties incurred by him for violating this requirement, 117 
 
 in case of urgent necessity has power to sell ship, 311 
 
 principles regulating this power ; previous judicial sanction, . . 311-317 
 
 his power to hypothecate ship and cargo, 268 - 277 
 
 to remit forfeiture of wages, 136 
 
 to coerce and punish seamen, 428 - 438 
 
 to imprison seamen in jail of foreign country, 436, 437, note. 
 
 his power and duty relative to passengers, 439 
 
 in extreme cases may be confined by his crew, 438 
 
 [See Assaults.] 
 Mate, Second, on becoming first, entitled to wages of his predecessor, 135, note. 
 
 share of salvage allotted to, 366 
 
 Material-men, who are deemed such, 73 
 
 claims of, cognizable in the admiralty, 25, 75 - 79 
 
 contracts with, usually made by master, 73 
 
 nature and extent of master's authority to bind the owner by con- 
 
 . tracts with, 73, 74 
 
 owner personally bound by contracts with, made by master as well in 
 
 the home as in a foreign port, 75 
 
 master personally answerable to, unless, &c., 75 
 
 lien on foreign ship, or ship owned in another State, in favor of, given 
 
 by the maritime law, 76-79 
 
 also on the freight, 79 
 
 given by the local law, may be enforced in the admiralty, 78 
 
 no lien in favor of arises from contract with the owner, 80 
 
 lien in favor of, in case of a domestic ship in her home port, if entering 
 
 under a foreign guise, 81 
 
 judicial construction of the State laws concerning, 82-103 
 
 examination, associate justice Nelson's decision in the case of The 
 
 Globe, 87-103 
 
 exclusive credit by, given to master, a waiver of hen, 103 
 
 acceptance in absolute payment of negotiable note outstanding, a 
 
 waiver, 103 
 
 credit given not a waiver, 104 
 
 lien in favor of shipwright for building, enforceable in the admiralty,' . 104 
 
472 INDEX. 
 
 Fasi. 
 
 Medical Attendance of sick seamen, a charge upon the ship, 139 
 
 Monition. [See Process Mesne.] 
 
 Mortgage, payable out of surplus proceeds, 56 
 
 Musicians employed to play on board a vessel, not mariners, 109 
 
 N. 
 
 Navigation, Rules or. [See Collision.] 
 
 o. 
 
 Onus Probandi, in actions on contract of affreightment, 204 
 
 in cases of notice, 232 
 
 in action on bottomry bonds, 278 
 
 actions for coUision, - - 384, 394 
 
 in 
 
 P. 
 
 Part-owners or Ship, title of, how acquired, 318 
 
 tenants in common and not joint tenants, 318 
 
 dispute beetween how adjusted, 321-329 
 
 rights and remedy of minor owners, 321 
 
 of major owners, 322 
 
 of equal owners, 322 
 
 right of minority to emply ship against will of majority, 322 
 
 power of the admiralty to order sale of vessel, 323 
 
 Passengers, contracts for conveyance o{, cognizable in the admiralty,. 26, 27, n. 
 
 carrier liable, though conveyance be gratuitous, 257 
 
 burden of proof on carrier, 259 
 
 Perishable Goods, court empowered to order sale of, 26 
 
 Pilotage, actions for cognizable in the admiralty, 25, 296 - 301 
 
 who are pilots, 296 
 
 state laws concerning, adopted by Congress, 297 
 
 constitutionality of act of Congress adopting ? 298 
 
 rate of compensation for, 300 
 
 a lien on the vessel — when not, 300 
 
 action for cannot be maintained for piloting into enemy's port, 301 
 
 Possessory and Petitory Actions, cognizable in EngUsh admiralty, 330-343 
 jurisdiction of American courts of admiralty over, maintained, 340 
 
 E. 
 
 Release, under seal by mariner, not conclusive in suit for wages, 159 
 
INDEX. 473 
 
 Page. 
 
 s. 
 
 Salvage, cases of, cognizable in the admiralty, 32, 344 
 
 who may become salvors, 345 
 
 when seamen may become, 345 
 
 pilots, 346 
 
 passengers, 348 
 
 apprentices entitled to, 349 
 
 slaves not, 349 
 
 rights of successive salvors, 349 
 
 what constitutes a salvage service, 350 
 
 exorbitant exactions for, not binding on owner though agreed to,. . . . . 353 
 
 to be awarded only for effective services, 352 
 
 when service performed by part of crew, rest to share in, .' . . . 353 
 
 actual danger necessary to constitute, 353 
 
 amount and distribution of salvage, 353 - 363 
 
 prescribed by statute in cases of recapture, in other cases dis- 
 cretionary, ■ 353 
 
 principles regulating the discretion of courts, 353 
 
 one-half generally allowed in cases of derelict, 360 
 
 what constitutes derelict or quasi derelict, 360 
 
 in cases not of derelict, 362 
 
 amount not to be affected by unforeseen subsequent events, 368 
 
 to be borne in equal proportions by ship and cargo, 363 
 
 except in the case of the precious metals, &c., 362 
 
 in the distribution of, owner of salvor ship entitled to share, 364 
 
 freighter not entitled to, unless being present he consents to the 
 
 performance of the salvage service, 367 
 
 how forfeited, 368 
 
 in actions for, ofBcers and crew of salvor ship competent witnesses, 368 
 
 forms of remedy for the recovery of, 369 
 
 co-salvors to join in the action for, 369 
 
 Search, right of, its extent, 457 
 
 Seizures, municipal, and jure belli, distinctions between, 454 
 
 Shipping Articles, to be signed by mariner — ^penalty on master for omis- 
 sion, 117 
 
 stipulations in, disadvantageous to seamen, void, 148 
 
 construction of words " or elsewhere "in, 150 
 
 Slave, master of, entitled to share of salvage earned by, 349 
 
 Spoliation and Damage, actions for, cognizable in the admiralty, 32, 449 
 
 definition of, 449 
 
 civU remedy for, not merged in concomitant piracy, 450 
 
 captures exclusively cognizable in courts of captor's country, 450 
 
 but not when attended by violation of neutrality, 452 
 
 60 
 
474 INDEX. 
 
 Pass. 
 
 Spoliation and Damage (Continued) : 
 
 in such cases restoration, costs and expenses alone are awarded, 453 
 captures jure belli, and cases of mere marine trespass, distinction 
 
 • between not clearly defined, 454 
 
 right of search, 457 
 
 probable cause, 458 
 
 claimant in proceeding in rem for condemnation may claim damages, 
 
 but cannot sue in personam pendente lite, 459 
 
 measure of damages in actions for, 460 
 
 [See Affreightments — Collision.] 
 
 Steward, Ship's, deemed a mariner, 107 
 
 Sdkgeon, Ship's, deemed a mariner, 107 
 
 Surplus Proceeds, what claims payable out of, 49 
 
 Survey and Sale of Damaged Ships, jurisdiction of American courts of 
 
 admiralty to decree, 311 - 317 
 
 proceeding for, being ex parte, not conclusive on other courts, 316 
 
 authority of English courts of admiralty to direct, denied, 312 
 
 form of proceeding for, 316 
 
 T. 
 
 Title to Ships, questions of, held to be cognizable in the admiralty, . 330 - 343 
 [See Part-owners — Possessory and Petitory suits.] 
 
 Touts, Marine, cognizable in the admiralty, 32 
 
 admiralty jurisdiction of, extends to injuries unaccompanied with vio- 
 lence, 444 
 
 ill-treatment of passengers, 445 
 
 tortious abduction or seduction of minor, 447 
 
 Towage, 28, note. 
 
 Trial by Jury, given by act of February 26, 1845, 7 
 
 u. 
 
 Underwriters, after abandonment, deemed owners, possessing the rights 
 
 and subject to the responsibilities thereof, 138 
 
 Usage, of what nature, and for what purposes, operative in restricting 
 
 responsibility of ship-owner as common carrier, 233 - 240 
 
 V. 
 
 Voyage, duty of master as to commencement and prosecution of, 195 
 
 when ended, 144 
 
 w. 
 
 Wharfage, 302-305 
 
 regulated by local laws, 302 
 
mDEX. 475 
 
 _, PAGE' 
 
 WHARFAGE (Continued) : 
 
 wharfinger has a privileged lien for, 303 
 
 whether lien waived by express personal contract? 303 
 
 not lost by removal of vessel when brought back without force 
 
 or fraud, 304 
 
 wharfinger cannot detain vessel arrested by admiralty process, 304 
 
 wharfinger's lien rather a common law than a maritime lien, 304 
 
 Women, serving on ship-board, deemed mariners, 107 
 
Date. Due 
 
 DE CCn 
 
 ^ 'J 
 
 Library Bureau C«t. No. 1137 
 
KF m g cn^ 1 8 ^7 
 
 Author 
 
 Conkling, Alfred 
 
 Vol. 
 
 ■^'"^ The admiralty jurisdiction$^°P'' 
 law and practice of the courts... 
 
 ^■**«»SJlfe;^. 
 
 ■^I^Lr 
 
 Borrower's Name