HARVARD UNIVERSITY 
 
 GRADUATE SCHOOL 
 OF BUSINESS 
 ADMINISTRATION 
 
Digitized by the Internet Archive 
 in 2016 with funding from 
 Duke University Libraries 
 
 https://archive.org/details/merchantsshipmasOOsawy 
 
THE MERCHANT’S 
 
 AND 
 
 SHIPMASTER’S GUIDE, 
 
 IN RELATION TO THEIR 
 
 RIGHTS, DUTIES AND LIABILITIES, 
 
 UNDER THE EXISTING COMMERCIAL REGULATIONS OF THE UNITED 
 STATES, AS ESTABLISHED BY STATUTE, AND ACCORDING 
 TO JUDICIAL DECISIONS IN THIS, AND OTHER 
 COUNTRIES, ON COMMERCIAL LAW. 
 
 BY FREDERIC W. SAWYER. 
 
 BOSTON: 
 
 PUBLISHED BY BENJAMIN LOSING cc CO. 
 
 No. 122 Stato Street. 
 
 1 840 . 
 
Entered, according to an Act of Congress, in the year 1840, by 
 FREDERIC W. SAWYER, 
 
 in the Clerk’s Office of the District Court of MaitacboMtU 
 
 /V/SS ***** 
 
 Sr 
 
 
\ 
 
 JUN 7 1333 WCH 
 
 \ CO 
 
 PREFACE. 
 
 // 
 
 This work is designed to meet, what the author believes 
 to be the actual and existing wants of the mercantile com- 
 munity. A work of this kind seems to be not only proper 
 but necessary. The statutes and judicial decisions deter- 
 mining the rights, duties, and liabilities of the merchant 
 and ship-master, have never before been brought together 
 and methodically arranged in a work expressly intended for 
 their use. They have hitherto existed only in works intend- 
 ed for the library of the professional man. This has been 
 compiled, with the exclusive view to furnish a practical and 
 useful work for the counting room and the ship’s cabin. 
 In it, it is intended that the merchant and mariner shall 
 find a plain, methodical, and comprehensive view of the 
 principal duties which devolve upon them in their re- 
 spective situations. These duties are by no means few or 
 unimportant. Commercial transactions, coming as they 
 do, in direct contact with the revenue laws of the country, 
 are necessarily subjected to numerous special statutes and 
 regulations, which must be regarded, or fines and penal- 
 ties ensue. The whole period of the voyage, from its 
 
V 
 
 PREFACE. **?|J 
 
 commencement to its termination, is one continued series 
 of duties and liabilities, calling for a clear and precise 
 knowledge of commercial law. In this volume the several 
 statutes regulating the shipping interests of this country 
 are, in a great measure, relieved of their almost unintelli- 
 gible phraseology, and methodically arranged under appro- 
 priate heads. The masters’ and merchants’ rights and 
 duties, as established by commercial law, are here brought 
 together, and, as the author believes, so arranged as to be 
 
 t 
 
 susceptible of rendering very essential service to them. 
 
 Commercial transactions have always presented fruitful 
 sources of litigation. This has arisen not entirely from 
 the complexity of commercial affairs. Much of it is attrib- 
 utable to the difficulty of procuring advice, when most 
 needed, by those having charge of such adventures. Most 
 men, when involved in new and unexpected relations, have, 
 usually, the power to call to their aid the assistance of 
 competent advisers. But the ship-master is not thus situ- 
 ated. The very time that he most needs counsel, is gen- 
 erally, of all others, the time when it is impossible for him 
 to obtain it. It seems, then, desirable, that he should have 
 some book at hand to afford him useful advice, when over- 
 taken by disaster. 
 
 Another consideration why the ship-master should be 
 possessed of a work of this character is, that they, more 
 than any other class, have been made the subjects of spe- 
 cial enactments. To very many of their acts and omis- 
 sions, which, in themselves considered, are light and unirn- 
 
PREFACE. 
 
 V 
 
 portant, very grave and severe penalties have been affixed. 
 These penalties, in most cases, are not only visited upon 
 the master, but often become a charge upon the owner. 
 His % duty, then, not only to himself, but to his owners, de- 
 mands of him some acquaintance with the provisions and 
 requirements of these statutes. 
 
 The station which the ship-master holds, is one of great 
 responsibility and confidence. To him is confided, in a 
 great degree, not only the interests and fortunes of his em- 
 ployers, but the well-being and lives of his crew. From 
 the nature of his situation, and the exposure of the prop- 
 erty committed to his charge, he has been invested with 
 great authority. But in proportion to his power, is his 
 legal accountability. Nothing, then, concerns him more 
 than to know what the extent of his authority is, and how 
 far the law sustains him in its exercise. 
 
 The author lias carefully endeavored to make this work 
 not only as full and particular as possible upon the various 
 duties and liabilities of the merchant and mariner, but also 
 to make it, at the same time, in all respects, a safe and ac- 
 curate guide. The principles here laid down, have, in 
 almost every case, been drawn from sources of undoubted 
 authority. Where a principle seemed of doubtful author- 
 ity, or become in any way unsettled, it has generally been 
 omitted. It seemed better that a chasm should be left in 
 the chain of directions, than that uncertain and erroneous 
 advice should be inserted. 
 
 F. W. S. 
 
 Boston, Jan. 1, 1840. 
 
 o r H A O P 
 j <* b o 
 

 
 
CONTENTS 
 
 CHAPTER I. 
 
 Pag*.. 
 
 Of the title to ships, .... - 13 
 
 CHAPTER II. 
 
 Registry, enrolment and license of ships. 
 
 Of the registry of ships, .... 16 
 
 Of where the ship must be registered, ... 18 
 
 Of transfer or surrender of register, ... 20 
 
 Of the enrolment and license of ships, 21 
 
 CHAPTER III. 
 
 Documents necessary for American vessels, - 24 
 
 CHAPTER IV. 
 
 Foreign trade. 
 
 Of clearance of vessels, ..... 29 
 
 Of arrival of vessels, - - - - 30 
 
 Of manifest of cargo, ..... 34 
 
 Of manifest of passengers, .... 30 
 
 Of time for unlading vessels, - - - -31 
 
 Of ship stores, ...... 31 
 
 Of smuggling, ------ 32 
 
 Of the passport, ..... 32 
 
 Of account of seamen, 33 
 
 Of importation of goods, - - - - .33 
 
 Of delivering cargo in different districts, 36 
 
 Of certificate from collector, .... 36 
 
 Of spirits, wines, and teas, - - - 37 
 
 Of delivery of letters, ..... 38 
 
 Of neglect to enter, ..... 38 
 
 Regulations for clearing vessels, ... 41 
 
CONTENTS. 
 
 viii 
 
 CHAPTER V. 
 
 Page. 
 
 Coasting trade, regulations concerning, - - 42 
 
 Of change of master, ----- 42 
 
 Of vessels without license, forfeited, ... 43 
 
 Of the license, when it expires at sea, 43 
 
 Of alien vessels, cannot sail coastwise, except, - 43 
 
 Of change of registry to enrolment, 44 
 
 Of the bond when license is granted, - 44 
 
 Of change of master, must be reported, 45 
 
 Of seamen, master must report a list of them, - 46 
 
 Of surrender of the license, 46 
 
 Of right to trade coastwise without entering or clearing, 47 
 
 Of manifest of cargo, when spirits, &c. is on board, - 47 
 
 Of the three great coasting districts, ... 48 
 
 Of the general manifest of the cargo, - - - 49 
 
 Of master’s duty when he makes a port of necessity, - 51 
 
 Of fishing vessels, .... - 52 
 
 Of vessels bound to a port within the same or an adjoining 
 
 state, ....... 52 
 
 Of loss of the manifest, .... 53 
 
 Of alien vessels, - - - - - - 54 
 
 CHAPTER VI. 
 
 Vessels engaged in the fishery, ... 55 
 
 CHAPTER VII. 
 
 Ship-owners. 
 
 Who are liable as owners, - - - . - 62 
 
 Of the liability of the mortgagee, ... 62 
 
 01 the liability of the charterer, 63 
 
 Of the rights and liabilities of part owners, - - 64 
 
 Of the employment of the ship by the part owners, - 66 
 
 CHAPTER VIII. 
 
 Ship’s husband, ..... 68 
 
 Of who may be ship’s husband, .... 68 
 
 Of his appointment, ..... 69 
 
 Of the duties of a ship’s husband, - - 69 
 
 Of the power of a ship’s husband, . - - 70 
 
CONTENTS. IX 
 
 CHAPTER IX. 
 
 Page. 
 
 Agents. 
 
 Of the duty of agents to procure insurance. - - 72 
 
 When they must insure, .... 73 
 
 ■ Agent bound to use due diligence, . - - - 74 
 
 Of the authority of agents, .... 75 
 
 CHAPTER X. 
 
 Of factors, or consignees, .... 77 
 
 Of the lien of the factor, - - - 78, 82 
 
 Of consignees commissions, ... - 79 
 
 May sell the goods of his principal in his own name, 80 
 
 Must be governed by instructions, 80 
 
 May sell on credit, - - - - - 81 
 
 CHAPTER XI. 
 
 Ship-masters, ...... 83 
 
 Of the appointment of the master, ... 86 
 
 Of the master’s authority over seamen, 89 
 
 Of the master’s authority respecting the employment of 
 
 the ship, ...... 92 
 
 Of the master’s authority to sell the ship, 95 
 
 Of the master’s authority to repair the ship and furnish 
 
 supplies, ...... 103 
 
 Of the master’s authority to hypothecate the ship, - 106 
 
 Of the master’s authority to hypothecate the cargo, - 107 
 
 Of tue owner and master’s relation to the cargo, 111 
 
 Of the charter party, ..... Ill 
 
 Of the duty of the owner, .... 112 
 
 Of the duty of the charterer, - - - - 114 
 
 Of the bill of lading, ..... 115 
 
 Of the carriage of the goods, .... 117 
 
 Of the delivery of the goods at the port of destination, 124 
 
 Of the responsibility of the ship-owner, . - 129 
 
 Of the master’s liability for bad stowage, • - - 131 
 
 Of the duties of the shipper, .... 131 
 
 Of-the payment of freight, .... 132 
 
 Of the duty of the master to employ a pilot, - . 137 
 
 Of the master’s duty to protest in case of disaster, • 139 
 
X 
 
 APPENDIX. 
 
 Page. 
 
 Of the master’s duty respecting a collision of ships, - HO 
 
 Of the barratry of the master, - 237 
 
 Of deviation by the master, - 230 
 
 CHAPTER XII. 
 
 Of the mate, - - . . . h2 
 
 CHAPTER XIII. 
 
 Of seamen, 145 
 
 Of laws for the protection of seamen, - - . 147 
 
 Of laws for the relief of seamen in American ports, - 148 
 
 Of laws for the relief of American seamen in foreign ports, 149 
 
 Of medicine and medical advice and attendance, - - 151 
 
 Of provisions and water, - 154 
 
 When mariners may refuse to proceed on the voyage, • 154 
 
 Of seamen’s wages, ..... 457 
 
 Of their liability to forfeit wages, .... 1 61 
 
 Of their liability to lose wages, - . . 167 
 
 Of their duty in case of disaster, .... 169 
 
 Of state laws relating to seamen, - - - 172 
 
 Of embezzlemeut by the ship’s crew, - - - 174 
 
 CHAPTER XIV. 
 
 Crimes. 
 
 Of crimes committed on the high seas, 
 
 Of piracy, - 
 
 CHAPTER XV. 
 
 Marine insurance, 
 
 Of an agreement for insurance, 
 
 Of the policy and its usual stipulations, 
 
 Of the implied conditions of the policy, 
 Who may insure and procure insurance, 
 Of the description of the assured, 
 
 Of valued policies, 
 
 Of open policies, 
 
 Of representation and concealment, 
 
 Of facts that must be disclosed, 
 
 Of express warranties and conditions, 
 
 176 
 
 180 
 
 182 
 
 182 
 
 183 
 
 186 
 
 187 
 
 1S7 
 
 1S9 
 
 194 
 
 197 
 
 199 
 
 201 
 
. APPENDIX. XI 
 
 Pago. 
 
 Of the time when the risk commences and when it ends, 203 
 Of the risks insured against, .... 206 
 
 Of the description of the subject, .... 207 
 
 Of the insurable interest, .... 209 
 
 Of the risks that may be insured against, • • - 212 
 
 Of what is a loss within the policy, - - - 214 
 
 Of partial loss and adjustment, .... 216 
 
 Of maritime loans, ..... 224 
 
 Of deviation by the master, .... 230 
 
 Of barratry, ...... 237 
 
 Of total loss and abandonment, .... 239 
 
 Of constructive total loss, .... 243 
 
 Of the wreck or strandisg of the ship, . - - 246 
 
 Of the value of the subject insured, - - - 247 
 
 Of the amount of the damages, .... 248 
 
 Of the stranding, ..... 251 
 
 Of the abandonment of the cargo, .... 257 
 
 Of the valuation of the cargo, .... 259 
 
 Of salvag3, ....... 260 
 
 Of general average, ..... 264 
 
 Of wages and provisions, ..... 267 
 
 Of other necessary expenses, .... 270 
 
 Of voluntary stranding, ..... 272 
 
 Of the adjustment of general average, - . . 273 
 
 CHAPTER XVI. 
 
 Marine Hospitals, ...... 279 
 
 APPENDIX. 
 
 Legal forms. 
 
 Notice of abandonment, .... 283 
 
 Assignment of a policy of insurance, - - - 283 
 
 Assignment of a sailor’s wages, - - . 284 
 
 Letter of Attorney from a sailor to his wife to receive his 
 
 wages, 285 
 
 Assignment of money due for freight of a ship, . 285 
 
 Another form, ...... 286 
 
 Agreement for the freight of a ship, - - - 286 
 
XI l 
 
 APPENDIX. 
 
 Page. 
 
 Form of a bottomry bond, .... - 287 
 
 Form of a bottomry bill, .... 289 
 
 Form of an instrument of hypothecation of ship and cargo, 291 
 
 Form of a respondentia bond, .... 293 
 
 Bill of exchange, - - - - - 294 
 
 A set of bills, ...... 295 
 
 Form of manifest of cargo, .... 295 
 
 Form of manifest of passengers, .... 296 
 
 Form of bill of sale of an enrolled ship, - - 297 
 
 Form of a charter party, .... - 298 
 
 Form of a shipping paper, . - - - 299 
 
 Form of a bill of sale of a registered ship, - - - 303 
 
 Form of Protest, ..... 304 
 
GUIDE 
 
 TO 
 
 SHIP OWNERS AND MASTERS. 
 
 CHAPTER I. 
 
 OF THE TITLE TO SHIPS. 
 
 The bill of sale is the proper evidence of title 
 to a ship. This is the muniment of title which 
 the maritime courts of all nations look for, and in 
 ordinary practice require.* In the admiralty courts 
 a document of sale would seem to be considered 
 indispensably necessary to convey the title. f It 
 has, however, been decided in the common law 
 courts of Massachusetts and New York, that a ves- 
 sel may pass by delivery, the same as any other 
 chattel, without any instrument in writing. J 
 
 In the bill of sale, the register must be recited 
 at length ; as without it the vessel is incapable of 
 being registered anew.$ 
 
 *5 Rob. Adm. R. 155. fl Mason, 139. f 8 Pick. E. 89. 7 
 John. R. 308. § Act March 2d, 1803, See 3. 
 
 2 
 
14 
 
 TITLE OF SHIPS. 
 
 The mere neglect to transfer the register, upon 
 the sale of the ship, does not defeat the sale, it 
 only deprives her of the rights of an American 
 vessel.* 
 
 To complete the title of the purchaser and make 
 it perfect, possession of the vessel should accom- 
 pany the bill of sale. This is where the vessel is 
 in port and in a situation for possession to be deliv- 
 ered. If the buyer, under such circumstances neg- 
 lects to take possession himself, but suffers the 
 seller to remain in possession, and act as owner, 
 and the seller should become bankrupt, the proper- 
 ty would be liable to the creditors of the vendor 
 without notice. 
 
 The same rule exists in the case of the mort- 
 gage of a ship. Possession must accompany the 
 "bill of sale.f 
 
 A bill of sale of a ship at sea gives the purchaser 
 a perfect title, provided he uses all due diligence to 
 take possession of her after her arrival. If he neg- 
 lects to take such possession within a reasonable 
 time, the presumption of law is that the sale was 
 collusive and fraudulent, and the ship will be held 
 liable for the debts of the vendor. J 
 
 The vendee of a ship at sea, however, is not 
 bound to follow her from port to port in order to 
 take possession ; but he may reasonably wait her 
 return to the port where she belongs ; and the sale 
 
 *5 Mass. 42. 
 
 f 6 Mass. 422. 
 
 } 9 Pick. 4. 
 
TITLE OF SHIPS. 
 
 15 
 
 will be good against creditors who shall attach her 
 at any other place before her return.* 
 
 The mortgagee of a ship at sea must take pos- 
 session, immediately on her arrival in port, in the 
 same manner as is provided for the sale of a ship 
 similarly situated, f 
 
 The buyer of a ship at sea takes subject to all 
 incumbrances, and to all lawful contracts made by 
 the master, respecting the employment and hy- 
 pothecation of the ship prior to notice of the trans- 
 fer. % 
 
 Sometimes vessels are sold by their masters, as 
 unfit for service. A title derived through the 
 master, by virtue of a sale by him, is good or not 
 just as it may afterwards appear, whether or not the 
 sale was justified by the circumstances. It follows, 
 then, that the title thus acquired is of the lowest 
 and most unstable description. 
 
 # 18 Mass. Rep. 389. fl5 Mass. Rep. 477. 
 
 1 9 Pick 4. Kent, Vol. 3. 133. 
 
16 
 
 REGISTRY OF SHIPS. 
 
 CHAPTER II. 
 
 REGISTRY, ENROLLMENT AND LICENSE OF SHIPS. 
 
 Of the Registry of Ships. 
 
 One of the first acts of the American Congress, 
 after the adoption of the constitution, was to confer 
 peculiar privileges upon ships built and owned by 
 our own citizens. For this purpose, various acts 
 for the Registry, Enrollment and License of vessels 
 was passed, having for their object the encourage- 
 ment of our own trade, navigation and ship-build- 
 ing, by granting peculiar or exclusive privileges of 
 trade to the flag of the United States, and by pro- 
 hibiting the communication of those immunities 
 to the shipping and mariners of other countries. 
 
 No ships or vessels are absolutely required to be 
 registered by our laws. But, if not registered, 
 they lose the privileges aud benefits of ships of 
 the United States, and are deemed foreign ships 
 or vessels.* 
 
 Ships and vessels found in the coasting trade or 
 fisheries, without being registered or licensed, with 
 domestic goods on board, must pay foreign tonnage 
 duties ; and if with foreign goods on board are 
 liable to forfeiture .f 
 
 * Note by Story, Abbott, p. 32. f Act 1793, Ch. 52, Sec. 6- 
 
REGISTRY OF SHIPS. 
 
 17 
 
 Foreign ships are prohibited from carrying on 
 the coasting trade from one port in the United 
 States to another.* 
 
 The shipping which enters our ports may be 
 divided into five classes : — 
 
 1. Ships which are entitled to he registered ; 
 which must be built within the United States and 
 wholly owned by citizens, and employed in foreign 
 trade. 
 
 2. Ships which are entitled to be enrolled and 
 licensed , and which are built and owned in like 
 manner, and are employed in the coasting trade 
 and Fisheries. 
 
 Ships thus registered, and enrolled and licensed 
 are alone denominated and deemed “ vessels of the 
 United States entitled to the benefits and privileges 
 appertaining to such ships,” and they continue to 
 enjoy the privileges of ships of the United States 
 no longer than they continue to be wholly owned , 
 and commanded by a citizen or citizens-! 
 
 3. Ships built in the United States, but owned 
 wholly or partly by foreigners, which are entitled 
 to be recorded. Recorded vessels pay a lower ton- 
 nage duty than foreign vessels. 
 
 4. Ships built out of the United States, but 
 owned by citizens, which are entitled to a certifi- 
 cate of ownership. 
 
 * Act 1817. Ch. 204. 
 
 t Act 1792, ch. 45. — Act 1793, ch. 52, Sec. 1 & 2. 
 
 2* 
 
18 
 
 REGISTRY OF SHIPS. 
 
 5. Ships built out of the United States and own- 
 ed by foreigners, which are deemed alien vessels to 
 all intents and purposes.* 
 
 Vessels engaged in the whale fishery must be 
 enrolled and licensed to entitle them to be deemed 
 United States ships. f 
 
 No vessel is entitled to be registered, or if regis- 
 tered to the benefits thereof, if owned in whole or 
 in part by any citizen who usually resides in a for- 
 eign country, during such residence, unless such 
 citizen be in the capacity of a Consul of the Uni- 
 ted States, or an agent for, and a partner in some 
 house of trade, or copartnership consisting of citi- 
 zens wholly carrying on trade within the said 
 States. 
 
 Where registered. The ship must be registered 
 by the Collector of the port where she belongs, or 
 in which she may happen to be, and founded on 
 the oath of one of the owners, stating the time and 
 place where she was built, who are the owners and 
 master, and that they are citizens of the United 
 States. 
 
 Previous to the registry, a certificate of survey 
 must be produced, and security given that the cer- 
 tificate of such Registry shall be solely used for 
 the ship, and shall not be sold, lent, or otherwise 
 disposed of. 
 
 In case a new ship is to be registered, it is neces- 
 
 Notes on Abbot by Story, p. 29. 
 
 t 3. Sumner, * * * 
 
REGISTRY OF SHIPS. 
 
 19 
 
 sary to produce a certificate under the hand of the 
 master carpenter, under whose direction she was 
 built, specifying the place where, and the time 
 when, and the person for whom built, and describ- 
 ing her built, number of decks, and masts, length, 
 breadth, depth, tonnage, and such other circum- 
 stances as are usually descriptive of the identity of 
 a ship. 
 
 Such a certificate authorizes the removal of a 
 new ship in ballast from the district where she is 
 built to another district, in the same or an adjoin- 
 ing State, to where the owner resides.* 
 
 If the vessel, or any interest therein, be sold to 
 any foreigner, and the vessel be within the United 
 States, the certificate of the registry must, within 
 seven days after the sale be given up to the collec- 
 tor of the district, and if the sale is made when 
 the vessel is abroad, or at sea, it must be delivered 
 up within eight days after the master’s arrival in 
 the United States. f 
 
 When a vessel is sold , in whole, or in part, to a 
 citizen of the United States, or altered in form or 
 burthen , she must be registered anew , and her for- 
 mer certificate of registry delivered up. otherwise she 
 will cease to be deemed a vessel of the United 
 States, or entitled to any of the privileges of one. 
 
 Upon every change of master, the owner must 
 report such change to the collector, and have a 
 
 * Act 1792, ch. 45, Sec. 8. f Act 31, Dec. 1792, Sec. 7 & 16. 
 
20 
 
 REGISTRY OF SHIPS. 
 
 memorandum of such change endorsed upon the 
 certificate of registry. 
 
 If a registered ship is transfered to a foreigner, 
 by way of trust, confidence or otherwise, the sale 
 or transfer must be reported to the Custom House 
 and the certificate of registry given up. otherwise 
 the ship will be forfeited. 
 
 But if the ship be owned in parts, the shares of 
 the owners, who are conusant of the sale, or trans- 
 fer, only, are forfeited. 
 
 Oath taken , when register is granted. The 
 oath that is taken when a ship’s register is granted, 
 relates entirely to the legal title, and does not re- 
 quire the applicant, who holds the hill of sale, to 
 disclose the name or names of those who have an 
 equitable interest only in the property. The deni- 
 al that any foreigner is directly or indirectly inter- 
 ested therein, is sufficient. 
 
 Hence a mortgagee may take out a register in 
 his own name, notwithstanding the equity of the 
 mortgagor.* 
 
 If there be two or more owners, the oath may 
 be taken by one of them, but the remaining, who 
 are resident within the United States, must trans- 
 mit to the collector, who grants the certificate of 
 registry, a like oath or affirmation within ninety 
 days after the same is granted, or the certificate of 
 registry is forfeited and void. The oath may be 
 
 # 1 Mason, R. 360. 
 
REGISTRY OF SHIPS. 
 
 21 
 
 taken before the same, or any other collector, or a 
 Judge of the Supreme or District Court of the 
 United States, or of a superior Court of Original 
 Jurisdiction in any of the States. 
 
 When a ship is registered in a collection district 
 other than that to which she belongs, the certifi- 
 cate of registry must be given up to the collector of 
 the port to which she belongs, and a new certifi- 
 cate taken out upon her first arrival within the last 
 named district. If the certificate be not so deliv- 
 ered up, it becomes void, and the owner and master 
 incur the penalty of $100. 
 
 When the register of a ship is given up to the 
 collector of the port where it was granted, the 
 bond given at the time of granting it is to be can- 
 celled. If given up to any other collector, he is to 
 give a receipt, acknowledging the delivery; and 
 upon this receipt being produced to the collector, 
 who granted the register, he is to caucel the bond.* 
 
 The name of every registered ship, and the port 
 to which she belongs, must be painted on her 
 stern, on a black ground, in white letters of not less 
 than three inches in length, under the penalty of 
 50 dollars.f 
 
 Of the Enrollment and License of Ships. 
 
 Vessels not employed in the Foreign Trade must 
 be enrolled and licensed , to entitle them to the 
 
 *Act 1792, ch. 45, Sec. 18. 
 
 f Ibid, ch. 35, See. 3. 
 
22 
 
 ENROLLMENT AND LICENSE OF SHIPS. 
 
 privileges of vessels of the United States. For that 
 purpose they must possess the same qualifications, 
 and the same requisites must be complied with, as 
 are made necessary for registering ships; and the 
 ships enrolled, with the master and owner, are sub- 
 ject to the same regulations as are in those respects 
 provided for registered vessels. 
 
 Any vessel may be enrolled and licensed, that 
 may be registered, upon the registry being given 
 up; and any vessel that may be enrolled may be 
 registered upon the enrollment and license being 
 given up. # 
 
 If the vessel he under twenty tons, she need not 
 be enrolled and licensed ; but it will be sufficient 
 if she has a license only.-f 
 
 Enrollment, however, is not of itself sufficient 
 for any ship of a greater tonnage ; but the ship 
 must moreover have a license for the coasting trade 
 or fisheries in force at the time ; otherwise she 
 loses her American privileges. J 
 
 If a vessel, enrolled and licensed, proceed on a 
 foreign voyage without first surrendering up her 
 enrollment and license, and being duly registered, 
 she shall, with her cargo, imported into the United 
 States, be subject to forfeiture. <$> 
 
 Vessels, enrolled and licensed, must have their 
 name painted on their stern in the same manner as 
 is provided for registered vessels. 
 
 * Act 18th Feb. 1793, ch. 52, sec. 3. f Ibid. sec. 12. 
 
 % Ibid. sec. 1 and 2. § Ibid. sec. 6. 
 
ENKOLLMENT AND LICENSE OF SHIPS. 
 
 23 
 
 No license granted to any vessel is in force any 
 longer than she is owned as, and is of the descrip- 
 tion set forth in her license, or for carrying on any 
 other business or employment than that for which 
 she is specially licensed. 
 
 The license must be given up to the collector 
 who granted it within three days after it expires, 
 provided the vessel be then in port, but if she be 
 then absent, within three days after her next arri- 
 val within the district afterwards. 
 
 In order to obtain a license for carrying on the 
 coasting trade or fisheries, the owner or ship’s hus- 
 band, and master, must give security to the United 
 States that the vessel be not employed in any trade 
 whereby the revenue of the United States may be 
 defrauded. 
 
24 
 
 DOCUMENTS FOR AMERICAN VESSELS. 
 
 CHAPTER III. 
 
 DOCUMENTS NECESSARY FOR AMERICAN VESSELS. 
 
 The Passport. This is a permission from the 
 government for the vessel to proceed on the voy- 
 age proposed, and contains the name and residence 
 of the master, the name and description of the ves- 
 sel, number of crew, and guns mounted. This 
 document is only necessary for vessels going to 
 Europe. 
 
 The Sea Letter, specifies the nature and quan- 
 tity of the cargo, and place of destination. It is in 
 the French, Spanish, English, and Dutch langua- 
 ges, and is only necessary for vessels bound around 
 cape Horn and the cape of Good Hope.* 
 
 The Register or Proof of Property, which 
 shows the names and residences of the owners, 
 
 * Martin Yan Buren, President of the United States of Amer- 
 ica, to all who see these presents, greeting : 
 
 Be it known, that leave and permission are hereby given to 
 master or commander of the called of the 
 
 burthen of tons or thereabouts, lying at present in the 
 port of bound for to depart asd proceed with his said 
 
 on his said voyage, such having been visited, and the 
 said having made oath before the proper officer, that the 
 said belongs to one or more of the citizens of the United 
 States of America, and to him or them only. — 
 
 In witness whereof I have subscribed my name to these presents 
 and affixed the seal of the United States of America thereto, and 
 
DOCUMENTS FOR AMERICAN VESSELS. 
 
 25 
 
 where the vessel was built, and when, and a par- 
 ticular description of the vessel. This must be re- 
 turned to the custom house upon the return of the 
 vessel. 
 
 In peace this is necessary to show that the ship 
 really belongs to a neutral state. If she appear to 
 either belligerent to have been built in an enemy’s 
 country, proof is generally required, that she was 
 purchased by the neutral before, or captured and 
 
 caused the same to be countersigned by at the 
 
 day of in the year 
 
 By the President. 
 
 Most serene, serene, puissant, puissant, high, illustrious, noble, 
 honorable, venerable, wise and prudent Lords, Emperors, KiDgs, 
 B.epublics, Princes, Dukes, Earls, Barons, Burgomasters, Sehe- 
 pens, Counselors, as also Judges, Officers, Justiciaries and Re- 
 gents of all the good cities and places, whether ecclesiastical or 
 secular, who shall see these presents or hear them read. We 
 make known that the master of has declared upon oath that 
 the vessel called tlm of the burthen of about tons, 
 
 which he at present navigates, is of the United States of America, 
 and that no subjects of the present belligerent powers have any 
 part or portion therein, directly or indirec tly, so may God Al- 
 mighty help him. And as we wish to see the said master prosper 
 in his lawful affairs, our prayer is to all the before-mentioned, and 
 to each of them separately, where the said master shall arrive with 
 his said vessel and cargo, that they may please to receive the said 
 master with goodness, and to treat him in a becoming manner, 
 permitting him upon the usual tolls and expenses in passing and 
 repassing, to pass, navigate, and frequent the ports, passes and 
 territories, to the end to transact his business where and in what 
 manner he shall judge proper. Whereof we shall be willingly in- 
 debted. 
 
 In witness and for cause whereof, we affix hereto the seal of 
 
 3 
 
26 
 
 DOCUMENTS FOR AMERICAN VESSELS. 
 
 legally condemned since the declaration of war; 
 ai d in the latter case, the bill of sale properly au- 
 thenticated, ought to be produced. Even Habner 
 admits that these proofs are so essential to every 
 neutral vessel for the prevention of frauds, that 
 those which sail without them will have no reason 
 to complain if they are interrupted in their voyages, 
 and their neutrality disputed. 
 
 The List of Crew contains the names, ages, 
 quality, place of residence, and place of birth, of 
 every person of the ship’s company, dec. TJns 
 must be returned with the reporting officer’s certifi- 
 cate of the number of men still on board. 
 
 N This document is of great use in ascertaining a 
 ship’s neutrality. It must naturally excite a vio- 
 lent suspicion, if a majority of the crew be found 
 to consist of foreigners: still more if natives of the 
 enemy’s country. 
 
 The Charter Party , when one is given. This 
 instrument serves to authenticate many of the facts 
 on which the proof of the ship’s neutrality rests. 
 
 The Bill of Lading , by which the captain ac- 
 knowledges the receipt of the goods specified 
 therein, and promises to deliver them to the con- 
 signee or his order. Of this there are usually sev- 
 eral duplicates: of which one is delivered to the 
 captain, one kept by the shipper of the goods, and 
 one transmitted to the consignee. This instrument 
 being only the evidence of a private transaction be- 
 tween the owner of the goods and the captain, 
 
DOCUMENTS FOR AMERICAN VESSELS. 
 
 27 
 
 does not carry with it the same degree of authen- 
 ticity as the charter party. 
 
 The Invoice , which contains the particulars and 
 prices of each parcel of goods, with the amount of 
 the freight, duties, and other charges thereon, 
 which are usually transmitted from the shippers to 
 their factors or consignees. These invoices prove 
 by whom the goods were shipped and to whom 
 consigned. They carry with them, however, but 
 little authenticity, being easily fabricated, where 
 fraud is intended. 
 
 The Los Book, or Ship’s Journal, which con- 
 tains an accurate account of the ship’s course, with 
 a short history of every occurrence during the voy- 
 age. If this be faithfully kept, it will throw great 
 light on the question of neutrality. If it be in any 
 respect fabricated, this may in general be easily de- 
 tected. 
 
 The Bill of Health, which is a certificate, pro- 
 perly authenticated, that the ship comes from a 
 place where no contagious distemper prevails, and 
 that none of the crew, at the time of her departure, 
 were infected with any such distemper. 
 
 The General Clearance contains the name of 
 the captain, vessel’s name, number of men on 
 board, number of guns, and description of cargo, 
 with permission to proceed to port of destination. 
 
 The Clearing Manifest, containing the descrip- 
 tion of cargo, and values, to be left, in the custom 
 house; and if bound to France, Sweden, Brazil 
 
28 
 
 ENTERING. 
 
 and Portugal, there must be a duplicate manifest) 
 certified by the foreign consul, to be kept on 
 beard. 
 
 On Entering. 
 
 Manifest , containing a statement of cargo, and 
 description of packages and contents, names of 
 shippers and consignees, residences of consignees, 
 and ports of destination ; and list of passengers 
 and remaining sea stores. List of seamen. 
 
 List of Passengers, showing names, occupa- 
 tions, age, sex, and whether citizens of the United 
 States — sworn to by the captain — for the custom 
 house, and one for the Mayor’s office. 
 
FOREIGN TRADE. 
 
 29 
 
 CHAPTER IV. 
 
 FOREIGN TRADE. 
 
 • Regulations concerning the Clearance and Arri- 
 val of Vessels , Manifests , and the Entry and 
 Delivery of their Cargoes. 
 
 Passport. Masters of unregistered vessels, own- 
 ed by citizens of the United States, and sailing 
 with a Sea Letter, may obtain a passport from the 
 collector of the port from whence they depart, by 
 paying therefor $10.* 
 
 Clearance. The master of any vessel bound on 
 a foreign voyage must, before a clearance will be 
 granted him, deliver to the collector of the cus- 
 toms a list containing the names, places of birth, 
 residence, and a description of the persons who 
 compose his ship’s company. The master must 
 then make oath, that the list contains the names of 
 his crew, as well as their places of residence as far 
 as he can ascertain them : after which the collec- 
 tor must deliver to the master a certified copy of 
 said list, and the master must, moreover, enter into 
 bond with sufficient security, in the sum of $400, 
 that he will exhibit the above certified copy of the 
 list, to the first boarding officer, at the first port in 
 the United States to which he may arrive on his 
 return thereto, and at the same time produce the 
 * Act, June 1, 1796, sec. 2. 
 
 3 * 
 
30 
 
 FOREIGN TRADE. 
 
 persons named therein to the hoarding officer, un- 
 less the same have been discharged in a. foreign 
 port with the consent of the consul, vice consul, 
 commercial agent, or vice commercial agent, ex- 
 pressed in writing, under his hand, and official seal ; 
 or that they have died or absconded, or been forci- 
 bly impressed into other service. 
 
 Arrival at Foreign Port. The mastpr, or com- 
 mander, of every vessel, belonging to citizens of the 
 United States, on his arrival at a foreign port, must 
 deposit his Register , Sea Letter , and Mediterra- 
 nean Passport , (if he have one,) with the consul, 
 vice consul, commercial agent, or vice commer- 
 cial agent — if any such there be at said port — 
 to be retained by him until he has obtained a clear- 
 ance. The master who refuses to surrender such 
 papers as above, is liable in a line of $>500. 
 
 Manifest of Passengers. Masters of vessels, 
 arriving in the United States, from foreign ports, 
 must deliver and report to the collector, at the 
 same time that they deliver manifests of their car- 
 goes, or if they have no cargoes, then at the same 
 time they report, or enter their vessels, a list, or 
 manifest of the passengers, designating particular- 
 ly, the age, sex, and occupation of the passengers, 
 the country to which they severally belong, aud 
 that of which it is their intention to become sub- 
 jects or citizens. The neglect, or refusal of the 
 master to report, as aforesaid, subjects him to a 
 penalty of $500.* 
 
 * Act, 2d March, 1819. 
 
FOREIGN TRADE. 
 
 31 
 
 Time for Unlading Vessels. By the Act of 
 March 3, 1821, the time for unlading vessels of 
 31J0 tons burthen and upwards, arriving from a 
 foreign port, is extended to twenty days from the 
 pert of arrival, (Sundays excepted.) 
 
 The hours within which vessels from foreign 
 ports may unlade, is from the rising to the setting 
 of the sun, and the cargo cannot be unladen and de- 
 livered before, or after that time, except by special 
 license, or permit, from the collector of the port. 
 
 Ship Stores. Masters of vessels, in making out 
 the manifests of their cargoes, are bound to specify 
 particularly all those articles which they deem to be 
 exempt from duty, as being the sea stores of their 
 vessels, and will be called upon to declare upon 
 oath, “ that the articles so specified as sea stores 
 are truly such , and are not intended by way of 
 merchandise or for sale. If it appears to the col- 
 lector that the quantity designated as sea stores is 
 not excessive, then they are free from duty. But 
 if the collector, to whom the report and manifest is 
 to be made, deems that the quantity designated as 
 sea stores is excessive, and levies a duty on such 
 excess, the master must pay the same forthwith. 
 
 If any other, or greater quantity of articles are 
 found on board of any such ship or vessel, than the 
 master has specified in his manifest, they are by 
 law forfeited to the government, and the master 
 liable to pay treble their amount. 
 
 If the master land any of the sea stores of the 
 vessel without first obtaining a permit from the 
 
32 
 
 FOREIGN TRADE. 
 
 Collector, he also forfeits treble their value, as well 
 as the goods.* 
 
 Smuggling. The master, and all other persons, 
 knowingly assisting in unlading, removing, or se- 
 creting goods, contrary to the above, are liable to 
 forfeit and pay, each, and severally, the sum of 
 $ 400, and to be disabled from holding any office of 
 trust or profit, under the United States, for a term 
 not exceeding seven years. 
 
 It is made the duty, also, of the collector to ad- 
 vertise the names of all such persons, in some pub- 
 lic print, within twenty days after their convic- 
 tion. 
 
 Passport. Vessels bound on a foreign voyage, 
 are required to obtain a passport, as provided by 
 law, for which the master must pay $10. On re- 
 ceiving the passport the master must give bonds in 
 the penalty of two thousand dollars, conditioned 
 that the said passport shall not be used for the pro- 
 tection of any other ship or vessel than the one de- 
 scribed in the same ; and in case of the loss or sale 
 of the vessel, the same shall be delivered up in 
 three months to the collector from whom it was 
 received, if the loss or sale take place within the 
 United States ; or within six months if the sale or 
 loss take place any where this side of the cape of 
 Good Hope ; and within eighteen months if at a 
 more distant place. 
 
 To depart on a foreign voyage without such 
 passport subjects the master to a fine of $200. 
 
 * Act, 2d March, 1799, sec. 45. 
 
FOREIGN TRADE. 
 
 33 
 
 Vessels owned in the United States, and bound 
 to a foreign port, other than a port in America, are 
 subject to a charge of four dollars, fur each and 
 every voyage, to be paid at the time of clearing 
 outward. If, however, the vessel has cleared for a 
 foreign port from a port in America, out of the 
 United States, then this charge must be paid by 
 the master on his arrival from such foreign port in 
 any port in the United States. 
 
 Account of Seamen. Masters of vessels, arriving 
 from foreign ports, must render a true account to 
 the collector of all the seamen employed on board 
 during the voyage. 
 
 American vessels from abroad, to become entitled 
 to be placed upon the most favorable footing, must 
 have the captain, and all the mates Americans; 
 and also two-thirds of all other persons making a 
 part of their crew, Americans, “ or persons not the 
 subjects of any foreign prince or state.” In this 
 latter item are included the seamen, the cook, the 
 apprentices, the boys and all other persons, (not in- 
 cluding the captain and mates,) doing duty on 
 board. They must also have an American register. 
 
 Importation of Goods. No merchandise can 'be 
 imported in any vessel belonging, in whole, or in 
 part, to a citizen or inhabitant cf the United 
 States, unless the master have on board a manifest 
 in writing, signed by such master or other person 
 having the command, containing the name of the 
 port where such merchandise was received, and the 
 
34 
 
 FOREIGN TRADE. 
 
 port where consigned or destined to, within the 
 United States; particularly noting the merchan- 
 dise destined for each port respectively, and the 
 name, description and built of the vessel, with the 
 marks and numbers on each package, with the 
 name of the owner and master ; and every package 
 must be truly and particularly described, as well as 
 all goods stowed loose — to whom consigned, ac- 
 cording to the bills of lading ; or if to order ; with 
 the names of all passengers, distinguishing whether 
 cabin or steerage passengers, or both, with their 
 baggage, and an account of all remaining sea 
 stores.* 
 
 Manifests. It is the duty of the masters of 
 American vessels arriving from foreign ports, to 
 have their manifests made out at the time of leav- 
 ing such ports. The time of lading is the most 
 proper for making out a manifest of the cargo- 
 The master is liable to incur the penalty of the 
 law, if he does not have his manifest in readiness 
 to exhibit to any custom house officer who may 
 board him within four leagues of the coast. The 
 master is not allowed, by law, to make out his 
 manifest, after the arrival of his vessel within four 
 leagues of the coast . f 
 
 Copy of Manifest. The master must be pre- 
 pared not only to exhibit to such officer, on his 
 boarding him, any where within a league of the 
 coast, his original manifest, but must deliver to 
 * Act, 2d March, 1799, sec. 23. f Ibid. 
 
FOREIGN TRADE. 
 
 35 
 
 him a copy thereof. The officer certifies on the 
 original, the day and year the same was produced ; 
 the copy is compared with the original, and there 
 is certified by such officer, on the back of the same, 
 the day and year such copy was given to him. 
 The original manifest is delivered afterwards by 
 the master to the collector. 
 
 The master must also provide another copy for 
 the officer of the customs who first comes on 
 board after the vessel has arrived in port, who 
 also certifies on the original and forwards his copy 
 to the collector. If the original be shown with- 
 out such certificates, the master must swear that 
 no copies have been called for by the other offi- 
 cers. It is sufficient to show the original, with 
 the indorsements, to other officers.* 
 
 Any vessel so laden, within four leagues of the 
 coast, or within the limits of any district, unload- 
 ing goods without authority from proper officers, 
 the master and mate forfeit one thousand dollars 
 for each offence, and the goods are forfeited, except 
 in case of accident, necessity, or stress of weather: 
 which must be made known and proved under 
 oath by the master, mate, and one other officer, or 
 mariner.f 
 
 The penalty on masters for not exhibiting the 
 manifest, and delivering a copy thereof, on demand 
 from the proper officer; or for not informing such 
 
 # Act, 2d March 1799, Sec. 23. 
 
 fib id. Sec. 27. 
 
36 
 
 FOREIGN TRADE. 
 
 officer of the true destination of such vessel is 
 $500 for each offence.* 
 
 When Cargo to be delivered in different Dis- 
 tricts. If merchandise imported is destined to be 
 delivered in different districts or ports, the said 
 merchandise must be inserted in successive order in 
 the manifest ; and all Spirits, Wines and Teas, being 
 the whole or any part of the cargo, must be inserted 
 in like order, distinguishing the port where destined, 
 and the kind, quantities and qualities thereof. 
 
 If goods be consigned by the manifest, to per- 
 sons residing in different ports of the United States, 
 the master may land at the first port, such goods as 
 are consigned to persons at the first port, and he 
 may at his own pleasure land either the whole, or 
 a part, or none of the rest, until they reach the 
 ports to which they are destined. The manifest 
 must specify the articles destined to each port. 
 The master must give a bond for the landing and 
 securing the duties on whatever goods he chooses 
 to keep on board his vessel, for the purpose of car- 
 rying forward to another port. 
 
 Such vessels may take on board any other arti- 
 cles to be landed in any other port in the United 
 States; for which goods they must have the mani- 
 fest of a coaster, and clear out as such. They 
 must however pay tonnage duties in each port. 
 
 Certificate. If the vessel remain in port more 
 than forty-eight hours, the collector furnishes the 
 
 *Act, 2d March 1799, Sec. 26. 
 
FOREIGN TRADE. 
 
 37 
 
 master with a copy of his report, and a certificate, 
 showing on what part of the cargo the duties have 
 been paid or secured. The copy of the report 
 the master must produce to the collector of the 
 port where bound, together with the certificates of 
 the collector of other districts, when goods have 
 been landed within twenty-four hours after her ar- 
 rival, (except in the State of Georgia where forty- 
 eight hours are allowed,) under penalty of $500. — 
 The bond is cancelled by producing from the col- 
 lector of such district a certificate, within six 
 months, of the due entry and delivery of such 
 merchandise, in such district, or upon due m’oof 
 that such entry and delivery were unavoidably pit- 
 vented by loss or otherwise.* 
 
 Spirits , Wines and Teas. The master must, 
 also, apply to the surveyor or inspector of the port 
 for a copy of the report similar to the report of the 
 collector, relating to distilled Spirits, Wines or 
 Teas, when there are any on board to be delivered 
 in different districts. 
 
 The want of such report from the surveyor or 
 inspector subjects the Spirits, Wines and Teas to 
 forfeiture and a penalty upon the master of $500. f 
 American vessels arriving from foreign ports may 
 put on their manifests either the whole or a part of 
 their cargo, as destined for a foreign port. Such 
 parts as are thus destined they will not be obliged 
 to land in the United States, nor to secure the du- 
 * Act 2d March, 1799, Sec. 33. flbid. 35. 
 
 4 
 
38 
 
 FOREIGN TRADE. 
 
 ties thereon ; but bonds must be given for the land- 
 ing them abroad, the same as debenture goods. * 
 Letters. Masters of American vessels are re- 
 quired to deposit their letters at the post office 
 previous to entry at the custom house. f 
 
 They are also required, under a penalty of $100. 
 to declare on oath whether any seamen have been 
 impressed in the course of the voyage, and the 
 course they took thereupon. 
 
 For all goods not included in the manifest, or 
 imported without a manifest, the master forfeits a 
 sum equal to their value; and all merchandise not 
 included in such manifest, belonging or consigned 
 to the master, mate, officer or crew, is forfeited, 
 unless it is made to appear to the satisfaction of the 
 collector, naval officer, and surveyor, or the ma- 
 jor part of them, or to a court on trial, that no part 
 was unshipped, except what was mentioned in the 
 report of the master, or that the manifest has been 
 lost, or mislaid, without fraud, or defaced by acci- 
 dent, or incorrect by mistake. J 
 
 Neglect to Enter. When a vessel has arrived 
 within any district in the United States, from any 
 foreign port, the master must not depart, or attempt 
 to depart from the same, (unless to some more in- 
 terior port, or by stress of weather, or pursuit of 
 enemies,) before report and entry with the collec- 
 
 * Act 2d March, 1799, Sec. 32. 
 f Act 3d M-arch, 1S25, Sec. 17. 
 t Act 2d March, 1799, Sec. 23. 
 
FOREIGN TRADE. 
 
 39 
 
 tor. If the master neglects to enter as aforesaid 
 he forfeits $400. 
 
 Masters of vessels arriving from foreign ports 
 must report their arrival within twenty-four hours 
 thereafter to the collector of the port, (if the hours 
 of business at the office of the chief officer of the 
 customs at such port will permit;) and within 
 forty-eight hours after he must make a further re- 
 port in writing to the collector; which report must 
 be in the form, and contain all the particulars, re- 
 quired to be inserted in the manifest.* 
 
 If the master or commander neglects to make 
 such report he forfeits the sum of $100. 
 
 Masters of vessels, employed by any prince, or 
 state, as public packets, and forbidden by law to be 
 engaged in the transportation of goods in the way 
 of trade, are not required to make such report or 
 entry, f 
 
 Every master of a vessel arriving from any for- 
 eign port, or place, having on board Spirits, Wines 
 or Teas, intended to be transported from one to an- 
 other port, must obtain from the inspector of the 
 customs for that port, a certificate of the quantity 
 and particulars of the Spirits, Wines and Teas dis- 
 charged at that port, and also the quantity and 
 particulars of those that are to be carried forward ; 
 and the master is bound to produce his certificate 
 at the next port he enters within twenty-four hours 
 after such entry, and deliver the same to the col- 
 * Act 2d March, 1799, Sec. 30. 
 
 f Ibid. Sec. 31. 
 
40 
 
 FOREIGN TRADE. 
 
 lector, or inspector of the port ; and in case he 
 neglects so to do he forfeits the sum of $500. 
 
 The master forfeits $500 in case any package 
 reported in the manifest be not found on board, or 
 in case there be any disagreement between the 
 merchandise on board and the report of the same : 
 unless he can prove to the satisfaction of the col- 
 lector and naval officer of the port, or when on 
 trial, to the satisfaction of the court, that no part of 
 the merchandise of said ship has been unladen 
 since it was taken on board, except as specified in 
 the manifest, or that the disagreement is by acci- 
 dent or mistake. 
 
 In every such case the master must make a post 
 entry of any and all merchandise omitted to be re- 
 ported in such manifest. No permit can be grant- 
 ed to unlade any such merchandise so omitted, 
 before such post entry has been made. 
 
 The master or any other person having command 
 of any vessel, having distilled Spirits or Wines on 
 board, within forty-eight hours after arrival, must 
 make a report in writing to the surveyor or inspec- 
 tor of the revenue of the port, under the penalty 
 of $500, and the loss of the spirits so omitted. 
 
 Goods remaining on board after the expiration of 
 fifteen working days, (or twenty days where the 
 vessel is of more than 300 tons burthen, and from 
 a foreign port,) from the day of the report of the 
 master to the collector, made upon his arrrival, 
 (other than those reported for some other district, 
 
FOREIGN TRADE. 
 
 41 
 
 or some foreign port,) the inspector must take pos- 
 session of. 
 
 Regulation for clearing Vessels. 
 
 The master of any vessel bound to a foreign 
 port, must deliver to the collector a manifest of all 
 the cargo on board, and the value thereof, by him 
 subscribed, and swear or affirm to the truth there- 
 of. Thereupon the collector grants a clearance 
 for such vessel and her cargo, without specifying 
 the particulars in such clearance unless required by 
 the master. If any vessel depart on her foreign 
 voyage without delivering such manifest and ob- 
 taining a clearance, the master forfeits $500.* 
 
 Before a clearance can be granted for any vessel 
 bound to a foreign port, the owners, shippers or 
 consignees of the cargo on board, must deliver to 
 the collector manifests of the cargo, or the parts 
 thereof shipped by them respectively, and verify 
 the same by oath or affirmation. 
 
 Such manifests might specify the kind and quan- 
 tities of the articles shipped by them respectively, 
 and the value of the total quantity of. each kind 
 of article. They must also, together with the 
 master, before a clearance can be granted, state 
 upon oath or affirmation to the collector, the foreign 
 place or county in which such cargo is truly in- 
 tended to be landed.f 
 
 * Act 2d March, 1799", sec. 3. Seeformof report in appendix, (A . ) 
 
 f Act 10th Feb. 1820, Sec. 11. 
 
 4* 
 
42 
 
 COASTING TRADE, 
 
 CHAPTER Y. 
 
 REGULATIONS CONCERNING VESSELS IN THE COAST- 
 ING TRADE. 
 
 Vessels owned by citizens of the United States, 
 and engaged in the coasting trade, must be enroll- 
 ed and licensed for that trade, or in case they are 
 not so enrolled and licensed, pay a tonnage duty of 
 fifty cents per ton, to be exacted once a year. 
 In this trade it is required in all cases, that the 
 master be an American citizen, and if such vessel 
 be carrying on trade beyond the limits of their own 
 and neighboring states, then three-fourths of the 
 crew, at least, must be “American citizens, or per- 
 sons not the subjects of any foreign power or 
 state.” 
 
 Change of Master. When the master of a 
 licensed vessel is changed, such change must be 
 reported to the collector of the port where the 
 change is made ; and if there be none, then at the 
 port where the vessel may next arrive. The col- 
 lector upon proof of the citizenship of the new 
 master, and upon his taking an oath not to defraud 
 the revenue, endorses the change upon the license.* 
 
 Any revenue officer may require the enrollment 
 or license to be produced at any time ; and the re- 
 
 *Act 18th Feb. 1793, Sec. 12. 
 
COASTING TRADE- 
 
 43 
 
 fusal to exhibit the same, subjects the master to a 
 fine of $100.* 
 
 Vessels without license forfeited, for what. Any 
 vessel engaged in the coasting trade, and sailing 
 without a license, having on board any articles of 
 foreign growth or manufacture, or distilled spirits, 
 other than sea stores, she, together with her tackle, 
 apparel, furniture and lading, found on board, are 
 forfeited. 
 
 When license expires at sea. But if a licensed 
 vessel be at sea at the expiration of the time for 
 which the license was given, and the master make 
 oath that such was the case ; and also, within forty- 
 eight hours after the arrival, deliver to the collector 
 of the district in which he first arrives, the license 
 which has expired, then the vessel is not forfeited 
 nor liable to pay fees and tonnage. f 
 
 Alien vessels cannot sail coastwise, except. No 
 goods can be transported, under a penalty of forfeit- 
 ure of the same, from one to another port of the 
 United States in a vessel belonging wholly or in 
 part to a subject of any foreign power ; but such 
 vessel may sail from one to another such port, car- 
 rying such goods only as were imported in her from 
 some foreign port, and which have not been unladen. f 
 Registered vessels may be enrolled upon the 
 registry being given up, and so enrolled vessels 
 may in like manner be registered. 
 
 *Act 18tli Feb. 1793, Sec. 13. flbid. Sec. 6. 
 
 t Act 1st March, 1817, Sec. 4. 
 
44 
 
 COASTING TRADE. 
 
 Change of Registry to Enrollment. When 
 any vessel is in a district other than that to which 
 she belongs, and the master is desirous to change 
 her registry to an enrollment, or her enrollment to a 
 registry, he can apply to, and obtain the desired 
 change by giving bonds as required by law. — The 
 master negotiating the exchange must, however, 
 within ten days after her arrival in the port to 
 which she belongs, surrender such register or en- 
 rollment to the collector to be by him cancelled. 
 If the master neglects to deliver such register with- 
 in the time specified, he forfeits $100. # 
 
 Bond token license is granted. 1. In order to the 
 licensing of any vessel for carrying on the coasting 
 trade, or fisheries, the husband, together with the 
 master, with one or more sureties, to the satisfac- 
 tion of the Collector, must become bound to pay 
 to the United States, if she be of the burthen of 
 five tons and less than twenty tons, the sum of 
 $100 ; if twenty tons, and not exceeding thirty 
 tons, the sum of $200; and if above thirty tons 
 and not exceeding sixty tons, the sum of five hun- 
 dred dollars ; and if above sixty tons the sum of 
 one thousand dollars — in case it appears within two 
 years from the date of the bond, that she has been 
 employed in trade whereby the revenue of the 
 United States has been defrauded, during the time 
 the license remained in force ; and the master must 
 also wear thnt he is an American citizen, and that 
 
 *Act 18th Feb. 1829, Sec. 3. 
 
COASTING TRADE. 
 
 45 
 
 the license shall not be used for any other vessel, 
 or any other employment than for which it is spe- 
 cially granted, or in any trade whereby the revenue 
 may be defrauded ; and if the vessel be less than 
 twenty tons burthen, her husband must swear that 
 she belongs wholly to a citizen or citizens of the Uni- 
 ted States ; whereupon the collector of the district 
 whereto such vessel may belong (the duty of six 
 cents per ton being first paid) must grant a license 
 in the form directed by law, for carrying on the 
 coasting trade, whale fishery, cod fishery, or mack- 
 erel fishery.* 
 
 Steamboats intended to ply only in a river or 
 bay of the United States, may be enrolled and 
 licensed and no oath is required that she be wholly 
 owned by a citizen or citizens of the United States. 
 
 Change of Master must be reported. When 
 the master of any licensed vessel is changed, the 
 new master, or in case of his absence, an owner 
 must report such change to the collector residing 
 at the port where the same may happen, if there 
 be one, otherwise to the collector residing at any 
 port where such vessel may arrive, who. upon the 
 oath of such master, or in case of his absence, of 
 an owner, that he is a citizen of the United States, 
 and that he will not, while such license is in force, 
 be employed in any manner whereby the revenue 
 may be defrauded, shall indorse such change on 
 the license with the name of the new master. 
 
 *Act 18th Feb. 1793, Sec. 4. 
 
46 
 
 COASTING TRADE. 
 
 Without such notice of change and endorsement 
 thereon, the vessel becomes liable to be assessed 
 upon as a registered vessel and the new master to 
 a fine of ten dollars. 
 
 Master must report account of Seamen. Before 
 any vesssel, whose enrollment or license for carry- 
 ing on the coasting trade has expired, can get a 
 new enrollment, the master must render a true ac- 
 count of the number of seamen, and the time they 
 have severally been employed on board during the 
 continuance of the expired license, and must pay 
 to the collector twenty cents per month for every 
 month such seamen have been so severally employ- 
 ed, which sum the master may detain from the 
 wages of such seamen. 
 
 If the master renders a false account, he forfeits, 
 and is liable to pay, the sum of $100.* 
 
 Surrender of License. The license granted to 
 any vessel must be given up to the Collector of the 
 district who granted the same, within three days 
 after the expiration of the time for which it \vas 
 granted, in case she be then within the district ; or. 
 if she be absent at that time, within three days 
 from her first arrival within the district afterwards ; 
 or if she be sold out of the district, within three 
 days after the arrival of the master within any dis- 
 trict, to the Collector of such district, taking his 
 certificate therefor. 
 
 If the master neglects or refuses to deliver up 
 
 # Act 16th. July, 1798, Sec. 2. 
 
COASTING TRADE. 
 
 47 
 
 the license as above, he forfeits $50. The mas- 
 ter, however, is not liable to the penalty if he has 
 previously given the same up to some other Collec- 
 tor, or if it be lost, mislaid, or destroyed. 
 
 May trade coastwise , without entering or clearing. 
 
 Licensed coasters of twenty tons burthen and 
 upwards, may carry on such trade within the lim- 
 its of either the three great districts, without being 
 obliged to clear or enter at the Custom House, pro- 
 vided they have not on board 
 
 Distilled spirits in casks exceeding 
 
 500 galls. 
 
 Wine in do. 
 
 do. 
 
 250 do. 
 
 Wine in bottles 
 
 do. 
 
 100 doz. 
 
 Sugar in casks or boxes 
 
 do. 
 
 3000 lbs. 
 
 Tea in chests or boxes 
 
 do. 
 
 500 do. 
 
 Coffee in casks or bags 
 
 do. 
 
 1000 do. 
 
 Of foreign goods, in packages, as imported, exceed- 
 ing $400, or goods of foreign growth or manufac- 
 ture, or both, whose aggregate value exceeds $800. 
 
 Must make a Report. A master of a vessel laden 
 with spirits, &c., as above, must make a report or 
 manifest of the cargo, taken on board at the port of 
 lading, and have the same certified by the Collec- 
 tor ; and this manifest, previously to his unlading 
 any part of the cargo, must be delivered to the Col- 
 lector of the port of unlading, if any such resides 
 within five miles of the same ; if not, the master 
 may proceed to discharge his cargo, but must de- 
 
48 
 
 COASTING TRADE. 
 
 liver to the collector or surveyor of the next port, 
 within twenty-four hours after his arrival at the 
 same, the said manifest, and make oath to the truth 
 of the same. 
 
 The Great Coasting Districts . For the more 
 convenient regulation of the coasting trade, the sea 
 coast and navigable rivers of the United States are 
 divided into three great districts; the first includes 
 all the districts on the sea coast and navigable riv- 
 ers, between the eastern rivers of the United States 
 and the southern limits of Georgia; the second, all 
 the districts on the sea coast and navigable rivers, 
 between the river Perdido and the western limits 
 of the United States; and the third, all the ports, 
 harbors, sea coast, and navigable rivers between 
 the southern limits of Georgia and the river Perdido.* 
 Every vessel, of the burthen of twenty tons or 
 upwards, licensed to trade between the different 
 districts of the United States, may carry on such 
 trade between the districts included within the 
 great districts respectively, and between a state in 
 one and an adjoining state in another great district, 
 in manner and subject only to the regulations that 
 are now by law required to be observed by such 
 vessels in trading from one district to another in 
 the same state, or from a district in one state to a 
 district in the next adjoining state. f 
 
 Every vessel of the burthen of twenty tons or 
 
 * Act, March 2, 1819, Sec. 1 — May 7, 1822, Sec. 11. 
 t Ibid. Sec. 2. 
 
COASTING TRADE. 
 
 49 
 
 upwards, licensed so to trade, must, in trading from 
 one to another great district, other than between a 
 state in one and an adjoining state in another great 
 district, conform to and observe the regulations that 
 are required to be observed by such vessels in 
 trading from a district in one state to a district in 
 any other than an adjoining state. 
 
 Manifest of the Cargo. The master of any 
 vessel licensed for carrying on the coasting trade, 
 bound from one great district in the United States 
 to another great district, must make and deliver to 
 the collector of the port from which he is to de- 
 part, duplicate manifests of all the cargo on board, 
 or, if there be no cargo, he must so certify; and if 
 there be any distilled spirits or goods of foreign 
 growth or manufacture on board, other than sea 
 stores, the master must specify in such manifest, 
 particularly, the marks and numbers of every box, 
 bag, cask, chest or package, containing the same, 
 with the name and place of residence of every ship- 
 per and consignee of such distilled spirits or goods 
 of foreign growth or manufacture, and the quantity 
 shipped by and to each, and swear, that such goods 
 of foreign growth or manufacture, loere, to the best 
 of his knowledge and belief, legally imported, and 
 the duties thereupon paid or secured, or if spirits 
 distilled within the United States, that the duties 
 thereupon have been duly paid or secured. If the 
 master depart from the port of lading, with distilled 
 spirits or goods of foreign growth or manufacture 
 5 
 
50 
 
 COASTING TRADE. 
 
 on board, without complying with the several 
 things enjoined as above, he forfeits one hundred 
 dollars, and if he depart without any cargo, or with 
 a cargo of goods of the growth or manufacture of 
 the United States only, and neglects to deliver to 
 the collector of the port the manifests as above, he 
 forfeits fifty dollars .* 
 
 The master of any vessel, laden as above, at the 
 port of arrival and delivery, must deliver to the 
 collector or surveyor of the port, within twenty- 
 four hours after arrival, if such reside within five 
 miles, and if at a greater distance, within forty- 
 eight hours next after his arrival, and previous to 
 the unlading of any of the goods brought in such 
 vessel, the manifest of the cargo, certified by the 
 collector or surveyor of the district from whence 
 she last sailed. If a part of the distilled spirits, or 
 goods of foreign growth or manufacture are to be 
 landed, the master must get the collector or sur- 
 veyor of the port where the same is lauded, to cer- 
 tify the same upon the back of the manifest, speci- 
 fying the articles to be landed. If the master neg- 
 lect to comply with the above stipulations, he for- 
 feits $100, — and if he land the distilled spirits, or 
 goods of foreign growth or manufacture, without 
 the certificate and permit of the collector or sur- 
 veyor as above, the same are forfeited ; and if the 
 same amount to eight hundred dollars, the vessel 
 with her tackle, apparel, and furniture are forfeited. | 
 * Act 18th Feb. 1793, sec. 17. t Ibid. 
 
COASTING TRADE. 
 
 51 
 
 The master of a coasting vessel is, at all times, 
 bound to have a manifest of the cargo that is laden 
 on board, whether it is of a nature to require him 
 to enter and clear or not ; and on failure thereof, if 
 the lading of such vessel consists only of goods, 
 the produce and manufacture of the United States, 
 (distilled spirits excepted) he is subject to a fine of 
 $20. If there be distilled spirits, or goods, wares, 
 or merchandise of foreign growth or manufacture 
 he is subject to a fine of $40 ; if he refuses to i n- 
 form any officer of the custom from whence such 
 vessel last sailed, and how long she has been in 
 port., he is subject to a fine of $100 ; and if any of 
 the goods laden on board such vessel, belonging to 
 the master, owner, or mariner, be of foreign growth 
 or manufacture, or spirits distilled within the Uni- 
 ted States, so much of the same as are found on 
 board, not included in the manifest, are forfeited. 
 
 If any goods of foreign growth or manufacture 
 be found on board a coasting vessel, on which the 
 duties have not been paid or secured, they are for- 
 feited.* 
 
 Port of Necessity. Upon putting into a port, 
 other than the port of destination, the master must, 
 within twenty-four hours after arrival, report to an 
 officer of the customs, if any reside there, the arri- 
 val of the vessel, the names of the places he came 
 from, and where bound, with an account of his 
 cargo. Penalty for neglect, $20. f 
 * Act 18th Feb. 1793, sec. 18. 
 
 f Ibid sec. 22. 
 
52 
 
 COASTING TRADE. 
 
 Fishing Vessels. If vessels, licensed for the 
 fisheries, are found within three leagues of the 
 coast with foreign goods on board exceeding $>500 
 in value, without a permit, they are liable to seiz- 
 ure, with the foreign goods. 
 
 Vessel hound to a port within the same or an 
 adjoining Stale, Where licensed vessels, bound 
 to a district in the same or an adjoining State have 
 on board goods of domestic produce or manufacture 
 
 only, or, 
 
 Distilled spirits not more than 500 galls. 
 
 Wine in casks <! “ “ 250 “ 
 
 Wine in bottles “ “ “ 100 dozen 
 
 Sugar in casks or boxes “ 3000 lbs. 
 
 Tea in chests or boxes “ 500 “ 
 
 Coffee in casks or bags “ 1000 “ 
 
 or foreign merchandise in packages of not more 
 than $400 in value, or goods of foreign growth or 
 manufacture, or of both, whose aggregate value 
 shall not be more than $>SOO, the master need not 
 deliver a manifest thereof or obtain a permit pre- 
 vious to her departure, or on her arrival make any 
 report • but such master must be provided with a 
 manifest, by him subscribed, of the lading which 
 was on board at the time of his departure from the 
 district from which she last sailed; and if the same 
 or any part consists of distilled spirits, or goods of 
 foreign growth or manufacture, with the marks and 
 numbers of each cask, bag, box, chest, or package 
 containing the same, with the name of the shipper 
 
COASTING TRADE. 
 
 53 
 
 or consignee of each, such manifest must be by 
 him exhibited, for the inspection of any officer of 
 the revenue, when thereunto required. He must 
 also inform such officer from whence such vessel 
 last sailed, and how long she has been in port. If 
 the master be not provided, on his arrival, with a 
 manifest and exhibit the same when required, if 
 the lading consists wholly of goods the produce 
 or manufacture of the United States, (distilled 
 spirits excepted,) he forfeits $20; or if there be 
 distilled spirits or goods of foreign growth or manu- 
 facture on board, excepting sea stores, he forfeits 
 $40; or if he refuse to answer the interrogatories 
 truly, he forfeits $I00. # 
 
 If any of the goods, not included in the manifest, 
 are of foreign growth or manufacture, or of spirits 
 distilled within the United States, so much thereof 
 are forfeited to the United States. f 
 
 Loss of Manifest. If the master of a licensed 
 coasting vessel, as above, has mislaid or lost the 
 certified manifest before mentioned, or the permit 
 that was given therefor, he cannot land the cargo 
 laden on board until bonds be given to secure 
 the payment of the duty upon all such parts of the 
 cargo as are of foreign growth or manufacture, or of 
 spirits distilled within six months, in the same 
 manner as if they were imported from a foreign 
 country. Such bond is cancelled by the master’s 
 either recovering the lost manifest, or by procu- 
 * Act 18ih Feb. 1793, Sec. 18. t Ibid. Sec. 18. 
 
 *5 
 
54 
 
 COASTING TRADE. 
 
 ring a certificate from the collector of the port 
 from whence the cargo was shipped, that such 
 goods were legally exported in such vessel.* 
 
 Alien vessels. The master of a foreign vessel, 
 bound from a district in the United States to any 
 other district within the same, must, previous to 
 her departure, deliver to the collector duplicate 
 manifests of the lading on board, or if there be 
 none, he must so declare ; and to the truth of such 
 manifests, or declaration, he must swear, or affirm; 
 and also, obtain a permit from the collector authori- 
 zing him to proceed to his place of destination 
 The master of every such vessel on his arrival 
 within any district from any other district, must, 
 within forty-eight hours after his arrival, and pre- 
 vious to unlading any goods, deliver to the collec- 
 tor of the district a manifest of the goods on board, 
 or if in ballast only, he must so declare, and to the 
 truth of which manifest he must swear or affirm; 
 and also, that such manifest contains an account of 
 all the goods which were on board of the vessel at 
 that time, or have been since her departure from 
 the place whence she sailed. 
 
 He must also deliver to the collector the permit 
 which was given him by the collector of the dis- 
 trict. If the master neglects so to do, he forfeits 
 $100. 
 
 *Act 18th Feb. 1793, Sec. 23. 
 
 flbid Sec. 24. 
 
FISHERY. 
 
 55 
 
 CHAPTER VI. 
 
 OF VESSELS ENGAGED IN THE FISHERY. 
 
 Government allows a bounty to vessels of the 
 burthen of five tons and upwards, which are engaged 
 in the bank and other cod fisheries. This bounty 
 was, among other things, undoubtedly intended as 
 an inducement to capitalists, to provide suitable 
 vessels for carrying on this very useful, and now 
 highly prosperous, line of business. The policy 
 and wisdom of the measure, it is now too late to 
 question. Under its influence our fisheries have 
 become very important, not only as furnishing em- 
 ployment to a large class of hardy, industrious citi- 
 zens, but as a means of individual and national 
 wealth. Every year witnesses its rising impor- 
 tance. 
 
 This bounty is paid to them on the last day in 
 December of each year. It is paid hy the collec- 
 tor of the port where the vessel belongs. The 
 vessel to be entitled to bounty, must be engaged 
 at least four months in the bank and other cod 
 fishery, and that, too, in the fishing season, which 
 is between the last days of February and of 
 November in each year. A vessel of the burthen 
 of five and more tons, and not exceeding thirty, 
 receives $3,50 per ton for each ton of her measure- 
 
56 
 
 FISHERY. 
 
 ment as ascertained by her enrollment. If the ves- 
 sel is over thirty tons in burthen, the bounty is $4 
 per ton. If, however, this latter class of vessels, or 
 any one of them, have on board a crew of not less 
 than ten persons, and have actually been employed 
 in the cod fishery at sea, for the term of three and one 
 half months , but less than four months of such 
 season, the owner thereof is entitled to a bounty of 
 $3,50 per ton.* 
 
 No vessel, however, can receive an allowance for 
 bounty to a greater amount than $360 for any one 
 year. 
 
 When the vessel exceeds twenty tons in burthen, 
 the owner is entitled to retain three-eights of the sum 
 so received as bounty, and the other five-eights he 
 must destribute among the several fishermen that 
 have been employed, during the fishing season, on 
 board ; each fisherman drawing his share of the 
 sum, so remaining, in exact proportion as his share 
 of the fish caught, bears to the whole amount of 
 fish caught by the whole crew.f 
 
 For example, suppose $100 remains to be divi- 
 ded in that manner among a crew of five persons, 
 having unequal claims. A. having caught 10 bbls. 
 B. 13 bbls., C. 17 bbls., D. 20, and E. only 
 54 bbls. — Total 654 bbls. As the 654 bbls., is to 
 10 bbls. A’s part, so is the $100, the fund to be divi- 
 ded, to A’s proportion of said fund. The product is 
 A’s part. B. C. D. and E’s proportions may then 
 be obtained in the same manner. 
 
 ♦Act July 29, J813, Sec. 5. f Ibid. 
 
FISHERY. 
 
 57 
 
 Previous to receiving such bounty, the owner of 
 the vessel, if she be of twenty tons and upwards, 
 must produce to the collector, authorized to pay 
 the same, the origina agreement made with the 
 fishermen employed on board, and a certificate sub- 
 scribed by him, setting forth the particular days on 
 which such vessel sailed and returned. 
 
 If the master of any fishing vessel, of twenty tons 
 and upwards, neglects to enter into a written or 
 printed agreement with the fishermen employed on 
 board, the vessel will not be entitled to bounty. 
 
 Fishing vessels of more than five and less than 
 twenty tons burthen are entitled to a bounty, as be- 
 foresaid, of $3,50 per ton, on condition that they land 
 in the course of the preceding season a quantity of 
 fish, not less than twelve quintals for every ton of 
 their admeasurement. The weight is to be ascer- 
 tained when dried and cured fit for exportation. 
 
 This bounty, when thus received, is to be ac- 
 counted for as a part of the proceeds of the fares 
 of such vessel, and distributed among those em- 
 ployed on board accordingly. An account of the 
 weight, with the original adjustment of the fares 
 among the owners and fishermen, together with a 
 written account of the length, breadth, and depth 
 of such boat, and the time she has actually been 
 employed in the fishery, in the preceding season, 
 must, in all cases, be produced and sworn to before 
 the collector, in order to entitle the owner to 
 an allowance of bounty. 
 
58 
 
 FISHERY. 
 
 If any fraud is made use of in the procurement 
 of the bounty, the vessel is liable to be forfeited if 
 found within the district to which she belongs, 
 within one year from the time payment was made. 
 Otherwise the owner, having practiced such deceit, 
 must forfeit and pay $100. False declarations 
 under this act are deemed and punished as perjury. 
 
 When a fishing vessel has completed her fishing 
 term and has thereby become entitled to bounty, 
 and afterwards, on her passage home, is wrecked or 
 lost, her owner and crew may, on satisfactory 
 proof being furnished to the comptroler of the treas- 
 ury, of the wreck or loss of such vessel, be enti- 
 tled to the same bounty as would have been allow- 
 ed had no loss taken place. 
 
 The officers, and three-fourths of the crew, at 
 least, of every fishing vessel must be American 
 citizens, or persons not the subjects of any foreign 
 prince or state. 
 
 The master, or skipper, of any vessel of the 
 burthen of twenty tons or upwards, engaged in the 
 bank and cod fisheries, bound from a port of the 
 United States, to be engaged in such fishery, at sea, 
 must, before proceeding on such, voyage, make an 
 agreement in writing, or print, with every fisher- 
 man employed therein, (except only an apprentice, 
 or servant, of himself, or owner) and in addition to 
 such term of shipment as may be agreed on, must, 
 in such agreement, express whether the service is 
 to continue for one voyage, or for the fishing sea- 
 
FISHERY. 
 
 59 
 
 son. It must also be expressed in such agreement, 
 that the fish, or the proceeds of such fishing voy- 
 age, which may belong to the fishermen, shall be 
 divided among them in proportion to the quantities 
 or number of fish which they may have respec- 
 tively caught. This agreement must be endorsed, 
 or countersigned, by the owner of such fishing 
 vessel, or his agent.* 
 
 Fishermen, who have engaged for the voyage, 
 or for the season, and signed the articles, and after- 
 wards have deserted from the vessel while the 
 agreement remained in force, are liable to the same 
 forfeitures, and penalties as deserting seamen and 
 mariners. They may, also, upon like complaint 
 and proof, be apprehended and detained in the 
 same manner. All costs of commitment and of pro- 
 cess, if paid by the master, may be deducted out 
 of the share of such deserting seamen. 
 
 If any fisherman, shipped as above, refuse, or 
 neglect to do his proper duty on board the fishing 
 vessel, when ordered thereto by the master ; or 
 otherwise resist his just and lawful authority, to 
 the detriment of such voyage, he forfeits to the use 
 of the owner of such vessel, his share of the pub- 
 lic allowance, or bounty, which he otherwise might 
 have been entitled to. He, also, is liable for the 
 damage which may ensue from such disobedience. f 
 
 *Act 19 June 1813, Sec. 1. 
 
 f Ibid. 
 
60 
 
 FISHERY. 
 
 Where the fishermen deliver their fish to the 
 owner of the vessel, or his agent, for the purpose 
 of having them cured by him, and such owner, or 
 agent, sell, or otherwise dispose of them to the 
 injury of such fishermen, the vessel is answerable 
 for their respective shares for six months after their 
 sale. It is recoverable in the same manner as sea- 
 men’s wages.* 
 
 The owner, or his agent, must produce a just 
 account of the sales and division of the fish taken, 
 according to such agreement ; otherwise the vessel 
 is answerable for what may be the highest value of 
 the share, or shares, demanded. The owner, how- 
 ever, may always offset any demands he may have 
 against any of the fishermen employed on board of 
 his vessel, for supplies furnished them for the pur- 
 poses of the voyage. f 
 
 Convention with Great Rritian respecting fishing 
 grounds. By a convention entered into between 
 the United States and the British government, 
 Oct. 20, 1818, it is agreed that the inhabitants of 
 these United States may have in common with 
 British subjects, liberty to take fish of every kind 
 on that part of the southern coast of Newfoundland, 
 which extends from cape Ray to the Rameau 
 islands ; on the western and northern coast of 
 Newfoundland from the said cape Ray to the 
 Quirpon islands ; on the shores of the Magdalen 
 islands; and also on the coasts, bays, harbors, and 
 *Act 19 June 1813, Sec. 2. f Ibid. Sec. 2. 
 
FISHERY. 
 
 61 
 
 creeks, from mount Joly , on the southern coast of 
 Labrador, to and through the straits of Bellisle, 
 and thence northwardly, indefinitely, along the 
 coast. This grant, however, is not to prejudice any 
 of the exclusive privileges possessed by the Hud- 
 son Bay Company. The American fishermen, also, 
 have a right to dry and cure fish in any of the 
 unsettled bays, harbors, and creeks of the southern 
 part of the coast of Newfoundland, above described, 
 and of the coast of Labrador. When any part of 
 the coast becomes settled, the fishermen must first 
 obtain the permission of the owners of the land. 
 The American fishermen have permission to enter 
 any of the bays or harbors in the British dominions 
 for the purpose of shelter, and of repairing damages 
 therein, of purchasing wood, and of obtaining 
 water, and for no other purpose whatever. 
 
 6 
 
62 
 
 SHIP OWNERS 
 
 CHAPTER YII. 
 
 SHIP OWNERS. 
 
 Who are liable as owners. 
 
 The owner of the ship is, in all cases, personally 
 liable for necessaries furnished, and repairs made, 
 by order of the master.* Tt is not, however, al- 
 ways a matter easily to be determined who is the 
 owner. The ownership in relation to this subject 
 is not determined by the register : nor will a regular 
 bill of sale of the property, in all cases, exem; t the 
 former owner from responsibility for supplies fur- 
 nished. f 
 
 Hence the mortagagee of a ship, who merely 
 holds the legal title for his security, and neither 
 appoints her commander, nor participates in the 
 profits of the adventure, is not liable as owner on 
 the contracts, or for the conduct of the master.t 
 But if the mortgagee of a ship appoints her mas- 
 ter and crew, and the vessel is employed in his 
 service, he then is responsible for the contracts and 
 conduct of the master. The question is, to whom 
 was the credit given : and if the mortgagee has, by 
 his own acts, held himself out as owner, so that the 
 
 # 4 Barnw. & Aid. 352. f 7 Jolm. 30S, 15 John. 298. 7 Coweus, 
 R. 697. | 8 John. R. 159, 15 Mass. R. 477, 6 Greenleaf. 474. 
 
SHIF OWNERS. 
 
 63 
 
 creditor may have fairly been presumed to have 
 parted with his property on the strength of the 
 credit of the mortgagee, he is responsible. 
 
 Charterer. The charterer of a vessel, for a cer- 
 tain period or voyage, and who appoints her com- 
 mander and crew, is considered the owner for that 
 period or voyage, and is therefore liable for neces- 
 saries furnished on the order of the master for the 
 use of the ship. 
 
 But when, notwithstanding the charter cf the 
 vessel, the general owner retains possession, and 
 appoints her master, the charterer is not liable as 
 owner.* 
 
 The question, who is liable to third persons for 
 repairs made or necessaries furnished on the order of 
 the master, for the use of the ship, depends on the 
 inquiry, v, Tether the lender, or hirer, under a char- 
 ter party, has the possession, command, and naviga- 
 tion of the ship.* 
 
 To constitute the charterer owner for the voy- 
 age, so as to charge him, -he should have the pos- 
 session and entire control and direction'cf the ves- 
 sel ; so that the general owner, for the time being 
 woulch have no right to interfere with her manage- 
 ment. f 
 
 Lien. If the owner retains possession, and vict- 
 uals and mans the vessel, he has a lien upon the 
 cargo of the charterer shipped on board for its 
 freight. 
 
 *S Craiich R. 39. Kent, Corn’s., Vol. 3, p. 133. 15 Mass. E. 372. 
 t 4 Greenleaf, 412. 
 
64 
 
 SHIP OWNERS. 
 
 But where the charterer takes possession., and 
 navigates the ship, the general owner has no lien 
 for the freight, because he is not the carrier for 
 the voyage. 
 
 If the owner of a vessel charters her to the mas- 
 ter for a certain period of time, the master cove- 
 nanting to victual and man her at his own cost, he 
 is to be deemed the owner for that term.* 
 
 Of the rights and liabilities of part owners. 
 
 The several part owners of a ship are tenants in 
 common. Each has his distinct though undivided 
 interest ; and when one of them is appointed to 
 manage the concerns of the ship for the common 
 benefit, he is termed the ship’s husband. f 
 Part owners are never considered and treated in law 
 as partners, unless they make themselves partners 
 by some special acts of their own. One part owner 
 has no authority to dispose of a share greater than 
 he actually holds in the ship. But if, by their 
 acts, they have constituted themselves partners, 
 then any one of them can dispose of the whole 
 ship. 
 
 As the law presumes that the common possessor 
 of a valuable chattel will desire whatever is neces- 
 sary to the preservation and profitable employment 
 of the common property, part owners, on the spot, 
 
 * 8 J. R. 272. f Kent’s Corn’s, vol. 3. p. 151. 
 
SHIP OWNERS. 
 
 65 
 
 have an implied authority from the absent part 
 owners, to order, for the common concern, whatever 
 is necessary for the preservation and proper employ- 
 ment of the ship. 
 
 If, however, the credit is given exclusively to 
 the ship’s husband, or part owner, who ordered the 
 supplies, and his note is taken for the amount, the 
 creditor cannot afterwards repudiate the note and 
 call upon the other part owners for payment. By 
 taking the note, he discharges the other owners.* 
 The reverse of this has been held in New York. 
 
 Where repairs are made upon a ship by order of 
 the master, the part owners are each liable for the 
 whole expense of the repairs. So when the re- 
 pairs are ordered by the ship’s husband, or by one 
 of the' part owners in person. f 
 
 Where a part owner pays the whole bill for re- 
 pairs, or more than. his proportion/he can call upon 
 the remaining part owners for contribution. 
 
 While the ship continues to be employed by the 
 same persons, no one of them can be entitled to 
 partake of the profits until all that is due, for out- 
 fits for the voyage, repairs, &c. has been dis- 
 charged.! 
 
 In a case reported in Cowper, 469, it was more 
 than intimated that one part owner might have a 
 lien for advances made for another part owner upon 
 his share in the ship, in the same manner as jpart- 
 
 # 10 Mass. R. 47. f 16 Johnson’s, R. 89. Abbott, note, p. 76 
 f Abbott, p. 94. 
 
 6 * 
 
66 
 
 SHIP OWNERS. 
 
 ners in trade have upon each others shares of their 
 merchandise.* 
 
 While the possession of a ship is retained by the 
 person who repairs her, it is specifically chargeable 
 for repairs ; but when the possession is parted with, 
 the lien is lost.f 
 
 One part owner has no authority to effect insu- 
 rance for another part owner on his share of a ves- 
 sel, and the part owner thus insured for will not be 
 bound to pay the premium note, unless he either 
 previously directed, or subsequently assented to, 
 the insurance. J 
 
 Employment of the ship. If there be no cer- 
 tain agreement among the owners of a ship respect- 
 ing her employment, and they are unable to agree 
 upon a voyage, the court of admiralty will, upon 
 application, authorize the majority in value of the 
 part owners to employ the ship upon their own 
 account, and for their own particular benefit, first 
 giving the minority security to the value of their 
 shares, for the safe return of the vessel. 
 
 This practice of the admiralty courts is dictated 
 by the plain reason that “ ships were made to plough 
 the ocean, and not to rot by the wall.” 
 
 If the minority are in possession, and refuse to 
 give the vessel up, or to employ her. the majority 
 can obtain possession by application as above : and 
 if the majority are in possession and choose to em- 
 ploy her upon an adventure, not sanctioned by the 
 
 * 20 Johns. R. 634. -f 11 Mass. R, 34. £ Abbott, p. 76, note. 
 
SHIP OWNERS. 
 
 6? 
 
 minority, the latter can procure a warrant for the 
 arrest of the ship, and unless security is given by 
 the majority for the value of their shares, detain 
 her. 
 
 Though the admiralty courts have thus claimed 
 and exercised this very salutary jurisdiction over the 
 rights of part owners, substantially securing to each 
 the honest exercise of their right to the use of their 
 property, when consistent with the rights of others, 
 yet they have refrained from exercising any power 
 over obstinate part owners, to compel a sale by 
 them of their shares. 
 
68 
 
 ship’s husband. 
 
 CHAPTER VIII. 
 ship’s husband. 
 
 Ti-ie difficulty of administering, with unanimity, 
 the affairs of a ship belonging to many owners, 
 leads to the appointment of some person in whom 
 they all have confidence as ship's husband. Some- 
 times the ship’s husband is merclj^ an agent for 
 conducting the necessary measures on the return of 
 the ship to port : as making the proper entries at 
 the custom house from the master’s manifest ; 
 superintending the landing of the goods ; checking 
 the measurements; procuring the proper surveys of 
 damages, to avoid disputes ; seeing the freight set- 
 tled before the lien is quitted, and so forth. But 
 the appointment to which our attention is here 
 called is one of more importance. It is a more 
 general agency for conducting the affairs of the 
 vessel in place of the owners. The person so ap- 
 pointed is empowered to enter into contract for 
 furnishing; to appoint the master and seamen ; to 
 enter into charter parties ; and. generally, to act as 
 sole representative of the owner. 
 
 Who may be a ship's husband. The ship’s hus- 
 band may either be a part owner or a stranger: and 
 the authority may be conferred either by express 
 deed or commission ; or even without a written 
 
ship’s husband. 
 
 69 
 
 commission, by verbal appointment, or permitting 
 him to exercise the functions of ship’s husband, so 
 as to give him the character of accredited agent of 
 the owners. 
 
 How appointed. Where he is appointed by 
 written commission, that commission must be exe- 
 cuted by all the joint owners. It may refer gene- 
 rally to the customary powers and duties of the 
 ship’s husband ; and where special, should empower 
 the agent to regulate the appointment of the master 
 and the hire of seamen, to make contracts of fur- 
 nishing and affreightment ; to levy freights, pay 
 wages, make the necessary disbursements on ac- 
 count of the ship, and generally, to act discre- 
 tionarily for all the owners'. 
 
 It is' chiefly in case of one of the joint owners 
 taking the management, that the powers of ship’s 
 husband are constituted without written authority* 
 But both in that case, and even where a stranger 
 exercises the powers of a ship’s husband, they will 
 be bound to reimburse and recompense him ; and 
 his contracts in the proper line of a ship’s husband’s 
 duty will bind them ; provided the nomination, or 
 the accrediting of the ship’s husband, be proved. 
 
 The duties of a ship's husband are — 1. To 
 see to the proper outfit of the vessel, in the re- 
 pairs adequate to the voyage, and in the tackle and 
 furniture necessary for a sea-worthy ship. 2. To 
 have a proper master, mate and crew, for the ship, 
 so that in this respect she shall be sea-worthy. 3. 
 
70 
 
 ship’s husband. 
 
 To see to the due furnishing of provisions and 
 stores, according to the necessities of the voyage. 
 4. To see to the regularity of all the clearances 
 from the custom house, and the regularity of the 
 registry. 5. To settle the contracts, and provide 
 for the payment of the furnishings which are requi- 
 site in the performance of those duties. 6. To 
 enter into proper charter parties, or engage the ves- 
 sel for general freight, under the usual conditions ; 
 and to settle for freight and adjust averages with 
 the merchants : and 7. To preserve the proper cer- 
 tificates, surveys and documents, in case of future 
 disputes with insurers or freighters, and to keep 
 the regular books of the ship. 
 
 Power of a ship’s husband. His powers, where 
 not expressly limited, may he described as those 
 requisite to the performance of the duties above 
 enumerated. He cannot, without special powers, 
 borrow money generally for the use of the ship : 
 though he may settle the accounts of the creditors 
 for furnishings, or grant bills for them, for debts 
 against the concern, whether he has funds in his 
 hands or not with which he might have paid them. 
 He has power to receive the freight, but, it would 
 seem, he has not power to take bills for the freight, 
 or surrender up the cargo and thus destroj- the lien 
 upon it, unless it be expressly provided for in the 
 charter party, or unless he has special authority to 
 grant such indulgence. Under the general au- 
 thority of ship’s husband, he has no authority to 
 
ship’s husband. 
 
 71 
 
 insure, or to bind the owners for premiums; this 
 requiring special authority. The authority of the 
 master as to the employment, repair, or direction of 
 the ship, is superseded by the presence of the ship’s 
 husband. 
 
72 
 
 AGENTS. 
 
 CHAPTER IX. 
 
 AGENTS. 
 
 Of the duty of Agents to procure Insurance. 
 
 A very frequent and usual method of procuring 
 insurance upon vessel, freight, or cargo, is, by trans- 
 mitting an order, for such insurance to be made, to 
 some agent of the party owning the property. 
 That these orders, thus forwarded, should be 
 promptly executed, is often of the greatest mo- 
 ment. It becomes, then, a proper subject of inqui- 
 ry, how far the person selected to act as agent in 
 such matter, is hound to execute the commission 
 entrusted to him. 
 
 One principle is plain, that every agent is bound 
 to execute the orders of his principal, whenever, for 
 a valuable consideration, he has undertaken to per- 
 form them. And this duty may appear from ex- 
 press agreement, or by clear implication. The 
 former does not need to be treated upon. 
 
 Who may insure. The merchant, or factor, to 
 whom the goods are consigned for him to sell, may 
 insure them, both for himself and his principal. 
 He is not, however, positively bound to insure, un- 
 less he has received orders to insure, or the usage 
 of trade, or mode of dealing between them, raises 
 an implied obligation to insure.* 
 
 * Story on Agency, p. 99. 
 
INSURANCE. 
 
 73 
 
 Whether mere naked consignees, who have the 
 goods [consigned to them without power to sell, 
 have a right to insure for themselves, or their prin- 
 cipals, is yet a question. 
 
 Who must insure. It has been before stated 
 that, where an agent has expressly contracted to 
 insure, he must insure, or suffer the damage that 
 may ensue to his principal. 
 
 It is, also, clearly settled that, where a merchant 
 abroad has effects in the hands of his correspondent 
 here, he may order him to insure ; and the corre- 
 spondent so ordered must effect the insurance as 
 directed.* 
 
 So, too, where the merchant has no effects in 
 the hands of his correspondent, yet the course of 
 dealing between them has been such that the one 
 has been used to send orders for insurance, and the 
 other to comply with them ; in such a case, the 
 former has a right to expect, that his orders for in- 
 surance will still be obeyed unless the latter gives 
 him notice to discontinue that course of dealing. f 
 
 Another is, where the merchant abroad sends 
 bills of lading to his correspondent here, and in- 
 grafts on them an order to insure ; in such a case 
 the agent is bound to obey, if he accepts them. 
 
 Another may be added, which is, where the gen- 
 eral usage of trade requires the agent to insure. J 
 
 When an agent is ordered , or bound , to procure 
 
 * Story on Agency, pp. 178 and 179. 
 
 7 
 
 t Ibid. 
 
 $ Ibid. 
 
74 
 
 INSURANCE. 
 
 insurance for his principal, and from any cause can- 
 not effect it, it seems reasonable that he should be 
 required to give, as soon as practicable, intelligence 
 of such inability, for otherwise the principal may 
 be subjected to a loss, which he could have provi- 
 ded against, by procuring insurance to be made 
 elsewhere.* 
 
 Agent bound to use due diligence. If the agent 
 is bound to procure insurance, or undertakes to do 
 it, he must use due diligence. If he procrastinates 
 and neglects to effect the insurance in a reasonable 
 time after notice to him, or undertaking by him, 
 and a loss ensue to his principal, he is liable. What 
 is a proper exercise of due diligence and skill in ob- 
 taining insurance, is, in some cases, a matter of 
 great nicety and difficulty. 
 
 On the one hand, an agent, who acts bona fide 
 in effecting an insurance for his principal, using 
 reasonable skill and diligence, is not liable to be 
 called upon, because the insurance might possibly 
 have been procured from other persons upon better 
 terms, or to include additional risks, by which the 
 principal might, in the event, have been indemni- 
 fied.! 
 
 On the other hand an agent, in a like case, is 
 bound to have inserted in the policy all the ordi- 
 nary risks and chances which are usual and proper 
 to secure the principal for the contemplated voy- 
 age-! 
 
 # Story on Agency, pp. I7S and 179. f Ibid. 179. + Ibid. 
 
AUTHORITY OF AGENTS. 
 
 75 
 
 And if he omits to have them inserted when a 
 reasonable attention to the facts stated in his orders, 
 or the nature of the voyage, or the state of the prop- 
 erty, or the objects intended, would have induced 
 other insurance agents, of reasonable skill and dili- 
 gence to have had them inserted, he will be liable, 
 in case of any loss, for his negligence.* 
 
 The same rule will apply, if such an agent neg- 
 ligently, or wilfully, conceals a material fact, 
 or affirms a false fact, whereby the policy is avoid- 
 ed ; for his duty in each case is violated. f 
 
 The agent, procuring insurance, is bound to use 
 proper diligence to ascertain whether or not the un- 
 derwriters are in good credit at the time of procur- 
 ing the policy. t 
 
 So if an agent has procured a policy and it re- 
 mains in his hands, ho is bound to apply to the un- 
 derwriters for payment of it within a reasonable 
 time ; and if a loss occurs by his neglect, he will 
 become responsible therefor. 
 
 Of the cmthority of Agents. 
 
 Of their authority to abandon property on which 
 they have procured insurance to be effected, it may 
 be said, that they have an incidental authority to 
 abandon property which is insured, to the under- 
 writers, in the case of a total loss. 
 
 * Story on Agency, p. 180. 
 $ 1 Yalin. lib. p. 33. 
 
 f Ibid. 180. 
 § 6 Cranch 268, 272. 
 
76 
 
 AUTHORITY OF AGENTS. 
 
 So an agent, to insure, has, if the policy remains 
 in his hands, an incidental authority to receive pay- 
 ment of losses thereon.* 
 
 So an agent employed to subscribe a policy for 
 the principal, has an implied authority to adjust the 
 loss upon the same policy ; and to receive payment 
 in money ; but not to receive payment in any 
 other manner. f 
 
 So an agent employed to buy a cargo for his 
 principal, if no other means or funds are provided, 
 has an incidental authority to give notes, or draw 
 and negotiate bills on his principal for the amount . % 
 
 If the agent has procured insurance for his prin- 
 cipal and paid the premium himself, and it after- 
 wards appears that the policy never attached, or 
 was void without his knowledge, he will be ena- 
 bled to recover back, in his own name, the pre- 
 mium he thus, without consideration, paid.$ 
 
 * 2 Cowp. R. 641. 
 \ 6 Louis R. 587. 
 
 f 1 Cowp. R. 43. 
 6 6 Wheat. 565. 
 
FACTORS OR CONSIGNEES. 
 
 77 
 
 CHAPTER X. 
 
 OF FACTORS OR CONSIGNEES. 
 
 The factor is most often known by the term 
 commission merchant or consignee. He is em- 
 ployed to sell goods or merchandise, consigned, or 
 delivered to him, by, or for his principal, for a com- 
 pensation, commonly called factorage or commis- 
 sion. The goods received by him for sale are 
 called a consignment. Generally the factor or con- 
 signee is a person living abroad ; or at a distance 
 from his principal. But such need not be the case 
 The relation may as well subsist between neigh- 
 bors as any others, only that the necessity for such 
 a relation between them does not often exist. 
 There are different sorts of consignees : some have 
 a power to sell, manage and dispose of the property, 
 subject only to the rights of the consigner. Others 
 have a mere naked right to take possession. 
 
 A factor is called a home factor when he resides 
 in the same state or country with the principal ; 
 and a foreign factor when he resides in a different 
 state or country. Sometimes, in voyages abroad, 
 an agent accompanies the cargo, to whom it is con- 
 signed for sale : and who is to purchase the return 
 cargo out of the proceeds. In such case the factor, 
 or consignee, is, usually, called a supercargo. 
 
 j* 
 
78 
 
 FACTORS OR CONSIGNEES. 
 
 The relation of consignor and consignee , may be 
 created by an express instrument of agreement be- 
 tween the parties, or by the mere transmission of 
 the bill of lading or invoice of the goods, with a 
 letter of instruction from the consignor to the 
 consignee. If he accepts the bill of lading or in- 
 voice, so sent, he is bound to all the duties, and 
 liable to all the obligations, of a consignee. 
 
 When the consignee undertakes, for an additional 
 compensation, to guaranty to his principal the pay- 
 ment of the debt due by the buyer, he is said to 
 receive a del credere commission. 
 
 Subject only to these special rights of the factor 
 or agent, the principal may assert his own general 
 rights over every contract of purchase and sale 
 made on his behalf in the course of the agency. 
 The principal may discharge the lien of the factor, 
 and then recover the whole of the price of the 
 purchaser, or he may recover the balance of such 
 price after deducting the amount of the agent’s 
 lien thereon. He is the legal owner of the pro- 
 ceeds of his goods in whose hands soever they 
 may be, except to the extent of the lien. The 
 purchaser, however, will be protected in making 
 payments, either to the principal, or to his agent, 
 provided no notice has been given him, restraining 
 this general right.* 
 
 The above is subject to several cjualifications. 1. 
 The principal cannot sue, or be sued, on any con- 
 * Story on Agency, 424. 
 
FACTORS OR CONSIGNEES. 
 
 79 
 
 tract made by and in the. name of his agent, where 
 the same is by an instrument under seal. 2. A 
 foreign factor, buying or selling goods, is treated, 
 between himself and the other party, as the sole 
 contracting party; and the real principal cannot 
 sue or be sued on the contract.* This latter princi- 
 ple is founded upon a well established usage of 
 trade and is strictly adhered to for the convenience 
 and safety of foreign commerce. 3. Where the 
 consignee has a demand against his principal equal 
 to, or exceeding, the amount of the goods bought 
 or sold, the principal has no right of action against 
 the purchaser, unless with the consent of the con- 
 signee.! 
 
 Consignee's right to commissions. The general 
 rule of law as to commissions is, that the whole 
 service or duty must be performed before the right 
 to any commission attaches, either ordinary or ex- 
 traordinary ; for an agent must complete the thing 
 required of him before he is entitled to charge for 
 it.J 
 
 But the right of the consignee to receive com- 
 missions at all may be defeated by some act of his 
 own, or by the character of the transaction itself. 
 Thus the consignee cannot recover commissions 
 on an illegal transaction, whether the same be posi- 
 tively prohibited by law, or by good morals, or pub- 
 lic policy. He must faithfully perform all the du- 
 ties of his agency in regard to his principal, for it 
 
 * Story on Agency, 434, 435, 456. f Ibid. 435. | Ibid. 338. 
 
80 
 
 FACTORS OR CONSIGNEES. 
 
 is a condition precedent to the title to the commis- 
 sions, that the contemplated services should he 
 fully and faithfully performed. Thus for example, 
 it is ordinarily the duty of agents to keep regular 
 accounts and vouchers of the business in the course 
 of their agency. If this is omitted, it will be con- 
 strued unfavorably to the rights of the agent. So 
 if an agent grossly misconduct himself in other 
 respects, in the course of his agency ; as if he 
 should violate his instructions; or wilfully con- 
 found his own property with that of his principal : 
 in these and like cases he might forfeit his whole 
 title to compensation, if the circumstances were 
 aggravated ; or at all events, he would be made to 
 bear all the losses sustained by such misconduct.* 
 
 A commission merchant, or consignee, may buy 
 and sell the goods of his principal in his own name , 
 as well as in the name of his principal. He has 
 entrusted to him the possession, management, con- 
 trol, and disposal of the goods to be bought or 
 sold, and has a special property in them, and a lien 
 on them.f 
 
 Where the agency is created by a written instru- 
 ment, the consignee must be governed by it, for if 
 with the hope and prospect of advantage to his 
 principal, the consignee deviates from his instruc- 
 tions, or from his contract,' and a damage ensues to 
 his principal, the consignee is liable for the loss ; 
 
 * Story on Agency, p. 340, 341. 
 
 f Ibid. 34, 98. 
 
FACTORS OR CONSIGNEES. 
 
 81 
 
 and if, on the other hand, such deviation should re- 
 sult in an advantage to his principal, the agent 
 cannot participate in that advantage. He there- 
 fore, has nothing to gain, and runs all the chances 
 of loss, if any should ensue, by such deviation. 
 
 Unless there be some special instruction to the 
 contrary, the consignee may, in all cases, sell upon 
 credit. With an auctioneer it is said to be other- 
 wise.* 
 
 Factors or consignees have no incidental authori- 
 ty to barter the goods of their principals. Nor can 
 they pledge such goods for debts due by themselves , 
 or for advances made to them on their oicn account ; 
 but they may pledge them for advances lawfully 
 made on account of their principal, or for advan- 
 ces made to themselves to the extent of their lien 
 on the goods. f 
 
 So factors may pledge the goods of their princi- 
 pal for the payment of the duties and other charg- 
 es due thereon ; and, indeed, for any other charges 
 and purposes, which are allowed or justified by 
 the usage of trade. J 
 
 The consignee has a lien upon the goods con- 
 signed to him to the extent of his claim for com- 
 missions advances and disbursements. >§> This lien 
 is not only on the goods, but upon the price in the 
 hands of the purchaser. || To this extent, the con- 
 
 * Story on Agency, p. 198. f Ibid. 101, 219, 220. 
 
 t Ibid. 100, 101. $ Ibid. 98. || Ibid. 386. 
 
82 
 
 FACTORS OR CONSIGNEES. 
 
 signee may insist upon payment from the purchaser 
 to himself, in opposition to the claims of the prin- 
 cipal.* Where, however, the factor would pre- 
 serve his claim for commissions, &c., upon the pur- 
 chase money in the hands of the purchaser, he 
 should give him notice of such claim before pay- 
 ment has been made to the principal.! 
 
 The consignee has a lien on the goods consign- 
 ed to him, and upon the proceeds of the same in 
 the hands of the purchaser, not only to the extent of 
 his commissions, advances, and disbursements upon 
 those particular goods ; but his lien upon them 
 extends to the general balance of accounts between 
 him and his principal. It extends also to all sums 
 which the consignee is liable to pay for his princi- 
 pal, as surety, or otherwise, where the liability was 
 incurred in the course of the business of the agency. 
 
 It is said in Story on Agency, (vol. 1, chap. 13, 
 p. 350,) that “ where a factor receives a del credere 
 commission upon the sale of goods, and he has 
 made advances thereon, he must be deemed by 
 that very guaranty to wave any personal recourse 
 to his principal for such advances, and to rely solely 
 on the fund for reimbursement.” This principle 
 of law, thus laid down, does not seem to be found- 
 ed upon any positive dec^ion to that effect, and its 
 soundness may well be questioned. 
 
 Story on Agency, 421. 
 
 f Ibid. 422. 
 
SHIP MASTERS. 
 
 83 
 
 CHAPTER XI. 
 
 SHIP MASTERS. 
 
 Of ship masters — The appointment of the master — His authority 
 over the seamen — His authority respecting the employment of 
 the ship — His authority to sell the ship — His authority to repair 
 the ship, &c. — His authority to hypothecate the ship — His au- 
 thority to hypothecate the cargo — His relation to the cargo — 
 The charter party — The duty of the freighter — The bill of lading 
 —The carriage of the goods — The delivery of the goods — His lia- 
 bility for bad stowage — His liability for embezzlement — The 
 payment of freight — His duty to employ a pilot — Deviation by 
 the master — Barratry of the master. 
 
 The office of the ship master is one of great 
 power, dignity, and responsibility. An old writer 
 on maritime law says the title implies “ honor, ex- 
 perience, and morals.” By some foreign ordinances 
 the master, before entering upon his duties, has 
 been required to be examined, and certified to be 
 fit, by his experience, capacity, and character, for 
 the station. Without inquiring whether the latter 
 precaution was wise and politic, it is certain that 
 the master’s station is one of commanding interest 
 to his employers, and to those placed under his 
 command. Vast and momentous interests are en- 
 trusted to his care, and to him is committed a wide 
 and extended discretion. He is entrusted by his 
 employers with their property, and often made their 
 agent for its care and disposal, in distant parts, 
 away from those checks and safeguards, which are 
 usually thrown around agents when acting for their 
 
84 
 
 SHIP MASTERS. 
 
 principals. His faithfulness needs then to be un- 
 doubted. Unforeseen perils and vicissitudes lie 
 naturally in the path of the ship master, and, there- 
 fore, to him is committed great discretionary powers. 
 Cases are always arising in which he must act 
 promptly for the good of all concerned, and that, 
 too, without having the aid of previous precedents 
 to guide his decision. He requires, then, a sound 
 and matured judgment. He needs to be able, in 
 any emergency, to look calmly at the facts, apply 
 to them maritime principles, and from them to 
 draw his conclusions as to what should be done ; 
 and not to act from mere conjecture and impulse. 
 Being entrusted with the safe conduct of the ship 
 through the many perils of tne deep, great watch- 
 fulness, prudence, and caution is required at his 
 hands. He needs, therefore, to be a man of great 
 experience and practical skill, and to possess a 
 thorough knowledge of the art of navigation. He 
 should possess great firmness of character, and 
 fearlessness under pressing dangers. He should 
 be able to dissipate fear, and inspire confidence in 
 the breasts of those around him, and be possessed 
 of the courage and presence of mind necessary to 
 meet and surmount extraordinary perils. 
 
 His authority over those on board is necessarily 
 summary, and often absolute. The character of 
 the service requires that the propriety of his com- 
 mands should not be questioned, but that instant 
 and unhesitating obedience should be promptly 
 
SHIP MASTERS. 
 
 85 
 
 yielded. The preservation of the ship, and the 
 property and lives on board, demands of the master, 
 in times of great danger, instantaneous decision 
 and desperate commands. He needs the talent 
 which shall fit him to command in the midst of 
 danger, and courage and coolness when involved 
 in fearful perils. These powers, thrown upon him 
 by necessity, require that he should be a man of 
 great magnanimity. Few men can stand the in- 
 toxication of power; — especially power like that 
 exercised by the shipmaster. He wants to be a 
 strong minded man. of good judgment, with a high 
 sense of the dignity and accountability of his sta- 
 tion, and a just regard for the rights, ease, and 
 happiness of his crew. In a word, he needs the 
 disposition to use his power, as well for the happi- 
 ness and comfort of his crew, as the preservation 
 of the property under his care. He should never 
 forget the character and hardships of the men with 
 whom he has to deal. That their waywardness 
 and foibles spring legitimately from the nature of 
 their business. That however very many of them 
 may appear in principle and action, yet they are 
 men, open hearted, generous, and free to a fault 
 That, like himself, they possess those fine feelings 
 of our nature, that smart under harshness and op- 
 presion ; that kindle with enmity over wrong ; either 
 real or imaginery, and burn with shame when dis- 
 graced before their fellows by uncalled-for correc- 
 tion. He should never permit himself to believe 
 8 
 
86 
 
 SHIP MASFERS. 
 
 that mariners are impervious to kindness, or inca- 
 pable of appreciating favors and attention. The 
 master is, by station, as well as by education and 
 intellect, their natural and proper guardian, and 
 should watch over their health and comfort with 
 parental fidelity. 
 
 The master is charged frequently with the sale 
 of the cargo and the reinvestment of the proceeds, 
 he should be fitted to snperadd the character of 
 merchant to that of commander ; and he ought to 
 to have a general knowledge of the marine law 
 and of the rights of belligerants, and of the duties 
 of neutrals, so as not to expose to unnecessary 
 hazard the persons and property under his protec- 
 tion. 
 
 OF THE APPOINTMENT OF THE MASTER. 
 
 If the ship belong to several owners, the major- 
 ity are entitled to appoint a master, and there seems 
 to be no other redress to the minority than either 
 to sell their shares, or to resort to such remedy as 
 the law gives them in case of a voyage which 
 some of them disapprove.* 
 
 The appointment of master requires no written 
 warrant of authority, or peculiar solemnity. It is 
 a contract with the owners, or with the ship’s hus- 
 band for them, and may be entered into by verbal 
 agreement. The mere employment of master, with 
 
 * Vol. 1, Bell’s Com. p. 412. 
 
SHIP MASTERS. 
 
 87 
 
 possession, is sufficient to impose on him all the 
 duties, and to vest him with all the legitimate and 
 customary powers of master.* 
 
 The master may delegate his power during the 
 voyage by naming another master; and in ques- 
 tions with third parties the master, so named, will, 
 even where the owners have prohibited the master 
 from delegating, be vested by possession of the 
 ship, and exercise of the office, with all the powers 
 of master. f 
 
 In case of the sudden death of the master, or his 
 removal by other casualty, the command of the 
 ship devolves upon the first mate, as an incident to 
 his station ; but that officer cannot claim the com- 
 mand as a right, if the master, or other authorized 
 agent of the owners, shall choose to appoint anoth- 
 er person. 
 
 In case of the death, or detention of the master 
 in a foreign port, where the owner has no author- 
 ized agent, it is customary for the consul, or con- 
 sular agent of the government of the country to 
 which the ship belongs, to appoint a successor. 
 
 The master is the confidential agent of the own- 
 ers, and has an implied authority to bind them, 
 without their knowledge, by contracts relative to 
 the usual employment of the ship. J 
 
 The master is appointed by the owner, and the 
 appointment holds him forth to the public as a per- 
 
 * Vol. 1, Bell’s Com. p. 412. 
 
 J 3 vol. Kent’s Com. 161. 
 
 f Ibid. 
 
88 
 
 SHIP MASTERS. 
 
 son worthy of trust and confidence. The master 
 is always personally bound by his contracts, and 
 the person who deals with the captain in a matter 
 relative to the usual employment of the ship, or for 
 repairs, or supplies furnished her, has a double 
 remedy. 
 
 -'The master may, however, exempt himself from 
 liability, by expressly confining the credit to the 
 owner, and stipulating against his personal liabil- 
 ity.* 
 
 The owner can dismiss the master, at any time 
 in his discretion, without being liable in damages 
 for the act. In the Scotch admiralty, it has been 
 decided that the master may be dismissed by a ma- 
 jority of the owners, although he be a joint owner 
 with them in the vessel. f 
 
 According to our admiralty decisions, if the mas- 
 ter is a part owner, and the other part owners de- 
 sire his removal, it is necessary that some special 
 reason should be assigned for dispossessing him of 
 the command. J 
 
 The master is bound to conduct himself with 
 good faith, diligence, and competent skill, and he 
 is responsible to the owners, as their agent, for his 
 conduct. 
 
 Ilis misconduct will subject him to the forfeiture 
 of his wages, if it be gross in its circumstances, 
 and attended with serious damage to the owner. 
 
 * 9 East. R. 432— 1 Term. R. 108. f 4 Eob. R. 2S7. $ Ibid. 
 
AUTHORITY OVER SEAMEN. 
 
 89 
 
 For faults of a less aggravated nature, the dam- 
 age consequent thereupon, will be a charge upon 
 his wages. 
 
 Chief Justice McKean said in a case reported in 
 1 Dali. 184, “ that it is a wrong position, that a 
 master of a ship is not answerable for any error of 
 judgment ; but only for fault of the heart, in civil 
 matters. Reasonable care, attention, prudence and 
 fidelity, are expected of him ; and if any misfor- 
 tune or mischief ensue from the want of them, 
 either in himself or his mariners, he is responsible 
 therefor in a civil action.” 
 
 If the owners are obliged to pay damages on 
 such account, they may recover the same from the 
 master.* 
 
 OF THE MASTER’S AUTHORITY OVER THE SEAMEN. 
 
 The necessities of the sea service have given 
 to the ship master, when at sea, great authority 
 over the officers and crew under his command. A 
 prompt and cheerful obedience of orders, on the 
 part of the seamen, is of the utmost importance. 
 If the crew, when on the ocean, should become 
 obstinate or indolent, and refuse to yield that 
 prompt and uncomplaining obedience which is so 
 necessary for the preservation of the ship and 
 cargo, without authority in the master to enforce 
 obedience by correction, the whole adventure may 
 * 4 Rob. R. 287. 
 
 8 * 
 
90 
 
 AUTHORITY OVER SEAMEN. 
 
 be abandoned to the mercy of the wind and 
 waves. It has, therefore, ever been the disposition 
 of maritime courts, to uphold, with a firm hand, a 
 reasonable exercise of the authority committed to 
 the master and other officers of the ship. A regu- 
 lar and healthy subordination on board, is vital to 
 the prosperity and continuance of maritime adven- 
 tures. In the progress of commercial transactions, 
 tempests are to be met and surmounted, angry 
 winds and waves are to be encountered, and over- 
 come by watchfulness, address, and skill, and rocks 
 and shoals avoided by prudence and care. The 
 master needs, then, that his whole ship’s crew 
 should be of one mind, attentive, watchful, and obe- 
 dient. Savage countries are, often, to be visited, 
 and trade carried on with persons crafty, ferocious, 
 and vindictive, and where the whole profits of the 
 voyage depend upon vigilance, industry, and ex- 
 clusive devotion to the interests of the ship. 
 
 These considerations, combined with the known 
 character of sea-faring men, have made it necessa- 
 ry that great power and authority should be placed 
 in the hands of the master. The character of sail- 
 ors is made up of contrarieties, — of frailties, and of 
 merits. We find ofteu times blending in the same 
 character, the most captivating gallantry, with the 
 most stuborn indolence. Great care and watchful- 
 ness, sometimes giving way to most censurable 
 thoughtlessness and indifference. 
 
AUTHORITY OVER SEAMEN. 
 
 91 
 
 The authority of the master, then, needs to be 
 commeasurate with the importance of the trust, the 
 dangers of the voyage, and the difficulties of the 
 service. But commeasurate with his power, is his 
 legal accountability. His power is given to ensure 
 order, not to gratify revenge ; to preserve both the 
 lives and property embarked, not to be used harshly, 
 unreasonably, or with unnecessary severity. 
 
 The master can punish only to promote good 
 discipline and compel obedience to lawful orders 
 on board of the ship. He is not clothed with judicial 
 authority to sentence seamen to punishment for 
 their offences. Therefore the master cannot con- 
 fine his seamen on shore, in a foreign port, unless 
 with an intention to take them on board again for 
 the voyage. 
 
 The master, when in a foreign port, may, in cases 
 of flagrant offences. on the part of the seamen, con- 
 fine them in gaol on shore, but will not be justified 
 when the offence is of a less serious character. 
 
 No authority to imprison seamen, for offences, is 
 given the master in a domestic port. 
 
 The master, when on board, has the sole authori- 
 ty to authorise punishment to be inflicted upon the 
 crew, and if he is present when any punishment is 
 inflicted by a subordinate officer, and can prevent 
 it, and does not, he is personally responsible for the 
 act. 
 
 When the ship is in a foreign port, and an occa- 
 sion arises calling for the punishment of any sea- 
 
92 master’s authority. 
 
 man on board, it is the master’s duty to consult the 
 consul, or consular agent of his government, if 
 such officer resides at that port, and to be govern- 
 ed by his advice in such cases. 
 
 OF THE master’s AUTHORITY RESPECTING THE EM- 
 PLOYMENT OF THE SHIP. 
 
 The master is the confidential agent of the 
 owners, and has an implied authority to bind them, 
 without their kowledge, by contracts relative to 
 the usual employment of the ship. His implied 
 authority relates to the usual employment of the 
 particular ship of which he is master. If the ship 
 be a hading ship, the master may be supposed, if 
 nothing appears to the contrary, to have a general 
 authority to charter the ship, or stipulate for the 
 carriage of goods on freight, in a foreign or distant 
 port where the owners have no agent.* 
 
 The owners are, in general, answerable for all 
 lawful contracts connected with the employment of 
 the ship for which the character and situation of 
 the masfer affords the presumption of authority. 
 If lie exceeds the authority given him, yet if there 
 be a fair presumption that he has such authority, 
 and the party contracting has no knowledge of its 
 limitation, the owners are bound by his contract. 
 Thus it is expressly laid down, that if the master 
 appoint another man to take his place, contrary to 
 # Abbott, p. 92. 
 
master’s authority. 
 
 93 
 
 the positive orders of the owners, they are yet re- 
 sponsible for the conduct of the master so appoint- 
 ed against their will.* 
 
 It has been before said, that the incidental pow- 
 ers of the master are, however, restricted to those 
 which belong to the usual employment, or business 
 of the ship. Thus, if the ordinary employment of 
 the ship has been the carrying of cargoes on the 
 sole account of the owners, the master has no im- 
 plied authority to let the ship to freight, even in a 
 foreign port. So if the ordinary employment has 
 been to take goods on board on freight, as a gene- 
 ral ship, and common carrier, the master will not 
 be presumed to possess authority to let the ship on 
 a charter party, fora special, and different business. 
 So, if the ship has been accustomed to carry pas- 
 sengers only, the master will not be presumed to 
 possess authority to take goods on board on freight. 
 So, if the ship has been accustomed to the coasting 
 trade, or the fisheries, or to river navigation only, 
 the master will not be presumed to possess authori- 
 ty to divert the ship into another trade, or business, 
 or voyage, on the high seas.f 
 
 If the party contracting with the master knows 
 what his instructions are, he is bound by them, and 
 the master should, for his own security, as a gene- 
 ral rule, acquaint those with whom he contracts, 
 with the nature and extent of his authority. 
 
 In the case of a general trading ship, both at 
 # Abbott, p. 92. f Story on Agency, Sec. 121. 
 
94 
 
 MASTER S AUTHORITY. 
 
 home, and in a foreign port, it rarely happens that 
 the owner interferes with the receipt of the cargo : 
 and Mr. Abbott says, that, “without doubt, they 
 are bound by every contract made by the master, 
 relative to the usual employment of the ship.”* 
 Where the master makes the charter party in his 
 own name, the owners are not personally bound ; 
 but the ship and freight, and therefore, indirectly, 
 the owners, to the extent of the value of the ship 
 and freight, are bound to the performance.! 
 
 If the owners themselves have made a special 
 contract for the employment of their ship, the mas- 
 ter cannot, by the general and implied character of 
 his office only, anual' such a contract, and substi- 
 tute another for it with the other contracting party. 
 
 The master of a ship, in his general character of 
 agent for the owners, has a right, in a foreign port, 
 to contract for the charter of the ship, and the 
 owners will be bound by such contract of the 
 master-! 
 
 The master cannot, merely in his character of 
 master, bind the owners by a contract under seal , 
 so as to Subject them to an action under the cove- 
 nant. To bind them by an instrument under seal, 
 he must hold their power of attorney, giving him 
 authority so to bind them.§ 
 
 The master, unless he expressly provides against 
 it, will himself be bound upon the charter party 
 made by him, as well as the owner. 
 
 * Abbott, p. 93. f Ibid. 93. $ 6. Greenleaf, 160. § Ibid. 
 
MASTER S AUTHORITY. 
 
 9 5 
 
 If the master has not exceeded his authority in 
 the charter of the ship, and can show satisfacto- 
 rily that the credit was given exclusively to the 
 owner, he is discharged from his liability.* 
 
 A purchaser of the vessel during the voyage is 
 bound by the contracts of the master, made during 
 such voyage, and after such purchase, and made 
 within the scope of his authority. f 
 
 OF THE MASTER’S AUTHORITY TO SELL THE SHIP. 
 
 It was formerly held that the master had no au- 
 thority, under any circumstances, to make sale of 
 the ship. At least, that was supposed to be the 
 opinion of the lords Hale and Holt. But as the 
 wants of navigation developed themselves, a dispo- 
 sition was manifested to relax this rule in some 
 measure, but with great caution. It was thought 
 to be a dangerous power to entrust in the hands of 
 the master. That it was open to abuse, to collu- 
 sion and fraud. It was even held that the master, 
 acting under an order of the Vice Admiralty Court, 
 could not make a sale of the ship, so as to bind the 
 owners. But in later decisions the master’s author- 
 ity has been extended, but with great jealousy, and 
 confining it to cases of urgent and inevitable ne- 
 cessity. So, too, it was first held that such sale 
 could not be made, by the master, except on a for - 
 
 Story on Agency, p. 29b. 
 
 f 6. Mass. It. 422. 
 
96 
 
 MASTER S AUTHORITY. 
 
 eign shore ; but late American decisions have so far 
 relaxed the rule as to permit him to sell, as well on 
 a home , as on a foreign shore, if the same urgent 
 necessity exists for immediate action. The pur- 
 pose of this chapter will be to assist the master in 
 deciding when such urgent , inevitable necessity 
 exists. 
 
 Such a necessity as will justify the master in 
 selling the ship, can seldom take place on a home 
 shore , and in the vicinity of the owner. This is 
 so, because the only principle on which a sale of 
 the ship, by the master, can be justified at all, is, 
 that the property is so situated that it must be dis- 
 posed of immediately , or an onerous expense be 
 forthwith incurred to protect the ship from serious 
 injury, or total loss. If the master can communi- 
 cate with the owners easily , and expeditiously, and 
 no serious injury is likely to result from the neces- 
 sary delay, he must not sell, but wait the orders of 
 the owners. An urgent, inevitable necessity, is a 
 necessity that does not admit of delay; that re- 
 quires prompt and instantaneous action ; it is a 
 case where to wait for the orders of the owners 
 would be at the imminent risk of the property, and 
 without prospect of benefit to the owners.* 
 
 It can seldom happen to be the duty of the mas- 
 ter to sell the ship, — except in the case of a ship- 
 wreck of the vessel, where she is got into port in a 
 
 # 5 Mason, 481. 2 Pick. 254. 
 
MASTER S AUTHORITY. 
 
 97 
 
 disabled state ; and in case of her being stranded, 
 partially destroyed by fire, or rendered unseawor- 
 thy by age. 
 
 One thing the master must bear steadily in view, 
 and that is, that there must be a real and not a 
 fancied necessity for the selling of the ship. The 
 mere fact that the master acts honestly and in good 
 faith, sincerely believing that the good of all con- 
 cerned requires the sale to be made, does not jus- 
 tify the sale, unless the circumstances do in fact 
 justify it. If the validity of the sale is called in 
 question in a court of law, the facts with regard to 
 the situation of the ship, brought to the notice of 
 the jury, must be such as to satisfy them that there 
 was a moral necessity for the sale, so as to make 
 an argent duty upon the master to sell for the pre- 
 servation of the interest of all concerned.* 
 
 If the circumstances be such that an owner of 
 reasonable prudence and discretion, acting upon the 
 pressure of the occasion, would have directed the 
 sale, from a firm opinion that the vessel could not 
 be delivered at all from the peril, or not without 
 the hazard of an expense, utterly disproportionate 
 to her real value, as she lies, then a sale by the 
 master is justifiable. f 
 
 The mere fact that the vessel is insured, and 
 that the injury to the vessel is such as to entitle 
 the owner to abandon her to the underwriters, does 
 not, of itself, authorise the master to sell her. The 
 * 5 Mason, 476. f 2 Sumner, 206. 
 
 9 
 
98 
 
 master’s authority. 
 
 insured may elect to repair her, and they certainly 
 should have the opportunity to make the most of 
 what, at best, must subject them to more or less 
 loss. 
 
 When the ship has become a wreck, and the 
 master believes, from the nature of the damage, 
 that the vessel is unworthy of repair ; or, if stranded, 
 cannot be removed without great expense, the 
 usual, and perhaps the best course, is for the mas- 
 ter to call to his aid the counsel of others. This, 
 however, is upon the supposition that he cannot 
 communicate, in time, with his owners. If an 
 American consul or commercial agent resides at the 
 port, the master should apply to him to appoint 
 three or more competent persons, skilled in such 
 matters, to make a survey, and report the state of 
 the vessel, the amount of damage received, and the 
 probable expense of repairing the same. If no con- 
 sul or consular agent resides at the port near which 
 the disaster happened, then the master may procure 
 the appointment to be made by some officer of the 
 government of the country where the disaster hap- 
 pened. Their survey, when made, should be 
 6worn to before some justice of the peace. 
 
 This survey, when made by competent persons, 
 in good faith, without any appearance of collusion 
 or fraud, is good evidence to support the master, 
 but not conclusive. If the owners, or insurers, can 
 prove by other and better testimony, that the sur- 
 veyors were inaccurate in their estimates, or exag- 
 
MASTER S AUTHORITY. 
 
 99 
 
 gerated the damage, and that no snch necessity- did 
 in fact exist, the sale, though made in good faith 
 by the master, on the recommendation of such sur- 
 veyors, will be void.* 
 
 With respect to such survey's, chief justice Par- 
 ker remarked, “ that where the vessel has been se- 
 riously injured, so as to make a survey necessary, 
 and the master acting in good faith calls a survey ' 
 and persons of competent skill and perfectly disin- 
 terested are appointed, and they, after a full and 
 careful examination, find her essentially injured, 
 and come deliberately to the conclusion that the 
 costs of repair will exceed the worth of the vessel 
 after being repaired, a moral necessity is imposed 
 upon the master to act according to their ad vice, j* 
 
 The master cannot become a purchaser himself 
 at such a sale : and if he purchases of a direct pur- 
 chaser, after the sale, the court will search the 
 transaction to the bottom to see if good faith has 
 been exercised on his part, before it will give valid- 
 ity to such a title. 1; 
 
 The purchase of the wreck, by any part of the 
 surveyors, would lead to violent suspicions of their 
 good faith and integrity. It would be likely to 
 shake the confidence of the court in their estimates 
 and representations. 
 
 When the ship, or any part of her tackle, apparel, 
 or furniture, is sold by order of the master, for the 
 benefit of whom it may concern, the sale must bo 
 
 * 2 Pick. 254. f Ibid. 264. J 5 Mason, 476. 
 
100 
 
 MASTER’S ADTHOR1TT. 
 
 by auction, and the master should, by no means, 
 omit to give suitable public notice of the sale. 
 When the sale is determined upon, the master is 
 justified in making it in any way that promises to 
 yield the most for the property. It may be by ex- 
 posing the whole for sale in one lot, or by dividing 
 it into parcels, whichever may seem likely to pro- 
 duce the greatest amount. 
 
 Where the circumstances justify a sale of the 
 ship by the master, it matters not whether the ves- 
 sel be insured or not ; for if she be insured, then 
 he acts as the agent of the insurers in making the 
 sale, and must hold the money received therefor for 
 their use. So, too, if she has changed hands, or 
 been mortgaged, since leaving port, the master acts 
 in conducting the sale as the agent of the owner, 
 in fact , whoever the same may be.* 
 
 In many of the ports of the United States, the 
 insurance offices have agents, whose duty it is to 
 look after wrecked property on which their princi- 
 pals have insured. In case of shipwreck, it is al- 
 ways well for the master to consult with such 
 agents, before taking any steps towards selling, or 
 repairing. But before surrendering the property to 
 the disposal, and management of any such agents, 
 the master should be careful to ascertain the exact 
 authority of such agent, and see how far he is au- 
 thorised to bind his principal. 
 
 * 5 Mason, 481. 
 
101 
 
 Master’s authority. 
 
 If the agent exceed his powers, his principal may 
 
 affirm or disaffirm his acts as subsequent facts may 
 
 % 
 
 seem to be for his interest. If the acts of the 
 agent are disaffirmed, and prove to be mere assump- 
 tion of authority on his part, then he becomes the 
 agent of the master, and the latter is responsible 
 for his acts.* 
 
 The master, except in cases of great and urgent 
 necessity, should never commit the management 
 of business with which he is entrusted to the care 
 of others, especially in case of shipwreck, or any 
 other disaster, because the master, in all cases, is 
 responsible for the fidelity of those whom he sub- 
 stitutes for himself.f 
 
 From the foregoing the master will see that his 
 authority to sell the ship is derived entirely from 
 that necessity which supercedes all laws. He will 
 see, too, that no acts of his own, nor recommenda- 
 tion of others, can make the sale valid unless the 
 circumstances of the case make it so. The report 
 of the surveyors, then, he is to consider merely ad- 
 visory , but still advice of the highest, and best, and 
 perhaps the only kind that he should look to, as in 
 any degree calculated to justify his future conduct, 
 if regulated in accordance therewith. 
 
 When the master has once rightfully made sale 
 of the ship, no subsequent acts of his relating to her 
 can prejudice the owners, since from that moment 
 
 * Story on Agency, p. 115. 
 
 9 * 
 
 f Ibid. pp. 14 — 16. 
 
102 
 
 master’s authority. 
 
 he becomes the agent of the insurers, and holds the 
 funds derived from a sale of her, for their use and 
 benefit. 
 
 Shipmasters will perceive, by a careful attention 
 to the preceding rules, that the authority which 
 they may have under certain circumstances to sell 
 the ship is restricted within very narrow limits, and 
 for the exercise of which they are held strictly ac- 
 countable. They cannot delegate to others any 
 power beyond that with which they are legally in- 
 vested, consequently, no master can escape from 
 the responsibility of a sale, by placing his business 
 in the hands of another person, although that per- 
 son may be a consul, or consular agent of his gov- 
 ernment. The popular idea, that whenever a ves- 
 sel meets with difficulty abroad, the master may 
 protect himself from accountability by calling upon 
 the consul of his nation, and following his advice, 
 is founded in error. Consuls, and consular agents 
 are, generally, persons engaged in trade, and, too 
 frequently, are governed by sinister motives in the 
 advice which they give in such cases. It is al- 
 ways well for a master to acquaint them with 
 his acts, and it is their official duty to give him 
 counsel, and assistance, but he should not suffer 
 himself to be made the mere instrument of their 
 wishes. He should be governed by his own sense 
 of light, with a single eye to the best interests of 
 all concerned ; and although it is impossible to lay 
 down precise rules which will meet the exigencies 
 
master’s authority. 103 
 
 of every disaster, it may be said, generally, that the 
 best course, is that which a prudent ship owner, if 
 uninsured, would himself direct, if present. 
 
 For remarks on the duty of seamen, in case of 
 the wreck. of the vessel, see article, entitled, “duty 
 of mariners in case of disaster,” under the head of 
 seamen. 
 
 OF THE master’s AUTHORITY TO REPAIR THE SHIP 
 AND FURNISH SUPPLIES. 
 
 The principle is well settled that the master may 
 procure necessary repairs to be put upon the ship, 
 when abroad, at the expense of the owners. If the 
 owners have money on board he should resort to 
 that, before making the repairs upon their credit. 
 If he has no money of his oivn, or of the owners , 
 cn board, and the vessel need repair, he may then 
 procure them to be made, either upon the credit of 
 the owners , or upon his own credit, or upon his and 
 the owners joint credit ; or, if in neither of these 
 ways the necessary funds can be supplied, he may 
 hypothecate the ship and freight.* 
 
 And if the necessary funds cannot be supplied by 
 hypothecation of the ship and freight, the master 
 may then resort to the cargo, as appears under the 
 proper head. See “ hypothecation of the cargo.” 
 The repairs and supplies which the master is 
 authorised to procure in a foreign port, are not 
 * Abbott, p. 100. 
 
104 master’s authority. 
 
 merely such as are absolutely necessary, but in- 
 clude all such as are reasonably fit and proper for 
 the ship.* 
 
 But it is a matter of serious doubt whether the 
 master has a right ro resort to bottomry, or the 
 sale of the cargo , for the purpose of procuring any 
 supplies, excepting those of absolute necessity. 
 
 Where the master contracts for repairs he is al- 
 ways personally bound, unless he takes care, by ex- 
 press terms, to confine the credit to his owners 
 only. f 
 
 If a special promise be made by the master, the 
 owners are not holden ; so if a special promise be 
 made by the owners, the master is discharged from 
 any obligation. The obligation to pay, rests upon 
 the person to whom the credit was given. When 
 the credit is given to the ship and freight, as in 
 case of an hypothecation of her for repairs, the 
 lender must look to her, and in case of her loss, 
 lose his debt. J 
 
 If the master uses his own funds for the repair 
 of the ship, or for the purpose of furnishing neces- 
 sary supplies, he has a lien upon the ship and 
 freight for the advances thus made.$ 
 
 Not only the master, but also the consignee has 
 authority to cause necessary repairs to be put upon 
 the ship consigned to him, at the expense of the 
 owner. || 
 
 * Ship Fortitude, Boston. | Abbott, p. 100. J 11 Mass. E. p. 37 
 $ 1 Peter’s Adm. E. 223. || 11 Mass. E. p. 3S. 
 
MASTER S AUTHOTITY. 
 
 10S 
 
 From the general liability of the master on all 
 contracts made respecting the ship, and the neces- 
 sity of his obtaining supplies for her nse, arise his 
 right to detain the freight, until he is fully paid his 
 expenses and disbursements. To this extent it 
 seems to be held that the master has a lien upon 
 the freight, even against the owner.* 
 
 The master, if he wishes to hold the consignee, 
 or owner of the cargo, for the amount of his dis- 
 bursements for account of the ship, must give no- 
 tice to the owner or consignee to that effect, with 
 the amount of his claim. f 
 
 Where the master has either expended money on 
 account of the ship, or incurred liabilities on her 
 account, he has a right to insist upon collecting the 
 freight, even in the home port, and in opposition to 
 the owner. If the owner of the goods, after notice, 
 pays over the freight to the shipowner, he is liable 
 to the master to the amount of his claim for dis- 
 bursements, if they do not exceed the amount of 
 the freight. | 
 
 Supplies furnished. The same principles that 
 are laid down as to the right of the master to retain 
 freight money, to the amount of his disbursements, 
 for the repairs of the ship, hold good as to supplies 
 furnished for the ship. They both stand on the 
 same footing. 
 
 There must be a reasonable , though there may 
 not be an absolute necessity for the supplies pro- 
 f 7 Cowen, E. 679. % Ibid. 
 
 * 4 Mass. E. 91. 
 
106 
 
 master’s authority. 
 
 cured by the master. Expenses incurred in arm- 
 ing the ship were held not to be a charge that 
 could be enforced against the owner, except the 
 case was one of urgent necessity.* 
 
 OF THE master’s AUTHORITY TO HYPOTHECATE THE 
 SHIP. 
 
 The principle is well settled, that the master has 
 a right to hypothecate the ship and freight, for the 
 purpose of raising money to furnish supplies for, or 
 to make repairs upon, her. But, before resorting to 
 a hypothecation of the ship, the master should en- 
 deavor to raise the necessary funds upon the credit 
 of the owner, or owners. If he has money of theirs 
 on board, sufficient for his wants, he cannot hy- 
 pothecate the ship, or freight. And, therefore, the 
 master, before taking up money on bottomry, 
 should assure himself that there is no other way in 
 which he can raise the necessary funds. He ought 
 first, certainly, to apply to the consignee for funds 
 and direction, and this, too, even if the consignee 
 resides at another port distant from that occupied 
 by the vessel. If the distance be great, so as to 
 make it extremely difficult to communicate with 
 him, the master may proceed without his advice. 
 
 For further remarks on this point, see “ mari- 
 time loans,” and hypothecation of the cargo.” 
 
 * Ship Fortitude, Boston. 1 Johns. R. 106. 
 
master’s authority. 107 * 
 
 OF THE master’s AUTHORITY TO HYPOTHECATE THE 
 CARGO. 
 
 The great object, which the master is bound to 
 keep steadily in view, with respect to the cargo, is 
 its safe and speedy conveyance to its destined port. 
 In general, the master is a stranger to the cargo, 
 any further than he is concerned in its safe custody 
 and conveyance. But in cases of unforeseen, and 
 unprovided necessity, the character of agent and 
 supercargo is forced upon him, by the general pol- 
 icy of the law. If the ship has put into a port of 
 necessity, in distress, and needs repairs to enable 
 her to pursue her voyage, the master is bound to 
 take the most prompt measures to hasten forward 
 the cargo. But in this he is not entirely to lose 
 sight of the interests of the ship owner. His first 
 duty is to repair the ship, if practicable. If the 
 ship cannot be repaired in season to carry on the 
 cargo, or is so disabled as not to be worth re- 
 pair, then his first duty towards the cargo is to 
 tranship it, and send it on by another vessel, if one 
 can be found in that, or a neighboring port. If no 
 such vessel can be procured, or not without an ex- 
 expense totally disproportioned to the advantages 
 expected to be derived from sending the goods for- 
 ward, then he may store them, or if they be of a 
 perishable nature, he is bound to sell them. If, 
 however, the vessel be capable of repair within a 
 
108 
 
 master’s authority. 
 
 reasonable time, he must repair, if the necessary 
 funds can be procured 
 
 These funds he must first endeavor to obtain 
 upon the credit of the owners. If they cannot be 
 raised upon their credit, then, as has been seen, he 
 may hypothecate the ship and freight. Or, if he 
 fail in this, he may hypothecate the cargo, for the 
 purpose of raising the necessary funds to make the 
 repairs ; or, if the funds cannot be obtained in this 
 way, he may sell a part of the cargo. But, if the 
 master resorts to an hypothecation of the cargo, he 
 must hypothecate the whole of it, and not a part, 
 as it is for the interest of the whole that it should 
 go forward ; and it must also be made in addition 
 to the hypothecation of the ship and freight, as the 
 latter is the proper fund, from which the loan 
 should be paid. 
 
 It is, therefore, seen that the master cannot hy- 
 pothecate the cargo, for the purpose of raising 
 money to repair the ship, until he has first tried 
 every other method, except a sale of it. When 
 other means of raising the money has failed him 
 he may resort to that. 
 
 The master is in no case authorised to sell more 
 than a part of the cargo for the purpose of repairing 
 the ship, and this he can do only in the last re- 
 sort. 
 
 If the master sells a portion of the cargo, the for- 
 eign purchaser derives a good title to the goods; 
 and the lender or respondentia has a valid claim 
 
master’s authority. 
 
 109 
 
 upon the cargo, or .more properly speaking upon 
 the owners of the cargo, to the extent of its value, 
 provided it arrives safe.* 
 
 The principles which govern the contract of re- 
 spondentia, are very much the same as those gov- 
 erning the contract of bottomry. 
 
 If the goods of A. are hypothecated by the mas- 
 ter of a ship belonging to B., there is no liability 
 incurred by A. beyond the value of the goods so 
 pledged. If the goods are lost, the lender on bot- 
 tomry, if he is not further secured by an hypothe- 
 cation of the ship and freight, suffers the loss. But 
 if the ship, goods, and freight of B. are hypotheca- 
 ted by the master, and the ship arrives without sea 
 peril, the lender has not only a lien upon the prop- 
 erty hypothecated for the repayment of his loan, 
 but it also becomes a personal charge upon the 
 owners. f 
 
 Maritime interest ceases at the termination of the 
 risk. If payment of the bond is thereafter delayed, 
 the holder can recover no more than the legal rate 
 of interest for the use of the money. 
 
 The lender on respondentia, like the lender on 
 bottomry, is entitled to his whole loan if the goods 
 be lost by the neglect or fraud of the owners or 
 master , or by the unseaworthy state of the ship, or 
 her unnecessary deviation from the voyage desig- 
 nated in the bond. So, too, the lender does not 
 
 * The Gratitudine, 3 Rob. R. 240. 3 Mason, 255, 
 f 3 Rob. R. 240. 3 Mason, 255. 
 
 10 
 
110 
 
 master’s authority. 
 
 suffer by the deterioration of the goods on board 
 from any latent , inherent defect. That loss must 
 be borne by the shipper.* 
 
 By the general marine law, the lender on bot- 
 tomry, or respondentia, is entitled to be paid out of 
 the effects saved, so far as those effects go, if the 
 voyage be disastrous.! 
 
 If the master has sufficient money belonging to 
 the owners on board to make the necessary repairs, 
 he cannot hypothecate the cargo. Or, if he has 
 sufficient money of his own on board, he is bound 
 to use it before hypothecating ; and if he hypothe- 
 cates the cargo, with money of his own. or of the 
 owners , on board, the shippers of the cargo are not 
 bound on the respondentia bond for an amount 
 equal to the sum so retained on board. J 
 
 If the master has money belonging to the ship- 
 pers on board, there is no absolute rule requiring 
 him to use it in preference to hypothecating the 
 cargo. It is left to his discretion to act in such a 
 case as he believes most for the advantage of the 
 shippers 
 
 If the master be under the necessity of hypothe- 
 cating the cargo for the purpose of repairing the 
 ship, the shippers have a valid lien , not only upon 
 the ship and freight , but upon any goods on board, 
 belonging to either the orvners, or the master, for 
 
 * 3 Mason, 255. Rob. R. 240. t Kent. Com. 3 vol. 350, 
 t 3 Mason, 255. § 3 Mason, 255. 
 
CHARTER PARTY. 
 
 Ill 
 
 whatever sum they may have to advance towards 
 discharging the loan thus created.* 
 
 It has before been said that the master should 
 hypothecate the whole cargo, if any, so that all the 
 shippers may equally bear the burthen of sending 
 forward their goods. If, however, a part only of 
 the cargo is hypothecated, courts of admiralty will 
 compel the owners of the remaining portion to 
 contribute towards the repayment of the loan, pro- 
 vided it is not promptly satisfied from the assets of 
 the ship owners. f 
 See maritime loans. 
 
 OF THE OWNERS’ AND MASTER’S RELATION TO THE 
 CARGO. 
 
 Of the Charter Party. 
 
 The contract by charter party is an agreement 
 by which an entire ship, or some principal part of 
 her, is let for the conveyance of goods, on a deter- 
 mined voyage, to one or more places. This mer- 
 cantile lease of a ship describes the parties , the 
 ship , and the voyage , and contains on the part of 
 the owners a stipulation as to sea-worthiness, and 
 as to the time when the vessel shall commence 
 loading, and proceed on the voyage. It also con- 
 tains the exception of the perils of the sea, for 
 which the owners and master are not usually re- 
 
 # 3 Mason, 255. 
 
 t Ibid. 
 
112 
 
 CHARTER PARTY. 
 
 sponsible, and such others as may be agreed on by 
 the parties. 
 
 On the part of the charterer, it generally con- 
 tains a stipulation to load , and unload , within a 
 given time; with an allowance of so many lay , or 
 running days for loading and unloading the cargo ; 
 and also the rates and times of payment of the 
 freight, and rate of demurrage beyond the allotted 
 days. 
 
 When the goods of several merchants, uncon- 
 nected with each other, are laden on board, with- 
 out any particular contract of affreightment with 
 any individual for the entire ship, the vessel is 
 called a general ship, because open to all mer- 
 chants : but when one or more merchants contract 
 for the ship exclusively, it is said to be a chartered 
 ship. The ship may be let in whole, or in part ; 
 and either for such a quantity of goods by weight, 
 or such a space in the ship. 
 
 Where the ship has been chartered for the car- 
 riage of goods in any of the above ways, certain 
 duties and liabilities devolve upon the master and 
 owners with respect to the subsequent proceedings 
 under the charter party. 
 
 In the first place, it is the duty of the owner of 
 the ship, not only to see that she is duly equipped 
 and in a suitable condition to perform the voyage, 
 but he is bound to keep her in that condition 
 throughout the voyage, unless he be prevented by 
 perils of the sea.* 
 
 * 3 Mass. R. 481. 
 
CHARTER PARTY. 
 
 113 
 
 The ship must be tight, staunch, and strong. 
 She must be well Furnished, manned, victualed, 
 and, in all respects, equipped in the usual manner 
 for the merchants’ service in such a trade. She 
 must be fit for the voyage for which she is en- 
 gaged. 
 
 The owner of the ship is liable to the freighter, 
 like a common carrier, for all losses happening to 
 the goods, shipped on board, except those that are 
 provided against by the Exceptions in the charter 
 party. 
 
 If the goods are lost by reason of any defect in 
 the vessel, whether latent or visible , known or un- 
 known, the owner is answerable to the freighter 
 for the damage.* 
 
 The owner is also bound to see that the ship is 
 furnished with all the requisite papers according to 
 the laws of the country to which she belongs, and 
 according to treaties, and the law of nations. f 
 
 If the charter party contains any stipulation on 
 the part of the owner to keep the ship in good 
 order during the voyage, the entire expense of the 
 repairs requisite in the course of the voyage, are 
 then to be borne by the owner. 
 
 The owner does not insure the cargo against the 
 perils of the sea. He is, however, answerable for 
 his own fault, or negligence, and also for the fault 
 and negligence of the master and crew, or other 
 
 * 3 Mass. R. 485. 
 
 10 * 
 
 f Kent, 3 vol. 205 
 
114 
 
 CHARTER PARTY. 
 
 agents employed in navigating the ship. In gen- 
 eral he is answerable for all losses happening to 
 the cargo, other than the excepted cases of the act 
 of God, and public enemies.* 
 
 The responsibility of the owner begins where 
 that of the wharfinger ends; and generally the 
 owner’s liability begins when the goods are deliv- 
 ered to the master, or any other accredited agent, 
 either on the wharf, or on ship hoard. 
 
 If the owner has engaged that the vessel shall 
 sail with convoy, and afterwards she sails without 
 convoy, and that without consent of the freighters, 
 the owner is liable for any loss happening from 
 capture or detention.! 
 
 A merchant who ships goods on board of a ves- 
 sel on freight, has a lien on the vessel for the loss 
 of his goods, or any damage they may sustain from 
 the fault or neglect of the master, or the insuffi- 
 ciency of the vessel.! 
 
 For the liability of owners and charterers for re- 
 pairs upon the ship, or supplies furnished to her 
 use, see chap. 7, under the title, “ who are liable as 
 owners 
 
 The Charterer. The charterer is bound, on his 
 part, to observe certain stipulations in the con- 
 tract ; one of which is that he shall not detain the 
 ship beyond the appointed time, or if no time be 
 
 * Kent, vol. 2, lec. 40. f 3 Esy. N. P. R. 64. 
 
 i 6 Amer. Jurist, 5 . 
 
BILL OF LADING. 
 
 ltd 
 
 appointed, beyond the usual time to load the vessel, 
 or to deliver the cargo.* 
 
 The extra days beyond the lay days, (being the 
 days allowed to load and unload the cargo,) are 
 called days of demurrage . Demurrage may be- 
 come due either by the ship’s detention for the 
 purpose of loading, or of unloading the cargo, 
 either before the commencement of the voyage, or 
 during the voyage, or after the voyage, or while 
 waiting for convoy. f 
 
 The money paid for such detention of the vessel 
 is also called demurrage. 
 
 Both parties to a contract of affreightment, or 
 charter party , are bound to be ready at the time 
 appointed for the loading of the ship. If the ship 
 owner be not ready, the charterer may avoid his 
 contract, and seek another ship : or if the charterer 
 be not prepared to put on board his goods, the own- 
 er may seek another cargo. This right arises 
 from the necessity of precision and punctuality in 
 all maritime transactions. By a very short delay 
 the proper season may be lost, or the object of the 
 voyage defeated. 
 
 OF THE BILL OF LADING. 
 
 In the execution of the contract of charter party, 
 the master of the ship signs a bill of lading , which 
 is an acknowledgment of the receipt of the goods 
 
 * Kent, vol. 3, p. 203, 
 
 f Ibid, 
 
116 
 
 BiLL OF LADING; 
 
 on board, and that ho has assumed the conveyance 
 of them. The charter party is the contract for the 
 hire of the ship, and the bill of lading for the con- 
 veyance of the cargo ; and though it be signed by 
 the master, he does it as agent for the oivners, and 
 it is a contract binding upon them.* 
 
 By the bill of lading, the master engages, as a 
 common carrier, to carry and deliver the goods to 
 the consignee, or his order ; and, by the common 
 law, owners were responsible for damages to goods 
 on board to the full extent of the loss. In England 
 they are now made liable, by statute, only to the 
 Value of the ship and freight ; and this statute has 
 been followed in Massachusetts, and probably in 
 many of the other commercial states of the 
 Union. f 
 
 There are commonly three or more bills of lad- 
 ing. One should in all cases be retained by the 
 master, and two or more be delivered to the ship- 
 per ; of which he should retain one, and forward 
 the other to the consignee ; one by the vessel her- 
 self, and one or more, by other conveyances. 
 
 The bill of lading is the evidence of title in the 
 goods sent. If it be made to order or assigns , it is 
 transferable in the market like a bill of exchange, 
 or other negotiable instrument. The endorsement 
 and delivery of it, transfers the property in the 
 goods from the time of the delivery. 
 
 * Bewes Lex. Mer. 133. 142. 
 
 1 2 Barn. & Als. 2. 
 
CARRIAGE OF THE GOODS. 
 
 117 
 
 OF THE CARRIAGE OF THE GOODS. 
 
 When the ship is hired, and the cargo laden on 
 board, the various duties of the owner , and of his 
 agent, the master , arise in respect to the commence- 
 ment, progress, and termination of the voyage ; 
 which duties are extremely important to the inter- 
 ests of commerce, and have been well and accu- 
 rately defined in the marine law. 
 
 When the vessel is ready to sail, the master is 
 bound to proceed upon the voyage as soon as the 
 wind and tide permit. If by the charter party the 
 ship is to sail by a given day, the master must do 
 it, unless prevented by necessity.* 
 
 So, if there be an undertaking to sail with 
 convoy, he is bound to go to the place of rendez- 
 vous, and place himself under the control of the 
 convoy, and continue, as far as possible, under 
 their protection during its course. f 
 
 The master is bound, likewise, to proceed to the 
 port of delivery without delay, and without any un- 
 necessary deviation from the direct and usual 
 course. If he covenants to go to a loading port by 
 a given time, he must do it, or abide the forfeiture 
 of the contract, if the charterer chooses to take ad- 
 vantage of his delay. 
 
 The master has no right to substitute another 
 voyage for that agreed upon between the owner 
 # Kent, vol. 8, 209. f Ibid. 
 
118 
 
 CARRIAGE OF THE GOODS. 
 
 and the freighter. Such a power is entirely beyond 
 the scope of his authority as master. 
 
 If, in the course of the voyage, the ship meet 
 with tempestuous weather, and be obliged to seek 
 an intermediate port, in distress, then a responsibil- 
 ity of no ordinary character may be thrown upon 
 the master, requiring much judgment and discrim- 
 ination. In ordinary cases the master is the agent 
 of the ship owner only, and has nothing to do with 
 the cargo, but in relation to its safe custody and 
 transportation. But in case of disaster, the mas- 
 ter may become the agent of the shippers for the 
 protection and management of the cargo. 
 
 When a disaster has happened to the ship, so 
 that the master has been under the necessity of 
 putting into a port of necessity, the first principle 
 that the master should bear in mind, is, that it is 
 his duty to convey the cargo to the place of desti- 
 nation ; this is the purpose for which he has been 
 entrusted with it, and this purpose he is bound to 
 accomplish by every reasonable and practicable 
 method. 
 
 Every act that is not properly and strictly in fur- 
 therance of this duty, is an act for which both he, 
 and his owners, may be held responsible.* 
 
 If practicable, he must carry them forward to 
 the port of destination in the ship on board of 
 which the owner placed them, as that is the vehi- 
 
 * 5 Johns. E . 262. 
 
CARRIAGE OF THE GOODS. 
 
 119 
 
 cle in which, by contract, they were to be trans- 
 ported.* 
 
 For that purpose, if the vessel is capable of re- 
 pair within a reasonable time, the master may de- 
 tain the goods until the repairs are made, and then 
 carry them on, and thus earn freight. f 
 
 If the master offers to send them forward by 
 another vessel, and the merchant refuses, he will 
 then be entitled to his full freight. 
 
 But if the goods are of a •perishable nature, so 
 that their detention for the time required to repair 
 the ship, would work serious injury to the cargo, 
 the master is bound to tranship them, if another 
 vessel can be had in that or a neighboring port.J 
 
 So, too, the master must tranship the goods, if 
 the vessel be so far disabled as to be unfit for re- 
 pair. 
 
 If the vessel is capable of being repaired, but the 
 master is without the necessary funds required for 
 the purpose, and cannot obtain the same on his 
 own credit, nor the credit of the owners, nor by an 
 hypothecation of the vessel and freight, one or both, 
 he may hypothecate the whole of the cargo also ; 
 and if he cannot obtain the necessary funds by 
 either of these steps, he may then sell a part of the 
 cargo. But before proceeding to this extremity, (for 
 nothing but the most extreme exigency can author- 
 ise this measure,) the master must have endeavor- 
 
 * 3 Rob. 240. 3 Mason, 255. 
 
 t Ibid. 
 
 t Ibid. 
 
1:20 
 
 CARRIAGE OF THE GOODS. 
 
 ed,in vain, to raise the money upon his own credit) 
 and that of the owners, the ship, and the freight. 
 If in neither of these ways the money can be pro- 
 cured, and the master, in the exercise of a sound 
 discretion, believes it to be for the interest of all 
 concerned that the cargo should go forward, he is 
 authorised to hypothecate the whole, or sell a part, 
 for the purpose aforesaid.* 
 
 The master has no authority to sell the whole of 
 the cargo for the purpose of repairing the ship, be- 
 cause it can never be for the interest of the mer- 
 chant that the whole of his goods should be sold 
 to assist in sending forward the ship empty. He 
 can sell only a pai't of the cargo, for the mere pur- 
 pose of repairing her. But if the master hypothe- 
 cates the cargo, he should hypothecate the whole. f 
 
 If a portion of the cargo is sold at the port of ne- 
 cessity for the purposes of the ship, her owners 
 must account with the owners of the cargo for the 
 same; at its value at the port of destination. 
 
 If he hires another vessel for the completion of 
 the voyage, he may charge the cargo with the in- 
 creased freight arising from the hire of the new 
 ship.J 
 
 If another vessel cannot be procured to carry on 
 the cargo, and his own vessel is not susceptible of 
 repair, the master may store the cargo, or sell it, as 
 the one or the other seems to him the most for the 
 
 * 3 Rob. R. 240. 3 Mason. 255. f Ibid, $. 5 Johns. R. 262. 
 
CARRIAGE OF THE GOODS. 
 
 121 
 
 interest of the merchant. Previous to selling the 
 cargo, the master should communicate with the 
 merchant, or his consignee, if practicable. 
 
 Great discretion is committed to the master, 
 with regard to his authority over the cargo, when 
 driven into port in distress, and beyond the aid or 
 counsel of the merchant or consignee. He is to do 
 with the cargo as a prudent owner might be ex- 
 pected to do, under like circumstances. No gen- 
 eral rules can be given applicable to every case. 
 What would be proper with respect to one cargo, 
 might be improper with respect to another ; the 
 conduct proper to be adopted with respect to per- 
 ishable goods, would, very probably, be entirely 
 improper with respect to a cargo not perishable. 
 One thing might be fit to be done with fish and 
 fruit, and another with timber and iron ; one 
 method might be proper to be pursued in distant 
 regions, another in the vicinity of the merchant; 
 one in a frequented navigation, another on an un- 
 frequented shore.* 
 
 If, upon arrival at an intermediate port, the mas- 
 ter refuses to carry the goods on to their destina- 
 tion, he is not entitled to freight ; and the owner 
 may, under such circumstances, demand to receive 
 them at such port without paying any freight. f 
 
 But it is otherwise if the ship owner is ready to 
 carry forward the goods ; and he may detain them 
 while the ship is undergoing necessary repairs. J 
 
 * 3 Rob. 240. 3 Mason, 257. f 5 Mass. R. 252. $ 2 Pick. 104. 
 
 11 
 
122 
 
 CARRIAGE OF THE GOODS. 
 
 In case of disaster, the freighter is bound to wait 
 a reasonable time for the ship to be repaired, if the 
 master requires it ; but what is a reasonable time 
 for the merchant to wait, is an inquiry not easily 
 answered. It must be dependent upon the facts 
 applicable to the place and the time, and the na- 
 ture and condition of the cargo.* 
 
 If the master delivers up the cargo unnecessarily, 
 in an intermediate port, to any other person than 
 an authorised agent of the shippers, he is responsi- 
 ble for the acts of such person, and must make 
 good any loss arising through his fraud, careless- 
 ness, or mismanagement. 
 
 If the directions to the master are to proceed to 
 the port of destination , and there deliver the cargo 
 to the supercargo, the master must not deliver it 
 up to his management in an intermediate port. If 
 he does, he is responsible for his acts. 
 
 The master must, in case of capture by a bellig- 
 erent, contribute his exertions to rescue the prop- 
 erty from condemnation, by interposing a claim, 
 and exhibiting in support of it the documents with 
 which he has been furnished for the protection of 
 the cargo. If, by his negligence in the perform- 
 ance of this duty, the owner of the goods sustains 
 damage, the master is responsible to him to the 
 extent of the damage. f 
 
 Deviation. When the voyage is commenced, 
 
 the master must pursue it in the most safe, direct, 
 
 % 
 
 * Clark vs. M. F. & M.Ins. Co. f 1 Johns. R. 364. 
 
CARRIAGE OF THE GOODS. 
 
 123 
 
 and expeditious manner. Any deviation from the 
 usual course of the voyage, or any unnecessary de- 
 lay. , will avoid the policy of insurance upon the 
 goods, and render the master and owners liable in 
 damages. Stopping, or going out of the way to 
 relieve a vessel in distress, to save lives, or (o ob- 
 tain supplies, or to avoid certain danger, is not con- 
 sidered a deviation so as to discharge insurers.* 
 
 A departure from the course of the voyage, or a 
 delay , to save property , is considered a deviation ; 
 but if it is to save lives, it is not so ; as all ques- 
 tions of mere property should yield to principles of 
 humanity. 
 
 So if the ship unnecessarily deviates from the 
 regular course of the voyage, and the cargo be in- 
 jured by tempests during the deviation, the master 
 is responsible for the loss, unless it can be shown 
 that the same loss, not only might , but must have 
 happened, had rfo deviation taken place. f 
 
 During the course of the voyage, the master is 
 authorised, in case of a tempest, or other fearful 
 peril, to throw overboard a portion of the cargo for 
 the safety of the remainder ; or he may be justified 
 in throwing over the whole, where the safety of 
 the lives of the passengers and crew demand it. J 
 
 If the cargo be injured from any defect in the 
 -vessel, whether latent, or obvious, the master and 
 owners are liable for the damage. If the damage 
 
 * Kent, 3 vol. 312. f 6 Bingham, 716. $ 3 Bob. B. 240. 
 
124 
 
 DELIVERY OF THE GOODS. 
 
 arise from worms perforating the bottom, they are 
 liable, unless the holes were made during the voy- 
 age* 
 
 The master is bound, during the voyage, to take 
 all possible care of the cargo ; and, although he is 
 not responsible for injury done to it in consequence 
 of a leak occasioned by a storm, tempest, or other 
 inevitable accident, yet, if a leak be occasioned by 
 rats, and the goods be spoiled, the master has been 
 held liable for the damage, because guilty of fault. f 
 
 But it was formerly held, that if there was a cat 
 on board the ship, the master should not be deemed 
 in fault. 
 
 OF THE DELIVERY OF THE GOODS AT THE PORT OF 
 DESTINATION. 
 
 When the ship has arrived at her port of desti- 
 nation, the master must, as soon as he has reported 
 himself to the Custom House and delivered his 
 letters, proceed to deliver the cargo to the consign- 
 ees. This is to be done in case the consignee pro- 
 duces the bill of lading and pays , or secures the 
 payment of the freight. 
 
 The maxim of the law is, “ that the ship is 
 bound to the cargo, and the cargo bound to the 
 ship;” that is to say — that if the cargo, during 
 the voyage, is injured by the negligence or fraud 
 
 * Abbott, 224. 
 
 t Ibid. 
 
DELtVEkY OP THE GOODS. 
 
 125 
 
 6f the owners, or master, the shipper has a lien up- 
 on the ship to make good the loss ; and if the 
 freight upon the merchandise laden on board is not 
 promptly paid, when safely arrived and ready for 
 delivery at the port of destination, the ship owner 
 has a lien upon it, and the master may retain it 
 against every other person until the freight is 
 paid.* 
 
 But the master cannot detain the goods on hoard 
 the ship until the freight be paid, but must, if the 
 consignee, or merchant, demand it, unlade them ; 
 for it is reasonable that the merchant should have 
 an opportunity to examine the condition of them 
 previous to payment. f 
 
 The master must, in the manner of delivering 
 the cargo, have regard to the usage of the particu- 
 lar port in which the ship happens to be. One 
 thing, however, the master is to bear steadily in 
 mind, that his lien on the cargo for freight remains 
 no longer than while it continues in* his possession. 
 After he has once delivered the property, the lien 
 upon it for freight is gone , and he is left only to 
 the usual remedies for the recovery of the debt. 
 He cannot, by any act of his own, such as by tak- 
 ing the property again into his possession, restore 
 the lien. He should, therefore, if he wishes to 
 preserve the lien, be careful to do no act which 
 may be construed into a delivery of the goods. He 
 
 * 6 East. 622. f Abbott, part 3, chap. 3, sec. 10. 
 
 U* 
 
126 
 
 DELIVERY OF THE GOODS, 
 
 may send them under charge of his officers, or 
 some agent, to the wharf, or store them until the 
 matter is adjusted, when he will have a right to 
 charge the expenses of storage, &c. 
 
 The general rule is, that delivery at the wharf 
 (when there are no special directions to the con- 
 trary,) discharges the master. But this is to be 
 understood with some qualification. There must 
 be a delivery at the wharf to some one authorised 
 to receive the goods ; or due notice must have pre- 
 viously been given to the consignee of the time 
 and place of delivery. The master cannot dis- 
 charge himself by leaving them naked and exposed 
 at the wharf.* 
 
 The master’s responsibility continues until there 
 is actual delivery, or some act that is equivalent, 
 unless the owner, or his agent, has previously as- 
 sumed the charge of the goods. This charge the 
 consignee may assume by giving directions where 
 to land them, by taking them into his own lighters, 
 or by any other acts consistent with acceptance of, 
 and care over, them.f 
 
 It was made a question by the court, in a case 
 reported in 4 Pick. p. 373, whether the consignee 
 was hound to receive the goods at all. No decis- 
 ion was had upon the point. It would always be 
 well, however, in case of the refusal of the con- 
 signee to receive the goods, or to receive them at 
 the particular place where left, for the master to 
 * Kent’s Com., vol. 3. p. 215. t Ibid- 
 
DELIVER? OF THE GOODS. 
 
 127 
 
 store them , or to return them again to the owner. 
 If the master should leave them exposed on the 
 wharf and damage ensue, he possibly might be 
 rendered liable, notwithstanding notice was given 
 to the consignee of the time and place of delivery. 
 
 If the consignee demands an examination of the 
 goods before freight is paid upon them, to see that 
 they have suffered no damage, &c., it is the duty 
 of the master to unlade them, but to retain possess- 
 ion until the freight is adjusted.* 
 
 It is said to be the practice in England, for the 
 master to take security from the merchants before 
 he delivers the goods, for payment of freight, prim* 
 age , and their proportion of the petty averagef 
 
 To whom Hie delivery shall be made. It is often 
 difficult for the master to know to whom the cargo 
 may safely be delivered. Sometimes the contest 
 will be between the consignor and consignee, 
 sometimes between the consignor and the assignee 
 of the consignee. 
 
 In any case where two or more parties claim the 
 custody of the goods, the master should not deliver 
 them up, without first obtaining from the party re- 
 ceiving them a bond of indemnity, covering the 
 value of the goods and all costs that may result 
 from such delivery. Where the different claims 
 are likely to be contested, the least vexatious pro- 
 ceeding is for the master to deposit the goods with 
 some bailee, and apply to the court of Chancery to 
 
 * Abbott, p. 3, ch. 3. f Ibid. p. 7, ch. 3, sec. 11. 
 
128 
 
 DELIVERY OF THE GOOfiS. 
 
 compel the contending parties to litigate their 
 rights by an action between themselves.* 
 
 If the master is so situated as to be under the 
 necessity of exercising his discretion about the de- 
 livery, and the bill of lading has not been assigned 
 over by the consignee, and he has failed ; without 
 doubt the master should deliver the cargo to the 
 person who claims for the use of the consignor. 
 
 If the consignor has endorsed bills of lading to 
 two or more individuals, the master should deliver 
 the cargo to the person to whom a bill of the lading 
 was first endorsed. 
 
 In case the consignee becomes insolvent during 
 the transportation of the goods, the consignor may 
 stop them before they come to his hands, if the 
 rights of no third parties intervene. 
 
 Goods lost in a lighter. If the goods are lost 
 after the owner of them has taken them from the 
 ship into a lighter, it is his own loss; but it is 
 otherwise if the goods are sent from the ship by 
 the ship’s boat, which is considered a part of the 
 ship and voyage. Yet if the owner of any goods 
 sends his servant with them, the master, or lighter- 
 man, is not liable if they be lost. 
 
 If the vessel can be moored alongside of a wharf 
 or quay, there is no difficulty; as the goods are 
 then delivered to the wharfinger. But when she 
 is obliged to discharge in a river, or open roadstead. 
 
 * Abbott, part 3, ch. 9, sec. 25. 
 
RESPONSIBILITY OF THE SHIP OWNER. 129 
 
 and boats or other craft are employed in delivering 
 the cargo, it is necessary to ascertain the custom. 
 
 In discharging the cargo, the master should take 
 a receipt upon the bill of lading for the goods de- 
 livered. 
 
 The master is at all times bound to provide ropes, 
 &c., proper for the actual reception of the goods on 
 board, or for delivering them on shore; for if a 
 cask, or other article, in hoisting it to or from the 
 ship, or in lowering it into the ship’s hold, accident- 
 ally fall and sustain injury, the master or owners 
 of the ship must make good the loss. 
 
 OF THE RESPONSIBILITY OF THE SHIP OWNER. 
 
 Without some special agreement to the contra- 
 ry, the owners are liable for all losses happening to 
 the cargo, during the voyage, which are not inclu- 
 ded under the two well known exceptions, act of 
 God and public enemies. Losses happening from 
 the act of God , as understood and practiced upon, 
 include all perils of the sea which could not have 
 been prevented by human foresight and prudence. 
 It is a loss happening in spite of all human effort 
 and sagacity. It will therefore be seen that a de- 
 struction by the violence of the winds or waves , by 
 lightning , undiscovered rocks or shoals, or a cap- 
 ture by pirates, are all causes which will excuse 
 the owner for the non-delivery of the cargo.* 
 
 * 5 Term. R. p. 3S9. 
 
/ 
 
 130 RESPONSIBILITY OF THE SHIP OWNER. 
 
 It seems to have been held that the owners are 
 liable for any loss to the shipper arising from the 
 happening of a fire on board. This is undoubtedly 
 true where the fire proceeds from the gross careless- 
 ness of those employed to navigate the ship. Fire 
 occasioned by lightning, or spontaneous combus- 
 tion, the ship owner is clearly not liable for.* 
 
 So, if the cargo be lost by means of the ship’s 
 running upon a rock, or sand bar, which is gener- 
 ally known, and the ship be not forced upon it by 
 adverse winds or tempests, the owner is liable for 
 the loss.f 
 
 But if the ship was forced upon such a rock or 
 shallow by winds or tempests, or if the bar was oc- 
 casioned by a recent and sudden collection of sand 
 in a place where ships could before sail with safetj r , 
 the owner is not liable for the loss.;J; 
 
 The owner’s liability, unless provided against, 
 extends to all the authorised , or unauthorised acts 
 of the master and mariners, by which the shipper 
 may be injured in his property laden on board. 
 
 In Massachusetts, the ship owner is, by statute, 
 only liable to the extent of his interest in the ship 
 and freight, for losses occasioned by the negligence 
 or fraud of the master or mariners. But without 
 some statute to the contrary, the owner is liable to 
 the full extent of the injury. <§> 
 
 * 1 Term R. p. 27. f Abbott, part 3, cb. 4, sec. 1. 
 
 $ Abbott, part 3, ch. 4, sec. 1. § Revised Statutes. 
 
BAD STOWAGE. DUTIES OE THE SHIPPER. 131 
 
 OF THE MASTER’S LIABILITY FOR BAD STOWAGE. 
 
 The master is liable for all injuries to the goods 
 occasioned by bad stowage, for the master must see 
 all things forthcoming that are delivered to his 
 charge, act of God , perils of the sea, and public 
 enemies only excepted. 
 
 In stowing the cargo, the master should allow 
 sufficient for damage in the flat bottom, and in the 
 bilges. 
 
 The master cannot stow goods on deck without 
 the consent of the owner. If they are so stowed, 
 without his consent, they are at the risk of the 
 master. 
 
 OF THE DUTIES OF THE SHIPPER. 
 
 We do not intend here to speak of the duties of 
 the shipper when he is the charterer, and reserves 
 to himself the appointment of the master and mari- 
 ners and the general control of the ship. He is 
 then the owner for the time, and responsible as 
 such. 
 
 Where the command of the ship is reserved to 
 the owner, the merchant cannot detain her beyond 
 the stipulated time, or employ her in any other 
 than the stipulated service, and if he does he is 
 liable in damages. 
 
 If the shipper puts on board prohibited or con- 
 traband goods, by means whereof the ship is sub- 
 
132 
 
 PAYMENT OF FREIGHT. 
 
 jected to detention and forfeiture, he must answer 
 to the ship owner for the consequences of the act.* 
 
 If the merchant declines to lade the ship accord- 
 ing to contract, or to furnish a return cargo as he 
 had engaged to do, he must render in damages due 
 compensation for the loss. 
 
 OF THE PAYMENT OF FREIGHT. 
 
 The word “ freight ” is as often made use of in 
 common conversation to denote the cargo with 
 which the vessel is laden, as the price for the trans- 
 portation of the same. But in legal language, 
 freight is seldom mentioned in any other connec- 
 tion, than as the price of the carriage of goods. It 
 is not used in this volume as denoting the cargo. 
 
 The price for the carriage of goods from one port 
 to another is generally fixed by the charter party, 
 or by special agreement between the parties. If, 
 however, no such agreement is made, the shipper 
 is bound to pay the customary price, as ascertained 
 by the usage of trade and the reason of the case. 
 
 If the merchant hires the whole of a ship, or a 
 certain part of her, for the voyage, he must pay the 
 full price agreed upon, though he does not fully 
 lade her. It is otherwise if he only agrees to pay 
 in proportion to the goods shipped on board. 
 
 If the merchant engages to furnish a return 
 cargo, and neglects to do it, and lets the ship re- 
 turn in ballast, he must make compensation to the 
 
 * 3 Johns. R. 105. 
 
PAYMENT OF FREIGHT. 
 
 133 
 
 amount of the freight which such return cargo 
 would have paid. This is termed dead freight* 
 
 If there be no express agreement in the case, the 
 master is not bound to part with the goods, until 
 the freight be paid. He should not, however, omit 
 to offer to deliver the cargo upon a payment of the 
 freight ; and if the consignee demand it, to unlade 
 it for his inspection. 
 
 Wl ten the regulations of the revenue require the 
 goods to be lauded, and deposited in a public ware- 
 house. the master may enter them in his own name, 
 and preserve the lien. 
 
 Where the owner of the ship appoints the mas- 
 ter, he has a lien upon the cargo for the payment 
 of the freight. But where the merchant, or ship- 
 per, appoints the master and mariners, and is the 
 owner for the voyage, the ship owner has no lien 
 on the cargo for payment of the freight. 
 
 So the master has no lien upon the cargo where 
 the payment of freight is made payable at another, 
 and more distant period, than that for the delivery 
 of the cargo. f 
 
 The lien is as perfect where goods arc laden on 
 board of a general ship, as when laden under a 
 charter party . X 
 
 The consignee, if he accepts the goods, makes 
 himself responsible for the freight, where the bill 
 
 f Kent’s Com., vol. 3, p. 221. 
 
 \ Ibid. 
 
 * Roceus, note 72 — 75. 
 
134 
 
 PAYMENT OF FREIGHT. 
 
 of lading stipulates for the payment of freight by 
 such consignee.* 
 
 If the consignee, after receiving the goods, re- 
 fuses, or is unable to pay the freight, the master 
 still has his remedy over against the shipper on the 
 charier party. f 
 
 If part of the cargo be sold on the voyage from 
 necessity, the owner pays the value of the goods so 
 sold at the port of delivery, deducting his freight 
 for the whole voyage, ecpially as if the goods had 
 arrived. 
 
 By the marine ordinance of France, as cited by 
 Pothier, “ no freight is due for goods lost by ship- 
 wreck, or running aground, pillaged by pirates or 
 captured by enemies ; and if there is not an agree- 
 ment to the contrary, the master is bound, in such 
 case, to restore that which may have been paid him 
 in advance.” The reason is, says Pothier, that 
 affliction ought not to be heaped upon affliction ; 
 the shipper having lost his goods, it would be hard 
 to make him pay freight ; if he has had the enjoy- 
 ment of the ship during the time she was occupied 
 with his goods, it is an enjoyment which, through 
 his loss, has proved useless to him.J 
 
 If casks contain wine, rum, or other liquors, or 
 sugar, and the contents be washed out, and wasted, 
 and lost by the perils of the sea, so that the casks 
 arrive empty, no freight is due for them ; but if the 
 
 * 2 Camp. N. P. 587. 13 East. 399. 
 
 f Kent’s Com. vol. 3, p. 222. | Cushing’s Pothier, p. 37.- 
 
PAYMENT OF FREIGHT. 
 
 135 
 
 loss arises from defect ill the cask, leakage , or in- 
 herent waste, and not from bad stowage, the ship 
 owner is entitled to freight.* 
 
 By the maritime ordinance, as cited above, it 
 Avould seem that the merchant freighter should 
 abandon to the ship owner, the casks, &c., on 
 which freight is due, in consequence of leakage. f 
 Freight is to be paid on all live stock put on 
 board, unless the animals die through some neglect 
 or fault of the master. It is said, however, that an 
 agreement for the “ transportation ” of the animals 
 would require that they should be delivered at the 
 port of destination ; and, consequently, if any die 
 on the voyage no freight is due. I 
 
 If freight be paid in advance, and the goods do 
 not arrive, the money so paid may be recovered 
 back.<§> 
 
 .The general rule is, that to entitle the ship 
 owner to any freight under the charter party, the 
 whole of the goods shipped on board must be deliv- 
 ered at the port of destination. The contract is an 
 entire contract, and unless fully performed by de- 
 livery of the whole cargo, no freight is due under 
 the charter party. The stipulated voyage must be 
 actually performed. A partial performance is not 
 sufficient, nor can a partial payment be claimed, 
 except in special cases. || 
 
 * 2 Johns. R. 327. Molloy, book 2, chap. 4, sec. 14. 
 f Cushing’s Pothier, p. 34. J Kent’s Com. vol. 3, p. 225. 
 
 § 3 Pick. 20. || Kent’s Com. vol. 3, p. 228. 
 
136 
 
 PAYMENT Of FREIGHT. 
 
 Where a ship is chartered for one voyage, out- 
 ward and homeward, and the sum agreed upon for 
 the same is not apportioned, so much for the out- 
 ward, and so much for the homeward voyage, but 
 stands in gross, so much for the whole voyage, — 
 the outward and homeward | assages are not divis- 
 able. Therefore, if the ship performs the outward, 
 and fails to perform the homeward voyage, no 
 freight is recoverable for either * 
 
 Where a ship was injured by collision with 
 another ship, and deserted by her crew, and was 
 afterwards picked up and brought into port and li- 
 beled for salvage, and the owners of the cargo re- 
 ceived 5U per cent, of the value of the same, it was 
 decided that nothing was due the ship owner for 
 freight. The cargo actually arrived safe.f 
 
 There are special cases where an apportionment 
 of freight is allowed. This usually happens when 
 the vessel is forced into a port short of her desti- 
 nation, and cannot finish the voyage. In that case, 
 if the owner of the goods will not allow the mas- 
 ter a reasonable time to repair, or to proceed in 
 another ship, the master will be entitled to the 
 whole freight ; because the freighter is the cause of 
 the contract not being performed. 
 
 Cut if the shipper consents, and the master re- 
 fuses to go on, he is not entitled to freight, because 
 he has not performed his contract. To entitle him- 
 self to freight, the master must proceed, or offer to 
 * 2 Chilly’s Rep. 66G. 5 Mass. 252. t 1 Johns. R. 24. 
 
DUTY TO EMPLOY A PILOT. 
 
 137 
 
 proceed, in another vessel, or repair his own, and 
 take on the cargo.* 
 
 If the merchant accepts the goods at the inter- 
 mediate port, the general rule of the marine law is, 
 that freight is to be paid according to the propor- 
 tion of the voyage performed, and the law will im- 
 ply such a contract. The acceptance must, how- 
 ever, be voluntary, and not one forced upon the 
 merchant. f 
 
 The proportion of freight earned, is not ascer- 
 tained by a comparison of the length of the voyage 
 from the port of lading, to the port of destination, 
 with the length of the voyage actually performed ; 
 but the proportion is rather ascertained by the 
 amount of benefit actually rendered to the shipper. 
 Therefore, the expense of transporting the goods 
 from the port of distress , to the port of destination , 
 must first be ascertained, and that sum being de- 
 ducted from the sum agreed upon for the whole 
 voyage, the remainder is the sum properly due the 
 ship owner for freight, pro rata itineris.% 
 
 OF THE DUTY OF THE MASTER TO EMPLOY A PILOT. 
 
 It is the duty of the master engaged in a for- 
 eign trade, to put his ship under the charge of a 
 pilot, both on his outward , and horneioard voyage, 
 when he is within the usual limits of the pilot’s 
 employment. § 
 
 * 2 Burns’ Rep., 883. 
 
 $ 5 Mass. R. 252. 
 
 12 * 
 
 f 2 Johns. R. 323. 
 
 § Kent, vol. 3, p. 176. 
 
138 
 
 DUTY TO EMPLOY A. PILOT. 
 
 If a master of a ship find himself, in tempestuous 
 weather, in any reputed dangerous place, usually 
 denominated pilot's water, and a pilot offer to come 
 on board, which offer he refuses to accept, the mas- 
 ter, in such a case, is liable to his owners, freight- 
 ers, or insurers, for the damage or loss of ship and 
 cargo, if either happen in his attempting a passage 
 without a pilot.* 
 
 If the master at a foreign port attempt to obtain 
 a pilot, and fail, and then in the exercise of his 
 best discretion, endeavor to enter the port, and 
 ground, the insurer is not discharged-! 
 
 If the master approach a port in the night, he 
 must make signals for a pilot, and wait a reason- 
 able time for one, and if he attempt to enter the 
 port without one, except in case of extreme neces- 
 sity, the insurers are discharged. J 
 
 Where the approach or entrance to harbors, &c., 
 is hazardous and difficult, the taking a pilot is ob- 
 ligatory on the master ; otherwise, in case of loss, 
 he must make it good.<§> 
 
 After a pilot is taken on board, the master has 
 no longer any command of the ship till she is safe 
 in the harbor ; but then the master resumes the 
 government of the same, and is to see to her bed 
 and lying, the pilot being no longer liable, though 
 for his own convenience he may still be on board. 
 
 * Blunt’s Com. Digest, p. 324. f Barn, and Adolph, p. 380. 
 
 J Blunt's Com. Digest. § Ibid, 
 
139 
 
 master’s protest. 
 
 Op the master’s duty to protest in case op 
 
 DISASTER. 
 
 A protest should be made by the master in case 
 of accident, either to vessel, or cargo, at the first 
 port he puts into. Every occurrence, happening 
 during the voyage, which may operate to the dis- 
 advantage, or detriment of any concerned in the 
 voyage, should be protested against. This protest 
 should be made within twenty-four hours after his 
 arrival, at the next port after the happening of the 
 disaster. 
 
 The master should note in his log book all the 
 material occurrences which happened during the 
 voyage. By this means much information may be 
 thrown upon the events of the voyage, which after- 
 wards maybe subject to dispute or litigation. Care 
 should be had, that no erasures are made, or leaves 
 blotted, or torn ; since all these circumstances tend 
 very much to excite suspicion of alteration, and 
 weaken confidence in its correctness. 
 
 Masters of American vessels must make a protest 
 when any of their seamen have been impressed, 
 and transmit the same to the nearest consul, or the 
 minister of the United States, and keep a duplicate 
 for the Secretary of State, 
 
140 
 
 collision of ships. 
 
 OF THE Master’s DUTY RESPECTING A COLLISION OF 
 SHIPS. 
 
 The facts, in case of a collision of vessels, are 
 generally difficult of ascertainment, and therefore it 
 is often hard to decide who is the party in fault. 
 Such accidents usually happen in the darkness of 
 night, or in a storm, and are necessarily accompa- 
 nied with confusion and agitation. But when the 
 facts are once ascertained, the principles upon 
 which the loss is to be adjusted is very well set- 
 tled by the maritime law. The party in fault 
 must pay all the damages ; and that, too, whether 
 it arose from actual, wilful intent to injure, or, from 
 heedlessness, or want of due care and skill in the 
 management of the vessel. 
 
 There are settled nautical rules by which, in 
 most cases, the want of skill, care, or duty may be 
 ascertained. 
 
 The vessel that has the wind free, must get out 
 of the way of the vessel that is close hauled. 
 
 The vessel on the starboard tack has a right to 
 keep her wind, and the vessel on the larboard tack 
 is bound to bear up, or heave about to avoid dan- 
 ger, or be answerable for the consequences. 
 
 The vessel to windward is to keep away when 
 both vessels are going the same course in a narrow 
 channel, and there is danger of running afoul of 
 each other. 
 
COLLISION OF SHIPS. 
 
 141 
 
 la the case of steam vessels, which have greater 
 power, and are more tinder command, they are 
 bound always to give way to a vessel with sails, in 
 a case of collision. 
 
 So, a neglect of due means to check a vessel en- 
 tering a river or harbor, where others lie at anchor, 
 is a fault which creates responsibility for damages 
 which may ensue. 
 
 Where the collision has arisen from causes over 
 which neither party could have had any control, 
 and without, any fault, open or concealed, the 
 damage must be borne where it falls. 
 
 When both parties are equally in fault, or where 
 the causes of the collision are undiscoverable, then 
 both vessels contribute equally to repair the loss 
 without respect to the relative value of the injured 
 vessels. 
 
 By a late decision in the English House of Lords, 
 it would seem to be held that the cargo is liable to 
 contribution in case of loss by collision, and, also, 
 on the other hand, entitled to share in the salvage. 
 
 In Massachusetts, by special statute, the owner 
 s made answerable only for the wrongs and de- 
 faults of his master or crew, to the extent of his 
 interest in the ship. 
 
 For article on 11 deviation by the master ,” see 
 article on “ deviation ,” under the head of 11 marine 
 insurance 
 
142 
 
 THE MATE. 
 
 CHAPTER XII. 
 
 OF THE MATE. 
 
 In the absence of the master, the mate is en- 
 trusted with the care of the ship, and the govern- 
 ment and management of the crew; and if a sea- 
 man be wrongfully dismissed by him, the owners 
 are liable therefor as the act of their agent.* 
 
 Upon the death of the master the mate succeeds 
 to his place by force of his office, and by operation 
 of law. He acts instead of the master, in all cases 
 where the latter is dead or absent. He does not 
 cease to be mate in such cases ; but he has thrown 
 upon him, cumilatively, the duties of master. He 
 is still a mate, acting as master, and may sue for 
 his wages as mate in the admiralty.f 
 
 But in case of the death, or other removal of the 
 master abroad, the mate cannot claim to exercise the 
 authority of master as an incident to his office. 
 The master may appoint some one else to succeed 
 him ; or the American consular agent, or consignee 
 of the owner, each, in the absence of the other, 
 have a right to select his successor. 
 
 The mate is, in sickness, entitled to be cured at 
 the expense of the ship, in the same manner as 
 
 * 4 Mason’s E. 541. 
 
 f Sumner’s R. 151. 
 
THE MATE. 
 
 143 
 
 a seaman. And, therefore, if he is put on shore, 
 from sickness, for the convenience of the ship, his 
 expenses for medicines, advice, attendance and 
 hoard, are to be borne by the ship owner. 
 
 The mate may forfeit his right to command and 
 wages, by fraudulent, unfaithful, and illegal prac- 
 tices ; by gross and repeated negligence, or flagrant, 
 wilful, and unjustifiable disobedience ; by incapacity 
 brought upon him by his own fault, or palpable 
 want of skill in his profession ; but the causes of 
 removal should be evident, strong, and legally im- 
 portant.* 
 
 Where a master and mate were jointly sued in 
 the admiralty by a seaman for an assault and bat- 
 tery, and it appeared that the mate assisted in some 
 of the acts complained of; held, that the mate 
 might be justified for assisting, in obedience to the 
 master’s orders, though the conduct of the master 
 might have been, on the whole, illegal and unjus- 
 tifiable ; and that the libel, in such a case, might 
 be dismissed in respect to the mate, and he be 
 made a witness for the master. f 
 
 When a seaman is appointed to act as mate of a 
 vessel, by the master, during the voyage, he may 
 be removed by the master for incompetency, and 
 is not entitled to any other wages than those con- 
 tracted for in the articles. J 
 
 It seems, that temporary appointments, made by 
 the master, on an emergency, are held at his pleas- 
 * 4 Wash. R. 338. f 7 Amer. Jurist, 70. ^ Gil. It. 83. 
 
144 
 
 THE MATE. 
 
 lire and stand on a different footing from that of 
 a party originally shipped in the character in ques- 
 tion. making his contract for the office and for the 
 wages belonging to it. 
 
 In the absence of the master, the next highest 
 officer on boar dsncceeds to his rights and authority 
 for the time, so far as they are necessary for the 
 due performance of the ship’s duties. 
 
 The master and mate, as well as the seamen, are 
 entitled to medical advice and attendance, at the 
 expanse of the ship. If they are put on shore from 
 sickness, for the convenience of the ship, their ex- 
 penses for medicines, advice, attendance and board, 
 are to be borne by the ship owner.* 
 
 Neither the mate, nor any subordinate officer, 
 lias authority to punish any seaman even for impro- 
 per behavior, or misconduct to himself personally, 
 when the master is on board, except by the author- 
 ity, expressed or implied, of the master, or when 
 the necessities of the ship’s service require instan- 
 ( ancons punishment, to compel a seaman to do his 
 duty. 
 
 * 3 Gilpin’s R. 
 
OF SEAMEN. 
 
 145 
 
 CHAPTER XIII. 
 
 OF SEAMEN. 
 
 Of seamen — Of laws for their protection — Of laws for their relief 
 in American ports — Of laws for their relief in foreign porls — Of 
 medicine and medical advice and attendance — Of provisions and 
 water — Whet, mariners may refuse to proceed on the voyage — 
 Of seamen’s wages — Of their liability to forfeit their wages — Of 
 their liability to lose their wages — Of their duty in case of disas- 
 ter — Of State laws relating to seamen — Of embezzlement by 
 seamen. 
 
 Seamen are a peculiar class, and have their own 
 peculiar characteristics. Perhaps there is no other 
 class among us, so strongly and distinctly marked. 
 The natural effect of their home on the deep, with 
 its unchanging scenery, unless broken by the tem- 
 pest, and its regular routine of duties, except when 
 interrupted by calamity, is to assimilate their char- 
 acters to each other in a remarkable degree. There 
 is connected with their calling peculiar dangers, 
 privations and sufferings ; and they have their own 
 peculiar habits, and manners, and distinctive modes 
 of thought, of feeling, expression and of action. 
 They are thrown by their situation under different 
 influences from other men, and exposed to different 
 temptations. They are generally less favored than 
 others with the advantages of education; and by their 
 position, are rendered less likely to become familiar 
 with the formalities and stratagems of the world. 
 
 13 
 
146 
 
 OF SEAMEN. 
 
 Hence it is that they are scarcely to be judged 
 by the same rules as other men, nor their errors 
 and foibles weighed in the same balance. They 
 are. therefore, not only provided with special laws 
 for their government and protection, but the' rules 
 by which they are judged, in the admiralty courts, 
 are more flexible than those adopted for any other 
 class. In these courts, where suits by them for 
 their wages, or against them for their offences, are 
 cognizable, they have usually found watchful and 
 firm guardians, suited to their character and wants. 
 Indeed, they have been termed the peculiar favor- 
 ites of maritime courts. Their thoughtlessness and 
 improvidence, combined as it is with much of merit 
 and of gallantry, is forever exposing them, either 
 to the arts of the designing or to the bitterness of 
 privation and suffering. They are seldom fully 
 aware of their own rights and privileges, and too 
 often indifferent to their true value. Hence it is 
 in the admiralty courts, where alone equity powers 
 are possessed fully adequate to their wants, that 
 seamen can look for even-handed justice and pro- 
 tection. The rules and the precedents of the com- 
 mon law-courts, though well adapted to the char- 
 acter and wants of other men, are scarcely so to 
 them. 
 
 The character and wants of seamen are now 
 every day becoming more fully and better under- 
 stood, and their rights are beginning to become a 
 topic for frequent and serious remark. It is to be 
 
PROTECTION OF SEAMEN. 
 
 147 
 
 honed that this spirit of inquiry into their rights 
 and grievances, will not only continue, but be pro- 
 ductive of much good. A great object has been 
 gained when you have put any class upon the in- 
 quiry as to what their rights are. There is but 
 little fear but that when once ascertained they 
 will uphold and defend them. 
 
 The national legislature has wisely and humane- 
 ly seconded this watchful guardianship of the 
 rights and privileges of seamen by the admiralty 
 courts, by passing numerous and salutary laws 
 calculated to protect them, not only from the cru- 
 elty or cupidity of the master, or owners, but also 
 from their own improvidence on a home shore, and 
 from the accumulated sufferings of disease and 
 poverty in foreign ports. 
 
 OF LAWS FOR THE PROTECTION OF SEAMEN. 
 
 Every American seaman may, upon application 
 to the collector of the district from whence he de- 
 parts, and upon producing proof of his citizenship, 
 obtain a letter of protection. He is entitled to this 
 certificate by application as above, and by paying 
 25 cents. 
 
 It is the duty of the master of the vessel, whose 
 crew, or any of them, have been impressed or de- 
 tained by a foreign power, at the first port at which 
 he arrives after such impressment, if it happen up- 
 on the high seas, or, it it occur in port, then, imme- 
 
148 RELIEF OF SEAMEN IN AMERICAN PORTS. 
 
 diately upon such impressment or detention taking 
 place, to make a protest and transmit it to the near- 
 est American minister or consul. He should re- 
 serve to himself a duplicate copy of the protest, 
 and immediately upon arriving in the United 
 States, he must transmit the same to the Secretary 
 of State. In case the protest is made in the United 
 States, or in a foreign country where no American 
 minister, consul or agent resides, then the same 
 must, as soon thereafter as practicable, be sent by 
 mail or otherwise, to the Secretary of State.* 
 
 If the master neglect to notify as above in case 
 of the impressment of any of his seamen, he is lia- 
 ble to forfeit and pay $100. 
 
 OF LAWS FOR THE RELIEF OF SEAMEN IN AMERICAN 
 PORTS. 
 
 Masters of vessels are authorised by law to re- 
 tain twenty cents per month out of the wages of 
 the seamen in their employ, for hospital money. f 
 The fund thus raised, is appropriated to the es- 
 tablishment and maintenance of hospitals for sick 
 and disabled seamen. The money thus retained 
 by the master is paid into the hands of the several 
 collectors, and by them quarterly returns must be 
 made of the sums thus collected, into the office of 
 the Secretary of the Treasury. This fund, when 
 thus collected, is at the disposal of the president of 
 the United States for the purposes above expressed. 
 
 * Act 23d May, 1796, sec. 4. f Act 16th July, 1798, sec. 1. 
 
RELIEF OF SEAVEN IN FOREIGN COUNRTIES. 149 
 
 Directors are appointed in the several ports of 
 the United States, where the president thinks 
 proper, who have the direction of the expenditure 
 of the fund assigned for their respective ports. 
 
 Where it can with convenience be done, direc- 
 tors of the Marine Hospitals, within the United 
 States, are required to admit into their respective 
 hospitals sick foreign seamen, on the application 
 of the master of any foreign vessel to which such 
 seamen may belong : and such master is bound for 
 the payment of the hospital expenses thus incurred. 
 No clearance will be granted him until such pay- 
 ment is made. 
 
 See article on “ Marine Hospitals ,” also on 
 “ Medicine, and Medical Advice and Attendance 
 
 OF LAWS FOR THE RELIEF OF AMERICAN SEAMEN IN 
 FOREIGN COUNTRIES. 
 
 When a vessel is sold in a foreign country, and 
 her company is discharged ; or when a mariner, a 
 citizen of the United States, is, with his own con- 
 sent, discharged in a foreign country, the seaman 
 so discharged, is entitled to two months pay, over 
 and above the wages then already earned on board. 
 This pay he obtains by application to the American 
 consul for the port where such discharge is made.* 
 
 American seamen in foreign ports, who are sick, 
 or in destitute circumstances, are entitled to re- 
 
 * Act 28th Feb. 1803, sec. 3. 
 
 13 * 
 
150 RELIEF OF SEAMEN IN FOREIGN COUNTRIES. 
 
 ceive, upon application to the consular agent of 
 their government for the port where they may hap- 
 pen to be, suitable food and assistance ; and they 
 are also entitled to have a passage provided for 
 them to some port in the United States.* 
 
 Where the master of a vessel, in a foreign port, 
 where no American consul or other government 
 agent resides, takes a distressed American seaman 
 on board and returns him to the United States, the 
 Comptroller of the Treasury has power to award 
 him a suitable and equitable compensation, in ad- 
 dition to the compensation now fixed by law.f 
 If a seaman is discharged abroad without his 
 own consent, he may follow the vessel and recover 
 wages up to the time of her arrival in a home port, 
 and also the expenses of his own return. His in- 
 termediate earnings may be deducted from the ex- 
 penses incurred, but not from the wages due.J 
 The whole policy of the laws of the United 
 States, discourages the discharge of American sea- 
 men in foreign ports. $ 
 
 A consul has no authority to order a seaman to 
 be imprisoned in a foreign port. If the master does 
 it on his order, he is not exempt from liability if 
 the imprisonment was unjustifiable. 
 
 For right of seamen to medical advice and at- 
 tendance when sick or disabled in a foreign port, 
 
 * Act, 28th Feb. 1803, sec. 4. f Act. 1811. 
 
 4 7 Amer. Jurist, 37. § 7 Amer. Jurist, 37. 
 
MEDICAL ADVICE AND ATTENDANCE. 
 
 151 
 
 see article, “ Medicine and Medical Advice and 
 Attendance 
 
 OF MEDICINE, AND MEDICAL ADVICE AND ATTENDANCE. 
 
 By the maritime law, both of Europe and Amer- 
 ica, the expense of curing a sick seaman, is made a 
 charge upon the ship ; “ and it appears to me,” 
 says Mr. Justice Story, “ so consonant with human- 
 ity, with sound policy, and with national interests, 
 that it commends itself to my mind quite as much 
 by its intrinsic equity, as by the sanction of its 
 general authority. Seamen are, by the peculiarity 
 of their lives, liable to sudden sickness, from change 
 of climate, exposure to perils and exhausting labor. 
 They are generally poor and friendless, and if some 
 provision be not made for them in sickness at the 
 expense of the ship, they must often, in foreign 
 ports, suffer the accumulated evils of disease and 
 poverty, and sometimes perish for the want of suit- 
 able nourishment. Their common earnings, in 
 many instances, are wholly inadequate to provide 
 for the expenses of sickness, and if liable to be so 
 applied, the great motives for good behavior might 
 be ordinarily taken away, by pledging their future, 
 as well as past wages, for the redemption of the 
 debt. On the other hand, if these expenses are a 
 charge upon the ship, the interest of the owner will 
 be immediately connected with that of the seaman. 
 The master will watch over their health with vigil- 
 
152 MEDICAL ADVICE AND ATTENDANCE. 
 
 ance and fidelity. He will take the best methods, 
 as well to prevent diseases as to insure a speedy 
 recovery from them. He will never be tempted to 
 abandon the sick to their forlorn fate ; but his duty 
 combining with that of the owner, will lead him 
 to succor their distress, and shed a cheering kind- 
 ness over the anxious hours of suffering and de- 
 spondency.” 
 
 The master and mate, as well as the seamen, 
 are entitled to medical advice and attendance 
 at the expense of the ship. If they are put on 
 shore from sickness, for the convenience of the 
 ship, their expenses for medicine, advice, attend- 
 ance and board, are to be borne by the ship own- 
 er.* 
 
 Seamen are to be cured at the expense of the 
 ship, of any sickness, or injury, sustained in the 
 ship’s service. 
 
 It must be sustained by the party while in the 
 ship’s service, and he is not to receive any compen- 
 sation or allowance for the effects of the injury. f 
 
 Where a seaman, in a foreign port, is taken on 
 shore at his own solicitation, from a vessel properly 
 provided with a medicine chest , and there receives 
 medical advice and attendance, the expenses there- 
 of are to be deducted from his wages. J 
 
 Livery ship, or vessel, of the burthen of seventy- 
 five tons or upwards, navigated by six or more per- 
 
 * 2 Mason, 541. Gilpin’s It. 485. 
 
 f Gilpin’s it. 435. 
 
 f Sumner’s R. 195. 
 
PROVISIONS AND WATER. 153 
 
 sons in the whole, and bound on a voyage without 
 the limits of the United States, must be provided 
 with a chest of medicines, put up by some apothe- 
 cary of known reputation, and accompanied by di- 
 rections for administering the same ; and such 
 medicine must be examined by the same, or some 
 other apothecary, once at least, in every year, and 
 supplied with fresh medicines in place of such as 
 have been used, or spoiled. In case the master 
 fails to provide such medicine-chest, and to keep it 
 fit for use, he must provide and pay for, all such 
 advice, medicine, or attendance of physicians as 
 any of the crew may, in case of sickness, stand in 
 need of, at every port or plaee where the vessel 
 may touch or trade at during the voyage, without 
 any deduction from the wages of any such sick 
 seaman or mariner.* 
 
 A stipulation that the seaman shall pay for med- 
 ical advice, and medicines, without any condition 
 that there shall be a suitable medicine-chest, &c., 
 is void, as contrary to the act of Congress. f 
 
 OF PROVISIONS AND WATER. 
 
 Everv vessel, bound on a foreign voyage across 
 the Atlantic, must, at the time of her leaving the 
 last port whence she sails, have on board, well 
 secured under deck, at least sixty gallons of water, 
 one hundred pounds of salted flesh meat, and one 
 
 * Act 2, March, 1805. 
 
 f 2 Mason, 541. 
 
154 WHEN MARINERS MAY REFUSE VOYAGE. 
 
 hundred pounds of wholesome ship-bread for every 
 person on board such vessel, over and besides such 
 other provisions, stores, and live stock, as may, by 
 the master, or passengers, be put on board ; and in 
 like proportion for shorter or longer voyages. 
 
 In case the crew of any vessel, not so provided, 
 are put on short allowance of water, flesh, or bread, 
 during the voyage, the master or owner of such 
 ship or vessel, is liable to pay to each of the crew 
 one day’s wages beyond the wages agreed upon, 
 for every day they are so put on short allowance. 
 
 Where the provisions specified in the act of Con- 
 gress, to be put on board the vessel, can be procur- 
 ed, no substitute can be allowed ; but where the 
 specific articles cannot be obtained, others may be 
 substituted. When the requisite quantity is taken 
 in, the master is the sole judge of their expenditure. 
 If the voyage is likely to be uncommonly procras- 
 tinated, or, if provisions are, by accident, diminish- 
 ed in quantity, he may justifiably diminish the 
 usual allowance. There is not the shadow of rea- 
 son to complain, where other provisions are substi- 
 tuted for enumerated articles damaged.* 
 
 WHEN MARINERS MAY REFUSE TO PROCEED ON THE 
 VOYAGE. 
 
 That the lives and comfort of mariners may not 
 be exposed unnecessarily by the carelessness or cu- 
 
 1 Admiralty Decision, 219. 
 
WHEN MARINERS MAY REFUSE VOYAGE. 155 
 
 pidity of their employers, by placing them on board 
 of vessels unseaworthy, or, unprovided with suitable 
 stores, it is provided in certain cases that the crew 
 may compel the master to put into port for repairs, 
 or to obtain farther supplies. 
 
 By the act of the 20th July, 1790, it is provided 
 that, if the mate or first officer under the master, and 
 a majority of the crew of any vessel, bound to a 
 foreign port, shall, after the voyage has begun, (and 
 before the vessel has left the land,) discover that 
 she is too leaky, or is otherwise unfit in her crew, 
 body, tackle, apparel, furniture, provisions, or stores, 
 to proceed on her intended voyage, they may re- 
 quire of the master that the same be inquired 
 into. The master, upon such request, must forth- 
 with proceed to, or stop at the nearest port or place 
 where such inquiry can be made, and must there 
 apply to the judge of the district court, if he reside 
 there, or to a justice of the peace, taking two of 
 the seamen who complained with him, and upon 
 such application, the judge or justice must issue 
 his precept to three disinterested men skilled in 
 such affairs, to repair on board and examine her in 
 respect to the deficiences complained of, and to make 
 report to him, in writing, whether in any, or what 
 respect she is unfit to proceed on her voyage, and 
 what addition of men, provisions or stores, or what 
 repairs are needed to render her fit to proceed on the 
 voyage. Upon the report thus made, the judge 
 must determine and endorse on the report his jndg. 
 
156 WHEN MARINERS MAT REFUSE VOYAGE. 
 
 ment, whether the vessel is fit to proceed on the in- 
 tended voyage or not ; and if not, also whether she 
 can be refitted where she then is, or must return to 
 the port from which she originally departed. This 
 judgment must be strictly followed by both mas- 
 ter and crew. The master must in the first in- 
 stance pay all the costs and charges of such view, 
 report and judgment. 
 
 If the complaint of the crew appear upon such 
 judgment to be without foundation, then the mas- 
 ter may deduct the amount of such costs, and also 
 reasonable damages for such detention (to be ascer- 
 tained by such judge or justice, from the wages 
 growing due to such complaining seamen. 
 
 If, after such judgment, such vessel is fit to pro- 
 ceed to sea; or after procuring such provisions, 
 stores, men, or repairs, as may be directed, the sea- 
 men, or either of them, refuse to proceed on the 
 voyage, any justice of the peace may commit such 
 seaman or seamen to the common jail of his coun- 
 ty, there to remain without bail until he or they 
 shall have paid double the sum advanced to him at 
 the time of subscribing the contract for the voyage, 
 together with such reasonable costs as may be al- 
 lowed by the justice, and the surety of such sea- 
 man (in case he may have given any) must remain 
 liable for such payment. 
 
 No seaman thus committed can be discharged 
 upon any writ of habeas corpus, or otherwise, until 
 such sum be paid by him, or his surety. 
 
seamen’s wages. 
 
 157 
 
 When seamen have shipped on board of any 
 vessel under a particular master, and afterwards an- 
 other master is substituted in his place, such sea- 
 men have no right to leave the ship and refuse to 
 perform the voyage for that reason alone. But if 
 the master so substituted is grossly incompetent to 
 fulfil the duties of his station, from want of skill, 
 or bad habits, or profligate and cruel behavior, the 
 seamen may be justified in refusing to do duty, or 
 to remain by the ship. 
 
 of seamen’s wages. 
 
 To prevent all embarrassment in ascertaining 
 the exact condition on which seamen contracted for 
 the voyage, it was early enacted by statute, that a 
 contract in writing, or in print, should be made with 
 every seaman on board of any vessel of the burthen 
 of fifty tons or upwards, and bound to any other 
 than a port in the same, or an adjoining state. In 
 this contract must be declared the voyage, and also 
 the term of time for which each seaman shipped, 
 as well as the amount of compensation.* 
 
 If the master carries out any seaman without 
 such written, or printed agreement, he is bound to 
 pay to such seaman the highest wages which was 
 given for a similar voyage, within the three months 
 previous to such shipping ; and also forfeit for every 
 seaman thus carried out, the sum of $20. 
 
 * Act 20th July, 1790, sec. 1. 
 
 14 
 
seamen’s wages. 
 
 Seamen who have not signed the shipping arti- 
 cles, are not bound by the regulations, nor subject 
 to the penalties provided in an act passed in 1790, 
 chap. 7, sec. 56, for the government and regulation 
 of seamen in the merchant’s service.* 
 
 Every seaman may demand from the master of 
 the vessel to which he belongs, one third part of 
 the wages which are due to him, at every port at 
 which the vessel unlades a part of her cargo, unless 
 the contrary be expressly stipulated in the con- 
 tract. f 
 
 As soon as the voyage is ended, and the cargo or 
 ballast is fully discharged at the last port of deliv- 
 ery, he is entitled to the wages then due him ac- 
 cording to his contract ; and if such wages are not 
 paid within ten days after the discharge of the car- 
 go as aforesaid, the seaman may commence a pro- 
 cess against the master to compel payment. 
 
 If the vessel be about to proceed to sea before 
 the ten days have expired, the mariner may proceed 
 against the vessel immediately. 
 
 Seamen have a threefold remedy for the obtain- 
 ment of their wages — to wit : against the master, 
 the owner, and the ship. 
 
 They are favored in another respect, inasmuch 
 as they are privileged by law, to bring their suit 
 jointly, the whole crew joining in one action, and 
 thus preventing the accumulation of costs which 
 would ensue from the suits being brought severally. 
 
 4 Act 20th July, 1790, sec. 2. f Ibid, sec. 6. 
 
seamen’s wages. 
 
 159 
 
 After the ten days have expired, if the master re- 
 fuse to pay his seamen, their proper method to ob- 
 tain payment, is, to apply to a judge of the district 
 where the vessel lays, or in case no such judge re- 
 sides within three miles, then to a justice of the 
 peace, with a statement of their several claims ; 
 whose duty it is immediately thereafter to issue a 
 summons to the master thus complained against, to 
 appear and show cause why process should not is- 
 sue against the vessel, her furniture, tackle and ap- 
 parel, according to the usual course of admiralty 
 courts. 
 
 II, when so summoned, the master neglect to ap- 
 pear, or appearing, fail to satisfy the judge or jus- 
 tice, that the wages thus claimed are not due, or 
 that the same have been paid, satisfied or forfeited, 
 it is the duty of the judge or justice, if the same 
 are not forthwith paid or satisfied, to certify to 
 the clerk of the court of the district, that there is 
 sufficient cause of complaint whereon to found ad- 
 miralty process ; and thereupon the clerk of the dis- 
 trict court Avill issue process against the vessel, &c. 
 
 If the master, upon the trial, or upon any hear- 
 ing touching their wages or conduct, refuse, upon 
 application, to produce the log book, the seamen are 
 permitted to state what the same contains, and the 
 master cannot disapprove what the seamen thus 
 state, otherwise than by producing the log book. 
 
 As a seaman is exposed to the hazard of losing 
 the reward of his faithful services during a consid- 
 
160 
 
 seamen’s wages. 
 
 erable period, in certain cases, so on the other hand 
 the law gives him his whole wages, even when he 
 has been unable to render his services, if his inabil- 
 ity has proceeded from any hurl received in the 
 performance of his duty, or from natural sickness 
 happening to him in the course of the voyage.* 
 
 If, in consequence of their sickness, they are ob- 
 liged to be left at a foreign port, they are still enti- 
 tled to their wages for the full voyage. f 
 
 If, by threats, the crew induce the master, while 
 on the voyage, to promise them higher wages than 
 those for which they contracted, the promise will 
 be held to be void.J * 
 
 If the master, in violation of his contract, dis- 
 charge a seaman from the ship during a voyage, the 
 seaman will be entitled to his full wages up to the 
 prosperous termination of the voyage, deducting, if 
 the case require it, such sum as he may in the mean 
 time have earned in another vessel. $ 
 
 When seamen are discharged by their own con- 
 sent abroad, or the ship is sold abroad, they are of 
 course entitled to their wages up to that time ; and 
 the act of Congress of 28th of Feb. 1803, ch. 62) 
 provides thht three months additional pay shall be 
 allowed, two thirds of which are to be given by 
 the consul of the United States to the seamen, and 
 the other third is to be retained by the consul as a 
 fund to aid sick and distressed seamen. 
 
 # Abbott, 441. 
 
 X 14 Johns. 260. 
 
 f 2 H. Bl. 606. 
 
 § 3 Johns. R- 518. 
 
FORFEITURE OF SEAMEN’S WAGES. 161 
 
 In case of a seaman’s dying in the course of the 
 voyage, his representatives are entitled to his wa- 
 ges up to the time of his death.* 
 
 A father is entitled to the services of his minor 
 children. He may, therefore, recover in the admi- 
 ralty for wages earned by such children by mari- 
 time services.! 
 
 The written agreement, or shipping articles, en- 
 tered into at his departure, is the only legal evi- 
 dence of the contract, and a mariner can recover 
 no more than is stipulated in these articles. 
 
 OF THE LIABILITY OF SEAMEN TO FORFEIT* THEIR 
 WAGES. 
 
 One of the means by which seamen are sought 
 to be bound to the ship, and made to feel the suc- 
 cess of the voyage to be identical with their own, 
 is the liability which the law acknowledges, of 
 their forfeiting their wages to the owners for their 
 misconduct ; or of losing them, by the loss of the 
 ship. That these regula ions are founded in good 
 policy, no one who considers the character of mar- 
 itime engagements can seriously question. By mak- 
 ing the payment of their wages dependent upon 
 their conduct, a steady and healthful influence is 
 constantly operating upon them, and that, too, at 
 times, and in places, where no other motives would 
 
 * 12 Mass. R. 576. 
 
 14 * 
 
 f 4 Mason, 380. 
 
162 
 
 FORFEITURE OF SEAMEN'S WAGES. 
 
 be likely to be regarded ; and the making the loss 
 of the ship the certain loss of their wages, secures 
 more effectually than could any other thing, the 
 united and active assistance of the crew to save the 
 ship in time of peril, when otherwise they might 
 be inclined to shrink from duty. But while the 
 law visits upon seamen the forfeiture of their wages 
 for disobedience and mutiny, it is only those offen- 
 ces which are “ gross, and obstinate, and persisted 
 in without repentance and amends,” that are pun- 
 ished thus severely ; while lighter faults are treated 
 with an indulgent lenity, allowing compensation 
 for any losses and expenses caused by them ; pass- 
 ing over slight errors, unaccompanied with mis- 
 chief, without notice, and correcting habitual neg- 
 lect, or incompetent performance of duty, when it 
 amounts only to minor faults, by a correspondent 
 diminution of wages. 
 
 If a seaman belonging to a vessel, absent him- 
 self from on board without leave of the master, or 
 officer commanding on board, for more than forty- 
 eight hours , at one time, he forfeits all the wages 
 then due him. 
 
 If he thus absent himself for a less time than 
 forty-eight hours, he forfeits three days for every 
 day he absents himself. 
 
 In case he deserts from the ship for more than 
 forty-eight hours, the mariner not only forfeits his 
 wages, but also his goods and chattels on board, or 
 in store where he may have deposited them on de- 
 
FORFEITURE OF SEAMEN’S WAGES. 
 
 163 
 
 sertion ; and is liable to pay all damages sustained 
 by the owners, by reason of their being obliged to 
 hire other mariners in his place.* 
 
 The officer having command of the log book 
 must make an entry in it of the name of the ab- 
 sentee, with the time of his desertion, on the day 
 it takes place. Without such entry, the seaman 
 can recover for his wages. 
 
 It is incumbent upon the master, or commander, 
 to produce the contract, and log book, if required 
 by the mariner for the ascertainment of any matter 
 in dispute ; and if he refuse so to do, the mariner 
 will be permitted to say what is the contents of 
 such contract, or log book, and the master will not 
 be allowed to contradict him. 
 
 It is provided by law, that at the foot of every 
 shipping paper there must be made a memorandum 
 of the day and hour on which the seamen must 
 render themselves on board. If any seaman, after 
 subscribing such shipping paper, and receiving his 
 month’s advance, neglect to render himself on board 
 to begin the voyage on the day and hour specified, 
 he forfeits for every hour he so neglects to render 
 himself, one day's pay to be deducted from his 
 wages. 
 
 If he wholly neglect to render himself on board, 
 or, after rendering himself on board, desert, so that 
 the vessel proceeds to sea without him, he forfeits, 
 
 * Act 20th July; 1790, sec. 5. 
 
164 FORFEITURE OF SEAMEN^ WAGES. 
 
 and is liable to pay to the master or owner, a sum 
 equal to that paid him in advance, in addition to 
 the sum so advanced.* 
 
 Seamen forfeit their wages for gross offences, but 
 not for slight faults, either of neglect or disobedi- 
 ence. There must be either an habitual neglect 
 or disobedience, or a single act of a heinous and 
 aggravated nature. f 
 
 Repentance and tender of amends, reinstates the 
 offender’s claim for wages. J 
 
 The master has power to remit the forfeiture of 
 the wages of any seaman under his command, and 
 such pardon by him cannot be questioned by the 
 owners afterwards. <§> 
 
 Wages forfeited for an offence are only such as 
 are earned antecedently , and not subseqtiefitly to 
 the offence. || 
 
 Neglect of duty on the part of seamen, or diso- 
 bedience 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. But the neglect of duty and disobedi- 
 ence of orders, it seems, must be continued and ob- 
 stinate, to subject the offender to so severe a pen- 
 alty. H 
 
 Desertion of one of the crew during the voyage 
 is, by the maritime law, a forfeiture of all wages 
 
 * Act 20th July, 1790, sec. 2. § 4 Mason, 84. 
 
 f 4 Mason, 84. H Ibid. 
 
 $ Ibid. If Ibid. 541. 
 
FORFEITURE OF SEAMEN’S WAGES. 165 
 
 antecedently due. But a desertion, to work this 
 effect, must be not only an absence without leave, 
 or in disobedience of orders, but a going away with 
 the intention to abandon the ship and the service. 
 
 If, after desertion, a seaman offer to return to 
 duty in a reasonable time, and offer amends, and 
 repent of the offence, the master is bound to re- 
 ceive him back, unless his previous misconduct 
 would justify a discharge.* 
 
 The contract of seamen is not dissolved by ship- 
 wreck ; but they are bound to labor to preserve the 
 wreck of ship and cargo ; and if they leave the 
 ship without endeavoring to save them, they desert 
 their duty and may forfeit wages antecedently due. 
 
 Desertion to bring after it the forfeiture of wages, 
 either by the maritime law or by the statute, must 
 be during the voyage, and before it is ended. 
 
 The due entry in the log book is indispensable 
 to inflict the statute forfeiture. If not made on the 
 very day of the absence there can be no forfeiture 
 inflicted.f 
 
 Both officers and seamen are bound to remain by 
 the ship and unlade the cargo. If they do not, 
 they are liable for damages, and a compensation to 
 the owner. 
 
 If a person be substituted as master to take the 
 place of the commander under whom the seamen 
 shipped, who is grossly incompetent to fulfil the 
 
 * 4 Mason, 84. 
 
 f 1 Sumner, 373. 
 
166 
 
 FORFEITURE OF SEAMEN’S WAGES. 
 
 duties of his station from want of skill, or bad hab- 
 its, or profligate and cruel behavior, the seamen 
 may be justified in refusing to do duty, or to re- 
 main by the ship. 
 
 Where a vessel is detained in port by the wrong- 
 ful absence of a seaman, a deduction from his wa- 
 ges may be made to the amount of loss actually 
 sustained. 
 
 Where a vessel arrives at the last port of delive- 
 ry, and is moored at the wharf, if a seaman leaves 
 her before the discharge of the cargo, a deduction 
 from his wages is allowed, but not a forfeiture of 
 the whole. So, also, when the vessel is detained 
 by his refusal to work. 
 
 A seaman does not forfeit his wages by refusing 
 to proceed on a voyage not designated in the ship- 
 ping articles. 
 
 The .contract of the master with a seaman is for 
 his services until the cargo is discharged ; and if 
 be leaves the ship before that time, he forfeits his 
 wages.* 
 
 The time allowed by law for unlading vessels of 
 over 300 tons burthen is 20 days ; and all vessels 
 of less burthen, 10 days. -It is probable no seaman 
 would be required to remain longer by the ship, 
 for her unlading, than the time allowed by law for 
 the unlading of the vessel. 
 
 * 13 Johns. R. 390. 
 
seamen’s liability to lose wages. 
 
 167 
 
 of seamen’s liability to lose their wages. 
 
 It has ever been the policy of all maritime na- 
 tions to identify the interests of the seamen with 
 the prosperity of the voyage. To make the pay- 
 ment of their wages to depend on its successful 
 termination. From the nature of the employment 
 they must, necessarily, often be engaged in very 
 perilous services. Perhaps, at such times, no other 
 inducements would operate so strongly towards 
 making them do their whole duty, as the fact, that 
 on the issue depended their title to their past earn- 
 ings. So important has this principle been con- 
 sidered in the highest maritime courts, that sea- 
 men’s wages have been judicially settled not to be 
 legal subjects of insurance. Any insurance upon 
 their wages is considered void in law, as contrary 
 to its policy, and as tending to subvert the very 
 wholesome rule, that freight is the mother of 
 wages. 
 
 The seamen lose their wages when the vessel 
 earns no freight. This may happen by her being 
 totally lost or captured.* Freight is said to be the 
 mother of wages ; but if the ship is lost by the 
 fault or fraud of the master or owner, the seamen 
 are entitled to their wages. f 
 
 Where the ship is disabled, and she puts into an 
 intermediate port, and the cargo is there accepted, 
 * Abbott, p. 457, notes. 
 
 t 3 Johns. R. 518. 
 
168 
 
 SEAMEN'S LIABILITY TO LOSE WAGES. 
 
 and the vessel earns a portion of her freight, then 
 the seamen are entitled to a like proportion of their 
 wages.* 
 
 In case of capture, if the seamen stay by the 
 ship at the request of the master, and she be re- 
 leased, they recover their wages for the whole voy- 
 age ; but if the ship be condemned, they lose their 
 wages. While they stay by the ship, however, 
 waiting, at the request of the master, for her release 
 or condemnation, they are entitled to their subsist- 
 ence.! 
 
 But if a loss by capture, or by being run down, 
 takes place, and the owner recovers of the insurers, 
 or of the vessel running her dov^n, still the seamen 
 cannot recover for their wages.J 
 
 Where a ship, upon a double voyage, earns one 
 freight, or more, but is lost while earning the 
 other; in the adjustment with the crew, they are 
 to be paid for their time up to the last port where 
 freight was earned, and for half the time while the 
 ship lay in said port.$ 
 
 Or, if the ship go in ballast to another port after 
 a cargo, and after taking in a cargo and proceeding 
 on her voyage, be shipwrecked, the seamen are en- 
 titled to wages up to the arrival, and half the time 
 the ship lay at the port of lading. || 
 
 When a vessel is captured, the master has no 
 longer any control over the seamen. The relation 
 
 * 2 Sumner, 443. f Ibid. f Abbott, p. 457, notes. 
 
 § 1 Peter’s Cir. Rep. 182. || 3 Greenleaf s R. 1. 
 
DUTY OF MARINERS IN CASE OF DISASTER. 169 
 
 between the master and crew, then immediately 
 ceases. 
 
 If a seaman die during the voyage, his represent- 
 atives may recover the amount of his wages up to 
 the time of his death. So, if a seaman leave the 
 ship without any fault of his own, he may recover 
 his wages.* 
 
 Where the crew of a ship-wrecked vessel rescue 
 a portion of the wrecked property from danger, 
 they have a valid lien upon the goods saved for an 
 equitable compensation in the nature of salvage, 
 yet they have no right of action on their contract 
 for wages. | 
 
 OF THE DUTY OF THE MARINERS IN CASE OF DIS- 
 ASTER. 
 
 It is a well established rule of maritime law, 
 that freight is the mother of wages ; and therefore 
 if the ship be wrecked on her passage, and earn no 
 freight, the seamen lose their wages. Hence it has 
 sometimes been urged, that immediately on the 
 wreck of the vessel, the contract of the seamen is 
 dissolved, and they are no further bound to labor 
 for the preservation of her, or the property on 
 board. But, “ it is more consonant to reason, to jus- 
 tice, and to the nature of the contract, to hold, that, 
 in all cases of disaster, the seamen are bound to re- 
 main by, and preserve the ship and cargo as far as 
 
 * 2 Mass. E. 39. f 2 Mason, 319. 
 
 15 
 
170 DUTY OF MARINERS IN CASE OF DISASTER. 
 
 they can ; and to punish their neglect by a forfeit- 
 ure of any wages which have been previously 
 earned in the voyage.”* 
 
 In case, therefore, of the stranding or wreck of 
 the vessel, the master has a right to command the 
 services of the mariners to assist in saving the 
 wrecked property. Until the master has abandoned 
 the hope of saving the vessel and of earning freight ; 
 and while he commands their services for the pur- 
 pose of rescuing her from her peril , and putting 
 her in a position to resume her voyage , the mari- 
 ners are attached to the vessel under their contract, 
 and bound to obey the master, as such. For this 
 service, (unless their efforts are successful, and a 
 pro. rata , or full freight is subsequently earned,) no 
 wages is due them either as salvors or as laborers 
 by the day. 
 
 But when the disaster is such that the master 
 abandons all hope of rescuing the ship, and of earn- 
 ing freight, then their claim for wages is gone ; but 
 if, by their exertions, any portion of the property is 
 saved, the seamen are entitled to their wages out of 
 the same, as far as it goes, in the nature of a sal- 
 vage, for rescuing the property. 
 
 The popular idea among seamen that the mo- 
 ment a vessel is stranded, they are released from 
 the obligation to serve as mariners, and that for any 
 thing done towards getting the ship afloat, they are 
 entitled to per diem pay like strangers who may 
 * 2 Mason, 337. 
 
DUTY OF MARINERS IN CASE OF DISASTER. 171 
 
 come to their aid, seems hardly reasonable, since 
 the effort is an experiment, which, if successful, is 
 to benefit them in degree with the owners. 
 
 The claim of the seaman is not under his con- 
 tract for wages out of the freight ; but in a new 
 character, as a salvor , he regains a rightful claim to 
 wages restored by his exertions in rescuing the ar- 
 ticles saved, whether parts of the ship or cargo, 
 from the perils or loss to which the wreck had ex- 
 posed them.* 
 
 The amount of salvage, in such cases, usually 
 decreed to the seamen who have acted as salvors 
 of the property, is the amount of their wages up to 
 the time of their discharge. Where their conduct 
 has been very meritorious, or where they have ex- 
 posed themselves to extraordinary peril in their ef- 
 forts to save either life or property, a greater 
 amount is sometimes decreed, but seldom or never 
 a less sum, where the amount of the property sav- 
 ed, is sufficient to cover such wages.f 
 
 If the property saved has been underwritten up- 
 on, and is abandoned to the underwriters, they 
 must pay this salvage if the property comes to 
 their hands. But the seamen have a valid lieu up- 
 on the property saved for this salvage, if they 
 choose to rely upon it. J 
 
 In case of the stranding or wreck of the vessel, 
 and the master employs the seamen, or any of 
 them, to assist in watching and protecting the ves- 
 
 * 1 Peters, 48. f 2 Mason, 338. t 3 Mass. R. 563. 
 
172 
 
 STATE LAWS RELATING TO SEAMEN. 
 
 sel, or goods, he may, if he afterwards sells such 
 vessel or goods, under his authority as master, pay 
 such seamen a reasonable compensation out of the 
 fund so obtained. 
 
 Under the form of policy made use of by the 
 Boston offices, it is provided, that, “ in case of a to- 
 tal loss of a vessel with salvage, the amount allowed 
 out of the salvage to the officers and crew, for wages 
 earned, or services rendered previously to the loss, 
 shall be considered as so much of the salvage ap- 
 plied to the use of the ship owners, even although 
 the same should be allowed or paid under the name 
 of salvage, and not as wages, and shall accordingly 
 be deducted in adjusting the loss.” 
 
 OF STATE LAWS RELATING TO SEAMEN. 
 
 In Delaware, when engaged on board of a vessel, 
 no mariner can be arrested for a debt contracted 
 above ten shillings in amount. 
 
 In Virginia, foreign seamen, parties to the ship- 
 ping list, who absent themselves without leave 
 from the vessel (whether American or foreign) may 
 be carried before a justice of the peace, by a war- 
 rant, and committed to jail until the vessel is ready 
 to sail, and then delivered to the master. 
 
 Apprentices, regularly bound to the master or 
 owner for a term of years, may be dealt with in the 
 same manner. If, however, the seaman or appren- 
 tice prove, before the justice, that he has been cru- 
 
' STATE LAWS RELATING TO SEAMEN. 173 
 
 elly or improperly treated by the master, or that he 
 has good reason to apprehend personal danger from 
 the master, should he be compelled to remain on 
 board, the justice may discharge him from confine- 
 ment. 
 
 If masters discharge or land any sick or disabled 
 seaman without providing for his maintenance 
 and cure, they forfeit $60 ; and if they land any 
 passenger without the means of procuring his 
 maintenance for one month, they forfeit $50. 
 
 Tavern keepers selling drink on credit to a 
 sailor in actual employ of a vessel, lose the debt, 
 and forfeit $2 to the master of the vessel. The 
 same penalty is incurred by harboring or entertain- 
 ing a sailor in actual pay, without the consent of 
 the master. 
 
 In Georgia, persons giving credit to seamen for 
 more than five shillings, lose the debt ; and if a 
 person, without leave of the master, harbors a 
 sailor who has signed the shipping articles, he for- 
 feits 40 shillings for every twenty-four hours he 
 harbors him. 
 
 Persons selling a seaman spiritous liquor to the 
 amount, of more than one shilling and six pence per 
 day, or suffering a sailor to drink in their houses 
 after nine in the evening, forfeit $5. 
 
 In Alabama, persons secreting deserters from any 
 merchant vessel are liable to a penalty of $10 for 
 every day they continue so to harbor such seamen. 
 Masters employing seamen belonging to, or pre- 
 15* " 
 
174 EMBEZZLEMENT BY THE SHIP’S CREW. 
 
 tending to be discharged from another vessel in 
 that state, must obtain a certificate of their dis- 
 charge, under penalty of $50. A seaman absent- 
 ing himself from his vessel without leave, is liable 
 to be committed to the house of correction until 
 the vessel sails. 
 
 In Louisiana, captains of vessels arriving at New 
 Orleans, are required to give to all sailors discharg- 
 ed from their vessels, a certificate of discharge. If 
 a sailor desert, the master must, within twelve 
 hours after, affix a notice of the desertion in the 
 mayor’s office, with the name of the vessel and 
 deserter, and a description of the latter, signed by 
 the master. Masters employing seamen without a 
 certificate of discharge, are liable to a fine of $50 ; 
 and if a sailor applies to enter without such certifi- 
 cate the master must notify the other masters in 
 port who have given such notice. If the master 
 refuse to give such discharge, the sailor, if entitled 
 to it, can compel him to do so before the parish 
 court. 
 
 Any keeper of a public, or boarding, house, har- 
 boring or secreting a deserter from a merchant ves- 
 sel, is liable to a fine of $100, and to imprisonment 
 of thirty days, at the discretion of the court. 
 
 OF EMBEZZLEMENT BY THE SHIP’S CREW. 
 
 Where an embezzlement has arisen from the 
 fault, fraud, connivance, or negligence of the crew, 
 they are bound to contribute to it in proportion to 
 
EMBEZZLEMENT BY THE SHIP’S CREW. 175 
 
 their wages ; 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 are liable ; but where no 
 fault, fraud, connivance, or negligence is proved 
 against the crew, and no reasonable presumption is 
 shown against their innocence, the loss must be 
 borne exclusively by the owner or master. f 
 
 If any seaman who is engaged in a salvage en- 
 terprise, embezzle a part of tlm property, he forfeits 
 the right of salvage. J 
 
 * 1 Mason’s R. 104. f Ibid. f Gallison’s R. 593. 
 
176 CRIMES COMMITTED ON THE HIGH SEAS. 
 
 CHAPTER X1Y. 
 
 OF CRIMES COMMITTED ON THE HIGH SEAS. 
 
 To assist, or be concerned in the robbery or plun- 
 der of any vessel in distress, wrecked or stranded ; or 
 to obstruct or attempt to obstruct the escape of any 
 person from such vessel ; or to hold out any false 
 lights, or to extinguish any true lights, with inten- 
 tion to bring any boat or vessel into danger or dis- 
 tress, subjects the offender to a fine of $5,000 and 
 imprisonment and confinement to hard labor, not 
 exceeding ten years, according to the aggravation 
 of the offence.* 
 
 If the master of any vessel, while abroad, mali- 
 ciously and without justifiable cause, forces any 
 officer or mariner belonging to his vessel, on shore ; 
 or leaves him behind in a foreign port, refusing to 
 bring him home again when such officer or seaman 
 is willing and ready to return, every master so of- 
 fending is liable to a fine not exceeding $500, or 
 to be punished by imprisonment not exceeding six 
 months, according to the aggravation of the of- 
 fence. f 
 
 It is felony and punishable with death for any 
 person to wilfully and maliciously set on fire, burn 
 
 # Act 3d March, 1825, sec. 9. 
 
 f Ibid, sec. 10. 
 
CRIMES COMMITTED ON THE HIGH SEAS. 177 
 
 or otherwise destroy any vessel of war of the 
 United States, or to assist or aid in the same.* 
 
 The same penalty is incurred for any of the offi- 
 cers or mariners of any merchant vessel, to wilfully 
 and corruptly cast away, burn or otherwise destroy 
 the vessel to which they belong, or if they procure 
 the same to be done, they suffer a like penalty. f 
 
 If the owner of any vessel wilfully and corruptly 
 cast away, burn or otherwise destroy any vessel of 
 which he is owner in part or in whole, or direct or 
 procure the same to be done with the intent or de- 
 sign to prejudice any person or persons who may 
 have underwritten upon the same, he is deemed 
 guilty of felony, and must suffer death. J 
 
 To conspire with other persons for the above 
 purposes or to be concerned in the building, fitting 
 out or other equipment of any vessel to be sent out 
 for such a purpose, subjects the offender to a fine 
 of not exceeding ten thousand dollars, and to im- 
 prisonment and confinement to hard labor, not ex- 
 ceeding ten years. $ 
 
 If the crew of any vessel, or any one or more of 
 the same, by threats and violence, or by fraud and 
 conspiracy, usurp the command of the ship, or pre- 
 vent the lawful commander from exercising his 
 just authority, or commit the command to another 
 person not lawfully authorized to exercise the same, 
 the person or persons so offending, and their aiders 
 
 * Act 3d March, 1825, sec. 11. f Act 26th March, 1804, sec. 1. 
 f Act 26th March, 1804, sec. 2. § Act 3d March, 1825, sec. 23. 
 
178 CRIMES COMMITTED ON THE HIGH SEAS. 
 
 and abettors, are guilty of a mutiny and revolt, and 
 are punishable with a fine not exceeding two 
 thousand dollars and by imprisonment and confine- 
 ment to hard labor not exceeding ten years.* 
 
 For any one or more of the crew of any vessel to 
 endeavor to make any revolt or riot on board, or to 
 stir any others of the crew up to mutiny or insub- 
 ordination, subjects the offender to a fine not ex- 
 ceeding one thousand dollars, or to punishment to 
 hard labor in prison not exceeding five years, or to 
 both, according to the aggravation of the offence. f 
 
 If the master, or other officer, of any vessel on 
 the high seas, beat, wound, or imprison any one, 
 or more, of the crew of such vessel, without justifi- 
 able cause, or withhold from them suitable food 
 and nourishment, or inflict upon them any cruel, or 
 unusual punishment, through malice, hatred, or re- 
 venge, every person so offending, is liable to be 
 punished by a fine not exceeding one thousand dol- 
 lars, or by imprisonment not exceeding five years, 
 or by both, according to the aggravation of the of- 
 fence.;]; 
 
 If any person, or persons, upon the high seas, or 
 where the tide ebbs and flows, on board of any ves- 
 sel, commit an assault upon another, with a dan- 
 gerous weapon, with intent to kill, rob, steal, or to 
 commit a mayhem or rape, such person is liable to 
 be punished by fine not exceeding three thousand 
 
 * Act 3d March, 1825, sec. 1. f Ibid, sec 2. f Ibid. sec. 3. 
 
CRIMES COMMITTED OF THE HIGH SEAS. 179 
 
 dollars, or by imprisonment not exceeding three 
 years.* 
 
 Jf any person within any of the places under the 
 sole and exclusive jurisdiction of the United States, 
 or upon the high seas, takes and carries away, with 
 an intent to steal or purloin, the personal goods of 
 another, the person so embezzling such property, 
 is liable to be fined not more than four-fold the 
 value thereof, one-half to be paid to the owner of 
 the goods, and the other half to the informer and 
 prosecutor. Persons buying or secreting such 
 goods, knowing them to be stolen, or harboring or 
 secreting such offenders, knowing them to have 
 offended, subject themselves to a like forfeiture. 
 They are also in both cases liable to be publicly 
 whipped,! not exceeding thirty-nine stripes. 
 
 Any confinement of the master, whether by de- 
 priving him of the use of his limbs, or shutting 
 him up in the cabin, or by intimidation, preventing 
 him from a free use of every part of the vessel, is a 
 confinement in contempt of the law.J 
 
 If any person wilfully and maliciously cut, spoil, 
 or destroy any cordage, cable, buoys, buoy-rope, 
 head-fast, or other fast fixed to any anchor or moor- 
 ings, belonging to any vessel, boat or raft, every 
 person so offending is deemed guilty of felony, and 
 
 # Act 3d March, 1825, sec. 22. 
 
 f This latter remnant of barbarism should be forthwith repealed; 
 as doubtless it would be, if only once brought to the notice of those 
 to whom that duty belongs. 
 
 $ 1 Peters, 118. 213. 
 
180 
 
 PIRACY. 
 
 is liable to be punished by a fine not exceeding one 
 thousand dollars, and by imprisonment and confine- 
 ment to hard labor not exceeding five years.* 
 
 OF PIRACY. 
 
 Piracy is punished by death. It is declared to 
 be piracy for the master and crew of one vessel up- 
 on the high seas, to feloniously and violently, 
 seize upon and rob the master and crew of another 
 vessel ; or to despoil them of the goods and effects 
 intrusted to their charge. 
 
 So also it is piracy for the master or mariners of 
 any vessel, to piratically, and feloniously, run 
 away with any vessel committed to their charge, 
 or any goods to the amount of fifty dollars ; or to 
 yield up such vessel, voluntarily, to a pirate. And 
 so likewise is it piracy for any seaman to lay vio- 
 lent hands upon his commander, thereby to hinder 
 and prevent his fighting in defence of the ship or 
 goods committed to his trust. f 
 
 The crime of piracy may be committed in any 
 open roadstead, river, creek, haven, basin or bay, 
 where the sea ebbs and flows, as well as upon the 
 high seas ; and is punished in the same manner. 
 
 So also, if any person or persons, engaged in any 
 piratical cruise, land from their vessel or vessels, 
 on shore, and commit a robbery, it is deemed and 
 punished as piracy. 
 
 * Act 3d March, 1825, sec. 7. f Act 30th April, 1790, sec. 8. 
 
PIRACY. 
 
 181 
 
 By the act of the 15th of May, 1820, it is de- 
 clared to be piracy for any one to be engaged in 
 kidnapping, on any foreign shore, any negro or 
 mulatto, not held to service or labor by the laws of 
 either of the states or territories of the United 
 States ; or for any one to decoy, or forcibly bring, 
 or carry, or receive, such negro or mulatto, on 
 board of any vessel, with intent to make the same 
 a slave ; and this act extends to all persons volun- 
 tarily employed on board of vessels transporting the 
 same, and also to all citizens of the United States, 
 whether employed on board of foreign or domestic 
 vessels, as well as to all foreigners employed on 
 board of vessels belonging to citizens of the United 
 States. 
 
 The captors of any piratical vessel, upon her be- 
 ing brought into port, and legally condemned, be- 
 come entitled to the proceeds of the sale, made un- 
 der order of the court having jurisdiction. 
 
 16 
 
182 
 
 AGREEMENT FOR INSURANCE. 
 
 CHAPTER XY. 
 
 MARINE INSURANCE. 
 
 Of an agreement for insurance — The policy and its usual stipula- 
 tions — Implied conditions of the policy — Description of the as- 
 sured — Of valued policies — Of -open policies — Of representation 
 and concealment — Of facts that must be disclosed — Of express 
 warranties and conditions — Of the time when the risk commen- 
 ces and when it ends — Of the various perils and risks against 
 which the underwriter insures — Description of the subject insur- 
 ed — Insurable intere.it of the mortgagor, mortgagee, charterer, 
 factor, supercargo, lender on bottomry, borrower on bottomry ; 
 on profits, freight, &c. — What risks may be insured against — 
 What is a loss within the policy — Of partial loss and adjustment 
 — Of maritime loans, bottomry and respondentia — Of deviation 
 — Of abandonment of the ship — Of abandonment of the cargo — 
 Of general and particular average— Of salvage — Of barratry. 
 
 Insurance is a contract whereby, for a stipulated 
 consideration, one party undertakes to indemnify 
 the other against certain risks. The party under- 
 taking to make the indemnity is called the insurer 
 or underwriter ; the party to be indemnified the 
 assured or insured. The agreed consideration is 
 called a premium ; the instrument by which the 
 contract is made, a policy : the events and causes 
 of loss insured against, risks or perils ; and the 
 property or rights of the assured, in respect to 
 which he is liable to loss, the subject or insurable 
 interest. 
 
 AN AGREEMENT FOR INSURANCE. 
 
 When the terms of an insurance upon any prop- 
 erty has been agreed upon, and nothing remains 
 
USUAL STIPULATIONS OF POLICY. 
 
 183 
 
 but to make out the policy, the parties consider the 
 risk to be assumed and the premium due from that 
 time. But it does not appear that the parties are 
 legally bound until the policy is filled up, or some 
 memorandum of the contract signed, and either ac- 
 tually or constructively delivered to the assured. 
 Insurance companies usually keep a book in which 
 all applications for insurance are recorded ; and 
 when the bargain is made, and nothing remains 
 but to make out the policy and receive the pre- 
 mium note, the word “ done,” is written upon the 
 margin, together with the rate of premium. This 
 is usually deemed a completion of the contract, so 
 that if a loss should happen before the policy should 
 be actually filled up and delivered, the insurers 
 would be bound. The insured, however, ought 
 not to rest upon this evidence of the contract, but 
 should lose no time in giving the premium note 
 and taking the policy away, and by this means pre- 
 vent all misconception of the nature of the con- 
 tract. 
 
 THE POLICY, AND ITS USUAL STIPULATIONS. 
 
 A marine policy contains, in general, that the 
 underwriters cause the insured to be insured in a 
 certain sum, on ship, cargo, freight or profits, for a 
 certain voyage, or time, against certain enumerated 
 risks ; for which they confess themselves to have 
 been paid a premium at a certain rate per cent. 
 
184 
 
 USUAL STIPULATIONS OF TOLICY. 
 
 These are the leading and substantial parts of every 
 policy, and in connection with these are introduced 
 all the provisions, stipulations, conditions, and 
 warranties. 
 
 The express warranties usually contained in the 
 policy, are, that the ship sailed, or will sail, on, or 
 before a certain day; that she carries a certain 
 number of guns, is manned by such a crew, carries 
 a license; or that the vessel, or cargo is owned by 
 Americans or people of some particular country ; or 
 is neutral. But it is not uncommon to warrant ex- 
 pressly against the risk of illicit trade, and of liabil- 
 ity for partial loss on the vessel or goods, — and to 
 insert many other conditions which tend to qualify 
 the force of the contract, as usually construed ; it 
 being a general rule that the written part of the 
 policy shall control the printed part. 
 
 In respect to the risks, it is often provided that 
 the assured shall have liberty to touch at certain 
 ports out of the usual course of the voyage, or to 
 take letters of marque and cruise, or to carry the 
 goods on deck, or to carry simulated papers. 
 
 It is customary, also, for the parties to agree that, 
 in case of any prior insurance on the same subject, 
 the policy shall be valid only to the amount of the 
 deficiency of such prior insurance to cover the full 
 value of the property, and that the insurer will re- 
 turn the premium on the excess over such value ; 
 and that the rights aud obligations of the parties 
 shall not be affected by any subsequent insurance. 
 
USUAL STIPULATIONS OF POLICY. 
 
 185 
 
 Though the insurer generally acknowledges in 
 the policy that he has been paid the premium, yet 
 the payment is in fact generally made in the prom- 
 issory note of the assured, [f a loss occurs, it is 
 stipulated that the amount of the premium note, if 
 unpaid, and any other sums due or coming due 
 from the insured, may be deducted from the sum 
 payable to the assured under the policy. 
 
 It is usually stipulated, in the form of policies 
 used in the United States, that there shall be no 
 demand upon the underwriters, to make good any 
 loss upon the ship, and most other subjects of insur- 
 ance, unless it exceed five per cent., except in a 
 case of general average. 
 
 Certain kinds of merchandize go under the name 
 of memorandum articles , from the circumstance of 
 their having been introduced under a memorandum, 
 or N. B. By the form of policy in most frequent 
 use in the United States, the insurers say they will 
 not “ be liable for any partial loss on hemp and 
 Jlax, unless the loss amount to twenty per cent, on 
 the whole aggregate value of such articles ; nor for 
 any partial loss on sugar, flax seed, bread, tobacco 
 and rice , unless the loss amount to seven per cent, 
 on the whole aggregate value of such articles; nor 
 for any partial loss on salt, grain . fish, fr uit, hides, 
 skins . or other goods that are esteemed perishable 
 in their own nature, unless it amount to seven per 
 cent, on the whole aggregate value of such articles, 
 and happen by stranding.” 
 
 16 * 
 
186 IMPLIED CONDITIONS OF THE POLICT. 
 
 In some policies it is agreed, that, in case of a 
 return of premium, the insurer shall retain one-half 
 percent, upon the sum insured. This is considered 
 to be a compensation to him for the trouble of mak- 
 ing a contract, which he, on his part, is ready to 
 fulfil, but of which the assured neglects to avail 
 himself. But most of the insurance companies in 
 Boston have omitted this provision in their policies 
 of late years, and return the whole premium in 
 case of short property. 
 
 OF THE IMPLIED CONDITIONS OF THE POLICT. 
 
 It is an implied condition of evt^-y policy, and 
 of the same force as if it were expressly inserted in 
 the instrument, that the assured, at the time of 
 making the contract, shall faiily disclose to the un- 
 derwriters every fact material to the risk, which is 
 exclusively within his knowledge, and which is 
 not embraced by some agreement in the policy; 
 and if this condition is not complied with, the pol- 
 icy is void. 
 
 It is always an implied condition that the voy- 
 age shall be pursued by the usual route, and in the 
 usual manner. And that the ship shall be provided 
 with all the necessary papers required by the laws 
 of the country to which she belongs, the law of 
 nations and treaties. 
 
 The assured is understood, by the act of procur- 
 ing the policy, to warrant that the vessel is sea- 
 
DESCRIPTION OF THE ASSURED. 
 
 187 
 
 worthy, and in every respect fit for the voyage or 
 service on which she is employed. This agree- 
 ment is uniformly a part of the contract, though it 
 is never expressed in the policy. 
 
 WHO MAY INSURE, AND PROCURE INSURANCE. 
 
 In this country, any person of legal age, except 
 an alien enemy, may become an underwriter on 
 property at risk; and, with the same limitation as 
 to alien enemies, every person in these United 
 States has a legal right to procure insurance. Most 
 of the underwriting in this country is carried on, 
 however, by incorporated companies. 
 
 DESCRIPTION OF THE ASSURED. 
 
 In many policies the assured is. so described that 
 any person may be comprehended, and avail him- 
 self of the contract by proving his interest, and 
 showing that the contract was intended for him. 
 The manner of expression, where the intention is 
 to use a sweeping clause which shall at all events 
 take in the person interested, is, after naming the 
 broker, or other person who procures the insurance, 
 to add that he is insured for “ himself and whom it 
 may concern.” 
 
 A policy in the name of any particular person, 
 with the clause “ for whom it may concern ,” or 
 other equivalent words, will be enforced to protect 
 
188 
 
 DESCRIPTION OF THE ASSURED. 
 
 the interest of any person in whose behalf it was 
 intended, and by whose authority it was effected. 
 But it must be made to appear, not only that the 
 person claiming had an interest in the property in- 
 sured, but that he authorized the insurance to be 
 effected, or adopted it when made.* 
 
 If a policy does not contain this general clause, 
 no others than those named as the assured, or on 
 whose account it is expressed to be made, can 
 avail themselves of it.f 
 
 Where A. procured insurance, in his oion name, 
 upon property belonging to himself and B., in the 
 sum of “$10,000, on property on board of the ship 
 Northern Liberties, as property nUght appear,” 
 meaning by those words to cover both his own and 
 B. : s property on board, the court held that the in- 
 surance covered only the portion of the property 
 belonging to A.J 
 
 Where insurance is procured by an agent for his 
 principal, he may describe himself as agent, gener- 
 ally, without naming his principal or principals, 
 and he will be permitted to prove for whose benefit 
 the insurance was really effected. § 
 
 In case insurance is effected by an agent, and a 
 loss happens, the premium note, if unpaid, may be 
 deducted from the loss, and all other notes given 
 by the agent for the same principal ; but the notes 
 given by the same agent for other parties cannot 
 be offset against the loss. || 
 
 * Condy’s Marshall, 473, note, f 11 Pick. 85. 4 Mass. 647. 
 
 % ICranch, 419. § 12 Mass. E. SO. || 1 Sumner, 471. 
 
VALUED POLICIES. 
 
 189 
 
 OF VALUED POLICIES. 
 
 Insurance being a contract of indemnity, the un- 
 derwriters are not liable to pay any loss except such 
 as the assured has actually sustained. If the prop- 
 erty insured be worth but $800, and an insurance 
 of $1,000 be effected upon it, still, if jts loss ensue, 
 the insurer can be called upon only to pay the 
 amount of the loss sustained by the owner, viz. 
 $800. If, on the other band, the property be 
 worth $1,000, and be insured for $S00 only, then, 
 in case of its loss, the underwriter is only liable to 
 the amount of $800, and the remaining risk of 
 $200 is taken by the owner himself; he is his own 
 insurer to that amount. If the value of the subject 
 is exactly equal to the sum insured, the whole 
 amount insured is to be paid. 
 
 It becomes, then, essential to know the value of 
 the articles insured, before any loss sustained upon 
 them can be adjusted. 
 
 Policies are of two kinds — valued and open. 
 Those in which the value of the subject is agreed 
 upon, are called valued policies. If the valuation 
 thus agreed upon be neither intended as a cover for 
 a wager, by both parties, nor fraudulently made by 
 the assured , it is binding on the parties, and deter- 
 mines the value of the property. If the parties, 
 without intending to wager, fairly agree to estimate 
 the property at a high rate, their agreement will be 
 
190 
 
 VALUED POLICIES. 
 
 valid. Unless the valuation is grossly enormous, 
 so as to be indicative of fraud, it will not be inquir- 
 ed into. Some value, however, must be proved, or 
 the policy never attaches.* 
 
 Vessels are generally insured by valued policies. 
 This prevents the trouble and perplexity attendant 
 upon proving the value of the ship after the loss 
 has occurred, which always must be a matter of 
 much contrariety of opinion. If left to be proved 
 after a loss has occurred, it must, to say the least, 
 be hard to arrive at a satisfactory conclusion. 
 Where the owner of the ship is the proprietor of 
 the goods on board, an insurance upon her freight 
 is generally made by a valued policy. In other 
 cases the amount of the freight is easily proved, 
 and therefore the necessity of insuring it by a val- 
 ued policy does not exist. But it is, nevertheless, 
 not unusual to value the freight in the latter case. 
 
 Goods are more frequently insured by open poli- 
 cies, since the value is easily proved by the in- 
 voices, or by showing the price current at tire time. 
 Bm if the goods are of a kind the price current of 
 which cannot be easily shown ; or if the price has 
 greatly changed, subsequently to the purchase of 
 the goods; or if their value has been increased by 
 transportation, the insurance is often made upon 
 them by a valued policy. Hence goods obtained 
 by barter at such places as the northwest coast of 
 America, South Sea islands, or coast of Africa, 
 * 3 Bin. 205. 2 Burr, U9S. 5 Crunch, 110. 
 
VALUED POLICIES. 
 
 191 
 
 where there may be no standard value in money, 
 or where the currency of the place of shipment is 
 of an uncertain and fluctuating value, as in Havti 
 and many parts of South America at the present 
 time ; or, where again the profits of the expedition 
 depend, in a great measure, upon the market value 
 of the return cargo in the home port, which may 
 very much exceed the prime cost ; in these, and 
 similar cases, it is usual to affix a value to the prop- 
 erty in the policy, either by a valuation in gross, or 
 by valuing the currency in which the invoices are 
 made out at a certain price in federal money; as 
 for instance, 20 cents per franc; $5 per pound ster- 
 ling ; 42 cents per guilder; 75 cents per rix dol- 
 lar, &c. By this means the assured is enabled to 
 obtain a full indemnity, and much perplexity is 
 avoided in adjusting the loss. 
 
 In adjusting a loss under an open policy on 
 freight, it is usual to take the current rate at the 
 time the vessel took in her cargo. But the rule 
 often works much injustice, as the rate may be in- 
 flated or depressed by circumstances ; and it*is 
 therefore advisable, in most cases, that the freight, 
 should be insured under a valued policy. 
 
 A valuation in a policy only affects the parties to 
 it, and the same property may be valued differently 
 in different policies, and each valuation will be 
 valid as respects the parties to the contract of 
 which it is a part. 
 
 A ship being valued in one policy at $6,000, and 
 
192 
 
 VALUED POLICIES. 
 
 another at $8,000, and $6,000 being paid on the 
 latter policy, the underwriter on the former con- 
 tended that, as the assured had been paid the sum 
 at which the ship was valued in the policy sub- 
 scribed by them, he could claim nothing of them. 
 Lord Ellenborough said, “ The valuation is only 
 conclusive between the assured and the underwri- 
 ters, without taking into consideration what had 
 been transacted between the assured and third per- 
 sons. 
 
 Where the assured expects goods to be shipped, 
 but does not know the kind or the amount, the pol- 
 icy is sometimes made on goods “ to be thereafter 
 declared and valued.” Under a policy in this form, 
 the declaration of the value, to make it a valued 
 policy, must be made by the assured before he has 
 intelligence of a loss.* 
 
 In general average the valuation in the policy is 
 not regarded, since the adjustment in that case is 
 made at the port of destination, and upon the value 
 of the goods or property at that port. Whether the 
 property is insured or not, valued in the policy or 
 not, is not a matter of inquiry in adjusting general 
 average. When the adjustment has been made, 
 and the ship, freight or goods, have contributed, the 
 owner may, then, if there was insurance upon 
 either, call upon the underwriters for the amount 
 thus contributed. 
 
 But in case of partial loss of a ship or goods, the 
 * 8 Term R. 15, note. 
 
VALUED POLICIES, 
 
 193 
 
 valuation in the policy must prevail in adjusting 
 the loss. The policy is not, as it has been con- 
 tended that it should be, opened for adjustment. 
 The principle on which the adjustment is made 
 may be illustrated in this manner. Suppose A. ships 
 1000 barrels of flour which cost him $6,000. He 
 procures insurance upon 500 barrels of the same in 
 an open policy, and on the remaining 500 barrels 
 he gets insurance, valuing them in the policy at 
 $4,000. A partial loss ensues. At the port of des- 
 tination it is found that the L000 barrels of flour, 
 sound, would have been worth 12,000 ; but in their 
 damaged state are worth only $10,000. A loss 
 then, of $2,000 upon the flour has accrued, or 16§ 
 per cent. Consequently under the open policy, in 
 which the cost is proved to have been $3,000, A. 
 recovers 16A per cent., or $500; and on the 500 
 barrels, which he valued at $4,000, he recovers also 
 16| per cent., which is $666 67. The perfect jus- 
 tice of the rule is apparent when we consider that 
 if A. paid a premium of one per cent., it. would be 
 $30 on the open, and $40 on the valued policy, 
 which two sums bear an exact proportion to the 
 amount recovered under the policies. The latter 
 being just one third more than the former. 
 
 The merchant should, however, be careful when 
 procuring insurance, on his ship, cargo , freight , 
 and profits, or upon any two of them, to value each 
 separately in the policy. Otherwise the policy 
 17 
 
194 
 
 OPEN POLICIES. 
 
 must be opened for the adjustment of a partial loss 
 on either of them. 
 
 The insurer, whether under a valued, or an open 
 policy , is only liable for partial losses in the pro- 
 portion which the amount he insured bears to the 
 ■whole value of the subject insured. Hence, if cer- 
 tain goods be valued at $5,000, and A. insures upon 
 them the sum of $2,500, and afterward a partial 
 loss upon them takes place, by which they are 
 damaged to the amount of $2,500, A. will in that 
 case be liable for 50 per cent., or $1,250 of such 
 partial loss only, since he only insured to the 
 amount of 50 percent, on the value of the property. 
 
 OF OPEN POLICIES. 
 
 If the value of the subject insured, is not agreed 
 upon in the policy, it must be proved by the assur- 
 ed before he can recover a loss, and certain rules 
 are adopted in ascertaining its amount. 
 
 In the case of both ship and cargo, the value of 
 the property, at the commencement of the risk, is 
 the value which governs in the adjustment of the 
 loss. If it be a ship that is insured, and her value 
 at the commencement of the risk is $9,000, it mat- 
 ters not that subsequently, either by wear or tear, 
 or by a reduction in the price of ships, she has be- 
 come worth no more than $6,000, her value when 
 the risk was taken must prevail; and in case of a to- 
 
OPEN POLICIES. 
 
 195 
 
 tal loss, the $9,000 would be recoverable of the in- 
 surers.* 
 
 Insurance intends no more than an indemnity to 
 the merchant for the property he has at risk. It is 
 not intended by the contract of insurance to put the 
 assured in the same situation, in case of a loss, that 
 he would have been in, had the adventure termi- 
 nated successfully. It only pretends to place the 
 assured, in case of loss, in the same situation he 
 was in when the adventure commenced. 
 
 The ship, as a subject of insurance, includes the 
 tackle, boat, provisions, and whatever is necessary 
 to equip her for the voyage. To this is to be add- 
 ed the premium, and the whole goes to make up 
 the value of the ship. If the ship has been recently 
 purchased, then her cost and the prefninm is her 
 valuation in the policy. f 
 
 The insurable interest in goods, is their invoice 
 value at the port of lading, together with the pre- 
 mium and shipping charges. The most satisfactory 
 evidence of their value is, generally, the price paid 
 for them, in case they are purchased near the time 
 when the risk commences upon them. Hence, if 
 an open policy is made upon successive passages 
 from port to port, and upon shipments successively 
 made at different ports, though the subsequent ship- 
 ments are only the proceeds of the first, yet the in- 
 
 * 7 Mass. E. 365. 9 do. 436. 7 Johns. 343. 
 f 1 Johns. 80. 2 Valin, 55. 
 
195 
 
 OPEN POLICIES. 
 
 surable interest may be greater, for the invoice value 
 of each shipment is the measure of the interest.* 
 Besides the price paid for goods, the charges upon 
 them are included in the amount of interest. These 
 include labor, storage, expense of transportation, 
 and commissions actually paid to agents and fac- 
 tors. To these are to be added the premium. f 
 If the goods have been transported, either by 
 land or sea, subsequently to the purchase of 
 them by the assured, and previous to the com- 
 mencement of the risk, the expense of such trans- 
 portation is a part of the interest to be covered. 
 But the freight, or other expense to be incurred on 
 the goods during the risk , are not a part of the in- 
 surable interest.J 
 
 Freight advanced by the owner of the goods, and 
 not to be recovered back in any event , constitutes 
 a part of the insurable interest. It is a portion of 
 the price or cost of the goods. <§> 
 
 Where the insurers reserve one or two per cent, 
 out of all losses, it is necessary to add the same 
 proportion, — that is, as 1 is to 99, or 2 to 98, — to 
 the amount of the interest, if a full indemnity is in- 
 tended, so that in a total loss the assured may re- 
 ceive back the capital put at risk. 
 
 The insurable interest in freight is the gross 
 amount to be received according to the bills of lad- 
 ing or charter party. || • 
 
 * Philips on Ins. p. 322. f 9 Johns. 29. | Phillips, p. 322. 
 
 § Ibid. p. 323. U Stevens on Average, p. 176. 
 
REPRESENTATION AND CONCEALMENT. 197 
 
 Profits. There should never be an open policy on 
 profits, since, in case of loss, the actual loss of profits 
 sustained must be a matter of much contrariety of 
 opinion, if not of litigation. In New York the 
 courts have adopted the rule, that in a policy on 
 profits, the sum insured is the valuation, and that 
 the act of making the policy is an agreement to 
 that effect. In this case the only question will be, 
 whether the whole of the goods were at risk, of 
 which the profits were insured. 
 
 The lender on bottomry, or respondentia, has an 
 interest to the amount of the loan, and the borrow- 
 er may insure the excess of the value of the prop- 
 erty over that amount. f 
 
 OE REPRESENTATION AND CONCEALMENT. 
 
 Any contract obtained by the fraud of a party, is 
 void in respect to the other parties. This is es- 
 pecially the case in regard to insurance, in which 
 fair dealing and good faith are strictly required by 
 the law, and much relied upon by the parlies. The 
 contract is generally entered into by the insurer in 
 consequence of the representations of the assured, 
 and if these representations do not enable the in- 
 surer to make a just estimate of the risk, it is plain 
 that he ought not to be bound by the contract. 
 
 A representation is a material fact stated before 
 completing the contract, by either party to the oth- 
 
 17 * 
 
 f 2 Caines eases, 110. 
 
198 
 
 REPRESENTATION AND CONCEALMENT. 
 
 er ; and a misrepresentation is the statement of 
 such a fact which turns out not to be true. A con- 
 cealmejit, on the other hand, is the suppression of 
 a material fact within the knowledge of either 
 party, which the other has not the means of know- 
 ing, or is not presumed to know. 
 
 If either party, whether by design , or through 
 negligence , mistake , or oversight , conceals or mis- 
 represents a fact material to the risk, the contract 
 is void with respect to the other party. But the mis- 
 representation or concealment must be of a fact ma- 
 terial to the very risk or risks insured against , to 
 work an avoidance of the policy.* 
 
 A representation made to an underwriter, must 
 be true or he is discharged ; and if the assured rep- 
 resents facts without knowing the truth, he takes 
 the risk upon himself. 
 
 If the assured, or his broker, omits to state a ma- 
 terial circumstance, supposing it not to be material, 
 this discharges the underwriter.! 
 
 f an underwriter insures a vessel that he knows 
 to have arrived, the policy is void.J 
 The representations ought to be reduced to writing, 
 and signed by the parties. If an insurance broker 
 makes representations that he ought not to have 
 made, he is liable for the damages that may ensue 
 therefrom to his principal. 
 
 If the assured states a mere expectation or opin- 
 
 * 1 Term R. p. 12. f Doug. R. 306, note. $ 3 Burr, 1905. 
 
FACTS TO BE DISCLOSED. 
 
 199 
 
 eon, or expresses himself in a qualified or doubtful 
 manner, yet at the same time fairly, but without 
 any absolute assertion of a fact, it is not a represen- 
 tation, and does not avoid the policy.* Where the 
 assured represented that he expected to load his 
 vessel with hay, and after procuring insurance upon 
 her, took in paving stones, and she was subsequent- 
 ly lost, it was held not to be a misrepresentation, 
 but merely a statement of an expectation , and did 
 not avoid the policy. 
 
 OF FACTS THAT MUST BE DISCLOSED. 
 
 The assured is not required to represent facts of 
 general notoriety, or which are presumed to be 
 known to those conversant with the trade ; but he 
 is required to state fairly and fully other facts with- 
 in his knowledge that are material to the risk, 
 If a knowledge of the circumstances suppressed, 
 would have induced the insurer to demand a Irish- 
 er premium, or to refuse to underwrite, it will in- 
 validate the policy. f 
 
 The usages of trade need not be stated, since 
 those, the underwriter is presumed to know. The 
 insured need not state that the ship is seaworthy, 
 or any facts which go to prove her so, because 
 every contract of insurance is upon the implied 
 warranty of the seaworthiness of the ship. 
 
 * Cowper, 785. 
 
 f 3 Dal. 491. 12 Johns. 517. 
 
200 
 
 FACTS TO BE DISCLOSED. 
 
 If the merchant has heard that his ship has been 
 captured, or sunk, or that a ship resembling her has 
 met with such a disaster, though both are but 
 mere rumors, yet he must disclose them to the in- 
 surer if he would afterwards procure insurance, oth- 
 erwise the policy will be void.* 
 
 If after giving instructions for effecting a policy, 
 the person who has given the instructions receives 
 intelligence material to the risk, he must imme- 
 diately disclose it, or countermand his instruc- 
 tions.! 
 
 If the vessel is known to be out of time, the cir- 
 cumstance must be stated to the underwriters. t 
 If the time of sailing be incorrectly stated, so as 
 to make the insurer believe that the vessel is not 
 out of time, when, in fact, she is out of time, the 
 policy will not bind the underwriters. <§> 
 
 Material facts must be fully and fairly stated. 
 Where the assured knew that there had been a 
 violent storm at Norfolk, about eleven hours after 
 the vessel sailed from that port, and he represented 
 to the underwriters that there had been “blowing 
 weather and severe storms on the coast after the 
 vessel had sailed,” without mentioning the particu- 
 lar storm, a majority of the judges of the supreme 
 court in New York held it to be a coucealmcnt.\\ 
 
 It is sufficient to represent facts, and the assured 
 
 * 2 P. W. 170. 
 § Park, 285. 
 
 f Ibid. | 1 Esp. 373. 
 
 || 2 Caines, 57. 
 
EXPRESS WARRANTIES. 
 
 201 
 
 may be silent as to any speculations or apprehen- 
 sions that may be grounded upon them. The un- 
 derwriters may be left to draw their own inferen- 
 ces from the facts disclosed. 
 
 OF EXPRESS WARRANTIES AND CONDITIONS. 
 
 An express warranty is an agreement expressed 
 in the policy , whereby the assured stipulates that 
 certain facts relating to the risk are, or shall be, 
 true ; or certain acts relating to the same subject, 
 have been, or shall be, done. The effect of an ex- 
 press warranty in the policy is to make it vital to 
 the validity of the same, that the warranty should 
 be complied with. It is no matter that the act or 
 circumstance warranted, is not material to the risk. 
 It is a part of the contract that the matter is as it is 
 represented, and the materiality, or immateriality, 
 signifies nothing. The only question is as to the 
 mere fact. 
 
 An express warranty or condition is always a 
 part of the policy, but like any other part of the ex- 
 press contract, may be written in the margin, or con- 
 tained in proposals or documents expressly refer- 
 ed to in the policy, and so made a part of it. # 
 
 A warranty is often made by saying, expressly, 
 in the policy, that the assured warrants such a fact. 
 But a formal expression of this sort is not requisite 
 to constitute a warranty. Any direct, or even inci- 
 
 * Phillips, p. 125. 
 
202 
 
 EXPRESS WARRANTIES. 
 
 dental allegation of a fact relating to the risk, has 
 been held to constitute a warranty. If insurance 
 be made on the “ Swedish brig Sophia,” the 
 “American ship Minerva,” or “on goods on board 
 of vessels so described,” it is a warranty that the 
 vessel is Swedish, or American, according to such 
 description. 
 
 A warranty differs from a representation in an- 
 other respect, since the former must be strict- 
 ly and literally complied with ; whereas it is suf- 
 ficient that the latter is complied with equitably 
 and substantially. It is held that the intention of 
 the parties in a warranty, except as to the meaning 
 of the words used, is not to be inquired into; the 
 insured has chosen to rest his claims against the in- 
 surers on a condition inserted in the contract, and 
 whether the fact or engagement which is the sub- 
 ject of the warranty, be material to the risk or not, 
 still he must bring himself strictly within that con- 
 dition. 
 
 A non-cotr.pliance with a warranty, though it oc- 
 casions no damage, and does not change or increase 
 the risk, has the effect of discharging the insurers 
 from their liability.* 
 
 It has even been held that a temporary non-com- 
 pliance with a warranty, by a defect which is rem- 
 edied before any loss happens, still discharges the 
 underwriters. f 
 
 * 2 Esp. 615. 7 Term R. 705. 
 
 f Term R. 343. 
 
commencement and end of risk. 
 
 203 
 
 A compliance with a warranty or any other 
 agreement is dispensed with, if it be rendered un- 
 lawful by a law enacted after the time of making 
 the policy. But if a compliance be unlawful at the 
 time of making the contract, the policy will be 
 void.* 
 
 OF THE TIME WHEN THE RISK COMMENCES, AND 
 WHEN IT ENDS. 
 
 Policies usually expressly declare that “the ad- 
 venture shall begin upon the said goods and mer- 
 chandize from the loading thereof on board the 
 said ship , and so shall continue until the said ship, 
 goods, and merchandize shall have arrived at L ; 
 and upon the said ship until she has been moored 
 at anchor twenty-four hours in good safety ; and 
 upon the goods, till the same be there safely dis- 
 charged and landed .” From these words it is ob- 
 vious that the insurers are not answerable for any 
 accident which may happen to the goods, in light- 
 ers or boats going on board previous to the voyage ; 
 yet, as the policy says the risk shall continue till 
 the goods are safely landed, it seems the insurer 
 continues responsible for the risk to be run in car- 
 rying the goods in boats to the shore. If there be 
 a loss, however, in these cases, the accident must 
 have happened while the goods were in the boats 
 or lighters belonging to the ship ; and where the 
 
 * 1 Salk, 198. Lord Raymond, 371, S. C. 
 
2'04 COMMENCEMENT AND END OF RISK. 
 
 owner of the goods brings down his own lighter, 
 receives the goods out of the ship, and before they 
 reach land, an accident happens, whereby the 
 goods are damaged, the insurer is discharged, al- 
 though the insurance be upon goods “to New 
 York, and till the same be safely landed there .” 
 
 It has, however, been decided, that an arrival in 
 port, where the vessel is at once ordered back to 
 perform quarantine, is not an arrival which will dis- 
 charge the insurers, from a loss at quarantine, as 
 the arrival and mooring “in good safety,” must be 
 construed to mean an opportunity of loading and 
 unloading. 
 
 In an insurance upon freight, the risk begins from 
 the time the goods are sent on board ; but if a ship, 
 sailing under a contract, be lost on her way to the 
 port of lading, or at the port of lading, before tak- 
 ing in her cargo, the insurer is liable — the right to 
 freight having commenced. 
 
 But if the policy be a valued policy, and part of 
 the cargo be on board when such accident happens, 
 the rest being ready to be shipped, the insured may 
 recover the whole amount of the freight.* 
 
 If the cargo be temporarily landed, from necessi- 
 ty, during the voyage, it is still protected by the 
 policy. 
 
 Where a vessel is bound to a West India Island, 
 as Jamaica, and insured from the port of departure 
 
 * Blunt’s Com. Dig. p. 203. 
 
COMMENCMENT and end of risk. 
 
 205 
 
 to Jamaica generally, it is laid down that the out- 
 ward risk upon the ship ended twenty-four hours 
 after her arrival in the first port in the island to 
 which she was destined ; but that the outward pol- 
 icy upon goods continued till they were landed.* 
 
 In insurances upon East India voyages, the in- 
 surers in England have been held liable, not only 
 for the events which may possibly happen from the 
 port of discharge to that of delivery, but also for all 
 intermediate or country voyages. And this con- 
 struction of East India policies prevails, whether 
 the words of them be large and comprehensive, 
 such as, “ with liberty to touch, stay and trade at 
 any port or place whatsoever;” or restrained and 
 limited, such as, “to touch and stay at any port or 
 place in this voyage.” If it appears, however, from 
 the terms of the policy, that such a construction 
 was not intended by the parties, then effect will be 
 given to the policy according to such supposed in- 
 tention. 
 
 In the unloading of goods there should be no mi- 
 necessary delay; but what is unnecessary delay, 
 must always depend upon circumstances. 
 
 The risk on the body of a ship is generally to 
 commence “ from her beginning to load at 
 and so shall continue and endure until the said ship 
 shall arrive at and hath there been moored, 
 
 at anchor, twenty-four hours in good safety.” This 
 mode of stating the commencement of the risk must 
 
 * 2 Esp. 412. 
 
 IS 
 
206 
 
 PERILS AND RISKS. 
 
 commonly be applied to insurances on ships outward 
 bound ; for, when insurance is made on the home- 
 ward risk, the beginning of the adventure is some- 
 times staled to be “ immediately from and after her 
 arrival at the port abroad,” and at other times, “from 
 the departure and in short, it is very variable, 
 depending upon the inclination of the parties. 
 
 OF THE VARIOUS PERILS AND RISKS AGAINST 
 WHICH THE UNDERWRITER INSURES. 
 
 The words now used expressive of the insurer’s 
 risk, are very extensive, including “perils of the 
 seas, men-of-war, fire, enemies, pirates, rovers, 
 thieves, jettisons, letters of mart and counter mart, 
 surprisals. takings at sea, arrests, restraints, and de- 
 tainments of all kings, princes, and people, of what 
 nation, condition, or quality soever; barratry of the 
 master or mariners ; and all other perils, losses, and 
 misfortunes, that have or shall come to the hurt, 
 detriment, damage of the said goods and merchan- 
 dize, and ship, or any part thereof.” 
 
 The policy is so general in its terms, as to em- 
 brace every species of risk to which ships and goods 
 are exposed from the perils of the sea, and all other 
 causes incident to maratime adventures. The per- 
 ils, however, may be enlarged or abridged, at the 
 pleasure of the parties. 
 
 Where there is no representation of neutrality, 
 the insurer takes upon himself war risks.* 
 
 * 1 Caines, 217. 
 
SUBJECT INSURED. 
 
 207 
 
 It is frequently the practice to insure a vessel, 
 “ lost or not lost in which case, if the ship should 
 be lost at the time of the insurance, still the under- 
 writer, provided there be no fraud, is liable. 
 
 DESCRIPTION OF THE SUBJECT INSURED. 
 
 It is important to the validity of the contract, 
 that the subject to be insured, should be so far de- 
 scribed in the policy, as to enable it to be identified. 
 As the contract will embrace no other subject than 
 that described, its validity will depend upon the 
 sufficiency of the description. A policy on hats 
 will not cover piece goods, nor will one on oil and 
 barilla , apply to soap. If, however, the description 
 designates the subject with sufficient certainty, or 
 suggests the means of doing it, a mistake of the 
 name of the ship, or of other particulars, will not 
 defeat the contract.* 
 
 If one owns a half or any other proportion of a 
 ship or quantity of goods, he may effect insurance 
 generally without specifying his interest, and he 
 will recover for such interest as he has. And a 
 mortgagee may insure in the same way, and so 
 may a charterer of a ship.f 
 
 A lender on bottomry or respondentia, must de- 
 scribe his particular interest, or the insurance is de- 
 fective. 
 
 The general description, " goods, wares, and 
 
 # Phillips, 64. 
 
 f 1 Caines, 276. 4 Dal. 421. 
 
208 
 
 SUBJECT INSURED. 
 
 merchandize ,” is most often made use of when the 
 description is meant to apply to a mixed shipment 
 of goods. These words are in legal language very 
 comprehensive, and it would be safe for the mer- 
 chant always to make use of them when procuring 
 insurance on goods shipped abroad, since by some 
 error, or subsequent arrangement, goods might 
 otherwise be shipped, not covered by the policy.* 
 Where the merchant is expecting goods, but is 
 not informed of the name of the ship on board of 
 which they are laden, an insurance effected on 
 them described to be “on board of ship or ships to 
 sail, &c.” is sufficient to charge the underwriters. f 
 Where a policy was “on goods from Marseilles 
 to the West Judies, and back by the Amphitrite and 
 other vessel, or vessels,” the assured had goods on 
 board of different vessels to a greater amount than 
 was insured, and those shipped first, to the amount 
 insured, arrived safe, and a loss occured on those 
 subsequently shipped — it was held that the policy 
 should apply proportionably to all the goods com- 
 ing within the description. 
 
 Profits. If the policy is intended to cover the 
 profits on the cargo shipped, it must be so express- 
 ed, specifically. But where the master insured his 
 “property in the brig Lavina,” the court held that 
 the word “ property,” was a word of very extensive 
 signification, and covered his commissions on the 
 cargo on board of the ship. 
 
 * Phillips, 66. 
 
 f 2H. Bl. 343. 
 
INSURABLE INTEREST. 
 
 209 
 
 INSURABLE INTEREST. 
 
 When a merchant contemplates procuring insur- 
 ance on an y ship, goods, or interest that he con- 
 ceives he has at risk, it behooves him to first in- 
 quire whether or not he possesses an insurable in- 
 terest in the same. It is essential to every contract 
 of insurance that the assured should have an inter- 
 est at risk. If he has no interest, or if his interest be 
 not at risk, he can be liable to no loss, and accord- 
 ingly there is nothing against which the insurer 
 can agree to indemnify him. 
 
 It is a general rule, that, in older to have an in- 
 surable interest in any subject, a person must be li- 
 able to a direct and immediate loss, by its damage 
 or destruction. Hence a creditor may insure the 
 life of a debtor of his, where the loss of the debtor’s 
 life would be the loss of the debt. 
 
 Interest of the Mortgagor. The owner of prop- 
 erty mortgaged, or in other words, the mortgagor. 
 still retains an insurable interest in it to its full 
 value. 
 
 The assignment of a bill of lading passes the en- 
 tire and absolute property in the goods to the 
 assignee, and leaves the assignor no insurable in- 
 terest, provided the assignment was made with the 
 intention to pass the whole interest. But if the 
 assignment is made merely for the purpose of bind- 
 ing a consignment of goods, and the consignor still 
 18 * 
 
210 
 
 INSURABLE INTEREST. 
 
 retains an interest, then the consignor may have 
 them insured.* 
 
 Insurable interest of a Mortgagee. A person 
 to whom the freight of a vessel has been mortgaged, 
 may insure the legal interest on his own account, 
 and also the equitable interest on account of the 
 mortgagor. The mortgagee of a ship, or other 
 property, bas a legal interest in the thing, and may, 
 therefore, insure; he may represent the property to 
 be his own, and the policy may be in his own 
 name.f 
 
 Of a lender or borrower on bottomry. A lender 
 on bottomry, or respondentia, has an insurable in- 
 terest to the amount of the loan.J 
 
 A borrower on bottomry, or respondentia, may 
 have an insurable interest in the property hypothe- 
 cated. but he can only insure for the amount which 
 the property is worth, over and above the sum bor- 
 rowed on the property hypothecated. For instance, 
 if a ship, valued at $10,000, be hypothecated for 
 the sum of $7,000, then the lender may procure 
 insurance on her for the last mentioned sum, and 
 the borrower, or owner of the ship, can only pro- 
 cure insurance for the surplus value of the same, 
 to wit — the sum of $3,000. i §> 
 
 Interest of a consignee, factor, or agent. A 
 consignee, factor, or agent, has an insurable inter- 
 est in the property consigned to him to the amount 
 
 * 1 Esp. 373. 1 Term R. 445. f 1 Browne, 267. 2 N. R. 324. 
 
 + rhillips’ Ins. 43. § 2 Caines' Cases, 110. 
 
 # > 
 
INSURABLE INTEREST. 
 
 211 
 
 of his lien upon the same. In other words he has 
 an insurable interest in the goods consigned to him 
 to the amount of his general balance against the 
 consignor, for to that extent is his lien upon the 
 goods. He may insure his interest ; and his inter- 
 est is only commensurate with the loss he may sus- 
 tain by the destruction of the property. 
 
 Supercargo. A supercargo has an insurable in- 
 terest in the goods committed to his charge, to the 
 amount of the loss he would sustain should the 
 cargo be lost on the voyage. 
 
 Profits. The expected profits on a shipment of 
 goods is insurable. In England the law would 
 seem to be t hat the insured can, in no case, recover 
 more than the amount of profits which he would 
 have realized, had the goods arrived ; but in this 
 country, that rule does not seem to have been 
 adopted ; but under a valued policy, the estimated 
 profits will be recoverable, and the court will not 
 consider the point, whether or not a profit would 
 have resulted from the safe arrival and sale of the 
 goods at the port of destination. The estimate in 
 the policy is conclusive, unless fraud is alleged. 
 
 Charterer. If the charterer of a ship contracts 
 to pay the owner for the ship in case of her loss, 
 he has an insurable interest in her, and may effect 
 insurance upon her in his own name* 
 
 Interest in freight. The owner of a ship, navi- 
 gated on his own account, has an insurable interest 
 
 * 3 Mass. It. 133. 
 
212 
 
 WHAT RISKS MAY BE INSURED. 
 
 in the freight. The risk commences as soon as the 
 ship breaks ground.* 
 
 Re-assurance. An insurer upon property has 
 such an interest in it as entitles him to procure a 
 re-assurance upon the same, covering no more than 
 the risk he has previously assumed. 
 
 The risk which the insurer undertakes to run 
 for the insured, must involve no violation of the 
 laws of the country, where the contract is to be 
 enforced. Hence property employed in trade with 
 the public enemy, cannot, lawfully, be protected 
 by insurance. The risks incident to the evasion 
 of the revenue laws are not insurable. 
 
 WHAT RISKS MAY BE INSURED AGAINST. 
 
 As a general rule, persons may be insured 
 against any event by the happening of which they 
 may sustain a pecuniary damage. But this rule 
 has its exceptions. A person cannot be insured 
 against the loss which he may incur by violating 
 the law. He cannot be insured against the conse- 
 quences of wrongful acts. f Neither can he be in- 
 sured against losses occasioned by his own miscon- 
 duct. or culpable neglect. % It has even been 
 
 thought that a court of law could hardly, upon 
 principle, sustain a contract of insurance, by which 
 a party was to be indemnified against losses aris- 
 ing from his own negligence. 
 
 * 2 Cod. R. 373. f 5 Taunton, 606. i 1 Johns. Cases, 340. 
 
WHAT RISKS MAY BE INSURED. 
 
 213 
 
 Upon the same principle it has been doubted 
 whether a person may be indemnified against the 
 acts of the government of which he is a subject ; 
 but lord Ellenborough said, “ that where the assur- 
 ed was a British subject, he might recover against 
 a British underwriter, for a loss sustained by an act 
 of their own government.” 
 
 But a person may be insured against the conse- 
 quences of violating the regulations of trade, and 
 the municipal laws of a foreign state.* If the ves- 
 sel or cargo be seized and condemned in a foreign 
 country for violating their revenue laws, the insur- 
 ers will be liable to pay this loss, provided it ap- 
 pears by the policy, and the course of trade, that 
 this was one of the risks contemplated by the par- 
 ties.! 
 
 A valid contract may also be made for the pur- 
 pose of indemnifying the assured against the ad- 
 ministration of the laws of nations by a foreign 
 tribunal. It has at times been a common practice 
 in some parts of the United States to insert a pro- 
 vision in a policy containing a warranty of neutral 
 property; that the proof of the property being neutral 
 should be, “ made only in the United States.” By 
 this clause, the assured was protected by his policy 
 from the errors of foreign courts of law. The 
 character of the property was left to be determined, 
 as between the assured and the underwriters, by 
 the courts of law in the United States. 
 
 * 5 Taunton, 37. 
 
 f Valin, t- 2, p. 13d, 
 
214 
 
 LOSS WITHIN THE POLICY. 
 
 WHAT IS A LOSS WITHIN THE POLICY. 
 
 It may, in general, be said, that every thing 
 happening to a ship, in the course of her voyage, 
 by the intermediate act of God, without the inter- 
 vention of human agency, is a peril of the sea. 
 Thus, every accident happening by the violence of 
 wind and waves ; by thunder or lightning ; by 
 driving against rocks ; by the stranding of the ship ; 
 or by any other violence that human prudence 
 could not foresee, nor human strength resist, may 
 be considered a loss within the meaning of such a 
 policy ; and the insurer must answer for all dama- 
 ges sustained in consequence of such accident. 
 But if a ship be driven by stress of weather on an 
 enemy’s coast, and be there captured, it is a loss by 
 capture , and not by perils of the sea. 
 
 In order to charge the underwriter for a loss by 
 perils of the sea, the ship must be equipped with 
 every thing necessary for the voyage ; she must be 
 seaicorthy, and have a sufficient crew, and a cap- 
 tain and pilot of competent skill. 
 
 The ignorance, and incompetency of the master 
 and mariners, is not a peril of the sea against which 
 the underwriter undertakes to insure.* 
 
 It is, however, difficult, oftentimes, to discrimi- 
 nate between damage occasioned by the ordi- 
 
 * Phillips, 224. 
 
LOSS WITHIN THE POLICY. 215 
 
 nary wear and tear of the voyage, which falls upon 
 the owner, and that occasioned by a peril of the sea. 
 
 The loss of an anchor by friction of the rocks, 
 the destruction of the ship by worms, the ordinary 
 leakage of fluids in casks, the spontaneous combus- 
 tion of hemp, are all instances of losses not within 
 the policy. Even damage done to the ship by rats 
 has been questioned, as a loss for which the insurer 
 is not answerable. 
 
 If a ship has been missing, and no intelligence 
 received of her within a reasonable time after she 
 sailed, it will be presumed that she foundered at 
 sea. * 
 
 There is no precise time, after which, a vessel 
 that has not been heard of, is to be presumed to be 
 lost ; but the presumption must depend upon the 
 circumstances of the case.* 
 
 If the vessel be obliged to put in for repairs, and 
 be afterwards lost on the voyage, the insurer is en- 
 titled to recover the partial loss from the previous 
 damage and general average thereon, in addition to 
 the total loss. Provided, always, that the assured 
 has paid, or is liable to pay for the repairs of the 
 previous damage, but if money has been raised on 
 bottomry to pay the same, the lender of the money 
 will bear the loss ; such being the condition of his 
 bond.f 
 
 The enumerated perils of the sea, pirates, rovers 
 and thieves, include the violent acts of individuals, 
 
 * 2 Johns. It. 150. 
 
 f 10 Johns., 487. 
 
216 
 
 PARTIAL LOSS AND ADJUSTMENT. 
 
 whether felons, or as a mob, or plunderers from the 
 wreck, and also the plundering, or injury, commit- 
 ted by a mutinous crew. It does not include sim- 
 ple larceny.* 
 
 OF PARTIAL LOSS AND ADJUSTMENT. 
 
 Partial loss implies a damage which the ship 
 may have sustained in the course of her voyage, 
 from any of the perils mentioned in the policy. 
 When applied to the cargo, it means the damage 
 which goods may have received, without any fault 
 of the master, by storm, capture, stranding, or ship- 
 wreck ; although the whole, or the greater part 
 thereof, may arrive in port. These partial losses 
 fall upon the owners of the property so damaged, 
 who must be indemnified by the underwriter. But 
 the usual stipulation contained in American policies, 
 provides that the underwriters shall not be liable 
 for partial losses except they exceed five per cent. 
 This clause, however, does not undertake to ex- 
 empt the underwriters from their liability to pay 
 general average losses to less than that amount. 
 The per centage is to be reckoned on the valuation 
 after deducting the premium . f 
 
 Distinct and successive losses arising from disas- 
 ters happening at different times, cannot be added 
 together in order to make up the five per cent.J 
 
 The above principle is applicable, only, to losses 
 
 * Park, 33. 
 
 f 7 Pick. 259. 
 
 t Ibid. 
 
PARTIAL LOSS AND ADJUSTMENT. 217 
 
 on the ship, and not to losses upon the cargo. If 
 the aggregate of the losses upon the cargo exceed 
 five per cent, or whatever the exception may be, 
 the underwriters are liable* 
 
 If, in adjusting the losses under this memoran- 
 dum, the partial loss be found, on survey and sale, 
 to have been five per cent., the insurer pays- the 
 damages and expenses; if less than five per cent., 
 the insurer pays nothing. The expenses are not 
 to be estimated in calculating the loss. 
 
 When we speak of the underwriters being liable 
 to pay, whether for total or partial losses, it must 
 always be understood that they are liable only in 
 proportion to the sums which they have underwrit- 
 ten. Thus, if a man underwrites $100 upon prop- 
 erty valued at $500, and a total loss happen, he is 
 answerable for $100 and no more; that being the 
 amount of his subscription: if only a partial loss, 
 amounting to 40 or 50 per cent, upon the whole 
 value, he pays $40 or $50, that being his propor- 
 tion of the loss. 
 
 If extra freight and extraordinary expense be in- 
 curred in transporting the cargo in another vessel, 
 it is charged upon the insurer. He is also liable for 
 all the labor and expense attendant upon the acci- 
 dent which forces the vessel into port. But these 
 items are more properly termed particular average 
 than partial loss, although the two are frequently 
 
 19 
 
 2 Sumner, p. 378. 
 
218 
 
 PARTIAL LOSS AND ADJUSTMENT. 
 
 confounded, and the terms incorrectly used as sy- 
 nonymous. 
 
 In adjusting partial losses, the insurer has noth- 
 ing to do with the state of the markets, or with the 
 loss on landing expenses, or freight and duty accru- 
 ing in consequence of the deterioration. The loss 
 is to be adjusted only upon a comparison of the 
 gross proceeds of the sound and damaged goods. 
 When a partial loss has occurred, the proper method 
 to ascertain the amount of the loss, is to compare 
 the price which the goods bring in a damaged state, 
 with that which like goods, being sound, would 
 bring at the same time and place. The difference 
 gives the ratio of loss. For illustration, suppose 
 goods of the insurable value of $1,000 are damaged 
 by perils of the sea, and on arrival at the port of 
 destination, or at the port of distress, are sold for 
 $600, and that the expense of surveys and extra 
 charges on the sale is $50. Let it be further sup- 
 posed that like goods, if sound, would bring at the 
 same time and place $1,200. Upon these data, 
 
 the adjustment would be as follows: 
 
 Value of the goods, if sound, - $1,200 
 
 Value of the same, being damaged, 600 
 
 Loss 50 per centum, or, - - $600 
 
 Then $1,000, the cost, or insurable 
 
 value, losses 50 per cent., or, $500 
 
 Add charges and expenses, - - 50 
 
 Claim on the insurers. 
 
 $550 
 
PARTIAL LOSS AND ADJUSTMENT. 
 
 219 
 
 Where there is no special stipulation, the insurer 
 is not liable for loss occasioned by ordinary leak- 
 age. When the leakage is caused by an extraor- 
 dinary accident, the difference is to be estimated 
 between that and ordinary leakage, and an allow- 
 ance made for the latter. 
 
 If an insurer pay money for a total loss, and in 
 fact it be so at the time of adjustment, and it after- 
 wards turns out to be only a partial loss, he shall 
 not recover back the money so paid to the insured ; 
 for substantial justice is done by putting him in 
 the place of the insured, and giving him all the ad- 
 vantages that arise from the salvage.* 
 
 An adjustment made by the agent of the in- 
 surer does not bind him so far but that he may 
 show it to be erroneous.! 
 
 If the goods be valued in the policy at so much 
 per pound, their weight must be estimated accord- 
 ing to the standard of the place where the contract 
 was made.J 
 
 In an open policy on the cargo, the invoice price 
 of goods, together with the shipping charges, and 
 premium of insurance, is the value which the in- 
 sured can recover upon a total loss, and that with- 
 out any deduction for the drawback on exportation. 
 
 By the invoice price of goods, is meant the prime 
 cost. The insured, in an open policy, cannot charge 
 commissions on the purchase of goods by himself, 
 though he may add the premium of insurance. 1 ^ 
 
 * 4 Burr, 1766. f 1 Caines, 444. \ 2 Caines, 30. § 1 Burr, 249. 
 
220 
 
 PARTIAL LOSS AND ADJUSTMENT. 
 
 The jury may allow interest on a claim for 
 a partial loss. 
 
 In estimating the loss in case of repairs, the in- 
 surer is entitled to a deduction of one-third new 
 for old, whether the vessel be old or new.* This 
 applies also to all the apparel of the ship, cordage, 
 cables, &c., except the anchor. f 
 
 In estimating the expense of repairs made upon 
 a vessel, for which the underwriters are chargeable, 
 the value of the old materials is to be first deduct- 
 ed from the gross amount of expenses, and then 
 one-third new for old is to be deducted from the 
 balance. If the expense of repairs are $700 and 
 the old materials taken from the vessel, and not 
 used again in her repair, sell for $100, that leaves 
 $600 paid for repairs, to be adjusted between the 
 assured and the underwriter. If the underwriters 
 insured to the full value of the ship, the}'' must pay 
 two-thirds of the above sum, or $400. One-third 
 new for old always being deducted in case of re- 
 pairs.;]: 
 
 It is the duty of the master to cause an adjust- 
 ment, in case of a general average loss upon ship or 
 cargo, upon his arrival at the destined port, and he 
 has a lien upon the cargo for the amount of the 
 contribution. 
 
 The underwriters are liable for the casual split- 
 tng of sails, parting of cables, springing of masts, 
 
 * 1 Caines, 315. 11 Mass. K. 253. 11 Johns. 315. 
 f Phillips, 371. J 7 Pick. 259. 
 
PARTIAL LOSS AND ADJUSTMENT. 221 
 
 loss of boats, breaking of the upper works, or any 
 part of the ship ; damage by stranding, damage by 
 lightning, or by accidental fires, loss by plunder 
 while the property is for a time in the hands of cap- 
 tors or pirates, damage by running foul of other 
 ships, or being run foul of, or damage sustained by 
 a ship in an engagement. All casual and inevita- 
 ble damage and loss that happens to the subject is 
 particular average, or partial loss; all sacrifices of 
 the property on board, or of the ship, or her apparel, 
 for the safety of the remaining property, is general 
 average. 
 
 Where the insurer has underwritten on only a 
 portion of the value of the ship or goods, he con- 
 tributes towards a partial loss in the same propor- 
 tion ; and the value of the property, whether it be 
 the ship or the goods, is to be estimated at the time 
 of the commencement of the risk. 
 
 Freight. A partial loss on freight is occasioned 
 by loss of the ship after a part of the voyage is per- 
 formed, which makes it necessary to hire another 
 ship to carry on the cargo to the port of destination, 
 in order to earn freight ; or a loss of a part of the 
 cargo, whereby the ship is prevented from earning 
 a part of her freight.* 
 
 Where, on account of the perils insured against, 
 only freight pro. rata is eared, this is a case of par- 
 tial loss upon that interest. 
 
 * 12 Johns. 107. 
 
 19 * 
 
222 
 
 PARTIAL LOSS AND ADJUSTMENT. 
 
 If the goods arrive in bulk, though, in conse- 
 quence of sea damage or otherwise, they are of no 
 value, still the whole freight is due, and accordingly 
 the assured on freight has no claim for any loss. 
 In case of the sale of the goods at an intermediate 
 port, however, the whole freight is usually allowed, 
 and in most instances there can be no question of 
 its being due, as it cannot appear that the goods 
 might not have arrived at the port of destination in 
 bulk. 
 
 The expenses attending a detention by embargo 
 or other cause, do not constitute a particular av- 
 erage on freight. 
 
 There can be no difficulty in adjusting a partial 
 loss on freight, since the whole amount of interest 
 is definitely fixed by the bills of lading or charter 
 party, or, in case of the ship and cargo belonging 
 to the assured, the amount is determined by esti- 
 mation, according to the current rate of freight for 
 the same voyage, and the whole amount of the in- 
 terest, and that of the loss being ascertained, the 
 rate per cent, of the loss is readily found. 
 
 On Goods. In case of the destruction of a part 
 of the goods, the underwriter pays their value ac- 
 cording to the invoice or valuation ; and the rule is 
 the same in case of the loss of half of the value of 
 the goods by sea damage, or otherwise, though they 
 remain in bulk. 
 
 A particular average is usually adjusted at the 
 port of delivery. If the loss is occasioned by the 
 
PARTIAL LOSS AND ADJUSTMENT. 
 
 223 
 
 entire destruction of a part of the goods insured, 
 the insurer is liable to pay for them, as far as they 
 are covered by the policy, at the price at which 
 they are insured, and such a loss is easily adjusted, 
 there being no difference of opinion or practice re- 
 specting it. 
 
 If the particular average is occasioned by dam- 
 age to the goods, and, in consequence of the dam- 
 age, the goods sell for only half what the same 
 goods would have sold for if sound, the direct loss 
 by the damage is fifty per cent., and the insurer 
 must pay, not half of the price of sound goods 
 at that market, but half of the value at which he 
 insured the goods. 
 
 If the goods arrive in a state damaged to half 
 their value, still the same freight is payable. It 
 has been a question of very grave discussion, wheth- 
 er, or not, the loss thus sustained by the merchant, 
 in paying freight, on say $1,000 worth of goods 
 when $500 worth only arrive, should be borne by 
 him or by the underwriters. It is now definitely 
 settled that the insurers are not liable for this loss, 
 nor for losses arising from the port charges, duties, 
 &c, upon such damaged goods.* 
 
 * 5 Johns. 219. 
 
224 
 
 MARITIME LOANS. 
 
 MARITIME LOANS. 
 
 Bottomry and Respondentia. 
 
 Bottomry and respondentia are both maritime 
 loans. The former, as its name im ies, is a loan 
 upon the bottom of the ship, its tackle , apparel , 
 and freight. Respondentia is a loan effected upon 
 the cargo. The subject pledged on either of such 
 loans is said to be hypothecated. 
 
 These loans are of very great antiquity, having 
 been in use among the ancient Rhodians, and from 
 them adopted by the Romans, and by almost all 
 maritime nations since their day. The object of 
 hypothecation bonds is to procure the necessary 
 supplies for ships which happen to be in distress in 
 foreign ports, where the master and owners are 
 without credit, and in cases in which, if assistance 
 could not be procured by means of such instru- 
 ments, the vessels and their cargoes must be left to 
 perish. The owner may also make use of such 
 loans in a home port, to procure funds to purchase a 
 cargo for the ship, or to furnish supplies, and in 
 general to effect any beneficial purpose towards the 
 ship or cargo.* So a valid hypothecation may be 
 made by the owner, for the purpose of raising 
 money, not for the use of the ship or voyage , if it 
 be not a mere cover for an usurious contract. If 
 
 * Kent, 3 vol. 353. 
 
MARITIME LOANS. 
 
 225 
 
 the risk of the voyage be substantially taken, and 
 there be no gaming or fraud in the matter, the con- 
 tract may be sustained.* 
 
 The effect of a bottomry bond is to bind the 
 owner for the repayment of the money loaned, and 
 the agreed maritime interest thereon, in the event 
 that the vessel arrives, in good safety, at the port 
 designated ; but if the ship be lost by a peril of the 
 sea, the lender has no claim upon the borrower for 
 any part of the loan, except what may come to 
 the borrower’s hands as salvage of the wrecked 
 property. The lender on bottomry becomes, upon 
 the wrecking of the property, its legal owner, and 
 entitled to the proceeds. Hence it will be seen 
 that the lender on bottomry is an insurer in a cer- 
 tain sense. He takes the risk upon himself of her 
 safe arrival, and stakes his money upon the hazard. 
 He is therefore permitted and authorized to demand 
 and receive an extraordinary rate of interest. Where 
 the contract is made by the master in a foreign port, 
 when in distress, and his peculiar circumstances seem 
 to have been taken advantage of for the purpose of 
 extorting an exorbitant rate of interest, maritime 
 courts sometimes interfere and moderate the exorbi- 
 tancy of the charge. But this is not often done, 
 since it is considered of great importance to com- 
 mercial transactions, that these loans should be up- 
 held and enforced with honorable fidelity. f 
 
 * 1 Petprs, 436. 
 
 f 3 Mason, 260. 
 
226 
 
 MARITIME LOANS. 
 
 A respondentia bond is a loan upon a pledge of 
 the cargo. Both bottomry and respondentia par- 
 take of the nature of a mortgage, and both vessel 
 and cargo may be hypothecated in one instrument. 
 Respondentia, or a pledge of the cargo, is, general- 
 ly, only a personal obligation on the borrower, and 
 is not a specific lien upon the goods, unless there is 
 an express stipulation to that effect in the bond. 
 The condition of the loan is the same as on bottom- 
 ry, the safe arrival of the subject hypothecated, and 
 the entire principal, as well as interest, is at the 
 risk of the lender, during the voyage.* 
 
 After a bottomry bond is once rightfully made, 
 every sale or transfer of the vessel, although the 
 purchaser takes without notice of the bond, is sub- 
 ject to the bond, and the vessel is liable on the hy- 
 pothecation to the lender. This is the case, wheth- 
 er the hypothecation be made by the owner on a 
 home shore, or by the master on a foreign shore. 
 It is not necessary that the bond should be record- 
 ed.! It ]S necessary, however, that there should 
 be no laches on the part of the lender, if he would 
 hold the ship against a bona fide purchaser, without 
 notice. He should libel the vessel within a reason- 
 able time after her arrival from the voyage agreed 
 upon. A bottomry bond may be upon time, as 
 well as for a specific voyage. t If the owner, after 
 obtaining advances upon bottomry, sell the vessel, 
 or break up the voyage, the contract of the lender is 
 
 * Kent, 3 vol. 355. 
 
 + 2 Sumner, 157. f Ibid. 
 
MARITIME LOANS. 
 
 227 
 
 at an end, and he may proceed immediately against 
 the borrower, or the vessel, to obtain payment.* 
 
 In general, as soon as the risk ceases, either by 
 the ship’s safe arrival, the expiration of the term 
 for which the money was loaned, or by the break- 
 ing up of the voyage, the marine interest ceases, 
 and the debt becomes absolute against the lender. f 
 After the debt has once become absolute against 
 the owner by the safe arrival of the vessel, or any 
 other cause, legal interest begins to run upon the 
 amount of principal and interest then due, and the 
 marine interest ceases . % 
 
 The lender is only answerable for losses which 
 happen within the time and place of the risk, as 
 specified in the contract. Therefore if the ship de- 
 viate, without necessity, from the voyage described 
 in the bond, the lender will not be liable, any more 
 than an insurer, to any loss that may afterwards 
 happen.^ 
 
 The last bottomry bond, like the last will, takes 
 precedence, provided it be given for the purpose of 
 repairing a disaster sustained by the ship, after the 
 execution of the first bond. It is then really made 
 for the benefit of the previous bottomry lender. U 
 The lender on bottomry, does not, as does an in- 
 surer, assume the risk of barratry, or loss by the fraud 
 or misconduct of the borrower or his agents. The 
 
 * 2 Sumner, 157. f 2 Marshall In. b. 2. ch. 4, p. 750, et. seq. 
 
 f 3 Mason, 268. § 2 Marshall In. b. 2. ch. 5, p. 756, 
 
 2 Sumner, 157. 
 
• 228 
 
 MARITIME LOAJVS. 
 
 lender does not bear losses arising from the unsea- 
 worthiness of the vessel, or from unjustifiable de- 
 viation, or from the fault of the borrower, or 
 the inherent infirmity of the cargo. Nor does he 
 run the risk of the goods shipped on board another 
 ship without necessity.* 
 
 A bottomry bond, when made in a foreign port 
 by one of the owners, should, also, it would seem, 
 be signed by the master. 
 
 A bottomry bond will take precedence of a prior 
 mortgage of the vessel, if the mortgagor was allow- 
 ed to remain in possession.! 
 
 If the master should take up more money on bot- 
 tomry, than the exigencies of the vessel required, 
 still the bond would be good for the sum actually 
 expended upon the vessel. A bond may be good 
 for a part, and bad for a part.J 
 
 By the maritime law of the United States, the 
 master cannot pledge the ship by bottomry bond, 
 and also pledge the personal credit of the owners.^ 
 The master cannot pledge the ship by bottomry 
 bond for repairs, when one or more of the part own- 
 ers are present where the repairs are made. 
 
 The master cannot hypothecate for an existing 
 debt ; but only for advances for a purpose necessary 
 to complete his voyage, made at the time the ne- 
 cessity existed. || 
 
 The lender of money on bottomry must inform 
 
 * Kent, 3 vol. 360. f 1 Paine R. 671. 
 
 $ 8 Peters, R. 538. § Ibid. || Wash. R. 293. 
 
MARITIME LOANS. 
 
 229 
 
 himself of the ship’s necessity for the loan ; and if 
 he does not, and it appears that part of the sum ad- 
 vanced was not applied., or was not necessary to the 
 repair of the vessel, the lender loses his lien on 
 the vessel for the amount of the loan not applied, 
 or which was not necessary, but the bond is good 
 for the remainder.* 
 
 The lender on bottomry is bound to exercise 
 reasonable diligence, in order to ascertain whether 
 such supplies and repairs are necessary and proper. 
 He is not bound, however, to show there was a 
 positive necessity. It is sufficient that there was 
 an apparent necessity, so far as the lender is able, 
 upon due inquiry and due diligence, to ascertain 
 the facts. f 
 
 A regular survey, by competent and skillful per- 
 sons, and repairs made in pursuance of their recom- 
 mendation, is prima facie evidence of the propriety 
 of making the repairs, to justify the master and 
 lender on bottomry.J 
 
 The money should be advanced solely on the 
 faith of the hypothecation, and not on any personal 
 credit, in a foreign port, and in such distress that 
 the voyage could not be completed without it.$ 
 
 The master of a ship, in a foreign port, has au- 
 thority to procure all supplies, and repairs, necessa- 
 ry for the safety of the ship, and the due perform- 
 ance of the voyage. || 
 
 * Bee, R. 157. f Ship Fortitude. 3 Sumner, 
 
 t Ibid. § Ibid. 120. || Ibid. 
 
 20 
 
230 
 
 DEVIATION BY THE MASTER. 
 
 This authority is not confined to such supplies, 
 and repairs, as are absolutely, or indispensably 
 necessary; but includes all such as are reasonably 
 fit and proper for the ship and the voyage * 
 
 Where such supplies and repairs are reasonably 
 fit and proper, the master, if he has not suitable 
 funds, or cannot obtain money on the personal 
 credit of the owner, may take it upon bottomry. f 
 The master, before taking up money on bottomry, 
 should assure himself that there is no other way in 
 which he can raise the necessary funds. He ought 
 first, certainly, to apply to the consignee for funds 
 and direction, and this, too, even if the consignee 
 resides at another port, distant from that occupied 
 by the vessel. If the distance be great, so as to 
 make it extremely difficult to communicate with 
 him, the master may proceed without his advice. 
 
 The lender on bottomry is not bound to see to 
 the due application of the money ; but thel'e must be 
 no collusion, and he must have reasonable ground 
 for believing that the money is fairly borrowed. J 
 
 OF DEVIATION BY THE MASTER. 
 
 Deviation means a voluntary devarture, without 
 necessity , or any reasonable cause, from the regu- 
 lar, and usual course of the specific voyage insur- 
 ed ; or it is a varying of the voyage ; and it matters 
 not whether the risk is increased or diminished 
 * Ship Fortitude. 3 Sumner. f Ibid. $ 1 Dodson R. 461. 
 
DEVIATION BY THE MASTER. 
 
 231 
 
 thereby ; the effect in either case being the same — 
 to terminate the responsibility of the underwriters. 
 It is necessary to insert in every policy of insur- 
 ance, the place of the ship’s departure, and also of 
 her destination, unless she be insured on time. 
 Hence it is a condition on the part of the insured, 
 that the ship shall pursue the most direct course of 
 which the nature of the case will admit, to arrive 
 at the destined port. If this be not done, and there 
 be no special agreement to allow the ship to go to 
 certain places out of the usual track, or if there be 
 no just cause assigned for such a deviation, the un- 
 derwriter is no longer bound by his contract. Nor 
 is it at all material whether the loss be, or be not, 
 actually in consequence of the deviation ; for the 
 insurers are in no case answerable for any subse- 
 quent loss, in whatever place it happens, or to 
 whatever cause attributed. Neither does it make 
 any difference whether the insurers were, or were 
 not, consenting to the deviation.* 
 
 The meaning of those who assume the risk of 
 the voyage is always presumed to be, that the voy- 
 age is to be pursued in the most direct and safe 
 course, and the adventure conducted, in general, in 
 the most expeditions manner, as far as is consistent 
 with safety ; and if there be any departure from 
 such course or mode of conducting the adventure, 
 whereby the risks insured against are varied , or in- 
 creased, it behooves the assured to justify such de~ 
 * Kent, vol. 3, 313. 
 
232 
 
 DEVIATION BY THE MASTER. 
 
 parture, by showing either a usage in that respect, 
 or a reasonable necessity for it. 
 
 A deviation is, therefore, not merely a going out 
 of the direct or usual course of the voyage, but it 
 comprehends unusual and unnecessary delay. Any 
 thing that increases, or changes the risks insured 
 against, in the policy, is a deviation.* 
 
 The shortness of the time, or the distance, makes 
 no difference as to its effect upon the contract. 
 
 If the master of a vessel puts into a port not 
 usual, or stays an unusual time, it is a deviation 
 and discharges the insurer*! 
 
 If there be liberty granted by the policy to 
 touch, or to touch and stay at an intermediate port 
 on the passage, the better opinion now is, that the 
 insured may trade there, when consistent with the 
 object and furtherance of the adventure, by break- 
 ing bulk, or by discharging and taking in cargo, 
 provided it produces no unnecessary delay, nor 
 enhances, or varies the risk.J 
 
 The above privilege is so circumscribed and 
 guarded that no prudent master would exercise the 
 rights there conceded unless the circumstances 
 would fully and clearly justify it. 
 
 Unless there be some usage proved, or some 
 special facts to vary the general rule, the party in- 
 sured must go to the several places mentioned in 
 the policy, in the order in which they are named ; 
 to depart from this course is a deviation. If they 
 # Kent, vol. 3, p. 315. f Ibid, f; 5 Pick. R. 51. 2 Johns. R. 264- 
 
DEVIATION BY THE MASTER. 
 
 233 
 
 are not specifically named, then the insured is to 
 touch at them in their geographical order.* 
 
 The master, however, may omit to touch at any 
 of the ports first named, and go immediately to a 
 port mentioned later in the policy ; but he cannot 
 afterwards visit the previous named ports, in the 
 course of the same voyage, without avoiding the 
 policy.f 
 
 For instance, if permission be given in the poli- 
 cy, for the ship to touch at A. B. and C., — the mas- 
 ter may, if he chooses, run direct to B., and if he 
 fails to find a market there, may proceed to C. — but 
 cannot go back to A. without deviating-! 
 
 Where the insured have permission in their poli- 
 cy to touch at certain ports, the permission is to 
 touch for the purposes of the voyage, and not for 
 other, and distinct purposes. 
 
 Liberty to touch at a port named in the policy, 
 will not authorize the touching at another, although 
 it is no more out of the usual course of the voy- 
 age. $ 
 
 Where a vessel that was insured from St. Ubes 
 to her port of discharge in the United States, on 
 her arrival at a port in the United States, waited 
 there for instructions from the owner, and after- 
 wards proceeded to her port of discharge, it was 
 held to be no deviation. 
 
 If the insurance be at and from a place, — any 
 unusual, and unnecessary delay in commencing the 
 
 * 5 Pick. 89. f Ibid. $ Ibid. $ 7 Bro. P. C. 459. 
 
 20 * 
 
234 
 
 DEVIATION BY THE MASTER. 
 
 voyage, after the risk commences, is a deviation. 
 So where the policy is on goods until landed , — any 
 unnecessary and voluntary delay to land them is a 
 deviation. 
 
 The cause for which vessels most frequently go 
 out of the regular course of the voyage is, to put 
 into the nearest convenient port to refit after some 
 disaster. This is not a deviation, such as to dis- 
 charge the underwriters, provided the master seeks 
 his port of distress, directly and expeditiously. 
 
 A vessel which has lost a part of her crew, or of 
 which the crew is disabled by sickness, may go 
 out of the course of the voyage to obtain seamen. 
 
 A vessel may go out of the usual course of the 
 voyage, or may delay, for the purpose of avoiding 
 capture or any impending peril that is insured 
 against. 
 
 It has been held that the master may go out of 
 the usual course of the voyage, to procure intel- 
 ligence and advice, when any extraordinary cir- 
 cumstance makes it very difficult to determine in 
 what manner to proceed. 
 
 -Delay, or going out of the course of the voyage, 
 to succor those who are in distress, has been held 
 not to be a deviation. The principle, founded as it 
 so clearly is, upon principles of humanity, is not 
 likely to be called in question, either by insurers or 
 insured.* 
 
 But it seems that delay, or the going out of the 
 course of the voyage to save property, is a deviation.f 
 
 * Kent, 3 vol. 313. 
 
 f Kent, 3 vol. 313. 
 
DEVIATION BY THE MASTER. 
 
 235 
 
 A vessel may go out of her regular course by 
 stress of weather. Upon this point the rule is, that 
 whenever a ship, in order to escape a storm, goes 
 out of the direct course of the voyage, or when in 
 due course she is driven out of it by stress of 
 weather, it is no deviation. 
 
 She need not return to the point from which she 
 was driven, but may pursue her course to her port 
 of destination, by the usual route from the point to 
 which she has been driven. 
 
 A deviation may be justified, if done to avoid an 
 enemy or seek for convoy ; because it is in truth 
 no deviation to go out of the course of a voyage, to 
 avoid danger, or to obtain protection. 
 
 If by the usage pf a certain trade, it is customary 
 to stop at certain places lying out of the direct 
 course from A. to B., it is not a deviation to stop 
 there, because it is part of the voyage ; but in 
 order to justify the master, there must be a precise, 
 clear , and established usage upon the subject, not 
 depending upon one or two loose and vague in- 
 stances. 
 
 The effect of the master’s deviating from the 
 voyage insured upon, is, to discharge the under- 
 writers from the time of such deviation, and noth- 
 ing subsequent can restore their obligation.* 
 
 Any unnecessary delay during the voyage, 
 whether at sea or in port , is tantamount to a devi- 
 ation, and followed by the same consequences.! 
 
 And the shortness of the time of a delay, or the 
 * 13 Mass. R. 68. 7 do. 349. * 9 Mass. E. 436. 
 
236 
 
 DEVIATION BY THE MASTER. 
 
 distance of a deviation, makes no difference as to 
 its effect on the contract, whether for one hour, or 
 one month, or for one mile, or one hundred miles ; 
 if it be voluntary and without necessity, it puts an 
 end to the contract, and the underwriters are dis- 
 charged.* 
 
 If the master voluntarily deviates from the usual 
 route, and the intention so to do is not communi- 
 cated to the underwriters, or if the deviation be a 
 mistake of the captain, arising from want of ordi- 
 nary skill or information, the underwriters will be 
 discharged.! 
 
 In the ca'se of contraband trade, the master on 
 discovering great danger in pursuing his voyage, as 
 by learning that the port is blockaded, may, (as in 
 case of pirates in the way,) depart from his voyage, 
 seek an asylum in the nearest safe port, or even, if 
 more convenient, return to his original port and 
 wait until the blockade is raised, or the blockading 
 fleet is dispersed, and then may continue his voy- 
 age without being chargeable with deviation-! 
 
 If, however, the master, on learning his danger, 
 abandon the voyage insured, and either return 
 home or proceed on another voyage, this will be a 
 deviation by which the underwriters will be dis- 
 charged. 1 ^ 
 
 If it be the usage in making a voyage to any 
 particular place, on a particular route, to stop at a 
 certain intermediate port ; and there be a necessity 
 
 * 9 Mass. 436. f 8 Mass. 308. ? 6 Mass. 122. § 7 Mass. 349. 
 
BARRATRY. 
 
 23T 
 
 for it, on account of provisions, or water, without 
 any fault of the master, the act will not be a devi- 
 ation.* 
 
 BARRATRY. 
 
 Barratry has been defined to be, every species 
 of fraud or knavery in the master or mariners, by 
 which the freighters or owners are injured. Mere 
 negligence and inattention to their duty on the part 
 of the master or mariners, is not barratry. Chief 
 Justice Lee said, “that to make barratry it must be 
 something of a criminal nature, as well as a breach 
 of contract ; such as running away with the ship, 
 sinking or deserting her, embezzling the cargo, or 
 carrying her a different course from that ordered. 
 It includes every breach of trust with dishonest 
 views.” From a review of the decisions on this 
 subject, it appears that any act of the master, or of 
 ■the mariners, which is of a criminal nature , or 
 which is grossly negligent , tending to their own 
 benefit, and to the prejudice of the owners of the 
 ship, without their consent or privity, is barratry.! 
 
 In the contract of insurance under the usual 
 form of the policy, and where there is no express 
 words limiting it, the insured are bound to furnish 
 a tight, staunch, strong, seaworthy vessel, a capa- 
 ble master and a competent crew ; and the insurers 
 are responsible for all disasters which the foresight 
 
 * 13 Mass. R. 68. 
 
 f Phillips In. 230, 
 
238 
 
 BARRATRY. 
 
 of the insured could not have guarded against. 
 Among the disasters which the insured cannot 
 guard against, is reckoned the barratry, or fraud 
 of the master and mariners. This, therefore, is 
 covered by the policy. 
 
 To constitute barratry, it must be without the 
 knowledge or consent of the owners. 
 
 It is not necessary, in order to entitle the insured 
 to recover for barratry, that the loss should happen 
 in the act of barratry. It is immaterial whether it 
 take place during the fraudulent voyage, or after 
 the ship has returned to the regular course; for 
 the moment the ship is carried from its right track 
 with an evil intent , barratry is committed. 
 
 But the loss in consequence of the act of barra- 
 try, must happen during the voyage insured, and 
 within the time limited by the policy: for if the 
 captain be guilty of barratry by smuggling, and the 
 ship afterwards arrive at the port of destination, 
 and be there moored twenty-four hours in safety, 
 the underwriters are not liable, if, after this, she 
 should be seized for that act of smuggling. 
 
 The attempt, by the master, to evade the duties 
 in a foreign port, whereby the vessel is exposed to 
 forfeiture, is held to be barratry.* 
 
 Trading with an enemy without the leave of 
 the owner : and for for a neutral to resist search, 
 are acts of barratry.! 
 
 Breach of an embargo, is an act of barratry in 
 the master. 
 
 * 2 Str. 1 173. Phillips’ In. 231. t 8 East. 126. 
 
TOTAL LOSS AND ABANDONMENT. 
 
 239 
 
 OF TOTAL LOSS AND ABANDONMENT. 
 
 As insurance is- for the purpose of protecting the 
 merchant from severe and heavy losses arising 
 from shipwreck or disaster, so abandonment is in- 
 tended to restore to the owner, without delay, his 
 capital, and thereby enable him to engage in some 
 new mercantile adventure. Long interruption to a 
 voyage, and uncertain hopes of recovery, would, 
 often, be ruinous to the business of the merchant ; 
 and therefore if the object of the voyage be lost, or 
 not worth pursuing by reason of a peril insured 
 against, or if the cargo be so damaged as to be of 
 little or no value, the insured may abandon the 
 subject to the underwriter and call upon him to 
 pay a total loss. When an abandonment has been 
 made by the owners to the underwriters, the latter 
 stand in the place of the owners and take the sub- 
 ject to themselves, with all the chances of recovery 
 and indemnity. If the ship should be recovered, 
 and proceed, and make a prosperous voyage, the in- 
 surer, as owner, would reap the profit. 
 
 Under the law of abandonment, as now settled, 
 the owner is not subject to an interruption of his 
 business, as disastrous, nearly, as the disaster itself ; 
 but may disentangle himself from the fragments of 
 a broken voyage, by throwing upon the underwri- 
 ters the burthen of collecting the scattered rem- 
 nants, and of providing for them a suitable market. 
 
240 
 
 TOTAL LOSS AND ABANDONMENT. 
 
 This leaves the merchant free to pursue the regular 
 train of his affairs without those serious interrup- 
 tions so perplexing to the man of business. 
 
 A total loss is one by which the underwriter is 
 liable to pay for as much of the subject as he in- 
 sures, at its value in the policy. If the value of 
 the property is equal to, or greater than the amount 
 insured upon it, then the underwriter, in case of a 
 total loss, must pay the full amount insured. But 
 if the amount insured exceeds the value of the 
 property lost, then the underwriter is liable only 
 for a sum equal to the actual value of the subject 
 insured, or the value stipulated in the policy, if the 
 subject be valued in the policy. But in an open 
 policy, if the sum insured is $1,000, and a total 
 loss of the subject ensues, and its value at the time 
 proves to be only $800, then the underwriter is 
 liable to pay the latter sum only. 
 
 A loss may be either total or constructively total. 
 A total loss is, as the words imply, an entire de- 
 struction of the subject insured, whether it be the 
 ship, or the goods laden on board. This may hap- 
 pen, either by the subject being sunk, burnt, or 
 captured by a public enemy. 
 
 In the case of a total loss, where the subject is 
 entirely destroyed, no abandonment is necessary. 
 Nor is it necessary, where the master, acting as 
 agent for whom it might concern, has rightfully 
 made sale of the shipwrecked property. The pro- 
 ceeds of such sale belongs to the insurers, provided 
 the master was justified in selling. 
 
TOTAL LOSS AND ABANDONMENT. 
 
 241 
 
 But the sale of vessels, abroad, under the pre- 
 tence of necessity, has led to more litigation than 
 any other question arising under policies of insur- 
 ance. Ship-masters should bear in mind, that the 
 reports made by surveyors, in foreign ports, which 
 often recommend the condemnation and sale of the 
 vessel, are, in fact, no conclusive justification of 
 that course. Such reports are merely advisory, 
 and a sale made in pursuance thereof, will pass no 
 title to the purchaser, against the former owner; 
 nor render the insurers liable for a total loss, unless 
 there is an actual and urgent necessity for the 
 sale.* 
 
 Even if the circumstances seem to be such as to 
 justify an abandonment, it by no means follows 
 that the master should sell the vessel. The insur- 
 ers may prefer repairing her, at an expense beyond 
 that which the master may deem expedient. The 
 general rule is, that whenever the cost of repairing 
 a vessel will exceed one-half the sum at which 
 she is valued in the policy, the loss is to be deem- 
 ed constructively total. Bn t the expense of re- 
 pairing the vessel must, in fact, exceed three- 
 fourths of the sum at which she is valued in the 
 policy, in order to make out a constructive total 
 loss ; as one-third is to be deducted for new. f 
 And none of the incidental expenses of supporting 
 the crew, during the repairs, and of proving the 
 
 * Winn vs. Col. Ins. Co. ; 12 Pick. 249. 
 
 21 
 
 f Ibid. 
 
242 
 
 TOTAL LOSS AND ABANDONMENT. 
 
 loss, can be taken into view in making up the 
 sum.* 
 
 In numerous suits at law which have been tried 
 in Massachusetts, of late years, the assured has fail- 
 ed to sustain a claim for total loss, after the vessel 
 had been sold abroad. f And in many more cases, 
 have settlements been made with the insurers, 
 without suit, on the principle of a partial loss, not- 
 withstanding the sale of the vessel. 
 
 In some of these cases, the master has submitted 
 to a sale of the vessel, under a mistaken impression 
 that it was his imperative duty to follow the advice 
 of surveyors, and in others it has appeared probable 
 that the master himself prompted the condemna- 
 tion, from a desire to benefit his owners, thinking 
 that the surveyor’s report would justify his acts, 
 and the vessel be well disposed of at the sum in- 
 sured. 
 
 Whatever has been the governing motive with 
 the master, the results have been exceedingly dis- 
 astrous to their owners, and it is therefore of the 
 utmost importance that every man, who has the 
 command of a vessel, should be aware that he is 
 bound, in case of accident, to do with her as a pru- 
 dent man would were she his own property, and 
 wholly unprotected by insurance. This is the 
 only safe, general rule.J 
 
 * Hall vs. Ocean Ins. Co., 21 Pick. 472. 
 
 f Winn vs. Col. Ins. Co., 12 Pick. 279. Hall vs. Ocean Ins. Co., 
 21 Pick. 472. Orrok vs. Com. Ins. Co., 21 Pick 456. Hall vs. 
 Franklin- Ins. Co., 9 Pick. 466. 
 
 $ Gordon vs. M. F. and M. Ins. Co., 2 Pick. 249. 
 
TOTAL LOSS AND ABANDONMENT. 
 
 243 
 
 A capture of the vessel by a hostile enemy, or 
 her detention, so as to deprive the owner of her use 
 and enjoyment, constitutes a total loss within the 
 meaning of the policy. But here an abandonment 
 is necessary before the owner can recover for a to- 
 tal loss. 
 
 If the vessel is not heard from for a long time, she 
 is considered to be totally lost by perils of the seas. 
 In the case of a vessel that sailed from North Caroli- 
 na for New York and was not afterwards heard from, 
 Chief Justice Kent said, “ that after the laspe of a 
 year, considering the voyage, the presumption that 
 the vessel had perished, was reasonable. 
 
 Constructive total loss. A technical or construc- 
 tive total loss may occur without the entire destruc- 
 tion of the property, or by its capture or detention. 
 The question as to what degree of damage, short of 
 shipwreck, and what degree of restraint, short of 
 capture, or the forcible detention of the ship, come 
 within the principles of abandonment, has been the 
 subject of much discussion. 
 
 Where any part of the property has been saved, 
 the assured cannot recover, as for a total loss, un- 
 less he abandon. So in case of capture, before con- 
 demnation, an abandonment is necessary. f 
 
 An abandonment is an act on the part of the as- 
 sured, by which he relinquishes and transfers to 
 the underwriters his insurable interest, as far as it 
 
 * Phillips, 384. 
 
 t 1 Term R. 60S. 
 
244 
 
 TOTAL LOSS AND ABANDONMENT. 
 
 is a subject of the policy, or the proceeds of it, or 
 the claims arising from it. 
 
 No particular form is necessary to make a valid 
 abandonment. It is not indispensably necessary 
 that it should be in writing. But in whatever 
 form it is made, it ought to be explicit , without 
 any reservation whatever. The assured must 
 yield up to the underwriter, all his right, title, and 
 interest in the subject insured ; for the abandon- 
 ment, when made, operates as a transfer of the 
 property to the underwriter, and gives him a title 
 to it, or what remains of it, as far as it was cover- 
 ed by the policy.* 
 
 But in making an abandonment, it would be 
 well for the assured to make use of the word 
 “abandon,” because that is a technical word, and 
 leaves no doubt as to its meaning. The accident, 
 occasioning the abandonment, should be described 
 with certainty. The insured is bound by the 
 causes of abandonment which he assigns, and if 
 that cause is insufficient, he cannot avail himself of 
 a subsequent accident, without making a new 
 abandonment. f 
 
 In regard to capture, or restraint of the ship and 
 cargo, there is no distinction between the different 
 subjects of insurance, as the same arrest or deten- 
 tion constitutes a total loss of ship, cargo, and 
 freight. But where the cargo is detained without 
 
 * 4 Peters, 139. 
 
 f 1 Term K. 181. 
 
TOTAL LOSS AND ABANDONMENT. 
 
 245 
 
 the ship, or the ship without the cargo, then the 
 subject detained , is only liable to abandonment. 
 
 The insured has a right to abandon to the under- 
 writers, immediately on the capture of the vessel, 
 without waiting for her condemnation ; and even 
 if she be afterwards restored, it does not affect the 
 abandonment, if it was made before the restoration 
 of the ship by the captors.* 
 
 An embargo, or detention by a friendly power, 
 constitutes a total loss, and warrants an immediate 
 abandonment, f 
 
 So, too, where the vessel is prevented from en- 
 tering any of the ports mentioned in the instruc- 
 tions, and compelled to terminate her voyage at a 
 place to which she had been ordered by a vessel of 
 war, the voyage is broken up, and the assured may 
 abandon to the underwriters.^; 
 
 It is laid do-wn as a general rule, that the assur- 
 ed on any subject may abandon, when the voyage 
 is broken up, in respect to that subject, by the 
 perils insured against. But precisely what may be 
 considered a breaking up of the voyage is not so 
 easy of explanation. 
 
 “ The right of abandonment,” says Mr. Justice 
 Story, “ has been admitted to exist where there is 
 a forcible dispossession or ouster of the owner of 
 the ship, as in cases of capture ; where there is a 
 moral restraint, or detention, which deprives the 
 
 * 4Cranch, 29. f 4 Cranch’s R. 29. 2 Cond. R. 13. 
 
 X 4 Dali. 417. 
 
 21 * 
 
246 
 
 TOTAL LOSS AND ABANDONMENT. 
 
 owner of the free use of the ship, as in case of em- 
 bargoes , blockades , and arrests ; where there is a 
 present total loss of the physical possession and use 
 of the ship, as in case of submersion , or sinking of 
 the ship ; where there is a total loss of the ship for 
 the voyage, as in case of shipwreck ; and, lastly, 
 where the injury is so extensive, that by reason of it, 
 the ship is useless, and the making repairs would 
 exceed her value. The right to abandon, exists, 
 whenever, from the circumstances of the case, the 
 ship, for all the useful purposes of a ship for the 
 voyage, is, for the present, gone from the control 
 of the owner, and the time when she will be re- 
 stored to him in a state to resume the voyage, is 
 uncertain or unreasonably distant , or the risk and 
 expense are disproportionate to the expected bene- 
 fit and objects of the voyage.”* 
 
 If the voyage be broken up by a loss of the car- 
 go, this does not give a right to abandon the ship. 
 The underwriters on the cargo and freight are an- 
 swerable in such a case ; but the owner of the 
 ship has suffered no loss, and, therefore, cannot 
 abandon, and claim for a total loss. The insurer 
 on the ship has nothing to do with the cargo. The 
 underwriters insure against loss or damage to the 
 vessel, not the cargo. They insure her ability to 
 perform the voyage, not that she shall perform it. 
 
 Wreck, or stranding of the ship. The most 
 usual cause of a technical total loss, arises from the 
 
 * 3 Mason, 27. 
 
TOTAL LOSS AND ABANDONMENT. 
 
 247 
 
 wreck, or stranding of the ship. To ascertain 
 whether or not a loss is constructively total , two 
 preliminaries must be established. First, the value 
 of the subject insured ; and, second, the amount ol 
 loss sustained. 
 
 Of the value of the subject insured. Where the 
 ship is insured under a valued policy, the value 
 laid in the policy is conclusive, in case of a total 
 loss, — that is to say, if the loss proves total. But 
 in the preliminary investigations to ascertain 
 whether or not the loss is partial or total, it has 
 been a question whether the value in the policy or 
 the actual value of the ship at the time of the dis- 
 aster, is to be taken, to ascertain whether or not 
 the loss is to the amount of one-half of her value. 
 
 In giving an opinion upon this question, in the 
 case of Peele vs. the Merchants Insurance Com- 
 pany, Mr. Justice Story gave the opinion of the 
 court in favor of opening the policy, and of admit- 
 ing testimony as to the actual value of the ship, 
 notwithstanding the policy was a valued one 
 
 Mr. Phillips, in his treatise on the law of insur- 
 ance, would seem to lean against the ruling in that 
 case ; and from the acknowledged difficulty of 
 proving the value of any ship at a given period, the 
 value alleged in the policy might be expected to 
 govern, in every case where the valuation was not 
 grossly disproportionate to her real value. In 
 making this estimate, the premium note is not to 
 
 * 3 Mason, 27. 
 
248 
 
 TOTAL LOSS AND ABANDONMENT. 
 
 be deducted from the gross amount of the valua- 
 tion. 
 
 By the introduction of a special clause into the 
 policies in use in Massachusetts, prompted by the 
 above decision, the difficulties on this point have 
 been much narrowed. The valuation in the policy 
 is prima facie evidence of her real value.* 
 
 Where the policy is an open one, the value of 
 the vessel must be estimated at the time of the 
 happening of the disaster, and not her value at the 
 commencement of the voyage. But it is very un- 
 usual to insure vessels in an open policy, at the 
 present time. 
 
 Of the amount of damage. It is a well settled 
 rule of American Insurance law, that if a vessel is 
 damaged by any of the perils insured against, so 
 that the necessary repairs to restore her to her for- 
 mer state, and render her seaworthy, will exceed 
 three-fourths of her value before the disaster, the 
 owner is not bound to repair, but may abandon as 
 for a total loss.f 
 
 The injury is usually spoken of as an injury to 
 more than half her value, because, in estimating 
 the repairs, one-third of the amount is deducted on 
 the ground that the vessel is made more valuable 
 by substituting new materials for old. Thus, if a 
 ship worth $4,000, is so injured as to require 
 $3,000 to be expended in repairs, it is estimated 
 that the new materials used, will make the vessel 
 
 * 12 Pick. 279. 
 
 f 3 Wendall, 662. 
 
TOTAL LOSS AND ABANDONMENT. 
 
 249 
 
 worth $5,000 when repaired : and deducting one- 
 third new for old, the expense of restoring the ves- 
 sel to her former value will be $2,000, or one-half 
 of her value at the time of the disaster.* 
 
 Hence, if a vessel valued at $4,000, sustains an 
 injury to such an extent as to require $3,000 to be 
 expended in her repair, the owner may abandon 
 her to the underwriters and claim as for a total 
 loss. 
 
 This is the rule established and adhered to by 
 the court of errors in the state of New York, and 
 the same principle seems to be generally, though 
 vaguely, admitted in a case in Pennsylvania, re- 
 ported in the fifth of Seargent and Rawle, p. 501. 
 Under the form of policy used in Massachusetts, 
 the above principle is fully established. f 
 
 But Mr. Justice Story held, in the case of Peele 
 vs. The Merchants Insurance Company, that the 
 half value of the ship, which authorized an aban- 
 donment, was half the sum which the ship would 
 be worth after repairs made. And to this opinion 
 the learned Chancellor Kent, in his commentaries, 
 evidently leans . % 
 
 This latter decision has, however, been provided 
 against by a special clause in the Boston policies, 
 by which it is agreed, “that the insured shall not 
 have the right to abandon the vessel, for the amount 
 
 * 3 Wendall, 662. f 12 Pick. 279. 21 Pick. 472. 
 
 \ 3 Mason, 27. Kent’s com. vol. 3. p. 331. 
 
250 
 
 TOTAL LOSS AND ABANDONMENT. 
 
 of damage merely, unless the amount which the in- 
 surers would be liable to pay under an adjustment, 
 as of a partial loss, shall exceed half the amount 
 insured.” 
 
 Hence, under the Boston form of policies, the 
 ship must receive injury to the amount of three 
 quarters of her value, to enable the owner to aban- 
 don her to the underwriters, and claim as for a total 
 loss. 
 
 The items of expense which fall under the head 
 of general average, such as wages and provisions of 
 the crew, during the detention for repairs; and in- 
 deed none of the incidental charges which do not 
 go directly to the repair of the damage, are to be 
 taken into view in making up the sum necessary 
 to justify an abandonment.* 
 
 But the expense of getting a stranded vessel 
 afloat, or of raising one that is sunk, though not 
 subject to a deduction of one-third, may be reck- 
 oned to make up the one-half ot the value in the 
 policy. f 
 
 The method of ascertaining whether or not a loss 
 be constructively total, is, usually, by procuring a 
 survey of the vessel, and an estimate of the cost of 
 repairing her. This survey should be made, it pos- 
 sible, by three, at least, disinterested and skillful 
 persons. The appointment of this committee of 
 survey, should, when convenient, be entrusted to 
 
 * 21 Pick. 472. 
 
 f 11 Pick. 90. 
 
TOTAL LOSS AND ABANDONMENT. 
 
 251 
 
 the consul, or commercial agent of the port, or to 
 some#magistrate residing near the place of the dis- 
 aster. 
 
 In the cost of repairs, is to be included the cost 
 of the removal of the vessel from the place of strand- 
 ing, the expense of working her into port for re- 
 pair, as well as the actual expense of putting the 
 repairs upon her. 
 
 The estimates in the survey may be based upon 
 the price of labor and materials at the port at which 
 she may then lay; or, if the vessel be in a situa- 
 tion to proceed to another port, not unreasonably 
 distant, where the same may be obtained cheaper, 
 then they may be based upon the cost of repairing 
 her at another port.* 
 
 Stranding. When a ship is stranded, the assur- 
 ed cannot, for that cause merely, immediately aban- 
 don. By some fortunate accident, by the exertions 
 of the crew, or by extraneous assistance, the ship 
 may again be floated, and rendered capable of pur- 
 suing her voyage. In such case the insurers are 
 only answerable for the expenses occasioned by the 
 stranding. But undoubtedly, when by the strand- 
 ing, the voyage is defeated, the owner may aban- 
 don. If the ship be stranded on a part of the coast 
 where no assistance can be procured to get her off, 
 or where there may be no materials or workmen for 
 repairing the damage she may have sustained, or if 
 the insurer, upon having notice, will not engage 
 
 * 21 Pick. 472. 
 
252 
 
 TOTAL LOSS AND ABANDONMENT. 
 
 to pay the expenses of the attempt to set her afloat, 
 if the owner should not succeed ; in a cast like 
 this, the voyage is lost, and the insured may aban- 
 don.* 
 
 A ship may be driven upon some of our beaches 
 without sustaining essential injury, but in good 
 weather she may be easily got off and repaired, so 
 as to prosecute her voyage. In such case, there is no 
 excuse for saying that the owner may immediately 
 abandon, unless the time of her recovery and repair 
 is unreasonably distant, so as wholly to defeat the 
 voyage, or unless the insurers refuse to be answer- 
 able for the expense of the attempt to float her. 
 For in this case, as he cannot recover more than a 
 total loss, he shall not be holden to labor for the 
 recovery of the ship, which he must do at his own 
 expense, if he should be unsuccessful. f 
 
 And where the stranding is under such circum- 
 stances that the attempt to recover and repair the 
 ship, in a reasonable time for the prosecution of the 
 voyage may be hazardous, but not hopeless ; if the 
 underwriter will engage to pay all the expenses, 
 whatever may be the event, the owner cannot 
 abandon until he has used such reasonable endeav- 
 ors to recover his ship, and has eventually failed.! 
 
 If the underwriter will himself undertake, at his 
 own expense, for the owner, the recovery of his 
 ship, and shall succeed, and offer to restore her to 
 
TOTAL LOSS AND ABANDONMENT. 
 
 253 
 
 him, so that he may reasonably prosecute his voyage, 
 the owner cannot abandon ; for neither the ship nor 
 the voyage is lost.* 
 
 It is provided in most policies, that !< in case of 
 any loss or misfortune, it shall be lawful for the in- 
 sured, his factors, servants, and assigns, to sue, la- 
 bor, and travel for, in and about the defence, safe- 
 guard, and recovery of the said ( subject insured,) 
 or any part thereof, without prejudice to this insur- 
 ance, to the charges whereof the said insurance 
 company will contribute, in proportion as the sum 
 insured is to the whole sum at risk.” 
 
 Whether the above provision would bind the in- 
 surers for any expenses incurred in a fruitless at- 
 tempt to float a stranded vessel. Quere. 
 
 If a ship insured for a given voyage, arrive at her 
 port of destination, and there remain twenty-four 
 hours moored in safety ; or if she be insured for a 
 term, and she survive the term ; any injury which 
 she may have sustained during her voyage, in the 
 one case, or during the term in the other, however 
 great, can only amount to a partial loss. The 
 owner cannot abandon. f 
 
 The owner may always repair, if he pleases, even 
 if the damage exceeds the half of the value of the 
 ship.J 
 
 The master should protest against every disaster 
 with which he meets in the course of the voyage. 
 
 * 6 Mass. R. 484. f 15 “Wendell, 458. f 8 Johns. 244. 
 
 22 
 
254 
 
 TOTAL LOSS AND ABANDONMENT. 
 
 This protest must be made and sworn to before 
 a justice of the peace, and should be done within 
 twenty-four hours after arriving at the next port, 
 after the happening of the disaster. 
 
 Where an abandonment is made by the insured 
 to the underwriter, the protest of the master, if it 
 can be obtained, is the usual evidence of the. loss.* 
 
 The master then should transmit a certified copy 
 of his protest, or the original itself, where it can be 
 done without danger to the owners, in all cases 
 where an abandonment is to be made upon the dis- 
 aster protested against. 
 
 An abandonment is good, or not, according as 
 the facts concerning the property abandoned justi- 
 fied, or not, the abandonment at the time it was 
 made.f 
 
 An abandonment once rightfully made, is conclu- 
 sive, and the rights flowing from it are not divested 
 by any subsequent events, which change the situ- 
 ation of the property.}: 
 
 If, therefore, an abandonment be made of a 
 stranded vessel, and at the time of stranding and 
 survey she be a proper subject for abandonment, 
 and afterwards, and before an abandonment be ac- 
 tually made, she floats from her place of peril, and 
 can be repaired for less than one half of her value, 
 the owner cannot abandon. $ 
 
 But if a total loss has actually taken place by 
 
 * 4 Mass. 88. f 3 Mason, 429. 4 Cranch, 29. 6 Mass. 479. 
 t 3 Mason, 27. $ 11 Pick. 90. 
 
TOTAL LOSS AND ABANDONMENT. 
 
 255 
 
 capture, or otherwise, and during the continuance 
 of such total loss, the owner abandons to the insurer, 
 he may recover, although subsequently the vessel 
 should be given up, or rescued from the captors.* 
 
 But the owner cannot abandon after the vessel 
 has been liberated. 
 
 Notice of an intention to abandon should be given 
 the underwriters within a reasonable time after the 
 owner receives information of a total loss. Any 
 unnecessary delay in giving such notice, will 
 amount to a waiver of the right to abandon, and 
 give the insurers a right to reject the abandon- 
 ment.! 
 
 But an omission to abandon, will not deprive the 
 assured of his right to recover the actual loss he has 
 sustained.^ 
 
 The owner should never buy in, for his own ac- 
 count and benefit, a vessel abandoned by him to 
 the underwriters, because it is considered a waiver 
 of the abandonment. $ 
 
 In one case the delay of a month, and in anoth- 
 er, 45 days, was considered an unreasonable time 
 to delay an abandonment. || 
 
 If an abandonment is once rightfully made, the 
 master, from that time, is the agent of the insurers, 
 and no act of his can prejudice the rights of the 
 owner under the abandonment. He is no longer 
 
 * 11 Pick. 90. 1 1 Mass. R. 264 6 do. 465. $ 2 J. R. 138. 
 
 § 10 Johns. R. 177. 3 do. 39. || 4 Mass. R. 668. 6 do. 465. 
 
256 
 
 TOTAL LOSS AND ADJUSTMENT. 
 
 the servant of the owner, and therefore the owner 
 is no longer responsible for his acts.* 
 
 Acceptance of an Abandonment. Although an 
 acceptance may supply any merely formal insuffi- 
 ciency in the abandonment, an acceptance is not in 
 any other respect necessary to its validity and ef- 
 fect ; the abandonment being made in due form, 
 and for sufficient cause, it transfers the subject and 
 perfects the assured’s rights to recover for a total 
 loss, although it is not accepted by the insurers. 
 
 An acceptance, to be binding upon the insurers, 
 must be made by a person authorized to accept. 
 The silence of the insurer is no presumption of an 
 acceptance. 
 
 . Chief Justice Parsons decided that the taking 
 possession of the vessel by the insurers, after an 
 abandonment, for the purpose of recovering and re- 
 pairing her, was no acceptance of the abandonment. 
 Mr. Justice Story leans to a different opinion. f 
 By the form of policy made use of by the Boston 
 offices, it is provided “ that the acts of the insured, 
 or insurers, in recovering, saving, and preserving 
 the property insured, in case of disaster, shall not 
 be considered a waiver or acceptance of an aban- 
 donment.” This healthful provision in the policy 
 secures to each party to it, the very necessary and 
 highly proper privilege of rescuing the property 
 from destruction after an abandonment, if it be in 
 
 * 3 Mass. 238 and 417. f 6 Mass. 581. 3 Mason, 27. 
 
ABANDONMENT OF THE CARGO. 
 
 257 
 
 their power. It saves them from the unnatural and 
 and painful necessity of standing by, and seeing 
 property go to destruction, and barred themselves 
 from extending a saving hand, by a most unreason- 
 able point of law. 
 
 OF THE ABANDONMENT OF THE CARGO. 
 
 A total loss of the ship and an abandonment of 
 her is not necessarily followed by a total loss of the 
 cargo. The whole, or a principal part of the car- 
 go may be saved and sent on to its port of destina- 
 tion ; or it may be accepted by the merchant at 
 the port of distress ; in either of which cases the 
 assured cannot abandon to the underwriters.* 
 
 Where the vessel meets with a disaster in the 
 course of the voyage, and puts into a port of dis- 
 tress, and the cargo is there found to be damaged 
 to an amount exceeding one-half of its value, the 
 assured may abandon it to the underwriters and 
 claim for a total loss.f 
 
 It matters not whether this loss arises from the 
 deterioration of the goods by sea-water or other- 
 wise, or from the absolute destruction of a portion 
 of them, if half of the value of the goods is lost, 
 whether by the destruction of a part of the goods 
 or deterioration in value of a part or the whole, the 
 assured may abandon. J 
 
 Where the cargo consists partly of memorandum 
 
 * 1 Johns. 335. + 6 Pick. R. 131. $ Phillips, 415. 
 
 22 * 
 
258 
 
 ABANDONMENT OF THE CARGO. 
 
 articles, insured free from partial loss, and the 
 cargo sustains damage, the damage to the non 
 memorandum articles must exceed half of the 
 value of the whole cargo, memorandum articles 
 and all, in order to entitle the owner to abandon.* 
 If more than half the goods insured are thrown 
 overboard for the safety of the remaining interests, 
 the owner may abandon in the same manner as if 
 the loss was by inevitable peril. f 
 
 The insured is not authorized to abandon the 
 cargo, after its arrival at the port of destination, 
 however great the damage may be.J 
 
 If the vessel and goods are taken by an enemy, 
 the assured may immediately abandon. So, too, if 
 they are embargoed in a foreign port, or prevented 
 by blockade from entering the port of destination, 
 it is a good cause of abandonment. <§> 
 
 Where the vessel is driven into an intermediate 
 port in distress, it does not, for that cause merely, 
 give the owner of the cargo a right to abandon. 
 The vessel’s having been disabled, does not, in all 
 cases, constitute a loss of the voyage in respect to 
 the cargo. The master may, in such case, repair 
 his own vessel, if it can be done ; or otherwise he 
 may hire another, and if it is through his fault and 
 negligence that neither is done, this does not give 
 the assured any right of abandonment, since the in- 
 surers are not at the risk of the conduct of the cap- 
 tain in this respect. 
 
 * 8 Cranch. 48. + 2 Caines's Cas. 324. 
 
 % 4 Binney, 506. Benecke, 370. § 8 Mass. R. 494. 
 
ABANDONMENT OP THE CARGO. 259 
 
 If the cargo is not damaged to an extent exceed- 
 ing one-half of its value, it must be sent on by the 
 ship-owner, if the vessel can be repaired in a rea- 
 sonable time to carry it forward ; or, if another ves- 
 sel can be procured at the port of distress, or a 
 neighboring port to carry it on for a price less than 
 one-half of its value, the master is bound to send it 
 forward. If in neither of these ways the cargo can 
 be sent forward to its port of destination, and the 
 owner does not see fit to accept it at the port of 
 distress, he may abandon. 
 
 If a vessel can be obtained at the port of distress, 
 or a neighboring port, to carry on the cargo, or if 
 the vessel can be repaired within a reasonable time, 
 so as to carry it on, the assured cannot abandon, 
 unless the expense of procuring another vessel 
 would exceed half the value of the cargo. If the 
 master can procure another vessel to send the 
 cargo forward and will not , the better opinion seems 
 to be that the insurers are discharged.* 
 
 Valuation of the cargo. The invoice value of 
 the goods must be taken as their value for the set- 
 tlement of the question whether or not they have 
 been injured to more than half their value. In 
 the invoice value may be legally included, not 
 only the prime cost of the goods, but also the ex- 
 pense of removing them and lading them on board, 
 and the premium of insurance. f 
 
 If goods, in a port of distress, are found to be 
 f Kent’s Com. vol. 3. p. 272. 
 
 * 9 Johns. 21. 
 
260 
 
 SALVAGE. 
 
 damaged, and the question is, whether, or not, the 
 damage exceeds the half of their value, it may be 
 ascertained in this way. Ascertain, first, the mar- 
 ket value of the goods in that place, in a sound 
 state, and then ascertain the market value of the 
 goods as they are in a damaged state. If it ap- 
 pears that they are deteriorated for that market to 
 more than half their value, the merchant may 
 legally abandon them to the underwriter, since the 
 presumption is fair, that the relative proportion be- 
 tween the value of sound and damaged goods will 
 he the same in every market. For instance, if the 
 cargo consists of coffee and might have been sold 
 at SOs. sound, and is, in consequence of its being 
 damaged, worth no more than 40s., the proportion 
 of the loss is one-half, for the owner is by the de- 
 terioration placed in the same condition, (as to the 
 goods themselves,) as if one-half of the goods had 
 been washed overboard.* 
 
 SALVAGE. 
 
 Salvage is a compensation to those by whose 
 assistance a ship, or its loading, is saved from im- 
 pending peril, or rescued from actual loss. This 
 service may either take place at sea, or on the 
 shore, and entitles the salvor to a greater or less 
 reward, according to the circumstauces of the case. 
 
 * Benecke, 15. 
 
SALVAGE. 
 
 261 
 
 It is generally from one-third to one-half of the 
 value of the property saved. Formerly a certain 
 portion of the property was decreed the salvors, but 
 now it is usual to adjudge them a certain portion of 
 the value of the property saved, in money. In fixing 
 the rate of salvage, the court usually has regard, 
 not only to the labor and peril incurred by the sal- 
 vors, but also to the situation in which they may 
 happen to stand with respect to the property saved ; 
 to the promptitude and alacrity manifested by 
 them, and to the value of the ship and cargo, as 
 well as the degree of danger from which they 
 were rescued. Sometimes it is a matter of con- 
 tract between the salvors and owners as it respects 
 their compensation ; but unless it appears clear to 
 the court that no undue advantage was taken of 
 the situation of the owners, by the salvors, they 
 will not consider it binding. Generally the ship's 
 crew cannot be the salvors of their own vessel or 
 cargo ; but under certain circumstances the court 
 have allowed them salvage. So, too, with pilots 
 and passengers. 
 
 In cases of shipwreck, where the voyage, as to 
 purposes of freight, is wholly lost, but by the mer- 
 itorious exertions of the crew the materials of the 
 ship are saved, they are entitled to salvage ; for the 
 loss of freight, carrying with it their wages, places 
 them, in cases of extraordinary exertion, upon the 
 
262 
 
 SALVAGE. 
 
 same right as other persons, to be paid a compensa- 
 tion for their labor done.* 
 
 If a vessel in distress is abandoned at sea by the 
 master and all the crew, excepting one man, who 
 is left by accident or design, he is discharged from 
 his contract as mariner of that vessel, and may en- 
 title himself to salvage.! 
 
 An agreement made in distress at sea is void-! 
 
 It has been held that where part of a ship’s crew, 
 with the mate at the head, went on board a- vessel, 
 quasi derilict, to effect a salvage, the part of the 
 crew who remained in their own ship, if equally 
 ready to go, were equally entitled to the reward. <§> 
 In case of shipwreck, it is the duty of seamen to 
 exert themselves to the utmost to save as much as 
 possible of the vessel and cargo. If the cargo is 
 saved, and a proportion of the freight paid by the 
 merchant in respect thereof, it seems upon princi- 
 ple that the seamen are also entitled to a proportion 
 of their wages ; and for their labor in saving the 
 cargo, or remains of the ship, they, as well as other 
 persons, may be entitled to a recompense by way 
 of salvage. || 
 
 In case of shipwreck, although the contract of 
 the sailors is not at an end, and it is their duty to 
 remain and labor to save the wreck and cargo, they 
 are entitled by way of salvage to their wages, 
 which form a lien on the property saved. Where 
 
 * 2 Mason’s R. 319. f 2 Cranch R. 240. $ Bee R. 138, 139. 
 
 § 2 Dodson R. 132. |1 2 Mason’s R. 319. 
 
salvage- 
 
 263 
 
 the danger in rescuing property from a wreck is 
 great, it may form a claim on the part of the sailors 
 for compensation, even beyond their wages. J 
 
 The right of salvage is forfeited by embezzle- 
 ment on the part of the salvors whether in port or 
 at sea.f 
 
 Spoliation, smuggling, and other gross misconduct 
 of the salvors may forfeit all claim to salvage.* 
 
 If property, abandoned by the master and crew, 
 be taken possession of by one set of salvors, a sec- 
 ond set have no right to interfere with them and 
 become participators in the salvage, unless it ap- 
 pears that the first would not have been able to ef- 
 fect the salvage without their aid. 
 
 Where property was taken out of the hands of 
 the original salvors, by a second party, and it ap- 
 peared in evidence that their assistance was not 
 needed, salvage was decreed to the original salvors 
 only. 
 
 If a vessel belonging to citizens of the United 
 States, be taken by a foreign enemy, and before 
 condemnation be retaken by a public vessel of the 
 United States, the vessel thus retaken reverts to 
 its former owners, they paying a salvage of one- 
 eighth of the value of the vessel and cargo to the 
 recaptors ; or if retaken by a private vessel of the 
 United States, one sixth of the value thereof is al- 
 lowed as salvage. 
 
 * 2 Mason’s R. 319. f 1 Sumner, 328. f Ibid. 
 
264 
 
 GENERAL AVERAGE. 
 
 If public vessels of the United States be retaken 
 from an enemy, before condemnation, they revert 
 in the United States, and a salvage is allowed by 
 law to the recaptors, if retaken by a public vessel) 
 of one-twelfth part, and if retaken by a private ves- 
 sel, one-sixth part of the true value thereof, as 
 found by any court of the United States competent 
 to try the same. And for the recapture of a public 
 armed vessel, or any goods therein, one moiety of 
 the true value thereof, when made by a private 
 vessel of the United States, and one-fourth part of 
 such value when made by a public armed vessel of 
 the United Slates. 
 
 OF GENERAL AVERAGE. 
 
 General average is a maritime phrase. It is the 
 contribution of several interests to repair a loss sus- 
 tained for their general safety. General^ or gross 
 average, means a contribution made by all parties 
 concerned, whether it be in the ship, cargo, or freight, 
 towards a loss voluntarily sustained by some of the 
 parties in interest for the benefit of all. 
 
 No loss can be a subject of general average, un- 
 less two things concur : — first, that it be intention- 
 ally made ; and, second, that it be made for the 
 general safety and benefit of the remaining inter- 
 ests. The goods must not be swept away by the 
 violence of the wind or waves, for then the loss 
 falls entirely upon the merchant or his insurer. 
 
GENERAL AVERAGE. 
 
 265 
 
 When goods are thrown overboard for the safety 
 of the ship and remaining portion of the cargo, it is 
 the foundation for a general average claim, and is 
 called a jettison. The jettison must be made for 
 sufficient cause, and not from groundless timidity. 
 It must be made in a case of extremity, when the 
 ship is in danger of perishing by the fury of the 
 storm, or is laboring upon rocks or shallows, or is 
 closely pursued by pirates or enemies. If, when 
 thus situated, a portion of the goods are thrown 
 overboard as the price of safety to the rest, and the 
 ship and residue of the cargo be saved thereby, 
 nothing is more reasonable than that they should 
 bear their proportion of the loss. The doctrine of 
 general average is one of those rules of the marine 
 law which is built upon the plainest principles of 
 justice, and it has accordingly recommended itself 
 to the notice and adoption of all the commercial 
 nations of the world.* 
 
 A jettison is only permitted in cases of extreme 
 necessity, and if the master, in case of false alarm, 
 makes a jettison, there is no contribution. A regu- 
 lar jettison, says Emerigon, is that which takes 
 place with order, and without confusion, and is 
 founded on previous deliberation. Consultation is 
 not indispensable previous to the sacrifice. A case 
 of imminent danger will not permit it. But it must 
 appear that the act occasioning the loss was the ef- 
 fect of judgment and will; and there may be a 
 * Kent, vnl. 3, p. 232. 
 
 23 
 
266 
 
 GENERAL AVERAGE. 
 
 choice of perils when there is no possibility of safe- 
 ty. There must be a certain loss, voluntarily in- 
 curred for the common benefit, and it is not neces- 
 sary that the vessel should be exposed to greater 
 danger than she otherwise would have been. 
 
 To avoid an absolute shipwreck, it may some- 
 times be necessary to run the vessel ashore in a 
 place which appears to be the least dangerous, and 
 that will form a case of general average.* 
 
 The master should first begin the jettison with 
 things the least necessary, the most weighty, and 
 of the least value; and nothing but the greatest 
 extremity would excuse the master who should 
 commence the jettison with money, and other pre- 
 cious parts of the cargo. 
 
 Before contribution takes place, it must appear 
 that the goods sacrificed were the price of safety to 
 the rest; and if the ship be lost, notwithstanding 
 the jettison, there will be no ground for contribu- 
 tion.! But in such case the loss must be total, so 
 that no value is saved by means of the sacrifice ; it 
 being a well settled rule, that where any property 
 is saved, contribution is due, as it is the safety of 
 the property, and not of the voyage, which consti- 
 tutes the consideration of general average.! 
 
 All damage arising immediately from jettison, or 
 other act of necessity, is to be a matter of general 
 average, and, therefore, if, in cutting away a mast, 
 the cargo, by that means, be injured, the damage 
 
 * 4 Binney, 513. f Kent, 3 vol. 234. J 13 Peters, S. C. R. 331. 
 
GENERAL AVERAGE. 
 
 267 
 
 goes into general average. So, if a ship be injured 
 by a peril of the sea, and be obliged to go into port 
 to refit, the wages and provisions of the crew dur- 
 ing the detention, constitute the subject of general 
 average according to the decisions in New York and 
 Massachusetts. In Great Britain and her dependen- 
 cies, it is different, — no contribution being allowed 
 for those charges. In France seamen’s wages and 
 provisions may, under certain circumstances, be a 
 subject for contribution. The usage throughout the 
 United States is to consider the wages and provisions 
 a subject of general average in all cases of voluntary 
 departure from the course of a voyage to repair dama- 
 ges. But it is manifest that this, like all other subjects 
 of general average, is founded upon the supposition 
 that an actual sacrifice has been voluntarily made 
 for the common benefit. It is equally plain that 
 there can be no voluntary sacrifice, unless the 
 voyage is intentionally prolonged to avoid the dan- 
 ger of keeping the sea in a crippled vessel. Mere 
 detention, therefore, in the ordinary course of the 
 voyage, is no sufficient ground for a general aver- 
 age claim. 
 
 If damage occurs to a ship while in port, but 
 ready for sea, and she be thereby detained for re- 
 pairs, the wages and provisions, during the detention, 
 are not considered general average, because the de- 
 tention is involuntary ; but if the damage happens 
 after she has broken ground for the voyage, and she 
 puts back to refit, then the detention is deemed vol- 
 
268 
 
 CANERAL AVERAGE. 
 
 iintary, and the wages and provisions are brought 
 into contribution. So if a vessel is bound to two 
 or more ports, and meets with a disaster on the pas- 
 sage towards the first, but arrives there, and is 
 detained for repairs, the wages and provisions 
 during such detention, are not general average. 
 And again, if a ship is accidentally stranded, and 
 afterwards got afloat in such a condition that she is 
 unfit to proceed on her voyage, and is therefore 
 taken into a neighboring port for repairs, there is 
 no voluntary prolongation of the voyage for the 
 common safety, and consequently the wages and 
 provisions are not a subject for contribution. 
 
 The claim for general average upon wages and 
 provisions begins to run immediately from the time 
 the ship depaits from the course of her voyage, and 
 continues until she is ready for sea at the port of ne- 
 cessity. Formerly it was held that the allowance 
 should be continued until the ship regained the 
 same position in respect to the completion of the 
 voyage, that she was in at the time she put away. 
 That is to say, if a ship had performed half her 
 voyage, and was then compelled to return to her 
 port of departure, the wages and provisions were 
 allowed until the period when she had again com- 
 pleted half her passage. This rule, however, for 
 obvious reasons was found to be of difficult appli- 
 cation ; and it has now been long settled, that the 
 wages and provisions shall be allowed from the 
 time the master determines to put away for a port 
 
GENERAL AVERAGE. 
 
 269 
 
 of necessity, until the vessel shall be again ready to 
 proceed on her voyage ; or until the voyage is bro- 
 ken up ; if, as often happens, the ship is condemned, 
 or the enterprise abandoned, at the port of neces- 
 sity. 
 
 The rule is laid down by Marshall thus : “ Where 
 a ship is forced to enter a port to repair the damage 
 she has suffered in a storm, being unable to con- 
 tinue her voyage without apparent risk of being 
 lost, the wages and provisions for the crew from 
 the day it was resolved to seek a port to rejit the 
 vessel , to the day of her departure from thence , &c., 
 shall be brought into a general average.”* 
 
 Notwithstanding the apparent simplicity and 
 clearness of this language, the question is frequent- 
 ly made, whether the wages and provisions ought 
 to be allowed, until there is an actual departure 
 from the course of the voyage, towards the port of 
 destination, in order to make an intermediate port. 
 For instance, if a ship meets with damage near the 
 Cape of Good Hope , being bound to Boston, and 
 the master immediately determines to put into St. 
 Helena , it is contended that the course of the ves- 
 sel towards Boston will, generally, carry her in 
 sight of the island, and therefore that there can be 
 no practical putting away or departure from the 
 course of the voyage to go into St. Helena, until 
 the ship has sailed several hundred miles on her 
 regular track. Hence it is argued that the allow- 
 * Marshall, book 1, chap. 13, sec. 7. 
 
 23 * 
 
270 
 
 GENERAL AVERAGE. 
 
 ance for wages and provisions should not commence 
 until the ship turns off to put into Jamestown, 
 which would probably be the very day she would 
 arrive there. There is much force in this argu- 
 ment, and it is conformable to the views of many 
 of the most intelligent and liberal underwriters in 
 Boston ; but, on the other hand, it may be said, that 
 the abrogation of the ancient rule, which continued 
 the allowance until the ship regained her former 
 position, and the adoption of that cited from Mar- 
 shall should be deemed a kind of compromise, and 
 that the latter should be as strictly enforced for the 
 advantage of the ship owner, as it would be against 
 him, under different circumstances. Let it be sup- 
 posed that the ship met with the disaster, as far this 
 side of St. Helena, as the Cape of Good Hope is on 
 the other, and was compelled by the course of the 
 winds to return to that island ; then it would be ob- 
 vious that the wages and provisions during the time 
 she was proceeding again on the homeward voyage, 
 until she reached her former position, would be sac- 
 rificed for the common benefit, yet the rule laid 
 down by Marshall, and practically applied in all 
 cases, would exclude any allowance beyond the 
 day she was ready for sea at St. Helena. 
 
 Where the general safety requires a ship to go 
 into port to refit, by reason of some peril, not only 
 the wages and provisions of the crew, but the other 
 necessary expenses of going into port and of pre- 
 paring for refitting the ship, by unloading, ware- 
 
GENERAL AVERAGE. 
 
 271 
 
 housing, and reloading the cargo, are general aver- 
 age.* In these expenses may be included port 
 charges, pilotage, light money, unloading and re- 
 loading the cargo, coopering casks when rendered 
 necessary by the unloading of the cargo, storage, 
 hire of anchors, cables, or boats ; wages of people 
 employed to guard the property, or to cut the ice in 
 order to get the ship into, or out of port, brokerage, 
 postage, fees of notaries for protests, &c.; and in 
 general all the expenses incidental to the interrup- 
 tion of the voyage for the general safety. f 
 
 The costs of the repairs, so far as they accrue to 
 the ship alone as a benefit, and would have been 
 necessary in that port on account of the ship alone, 
 are not average. Yet, if the expense of the repairs 
 would not have been incurred but for -the benefit of 
 the cargo, and might have been defered with safety 
 to the ship, to a less costly port, such extra expense 
 is general average.t 
 
 If part of the cargo be voluntarily delivered up 
 to a pirate or an enemy, by way of ransom or con- 
 tribution, and to induce them to spare the vessel 
 and residue of the goods, the property saved must 
 contribute to the loss, as being the price of safety 
 to the rest. The expense, also, of unlading the 
 goods to repair damages to the ship, or to lighten 
 her when grounded, must be sustained by general 
 contribution ; for all the parties concerned are in- 
 terested in the measures requisite for the prosecu- 
 f Phillips, 347. J 7 Pick. 259. 
 
 * 2 Pick. 8. 
 
272 
 
 GENERAL AVERAGE. 
 
 tion of the voyage. If the masts, cables, and other 
 equipments of the vessel be cut away, to save her 
 in a case of extremity, their value must be made 
 good by contribution. All casual and inevitable 
 damage and loss, as distinguished from that which 
 is purposely incurred, is the subject of particular. 
 and not of general average.* 
 
 If the ship be voluntarily stranded to escape 
 danger from tempests, or the chase of an enemy, 
 the damages resulting from that act are to be borne 
 as general average, if the ship be afterwards recov- 
 ered and perform her voyage. But if the ship be 
 Avholly lost or destroyed, by the act of running her 
 ashore, it has been a question much discussed and 
 different opinions entertained, whether the cargo 
 saved was bound to contribute to bear the loss of 
 the ship. But the question was elaborately consid- 
 ered by the supreme court of the United States in 
 the ease of the Columbian Insurance Company, 
 plaintiffs in error, vs. Stribling, et al. 13 Peters, 331, 
 in which the whole doctrine of general average 
 was fully discussed, and the total loss of the ship 
 by such voluntary stranding was held to be the 
 subject of contribution. 
 
 A temporary safety is all that is requisite to en- 
 title the owners of the property sacrificed to con- 
 tribution ; and if the ship survives the disaster, and 
 he afterwards lost by another, still the goods saved, 
 in the second disaster, must be contributory to the 
 * Kent, vol. 3, p. 23S. 
 
GENERAL AVERAGE. 
 
 273 
 
 original loss, for without that loss they would have 
 been totally destroyed. 
 
 Goods shipped on deck contribute if saved, but 
 if lost by jettison, they are not entitled to the bene- 
 fit of general average ; for they, by their situation, 
 increase the difficulty of the navigation, and are 
 peculiarly exposed to peril.* 
 
 There is much diversity of practice among those 
 whose profession it is to adjust averages in this 
 country. In several of our principal ports there are 
 usages strictly local. The establishment of a uni- 
 form system would prove highly beneficial to the 
 commercial interests, and is, therefore, very desira- 
 ble ; but it will not be accomplished, probably, un- 
 til Congress shall deem it expedient, under their 
 constitutional power to regulate commerce, to 
 establish a code after the manner of the French 
 ordinance of the marine. 
 
 At present the rule in New York is to allow 
 thirty cents a day for the wages of the crew during 
 a voluntary detention for repairs, and in some of 
 the southern ports thirty-three cents per day is al- 
 lowed. In Boston the allowance is twenty-five 
 cents per day. In New York the rule is to take 
 one-half of the gross freight, and four-fifths of the 
 sum at which the vessel may be valued in the pol- 
 icy, as the contributory value of those interests. In 
 Boston two-thirds of the freight and the actual 
 value of the vessel are taken. In Philadelphia the 
 * Kent. vqI. 3, p. 239, 
 
274 
 
 GENERAL AVERAGE. 
 
 rule is to deduct one-third for new, from the gross 
 amount of repairs, and then to deduct the proceeds 
 of the old materials from the remainder. In Bos- 
 ton and New York, the proceeds of the old mate- 
 rials are first deducted, and then one-third of the 
 remainder for new. In New York it is usual to 
 allow in general average a commission of two and 
 one-half per cent for collecting it. In Boston, such 
 an allowance is deemed wholly inadmissible. 
 
 As a general rule, the goods sacrificed, as well 
 as the goods saved, are to be valued at the clear net 
 price they would have yielded, after deducting 
 freight at the port of discharge ; and this rule is 
 founded on a plain principle of equity. The per- 
 son whose loss has procured the safe arrival of the 
 ship and cargo, should be placed on equal ground 
 with those persons whose goods have safely arrived, 
 and that can only be done by considering his goods 
 to have also arrived. The owners of the ship con- 
 tribute according to her value at the end of the 
 voyage, and according to the net amount of freight 
 and earnings. The net amount of freight is deter- 
 mined by deducting one-third of the gross amount 
 at risk. This is an arbitrary rule, analagous to that 
 of deducting one-third for new in case of repairs. 
 It has been adopted for convenience to avoid the 
 necessity of inquiry, in every case, to determine 
 what has been the actual net earnings. In New 
 York one-half of the gross freight is deducted, 
 leaving a moiety for contribution. 
 
GENERAL AVERAGE. 
 
 275 
 
 The value of the vessel for contribution is her 
 true worth at the port of adjustment. This is to be 
 ascertained in the best manner that circumstances 
 will permit. If she has been repaired at a port of 
 necessity, the amount of such repairs must be de- 
 ducted from her value at the port of destination. 
 Thus suppose a vessel to be sold on her arrival, or 
 her value to be established by competent appraisers, 
 
 at $10,000 
 
 And that she has been repaired at the 
 
 port of necessity at an expense of - 3,000 
 
 Her net contributory value is - $7,000 
 
 This rule for finding the contributory value is 
 manifestly the only correct one, because the result 
 gives the precise value saved by the ship-owner. 
 But as neither an actual sale, nor an appraisement 
 can always be resorted to conveniently, it is usual 
 to proceed as follows : 
 
 Take the value in the policy, assumed 
 to be at the inception of the contract, $10,000 
 Deduct the repairs at the 
 port of necessity, as- 
 sumed to be - - $3,000 
 
 Less one-third, deduction 
 
 new for old, - l,000-$2,000 
 
 Premium, included in the 
 valuation, - $500 — 2,500 
 
 Leaving the contributory value, 
 
 $7,500 
 
276 
 
 GENERAL AVERAGE. 
 
 But it often happens that the arbitrary valuation 
 in the policy is incorrect, and it follows, thereforei 
 that it should not be taken as an element to deter- 
 mine the contributory value, if the point can be 
 otherwise ascertained. 
 
 It is not unfrequently the case that occasions arise 
 for fixing the contributory value of vessels, which 
 have sustained no extraordinary damage, but have 
 been running some time after the value in the 
 policy was established. In such cases, it is custom- 
 ary to make an allowance for deterioration, thus: 
 Suppose the vessel valued in the policy 
 
 at - - - - - - $10,000 
 
 That the premium is - - $500 
 
 And that she has run a year or 
 more without repairs ; allow 
 for deterioration, say - - 1,500 — 2,000 
 
 Leaving the contributory value, - $8,000 
 
 In New York four-fifths of the value in the poli- 
 cy is taken as the contributory value of the vessel, 
 unless she has met with damage, and undergone 
 repairs amounting to more than one-fifth of such 
 valuation, in which case the actual amount of the 
 repairs is deducted in lieu of the one-fifth. 
 
 Thus suppose a vessel to be valued at $10,000 
 And a general average is to be adjusted 
 before any disaster has befallen her, 
 one-fifth is deducted, - 2,000 
 
 Leaving her contributory value, 
 
 $8,000 
 
GENERAL AVERAGE. 
 
 277 
 
 But suppose she has run two years under the 
 policy and is impaired by wear or tear, as she might 
 well be. one-half, and an average then occurs, 
 still, according to the practice in that port, one- 
 fifth only is deducted, and she contributes on 
 $> 8 , 000 . 
 
 If, however, she meets with damage, and is re- 
 paired at an expense of $>3,000, or of any sum 
 above $2,000, then the amount of such repairs is 
 deducted from her original valuation, and she is 
 made to contribute on the balance. This rule is 
 manifestly obnoxious to many objections, and is 
 recommended only by its convenience. 
 
 In fact, the inquiry to be made, in all cases, is 
 simply this , — how much value has been saved by 
 the sacrifice ? This is to be determined by reduc- 
 ing the several interests to their net cash prices, at 
 the port of destination, deducting all charges, so as 
 to find how much more each party concerned pos- 
 sesses than he would have done, had a total loss 
 happened. The value saved by each party thus 
 determined, is the true contributory value, — and 
 the method which will establish the fact the most 
 clearly, is the best. 
 
 As to losses of the equipment of the ship, such 
 as masts, cables, and sails, it is usual to deduct one- 
 third from the price of the new articles; for 
 being new, they will be of greater value than the 
 articles lost.* 
 
 * Kent, vol. 3, p. 242. 
 
 24 
 
278 
 
 GENERAL AVERAGE. 
 
 The doctrine of adjustment underwent a very 
 full discussion in Strong vs. The New York Fire- 
 man’s Insurance Company, and it was there declar- 
 ed to be the duty of the master, in cases proper for 
 a general average, to cause an adjustment to be 
 made upon his arrival at the port of destination , 
 and that he had a lien upon the cargo to enforce 
 the payment of the contribution.* This was shown 
 to be the maritime law of Europe. When the gen- 
 eral average is thus fairly settled in the foreign 
 port, according to the usage and law of the port, it 
 is binding, though settled differently from what 
 it would be in the home port. If, however, it 
 is not a proper case for a general average, and 
 s a partial loss only, then this doctrine does not 
 apply, and a foreign adjustment, founded in mis- 
 take, and assuming a case for general average, 
 when none existed, is not binding. 
 
 * 11 Johns. R. 323. 2 Barnw. and Cress, 805. 3 Johns, cases. 
 
 170. 4 Mawle and Selw. 141. 
 
MARINE HOSPITALS. 
 
 279 
 
 CHAPTER XYI. 
 
 MARINE HOSPITALS. 
 
 In the session of Congress which ended in July, 
 1798, a system of taxation upon seamen was adopt- 
 ed, intended for their temporary relief, when sick 
 or disabled. This tax is twenty cents per month, 
 and is assessed upon all American seamen, or seamen 
 employed in the United States Merchant service. 
 By the aid of this fund, marine hospitals have been 
 erected in the principal commercial cities of the 
 United States. The extent of the relief which 
 these Hospitals aiford to that useful class of our 
 citizens, is circumscribed in a great measure by the 
 amount of the funds collected. As far as practica- 
 ble, the expenditures have been kept within the 
 amount of the collections from the seamen ; so that 
 while tiie government have the ordering and dis- 
 posal of this money, and the general direction of the 
 several hospitals, it contributes little or nothing to 
 their support. Each hospital is, in the main, sup- 
 ported from the collections made within its own 
 district, which districts are designated by the Pres- 
 ident, or the Secretary of the Treasury. 
 
 The time has now arrived when the government 
 should remodel the whole system, and the marine 
 hospitals be placed on a more liberal footing. The 
 
280 
 
 MARINE HOSPITALS. 
 
 government is now abundantly able, not only to 
 bear the whole expense of the institutions already 
 established, but to establish others at points where 
 the growing interests of commerce now pressingly 
 demand them. There is no subject more richly 
 meriting the attention of Congress than this, and it 
 is to be hoped that it will be speedily brought be- 
 fore it. If there is any class who deserve the 
 watchful and even tender regard of the govern- 
 ment, it is the mariners; for it is through their toils 
 and privations that our country has been enriched 
 by foreign commerce, and their gallantry has won 
 for her imperishable honors in the memorable en- 
 gagements recorded in her naval history. Simple 
 justice should award to them, from their country, a 
 warm and comfortable retreat when overtaken by 
 sickness or disaster, if their proverbial thoughtless- 
 ness and improvidence, combined with the exposure 
 of their situation, did not imperiously demand it. 
 
 The marine hospitals of the United States are 
 only intended for the temporary relief of sick and 
 disabled seamen. Hence, if a seaman be afflicted 
 with mania , consumption, or any other kind of in- 
 curable disorder, he is not permitted to partake of 
 the benefits of the hospital. If the complaint de- 
 velopes itself as incurable after the patient has been 
 admitted into the hospital, he is immediately dis- 
 charged. 
 
 Seamen who are sick with complaints which are 
 
MARINE HOSPITALS. 
 
 281 
 
 deemed curable, are not permitted to remain in the 
 hospital for a longer period than four months. 
 
 When a disabled seaman is discharged from any 
 hospital on account of having an incurable disease, 
 or by reason of having exhausted the four months 
 allowed for his stay in the same, he is entitled to 
 be conveyed by water, at the public expense, to his 
 place of nativity or domicil, where he may either 
 obtain the aid of his friends, or claim the protection 
 of the place as a pauper. 
 
 Terms. No charge whatever is made to Ameri~ 
 can seamen for any relief afforded by marine hospi- 
 tals Whatever may be the circumstances of the 
 seaman, he is entitled to its benefits without fee or 
 reward. 
 
 Foreign Seamen who are sick, are admitted, 
 when it can with convenience be done, into the 
 various marine hospitals of the United States, upon 
 the application of the master or commander of the 
 vessel to which such sick seamen belong. Each 
 seaman, so admitted, is subject to a charge of 
 seventy-five cents per day, for each day he remains 
 in the hospital. The master of the vessel is liable 
 for the same. 
 
 When the seamen are in such a state of conva- 
 lesence as to admit of it, they must perform such 
 reasonable service as the surgeon may direct. 
 
 All officers of the navy, and of the marines, and 
 all seamen and marines in the public service of the 
 United States, and all officers and seamen in the 
 24 * 
 
282 
 
 MARINE HOSPITALS. 
 
 merchant service, may be admitted into the hospital, 
 whenever, from wounds, sickness, or infirmity, it 
 may become necessary ; unless the disorder, with 
 which they are visited, is contagious or malignant. 
 
 While the seamen are receiving the benefits of 
 the hospital, they are not permitted to leave the 
 grounds about the same, without permission from 
 the steward. 
 
APPENDIX. 
 
 NOTICE OF ABANDONMENT. 
 
 To A. B., President of the Commercial Insurance > 
 Office, Boston. > 
 
 You will please to take notice, that I, C. D., of Newbury- 
 port, in the County of Essex, merchant, abandon to you all 
 my right, title, interest, property and claim in and to the ship 
 Roscoe and her cargo, and every part and parcel of them or 
 either of them ; and I demand of you the sum often thousand 
 dollars, by you underwritten on my interest in said ship and 
 cargo, as for a total loss thereof. C. D. 
 
 Boston, March 1, 1839. 
 
 Note. No particular form of abandonment is necessary, 
 and even an abandonment made verbally, if not objected to, is 
 good. It is best, however, to use the word abandon, because 
 that is a technical word adapted to express the intention of 
 the insured. If the abandonment is to be sent abroad, it is 
 prudent to have it made, in a formal deed, by a conveyancer 
 or notary. 
 
 ASSIGNMENT of a policy of insurance. 
 
 Know all men by these presents, that I, the within named 
 A. B., for, and in consideration of the sum o f fifty d liars, to 
 me paid by C. D. of Sac., the receipt whereof is hereby ac- 
 
284 
 
 APPENDIX. 
 
 knowledged, have sold, assigned, transfered, and set over, 
 and by these presents I do absolutely sell, assign, transfer and 
 set over to him, the said C. D., all niv right, property, inter- 
 est, claim and demand, in and to the within policy of insur- 
 ance, which have already arisen, or which may hereafter arise 
 thereon, with full power to avail himself of the interest herein 
 assigned, or hereby intended to he assigned. The convey- 
 ance herein made, and the powers hereby given are for myself 
 and my legal representatives, to said C. D. and his legal 
 representatives. 
 
 In testimony whereof, I, the said A. B., have hereunto set 
 my hand and seal this second day of March, in the year of our 
 Lord one thousand eight hundred and thirty-nine. 
 
 ASSIGNMENT OF A SAILOR’S WAGES. 
 
 To all persons to whom these presents shall come, A. B., 
 of &c. [here name his place of residence, county, state and 
 occupation,] sends greeting. 
 
 Know ye that I, the said A. B., for and in consideration of 
 thessum of , in which I am justly i id bt> d to C. D., 
 
 of &.C., have hereby assigned, sold, and set over, and by these 
 presents, 1 do hereby assign, sell, and set over, unto the said 
 C. D., all such sum or sums of money as are now due and 
 owing to me, the said A. B., for wages or services on board 
 the ship or vessel called the Experiment, from the master or 
 owner of the said vessel, on board of which vessel I served as 
 a mariner on her voyage from Boston to Halifax, which has 
 recently terminated. And to enable the said C. D. the better 
 to recover and receive the same, I do hereby appoint him, the 
 said C. D., my attorney irrevocable, with full power in my 
 name, but at his charge, to prosecute any and all persons 
 liable therefor, and receive and recover the same,. and give 
 discharges therefor. 
 
 And I do covenant with the said C. D., that I have not 
 assigned or released the above named sum or sums of money 
 
APPENDIX. 
 
 2S5 
 
 to any other person or persons whatever, and that I will, at 
 his request, and at his charge, execute to him all and every 
 further conveyance and assurance that may he deemed neces- 
 sary to enable him fully to avail himself of the benefit of this 
 assignment. 
 
 In testimony whereof, &c. 
 
 A. B. [seal.] 
 
 LETTER OF ATTORNEY FCOJI A SAILOR TO 1IIS WIFE TO 
 RECEIVE HIS WAGES, &C. 
 
 I, A. B., of &c., mariner, do constitute and appoint my 
 loving wife, C. B., my true and lawful attorney, for me, and 
 in my name, and for my use, to ask for, demand, and receive, 
 of and from all and every person and persons whatsoever, as 
 well all such sum and sums of money as now are, or which 
 shall or may at any time hereafter beeome due and owing to 
 me for wages, from any >hip or ships to which I now do or 
 may belong ; as also all and other monies now due, or to be- 
 come due and owing to me by any other ways or means what- 
 soever ; and upon non-payment either of the whole or of any 
 part of the said pay, or other demands, I do hereby authorize 
 and empower my said wife to bring a suit or suits in law, in 
 my name, for the recovery thereof. 
 
 In witness whereof, I have hereunto set and affixed my 
 hand and seal this day of, &c. A. B. [seal.] 
 
 Signed and sealed in presence of us. 
 
 assignment of money due for freight of a ship. 
 
 To all persons to whom these presents shall come, I, A. B., 
 of&c., send greeting. 
 
 Know ye, that in consideration of the surn of ten dollars, 
 to me paid by C. D., of &c., the receipt whereof is hereby 
 acknowledged, I, the said A. B., have granted, sold, assigned 
 and set over, and I do hereby grant, sell, assign and set over 
 to the said C. D., the one full and equal thirty-second part of 
 
286 
 
 APPENDIX. 
 
 all such sum and sums of money, as are remaining due and 
 owing from all persons lor or on account of the ship Decatur, 
 of , of the burthen of about three hundred tons, 0. P. 
 
 master, for the freight, hire or service of the said ship or 
 otherwise, and payable, or belonging to me the said A. 15., as 
 the owner of the said thirty-second part of the said ship, 
 whereof I am at this time the owner: and all my right, title, 
 interest and property of, or in the same: 
 
 To have and to hold the same to the said C. D., his execu- 
 tors, administrators, and assigns, to his and their use and be- 
 hoof forever. 
 
 [Add a power of attorney to collect and recover the same. 
 For form see “ assignment of sailor’s wages.”] 
 
 In witness whereof, &c. 
 
 Attest. A. B. [seal.] 
 
 ASSIGNMENT OF MONEY DUE FOR FREIGHT, &.C. 
 
 [another form.] 
 
 To all persons to whom these presents shall come, T, A. B., 
 of &c„, master of the good ship or vessel called the Morning 
 Star, send greeting. 
 
 Whereas I, the said A. B., by a charter party or instru- 
 ment, in writing, dated on the second of March, 183S, did let 
 on freight, to O. P., of & c., the one-half of the said ship, on, 
 and for a voyage then about to be performed by said ship 
 from Boston to Baltimore, which voyage has been perfumed, 
 for the sum of one hundred dollars, which is now due and 
 payable by said 0. P. to me. Now, therefore, know ye, &c. 
 [us before.] 
 
 AGREEMENT FOR THE FREIGHT OF A SHIP. 
 
 Articles of agreement made this second day of May, in the 
 year eighteen hundred and thirty-nine, h tween A. B., mas- 
 ter and commander of the ship Liverpool, o \' Boston, of about 
 five hundred tons burthen, now at the what fin Charleston, in 
 
APPENDIX. 
 
 287 
 
 the state of South Carolina , and bound on a voyage to Bris- 
 tol, in the kingdom of Great Britain, of the one part, and C. 
 D., of saiil Charleston, merchant, of the other part. 
 
 The said A. B., lor the consideration hereinafter named, 
 does covenant with the said C. D., that the vessel aforesaid 
 shall, Avith all reasonable expedition and despatch, be made 
 ready to proceed to sea, and well found, manned and provided 
 in all respects to undertake a voyage from where she now 
 lies, to Bristol aforesaid, anil that he the said A. B. will forth- 
 with receive on board the said vessel, for the said C. D., pro- 
 vided he will furnish the same, the goods described as follows: 
 [ here enumerate them,] and within twenty days from the day 
 of the date hereof, wind and weather permitting, the said A. 
 B. will sail with the said vessel for the said port of Bristol, 
 and on arriving there, the dangers of the seas and other mari- 
 time risks excepted, he will deliver the said goods in the like 
 good order in which they shall be received on board said ves- 
 sel, to the said C. D. or his assigns. And the said C. D. 
 covenants with the said A. B. that he will forthwith deliver, 
 on board his said vessel, to be transported as aforesaid, the 
 goods herein before enumerated; and that on their transporta* 
 tion as aforesaid to the said port of Bristol, he will receive the 
 same from on board the said vessel, and then and there on the 
 receipt thereof, that he will pay to the said A. B for the 
 transportation thereof, the sum of [here name the freight and 
 primage.] 
 
 In witness whereof, &c. [seal.] 
 
 FORM OF A BOTTOMRY BOND. 
 
 Know all men by these presents, that I, A. B., of Boston, 
 in the county of Suffolk, in the commonwealth of Massachu- 
 setts, one of the United States of America, ship-master, in 
 the sum of ten thousand dollars, good and lawful money ol 
 the United States, to be paid to the said E. F., his executors. 
 
288 
 
 APPEXD1X. 
 
 administrators and assigns, to which payment well and truly 
 to be made, I do bind myself, my heirs, executors and admin- 
 istrators, and every one of them, firmly by these presen's. 
 
 Sealed with my seal, and dated the first day of March, 
 A. D. one thousand eight hundred and thh ly-txco. 
 
 Whereas the above bound A. B. hath taken up, and re- 
 ceived of the said E. F. the full and just sum of Jive thousand 
 dollars, which sum is to run at respondentia on the block and 
 freight of the ship Exeter, whereof the said A. B. is now 
 master, from the port or road of Bombay, on a voyage to the 
 port of Boston, having permission to touch, stay at, and pro- 
 ceed to all parts and places within the limits of the voyage, at 
 the rate or premium of hoenty-Jive per cent, for the voyage; 
 in consideration whereof, usual risks of the seas, rivers, ene- 
 mies, fires, pirates, &c., are to be on account of the said E. F. 
 And for further security of the said E. F., the said A. B. doth 
 by these presents mortgage and assign over to the said E. F., 
 his executors, administrators and assigns, the said ship Exeter 
 and her freight, together with all her tackle, apparel, &c. 
 And it is hereby declared that the said ship Exeter and her 
 freight are thus assigned over for the security of the respon- 
 dentia taken up by the said A. B. and shall be delivered to no 
 other use or purpose whatever, until payment of this bond is 
 first made, with the premium that may become due thereon. 
 
 Now the condition of this obligation is such, that if the 
 above bound A. B., his executors, or administrators, shall and 
 do, well and truly pay or cause to be paid unto the said E. F. 
 his executors, administrators or assigns, the full and just sum 
 of five thousand dollars, being the principal of this bond, to- 
 gether with the premium which shall become due thereupon, 
 at or before the expiration of ninety days after the safe ar- 
 rival of the ship Exeter at her moorings in the port of Boston, 
 or in case of the loss of the said ship Exeter, such an average 
 as by custom shall have become due on the salvage, then this 
 obligation to be void and of no effect, otherwise to remain in 
 full force and virtue. Having signed to three bonds of the 
 
APPENDIX. 
 
 289 
 
 [seal.] 
 
 same tenor and date, the one of which being accomplished, 
 the other two to be void and of no effect. 
 
 A. B. for self 
 and C. D. 
 
 Signed, sealed and delivered 
 in 'presence of us. 
 
 G. H. 
 
 J. K. 
 
 FORM OF A BOTTOMRY BILL. 
 
 To all men to whom these presents shall come. I, A. B. 
 of Bengal, mariner, part owner and master of the ship called 
 the Exeter, of the burthen of five hundred tons and upwards, 
 now riding at anchor in Table Bay, at the Cape of Good 
 Hope, send greeting: 
 
 Whereas I, the said A. B. part-owner and master of the 
 aforesaid ship called the Exeter, now in prosecution of a 
 voyage from Bengal to the port of London, having put into 
 Table-Bay for the purpose of procuring provisions and other 
 supplies necessary for the continuation and performance of the 
 voyage aforesaid, am at this time necessitated to take up, upon 
 the adventure of the said ship called the Exeter, the sum o {one 
 thousand pounds sterling monies of Great Britain, for setting 
 the said ship to sea, and furnishing provisions and necessaries 
 for the said voyage, which sum C. D. of the Cape of Good 
 Hope, master attendant, hath at my request lent unto me; 
 and supplied me with, at the rate of twelve hundred and twenty 
 pounds sterling for the said one thousand pounds , being at the 
 rate of one hundred and twenty-two pounds, for every hun- 
 dred pounds advanced as aforesaid, during the voyage of the 
 said ship from Table-Bay to London. Now know ye, that I, 
 the said A. B. by these presents, do, for me, my executorsj 
 and administrators, covenant and grant to and with the said 
 C. D. that the said ship shall, with the first convoy that shall 
 offer for England after the date of these presents, sail and de- 
 part for the port of London, there to finish the voyage afore- 
 said. And I, the said A. B. in consideration of the sum of 
 25 
 
290 
 
 APPENDIX. 
 
 one thousand pounds sterling to me in hand paid by the said 
 
 C. D. at and before the sealing and delivery of these presents, 
 do hereby hind myself, my heirs, executois and administra- 
 tors, my goods and chattels, and particularly Hie said ship, 
 the tac'de and apparel of the same, and also the freight of the 
 said ship which is or shall become due for the aforesaid voyage 
 from Bengal to the port of London , to pay unto the said C. 
 
 D. ,h is executors, administrators or assigns, the sum of twelve 
 hundred and twenty pounds of lawful British money, within 
 thirty days next after the safe arrival of the said ship at the 
 port of London from the same intended voyage. 
 
 And I, the said A. B. do, for me, my executors and admin- 
 istrators, covenant and grant to and with the said C. D., his 
 executors and administrators, by these presents, that I, the said 
 
 A. 15. at the time of sealing and delivering of these presents, 
 am a true and lawful part-owner and master of the said ship, 
 and have power and authority to charge and engage the said 
 ship with her freight as aforesaid, and that the said ship, with 
 her freight, shall at all times after the said voyage, be liable 
 and chargeable for the payment of the said twelve hundred 
 and twenty pounds, according to the true intent and meaning 
 of these presents. 
 
 And lastly, it is hereby declared and agreed by and between 
 the said parties to these presents, that in case the said ship 
 shall be lost, miscarry, or be cast away before her arrival at 
 the said port of London from the said intended voyage, that 
 then the payment of the said ticelve hundred and twenty 
 pounds shall not be demanded, or be recoverable by the said 
 C. D., his executors, administrators, or assigns, but shall cease 
 and determine, and the loss thereby be wholly borne and sus- 
 tained by the said C. I)., his executors and administrators, 
 and that then and irom thenceforth every act, matter, and 
 thing herein mentioned on the part and behalf of the said A. 
 
 B. shall be void, any thing herein contained to the contrary 
 notwithstanding. 
 
 In witness whereof the parties have interchangeably set 
 
APPENDIX. 
 
 291 
 
 their hands and seals to four bonds of this tenor and date, one 
 of which being' paid, the others to be null anil void. 
 
 At the Cape of Good Hope, this 15th day of November, in 
 the year of our Lord one thousand seven hundred and ninety- 
 seven. 
 
 f F.. F. 
 
 Witness, J G. H. A. R. [seal.] 
 
 ' I. K. 
 
 THF. FORM OF AN INSTRUMENT OF HYPOTHECATION OF 
 SHIP AND CARGO. 
 
 Know all to whom this instrument of bond and bill of mar- 
 itime risk and bottomry may come, that in the year from the 
 birth of our Lord Jesus Christ, 1801, on the Sl.st day of the 
 month o ['January, in the city of Lisbon, in my olEce person- 
 ally appeared Jacomo Mazzola, captain of the Imperial ship 
 called the Gratitudine, whom I know to be the real person ; 
 and he declared to me, the notary, in the presence of the wit- 
 nesses hereinafter mentioned, that within twenty-four hours 
 after the arrival of his said ship at London, or any other port, 
 and previous to beginning to make any delivery of the cargo 
 at the port aforesaid, or any other port, that he, the captain, 
 or whomsoever may act in lieu of him, or in the case of his 
 absence, perform the duties of his said quality, shall or will 
 pay hv this bill of risk, sea exchange, and bottomry, to Fran- 
 cis Manoel Calvert, professed in the order of Christ, or to his 
 order the sum of 5.273/. 12s. sterling, principal and premium 
 of risk and sea exchange, at the rate of 16 per cent, the which 
 principal he acknowledged to have received here of the said 
 Francis Manoel Calvert, in the good current money of this 
 kingdom, under the denomination of true and legitimate 
 money of sea exchange and bottomry, on the hull, keel, and 
 appurtenances of the aforesaid ship, and therewith to supply 
 the wants of the repairs, caulking, and of the cargo of the 
 same, on which he had effectively invested ii : the said Cal- 
 vert taking upon himself, and in consideration of the alore- 
 
292 
 
 APPENDIX. 
 
 said premium of 16 per cent, voluntarily agreed fir and set- 
 tled between.them, to run the sea risk on the said hull, keel) 
 and appurtenances, and cargo of the said ship, in her ensuing 
 voyage, which the said captain is about prosecuting from this 
 port of Lisbon to that of London: — these being the risks 
 which the aforesaid Francis Manoel Calvert takes on himself, 
 and is to run, such as of the sea, winds, fire, stranding, and 
 shipwreck, enemies, and false friends, detentions of princes, 
 and reprisals, during the whole of said voyage, excepting nev- 
 ertheless those of barratry of the master, and of average, as 
 well particular as general, the which are expressly excluded ; 
 the which risk shall commence to run from the hour the ship 
 shall heave her first anchor to set sail from this port to that of 
 London, and shall cease in twenty-four hours after having 
 come to anchor : and for the ready payment of the aforesaid 
 sum, he, the captain, binds himself, and his effects in general, 
 dues and funds, both in actual possession and future, and by 
 special mortgage the cargo, freights due, or that may become 
 due ; and in case of failure of the prompt payment in due time, 
 he binds himself under this clause of mortgage to pay to him 
 or his order, for all the delay until full payment, at and after 
 the rate of six per cent, per annum; and there being also pres- 
 ent Andrew Belucci, mate of the said ship, by whom it was 
 declared, that in case of the absence of the aforesaid captain, he 
 bound himself to fulfil the contents of this bond they thus exe- 
 cuted and accepted, after these presents were read to them, and 
 I, the notary in the name of whomsoever it may concern, being 
 absent ; to all which tvere witnesses present, Joav Pedro 
 Roeks, who also acted as interpreter as well for the captain as 
 for the mate, he being there vice-consul, and Manoel Eugenio 
 Coetho, who together with the parties signed thereto. J. Joge 
 de Almeida Rorig the notary wrote it: Jacomo Mazzola, An- 
 drew Bcllucci, Joav Pedro Roeks, Manoel Eugenio Coetho; 
 and J. Joge de Almeida Rorig, notary public of notes in the 
 city of Lisbon and its district of his Royal Highness the Prince 
 Regent our Lord, whom God preserve, caused this instrument 
 
APPENDIX. 
 
 293 
 
 to be transcribed from my book of notes, to which I refer my- 
 self, and have subscribed it, and signed it in public form. 
 
 In testimony of the truth, 
 
 JOGE DE ALMEIDA RORIG. 
 Whose hand writing is certified by 
 
 FRANCIS ARBOUIN, 
 
 Francis Manoel Calvert. 
 
 Vice-Consul. 
 
 FORM OF A RESPONDENTIA BOND. 
 
 Know all men, &e. [Form the same as in the preceding 
 Bottomry Bond.'] 
 
 Whereas the above named E. F. has, on the day of the date 
 above written, advanced and loaned unto the said A. B. and 
 C. D. the sum o f five thousand dollars, upon the goods, mer- 
 chandizes and effects, laden and to be laden on board the good 
 ship Exeter, of the burden of 300 tons or thereabouts, now 
 riding at anchor in the harbor of Boston , outward bound to 
 China or elsewhere, and whereof the said A. B. is commander. 
 
 Now the condition of this obligation is such, that if the said 
 ship or vessel, do and shall, with all convenient speed, proceed 
 and sail from and out of the said port of Boston, on a voyage 
 to any port or place, ports or places, in the East Indies, China , 
 Persia, or elsewhere beyond the Cape of Good Hope and 
 from thence do and shall sail, return and come back into the said 
 port of Boston, at or before the end of thirty-six calendar months, 
 to be accounted from the day of the date above written, and 
 there tr end her said intended voyage, (the danger and casu- 
 alties of the seas excepted ;) and if the said A. B. and C. D., 
 or either of them, their, or either of their heirs, executors, or 
 administrators, do and shall within thirty days next alter the 
 said ship or vessel shall be arrived at her moorings in the said 
 port of Poston from her said intended voyage ; or at or upon 
 25 * 
 
294 
 
 APPENDIX. 
 
 the end and expiration of the thirty-six calendar months, to 
 be accounted as aforesaid, (which of the said times shall first 
 and next happen,) well and truly pay or cause to he paid unto 
 the said E. F., his executors, administrators or assigns, the 
 full sum of six thousand eight hundred dollars, together with 
 fifty dollars per calendar month, for each and every calendar 
 month, and so proportionally for a greater or a lesser time than 
 a calendar month, for all such time, and so many calendar 
 months as shall be elapsed, and run out of the said thirty-six 
 calendar months, over and above twenty calendar months, to be 
 accounted from the day of the date above written ; or if in the 
 said voyage, and within the said thirtjr-six calendar months, 
 to be accounted as aforesaid, an utter loss of the said ship by 
 fire, enemies, men-of-war, or any other casualties, shall una- 
 voidably happen, and the said A. B. and C. D. or either of 
 them, their, or either of their heirs, executors, or administra- 
 tors, do, and shall, within six calendar months next after such 
 loss, well and truly account for, (upon oath if required,) and 
 pay unto the said E. F., his executors, administrators or as- 
 signs, a just and proportional average on all the goods and ef- 
 fects of the said A. B. carried from Boston on hoard the said 
 ship or vessel, and the net proceeds thereof, and on all other 
 goods and effects which the said A. B. shall acquire during the 
 said voyage, for or by reason of such goods, merchandizes and 
 effects, and which shall not be unavoidably lost ; then the 
 above written obligation to be void and of none effect, else to 
 stand in full force and virtue. 
 
 BILL OF EXCHANGE. 
 
 Boston, July 4, 1S32. 
 
 $500. 
 
 Ten days after sight, pay to the order of Mr. A. B., five 
 hundred dollars, value received, and charge the same without 
 further advice to the account of C. D. 
 
 Messrs. E. F. & Co., 
 
 New York. 
 
APPENDIX. 
 
 295 
 
 A SET OF BILLS. 
 
 No. 344, Ex. £100 stg. Boston, July 4, 1832. 
 
 Sixty days after sig ht, of this my first of exchange, (second 
 and third of same tenor and date not paid,) pay to Messrs. 
 A B. &. Co., or order, one hundred pounds sterling, value re- 
 ceived, and charge the same, without further advice, to 
 
 C. D. 
 
 Messrs. E. F. Sc Co., 
 London. 
 
 A SET OF BILLS. 
 
 No. 344, Ex. £100 stg. Boston, July 4, 1832. 
 
 Sixty days after sight, of this my second of exchange, (first 
 and third of the same tenor and date not paid,) pay to Messrs. 
 A. B. Sc Co., or order, one hundred pounds sterling, value re- 
 ceived, and charge the same, without further advice, to 
 
 C. D. 
 
 Messrs. E. F. Sc Co., 
 London. 
 
 A SET OF BILLS. 
 
 No. 344, Ex., £100 stg. Boston, July 4, 1832. 
 
 Sixty days after sight, of this my third of exchange, 
 (first and second of the same tenor and date not paid,) pay to 
 Messrs. A. B. Sc Co., or order, one hundred pounds sterling, 
 value received, and charge the same, without further advice 
 to C. D. 
 
 Messrs. E. F. Sc Co., 
 
 London. 
 
 FORM OF MANIFEST OF CARGO. 
 
 Report and manifest of the cargo laden on board of the brig 
 whereof is master, which cargo was 
 
 taken on board at burthen tons, 
 
 built at in the state of and owned by 
 
 at the and bound for 
 
296 
 
 APPENDIX, 
 
 £ = 
 — o 
 
 I Vj 
 o 
 to 
 
 c-i 3 
 
 -r ,i c c 
 
 x 
 
 . — o 
 fcc ~ 
 
 H o“ P-c O £ 
 
 If any articles of the outward cargo are brought back, they 
 are to be detailed, specifying by whom shipped outward, and 
 to whom consigned inward. 
 
 FORM OF MANIFEST OF PASSENGERS. 
 
 Names of 
 Passengers. 
 
 6 
 
 to 
 
 Sex. 
 
 Occupation. 
 
 bast place of 
 residence. 
 
 Where bound. 
 
 Died on the 
 passage. 
 
 o 
 
 va, fcr 
 
 C. — 
 
 ? . 
 % =f 
 
 £ M s 
 
 
 
 
 
 
 
 
 
APPENDIX. 
 
 297 
 
 FORM OF A BILL OF SALE OF AN ENROLLED SHIP. 
 
 To all persons to whom this present bill of sale shall come, 
 [here insert the grantor's name, residence, &c.] 
 
 Send greeting. 
 
 Know ye that I, the said A. B., for and in consideration of 
 one thousand dollars to me in hand, well and truly paid, at or 
 before the ensealing and delivery of these presents, by C. D., 
 the receipt rvhereof I do hereby acknowledge, and am there- 
 with fully and entirely satisfied and contented, have granted, 
 bargained and sold, and by these presents do grant, bargain, 
 and sell unto the said C. D. all the hull or body of the good 
 ship Mary, together with all and singular her (tackle, apparel, 
 sails, rigging, &c. &c.) now lying in safety and moored at the 
 port of Boston; the certificate of whose enrolment is as fol- 
 lows, to wit: 
 
 No. 56, Enrolment, in conformity to an act of the Congress 
 of the United States of America, entitled “ an act for enroling 
 and licensing ships or vessels, to be employed in the coasting 
 trade and fisheries, and for regulating the same, 
 having' taken or subscribed the required by the said 
 
 act, and having that citizen of the 
 
 United States, is sole owner of the ship or vessel, called the 
 of whereof is present 
 
 master, and as he hath is a citizen of the United 
 
 States, and that the said ship or vessel was and 
 
 having certified that the said ship or vessel 
 deck and mast and that her length is 
 
 her breadth her depth and that she measures 
 
 tons ; that she is has and 
 
 head ; and the said having agreed to the de- 
 
 scription and admeasurement above specified, and sufficient 
 security having been given, according to the said act, the said 
 has been duly enrolled at the port of 
 
 Given under hand and seal at the port of this 
 day of in the year one thousand eight hundred 
 
 To have and to hold, the said granted and bargained ship 
 
298 
 
 APPENDIX. 
 
 and premises, with the appurtenances, unto the said C. D., his 
 heirs, executes, administrators or assigns, to his only proper 
 use, benefit and behoof forever. And I, the said A. B. do 
 avouch myself to be the true and lawful owner ol the said 
 ship Mary and her appurtenances, and have in myself full 
 power, good right, and lawful authority to dispose of the said 
 ship Many and her appurtenances, in manner as aforesaid. 
 And fuithermo’re I, the said A. B., do furthermore hereby 
 covenant and agree to warrant and defend I he said ship Mary 
 and appuitenances, against the lawful c'aims and demands of 
 all persons whatsoever, unto him, the said C. D. 
 
 In witness whereof I, the said A. B., have hereunto set my 
 hand and seal the second day of May , in the year of our Lord 
 one thousand eight hundred and thirty-nine. 
 
 Signed, sealed and delivered 
 in presence of us. 
 
 FORM OF A CHARTER PARTY. 
 
 This charier party of affreight menl, indented, made, and 
 fully concluded upon, tnis second day of May. in the year of 
 our Lord one thousand eight hundred and thirty-nine, be- 
 tween A. 15. of Boston, &c., owner ol the good ship Emily, 
 of the burthen o (three hundred tons, or thereabouts, now ly- 
 ing in the harbor of Baltimore , whereof C. D. is at present 
 master, on the one part, and E. F. of Baltimore, $-c. on the 
 other part, wilnesselh : 
 
 That the said A. B. for the consideration hereafter men- 
 tioned, hath letten to freight her, the aforesaid shin Emily, 
 with the appurtenances to her belonging, for a voyage to be 
 made by the said Emily, from said Baltimore to Boston, 
 where she is to be discharged, (the dangers of the seas except- 
 ed ;) and the sai l A. B. do, by these presents, covenant and 
 agree with the said E. F. in manner following, that is to say, 
 that the said ship Emily, in and during the voyage aforesaid, 
 shall be tight, staunch, and strong, and sufficiently tackled 
 and apparelled with all things necessary for such a vessel and 
 
APPENDIX. 
 
 299 
 
 such a voyage ; and that it shall and may he lawful fir the 
 sai i I 1 '. F., his agents or factors, as well at Boston as at 
 Baltimore, to load anti put on hoard the said Emily loading 
 of such goods and merchandize as they shall think proper, 
 contraband goods excepted. 
 
 In consideration whereof, the said F.. F. doth, by these 
 presents, agree with the said A. 13. well and truly to pay or 
 cause to be paid unto him in full lor the freight or hire 
 
 of l he said Emily, and appurtenances, the sum o I' five hundred 
 dollars per month, an! so in proportion for a less lime as the 
 said ship Emily shall be continued in the aforesaid service, in 
 ninety days after her return to Baltimore, or in ninety days 
 after the said voyage shall he otherwise, in any manner what- 
 soever, determined, and notice thereof to the said LI. F. been 
 duly given. 
 
 And the said F,. F. doth agree to pay the charge of vict ualing 
 and manning the said ship Emily, and her po:t charges and 
 pilotage during said voyage, and to deliver said ship on her 
 return to Baltimore, to the owner aforesaid or his order. 
 
 And to the true and faithful performance of all and singu- 
 lar, the covenants, payments and agreements aforementioned, 
 each of the part ie? aforenamed hinds and obliges himself, his 
 executors, and administrators in the penal sum of 
 dollars, firmly by these presents. 
 
 In witness whereof the parties aforesaid have hereunto in- 
 terchangeably set their hands and seals the day and year above 
 written. 
 
 Signed, sealed and delivered 
 in presence of us. 
 
 FORM OF A SHIPPING PAPER. 
 
 It is agreed between the master and seamen or mariners of 
 the master, 
 
 now bound from the port of for 
 
 that, in consideration of the monthly or other wages, against 
 each respective seaman’s or mariner’s name hereunto set, they 
 
300 
 
 APPENDIX. 
 
 severally shall and will perform the abovementioned voyage ; 
 and the said master doth hereby agree with and hire the said 
 seamen or mariners for the said voyage, at such monthly 
 wages or prices, to be paid pursuant to this agreement and 
 the laws of the Congress of the United States of America, and 
 the custom and usage of (he port of 
 
 And they, the said seamen or mariners, do hereby promise 
 and oblige themselves to do their duty, and obey the lawful 
 commands of their officers on board the said vessel, or on 
 board the boats thereunto belonging, as becomes good and 
 faithful seamen or mariners ; and at all places where the said 
 vessel shall put in, or anchor at, during the said voyage, to do 
 their best endeavors for the preservation of the said vessel and 
 her cargo, and not to neglect or refuse doing their duty by 
 day or night, nor shall go out of the said vessel, on board of any 
 other vessel, or on shore under any pretence whatsoever, 
 without leave first obtained from the captain or commanding 
 officer on board. That in default thereof they will be liable 
 to the penalties mentioned in the act of Congress, for the gov- 
 erment and regulation of seamen in the merchants’ service, in 
 which it is enacted, “ that if any seaman or mariner shall ab- 
 sent himself from on board the ship or vessel without leave 
 of the master or officer commanding on board ; and the mate 
 or other officer having charge of the log book, shall make en- 
 try therein of the name of such seaman or mariner, on the 
 day on which he shall so absent himself ; and if such seaman 
 or mariner shall return to his duty within forty-eight hours, 
 such seaman or mariner shall forfeit three days’ pay, for every 
 day which he shall so absent himself, to be deducted out of 
 his wages ; but if any seaman or mariner shall absent himself 
 for more than forty-eight hours at one time, he shall forfeit 
 all the wages due to him, and all his goods and chattels which 
 were on board the said ship or vessel, or in any store where 
 they mav have been lodged at the time of his desertion, to the 
 the use of the owners of the said ship or vessel ; and more- 
 over, shall be liable to pay to him or them all damages which 
 
APPENDIX. 
 
 301 
 
 he or they may susta’n by being obliged to hire other seamen 
 or mariners in his or their place. 
 
 Jlnd it is further agreed by both parties, that each and 
 every lawful command which the said master may think neces- 
 sary hereafter to issue for the effectual government of the said 
 vessel, suppressing immorality and vice of all kinds, be strictly 
 complied with under the penalty of the person or persons dis- 
 obeying, forfeiting his or their whole wages or hire, together 
 with every thing belonging to them on board said vessel. 
 Jlnd it is further agreed, that no officer or seaman belonging 
 to the said vessel, shall demand or be entitled to his wages, 
 or any pa r t thereof, until the arrival of the said vessel at 
 the port of her discharge, and her cargo delivered. 
 
 Jlnd it is further agreed between the master and officers of 
 the said vessel, that whatever apparel, furniture and stores, 
 each of them may receive into their charge, belonging to said 
 vessel, shall be accounted for on her return; and in case any- 
 thing shall be lost or damaged through their carelessness and 
 insufficiency, it shall be made good by such officer or seaman 
 by whos.e means it may happen, to the master and owner of 
 the said vessel. And whereas, it is customary fb r the officers 
 and seamen on the vessel’s return home, in the harbor, and 
 while the vessel is delivering her cargo, to go on shore each 
 night to sleep, greatly to the prejudice of such vessel and 
 freighters : Be it further agreed by the said parties, that 
 neither officer or seamen shall, on any pretence whatsoever, 
 be entitled to such indulgence, but shall do their duly by day 
 in discharge of her cargo, and keep such watch by night as 
 the master shall think proper to order, for the preservation of 
 the same. And whereas, it often happens that part of the 
 cargo is embezzled, after being safely delivered into lighters ; 
 and as such losses are made good by the owners of the vessels ; 
 Be it therefore agreed by these presents, that whatever officer 
 or seaman the master shall think proper to appoint, shall take 
 charge of her cargo in the lighters, and go with it to the law- 
 ful key, and there deliver his charge to the vessel’s husband, 
 26 
 
302 
 
 APPENDIX. 
 
 or his representative, or see the same safely landed. • That 
 each seaman and mariner who shall well and truly perform the 
 above-mentioned voyage, (provided always that there be no- 
 plunderage, embezzlement, or other unlawful acts committed 
 on the said vessel’s cargo or stores,) shall he entitled to the 
 payment of the wages or hire that may become due to him, 
 pursuant to this agreement, as to their names is severally af- 
 fixed and set forth. 
 
 For the due performance of each and every of the above- 
 s mentioned articles and agreements, and acknowledgment of 
 their being voluntary and without compulsion, or any other 
 clandestine means being used, agreed to and signed by usj 
 and in testimony thereof, we have each and every one of us 
 affixed our hands, the month and day against our names af- 
 fixed, and in the year of our Lord one thousand eight hun- 
 dred and 
 
 Time agreed 
 to enter on 
 board for 
 duty. 
 
 Men’s names. 
 
 Stations. 
 
 Witnesses to 
 their sign- 
 ing. 
 
 Advance 
 
 wages. 
 
 Wages per 
 month. 
 
 Privilege. 
 
 Time of 
 discharge. 
 Months and 
 days in pay. 
 
 Whole wages. 
 
 Hospital 
 
 money. 
 
 o 
 
 Vi 
 
 O 
 
 ci 
 
 
 
 
 
 
 
 
 
 
 
 
 
APPENDIX. 
 
 303 
 
 FORM OF A BILL OF SALE OF A REGISTERED SHIP. 
 
 To all people to whom this present bill of sale shall come, 
 (here insert the names of the grantors;) send greeting. 
 
 Know ye that the said lor 
 
 and in consideration of to 
 
 ■in hand, well and truly paid, at or before the ensealing and 
 delivery of these presents, by the receipt 
 
 whereof do herereby acknowledge, and therewith 
 
 fully and entirely satisfied and contented, have granted, bar- 
 gained and sold, and by these presents do grant, bargain and 
 s£ll unto the said all the hull or body of the 
 
 good together with all and singular her 
 
 now lying at and 
 
 at the port of the certificate of whose 
 
 registry is as follows, viz: 
 
 In pursuance of an act of Congress of the United States of 
 America, entitled “ An act concerning the registering and 
 xecording of ships or vessels;” having taken and 
 
 subscribed the oath required by the said act; and having 
 
 that only owners of the ship 
 
 or vessel called the of whereof 
 
 is at present master, and is a citizen of the 
 United States, and that the said ship or vessel was 
 
 ( here insert where built, and by whom.) And ( here insert 
 the surveyor’s name,) having certified that the said ship or 
 vessel has deck and mast : and that her 
 
 length is ; her breadth ; her depth 
 
 ; and that she measures tons; that 
 
 she is , has and 
 
 head ; and the said having agreed to the de- 
 
 scription and admeasurement above specified, and sufficient 
 security having been given, according to the said act, the said 
 has been duly registered at the port of 
 
 Given under hand and seal at the port of 
 
 this day of in the year one 
 
 thousand eight hundred and 
 
304 
 
 APPENDIX. 
 
 To have and to hold the said granted and bargained and 
 premises, with all the appurtenances, unto the said 
 heirs, executors, administrators or assigns, to only 
 
 proper use, benefit and behoof forever. Aud the said 
 
 do avouch to be the true and 
 
 lawful owner of the said and her appurte- 
 nances, and have in full power, good right, and 
 
 lawful authority to dispose of the said and her 
 
 appurtenances, in manner as aforesaid. And furthermore, 
 the said do hereby cove- 
 
 nant and agree to warrant and defend the said 
 
 and appurtenances, against the lawful claims 
 and demands of all persons whatsoever, unto the 
 
 said 
 
 In witness whereof the said ha 
 
 hereunto set hand and seal the day 
 
 of in the year of our Lord one thousand eight 
 
 hundred and 
 
 Signed, sealed and delivered 
 in presence of us. 
 
 PROTEST. 
 
 Note. It is usual for ship-masters immediately after arriving 
 in port from a foreign voyage, to enter a general protest, to be ex- 
 tended upon afterwards. Where practicable, it should be before a 
 notary public. This he does, whether he is aware of having sus- 
 tained any damage from perils of the sea, or not. If, afterwards, 
 either at that port, or at any other, he finds that the ship or cargo 
 did sustain damage from such perils, while on the passage, he 
 may then extend upon his general protest; the form of which is 
 given below. 
 
 FORM OF PROTEST. 
 
 United States of America: 
 
 Stale of Virginia, District of Norfolk. 
 
 To all to whom these presents doth, shall or may concern: 
 
 I, Henry H. Dentzel, of the borough of Norfolk, in the 
 
APPENDIX. 
 
 305 
 
 state of Virginia, a public notary, under the great seal of the 
 state, commissioned and duly qualified, send greeting: 
 
 Know ye, that on the second day of September, in the year 
 of our Lord one thousand eight hundred and thirty-nine, before 
 me, the said notary, appeared Browning O. Killy, 3d, master 
 of the schooner Mercy, of Dartmouth, of the burthen ofrn'ne- 
 ty-nine tons, or thereabouts, and noted in due form of law, 
 with me, the said notary, his protest, for the uses and purpo- 
 ses hereafter mentioned: and now at this day, to wit, the day 
 of the date hereof, again comes the said Browning O. Killy, 
 3d, before the said notary, at Norfolk aforesaid, and requires 
 me to extend his protest ; and together with the said Broxcn- 
 ing O. Killy, 3d, also came James Dali, mate, and Collins W. 
 Smith and Elias Russel, seamen, of and belonging to the said 
 schooner, all of whom being by me duly sworn on the holy 
 Evangelists of Almighty God, did severally declare and depose 
 as follows: That is to say, that on the twenty-sixth day of 
 August last, he, the said Browning O. Killy', 3d, set sail and 
 departed in and with the said schooner, as master thereof, from 
 the port of Nexc Bedford, having on hoard the said schooner 
 a cargo of Oil, Candles, and Nails, bound to Norfolk. That 
 the said schooner was then tight, staunch and strong, had her 
 cargo well and sufficiently stowed and secured, and was well 
 masted, manned, tackled, victualed, apparelled and appointed, 
 and was, in every respect, fit for sea and the voyage she was 
 about to undertake ; that on tfie day of their departure the 
 breezes were 
 
 (Here follows a general narrative (if deemed necessary,) of 
 the course of events on the voyage, up to the time of the dis- 
 aster, with a particular statement ol the several losses and in- 
 juries sustained, with the causes thereof fully and particularly 
 set forth.) 
 
 And the said appearers further say, that as all the damage 
 and injury which already has, or may hereafter appear to have 
 happened or accrued to the said schooner, or her said cargo, 
 has been occasioned solely by the circumstances hereinbefore 
 stated, and cannot, nor ought not to be attributed to any in- 
 
306 
 
 .APPEXDIX. 
 
 sufficiency of the said schooner, or default of hkn, this depo- 
 nent, his officer or crew. He now requires me, the said nota- 
 ry, to make his protest and this public act thereof, that the 
 same may serve and be of full force and value as of right shall 
 appertain. And therefore the said Browning O. Killy, 3d, 
 doth protest, and F, the said notary, at his special instance and 
 request do, by these presents, publicly and solemnly protest 
 against winds, weulhers, gales, seas and leaks, against all per- 
 sons whom it doth, shall, or may concern, and against all and 
 every accident, matter and thing, had and met with as afore- 
 said, whereby, or by means whereof, the said schooner or her 
 cargo, have received, or hereafter shall have appeared to have 
 suffered or sustained damage or injury — for all losses, costs, 
 charges, expenses, damages and injury which the said Broxcn- 
 dng 0. Killy, 3d, ot the owner or owners of the said schooner, 
 or the owners, freighters or shippers of the said cargo, already 
 have, or may hereafter pay, sustain, incur, or be put into by, 
 or on account of the premises, or for which the insurer or in- 
 surers is, or are respectively liable to pay, or make contribu- 
 tion or average, according to custom, or their respective con- 
 tracts or obligations, and that no part of such losses and ex- 
 penses already incurred, or hereafter to be incurred, do fall on 
 him, the said Browning O. Killy, 3d, his officers or crew. 
 
 Thus done and protested, in the borough of Norfolk, and 
 state of Virginia, this seventh day of September, in the year of 
 our Lord one thousand eight hundred and thirty-nine. 
 
 In testimony whereof, I have caused the said applicants to 
 sign these presents, and I, the said notary, have subscribed 
 my name, and have also caused my seal of office to be here- 
 >unto affixed, the day and year last above written. 
 
 HENRY H. DENTZEL, 
 Browning 0. Killy, 3d, Notary Public. 
 
 James Dali, 
 
 Collins TV. Smith, 
 
 Elias Russell. 
 


 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
Date Due 
 

 34 
 
 
 
 CALL NUMBER 
 
 Sa 
 
 
 i 
 
 ant/n 
 
 2 
 
 A 1 
 
 
 347 
 
 • 7 S271M 
 
 Vol. 
 
 Date (for periodical) 
 
 Copy No. 
 
 
 25746 6