A TREATISE

**M A RITIME L A W.**

**INCLUDING**

**THE LAW OF SHIPPING; THE LAW OF MARINE INSURANCE; AND THE LAW AND PRACTICE OF ADMIRALTY.**

**BT**

THEOPHILUS PARSONS, ILLD,

**DARE PROFERSOR OF LAW IN HAYARD UNIVERBIT; AND AUTHOR OF TREATISES**

**ON THE LAW OF COTRIAC; THE ELKENTS OF MERACTILLE LAW;**

**AND THE LAW OF DISRULESLES FOR BSUKLES MEX.**

IN TWO VOLUMES.

VOL. I.

**BOSTON:**

**LITTLE, BROWN AND COMPANY.**

1859.

Entered according to Act of Congress, in the year 1859, by THEOPHILUS PARSONS,

In the Clerk's Office of the District Court of the District of Massachusetts.

L 2768

JAN 6 1981

CAMBRIDGE:

ALLEX AND FAREKA, FRINTZHA.

CHARLES G. LORING, ESQ.

**MY DAR FREND,**

Let me dedicate this work to you. The arduous and honorable office you now hold has taken you from your high position at the Bar, where you had all the success and distinction our profession could give. But the mercantile community (as you know, to your cost I should say, if you were not one of those who love labor) will not consent to lose the advantage of your experience, your learning, and your sagacity. And if any of the questions submitted to you lead you to open these volumes of mine, and you find there some of the cases in which, in the olden time, we met, -- as opponents, but not as enemies, -- you will be willing, I think, to remember how long our friendship has lasted; and you will pardon me for saying, that I have always regarded it as contributing to the honor and the happiness of my life.

THEOPHILUS PARSONS.

P R E F A C E .

Before I came to Cambridge, and while still engaged in the business of my profession, I had become convinced that the books in the different departments of maritime law, excellent as some of them were, were still open to the objection, that they treated severally and disconnectedly, topics which in themselves were closely connected and needed the mutual illustration they could give each other. It seemed to me that the Law of Shipping and the Law of Marine Insurance, for example, could not be learned fully and accurately excepting in their connection. How these subjects intermingle in some of their subdivisions, is obvious. Thus, no work on Shipping would leave the subject of General Average untouched ; and certainly no work on Insurance could do so. But does this topic belong more properly to Shipping or to Insurance ? It belongs to both ; and equally to both ; and connects the two together. And to go beyond this, it may be said that there is no topic of either of these systems of law, which can be treated of with any fulness, without a frequent reference, more or less direct, to the same topic as it stands in the other of those systems.

Moreover, the appropriate and specific law of remedy vi

Preface

or enforcement for all maritime matters, is the Law of Admiralty. And, waiving for the present, the question whether a policy of insurance is within the jurisdiction of American Admiralty, Salvage, which is equally important in Shipping and in Insurance, and is another of those links which unite them, belongs almost exclusively to.Admiralty. And the whole subject of maritime liens, as distinct from common law liens, is, in a good degree, and ought to be, I think, in a far greater degree, committed to the charge of Admiralty, and governed by the principles and enforced by the processes of Admiralty courts.

But without attempting to illustrate, by further details, my reasons for believing that these topics are interdependent branches from one great stem -- the science of Maritime Law -- it is enough to say that eight years ago I began this book, for these reasons; and that it ought to be, as a whole, and in all its parts, an illustration of them.

I am not, however, willing to admit that the faults of this work indicate a mistake in my theory. Great difficulties in the execution of my purpose arose from the fact, that these topics had been heretofore regarded as in so great a degree isolated and independent. And I cannot but think that there are important defects and mischievous uncertainties in the maritime law of England and of this country, at this day, which would never have existed, had the various relations, rights, obligations, and remedies which belong to it, been usually regarded as parts of one whole. For example, the law of the sale of distant ships and cargoes and the law of abandonment

**PERFACE**

**would not, I think, and the law of lien on ships and car-**

- goes would not, I am certain, have been in that case, what they are now.\*\*

**I add, that by adhering to my plan of putting very few cases in the text, but making that, as far as I could, a connected and logical statement of all the principles and rules of the law, and placing in the notes the authorities on which they rest with such citations as seem to afford needed illustration, or due qualification, I have succeeded in compressing my work within these two volumes.**

\*\*Long ago I had become satisfied, that the boundless affluence of existing legal authority, and the rapid increase of the reports of English and American courts, and of other repositories of the law, made it with every passing year, more difficult for a lawyer to possess the means of a thorough investigation, and impossible for him to give the time and labor necessary for such investigation, to the many questions which arise in practice. I was further convinced, that books might be made in which this labor of investigation should be so thoroughly performed, and the results so given in the text, and the authorization and illustration so put forth in the notes, as in most cases to render further research unnecessary, and to make it much easier when necessary. It is this book that I have endeavored to make. The difficulty of accomplishing such a work was obvious; but it did not seem impossible. I knew that it could not be made without the command of a completed library, and that I have here; and an accumulation and consolidation of the results of a very large amount of intelligent labor, and for this purpose I havewill

preface

added to my own efforts the resources of skilful and zealous industry within my reach. But while I believe that none of the sources of our law have been left unexplored, I dare not hope that I have found every thing of value. The materials thus gathered by me and for me, I have worked over, again and yet again, with unfailing patience at least, whether with success or not. For it has been my single purpose, by the most careful and vigilant elaboration of text and notes, to make as useful a book as I could; that is, one which should be, on the one hand, complete, and on the other trustworthy. I now give this book to the profession, lamenting its defects, and fearing that it has faults which I do not discern; but believing that I have a right to think that they are not caused by any want of earnest and unremitting endeavor on my own part, to make every page, and every part of every page, as good as I am able to make it.

Of those who aided me most about my previous works, I have spoken in the prefaces to them. I have received valuable assistance in the present work from many persons. I must indulge myself with mentioning particularly, John Lathrop, Esq., of Boston, whose learning and intelligence and faithful industry, and capacity for exhaustive investigation, must soon give him a high place in his profession.

In the Appendix to the first volume will be found a complete collection of all the mercantile statutes and statutory provisions of the United States, together with the pilotage laws of New York and Boston (which may at least serve as a sample of all), and the rules for the navigation of steamers prepared by the Commissioners of the

**United States.** If I may judge at all by my own wants in years past, such a collection may be of great use to the practical lawyer.

**In the Appendix to the second volume, will be found such forms, whether of contract or of practice, as seemed to me most desirable.**

**T. P.**

\*\*Harvard University; Daxh Law School.\*\*CONTENTS.

B00K I.

ON THE LAW OF SHIPPING.

CHAPTER I.

ON THE INSTORY AND ORIGIN OF THE LAW OF SHIPPING.

SECTION I.

Of the principal foreign codes and writers which treat of this law

SECTION II.

Of the English adjudication which created or defined this law

CHAPTER II.

OF THE REGISTRY AND XIVIGATION LAWS.

SECTION I.

Of the history of the registry acts

SECTION II.

What ships may be registered, and what enrolled

SECTION III.

In what way vessels may be registered, or enrolled

**xii** CONTENTS.

**SECTION IV.**

**Of the effect of registry or enrolment**

**CHAPTER III.**

**OF THE TRANSFER OF A SHIP BY SALE.**

**SECTION I.**

**Of the sale of a ship without writing**

**SECTION II.**

**Of the transfer of a ship by bill of sale.**

**SECTION III.**

**Of the sale of a ship by the master**

**SECTION IV.**

**Of the sale of a ship under a decree of admiralty**

**SECTION V.**

**How far the common rules respecting the sale of a chattel apply to**

**the sale of a ship**

**1. As to the rules of evidence and agency**

**2. What are the appurtenances of a ship**

**3. Of the sale of a ship by the builder**

**4. Of the possession of the purchaser**

**CHAPTER IV.**

**OF PART-OWNERS.**

**SECTION I.**

**How partnership in vessels is created**

**SECTION II.**

**Of the powers of a part-owner**

\*\*.\*\*CONTENTS.

SECTION III.

Of the liability of -t-owners for repairs or supplies .

89

SECTION IV.

Of the liability of part-owners for the .torus of those whom they

employ
94

SECTION V.

Of the liability of part-owners to each other
95

SECTION VI.

Of the ship's husband
97

SECTION VII.

Of the liens of part-owners, and of actions by and against them . 101

CHAPTER V.

OF THE LIABILITIES OF OFWERS GENERALLY. 111

CHAPTER VI.

OF HIPOTHECAATION BY BOTOTOMET. 118

CHAPTER VII.

OF THE USE OF THE SHIP BY THE OVEREL.

SECTION L.

Of the carriage of goods on freight . 121

SECTION II.

Of the bill of lading . 182

SECTION III.

Of the delivery of the goods . 149

SECTION IV.

Of the forwarding of the goods in other vessels . 158

YOL L. B.

xiv CONTENTS.

SECTION V.

Of ships as common carriers

SECTION VI.

Of collision.

187

SECTION VII.

Of the claim for damages for non-delivery of the goods or injury

to them.

212

SECTION VIII.

Of the liability for freigit .

CHAPTER VIII.

OF CHARTER-FARTY.

SECTION L.

What constitutes a charter-party

229

SECTION IL

Of the general provisions of a charter-party

332

SECTION III.

Of the lion of a chartered ship on her cargo for the freigit .

250

SECTION IV.

Of the payment by a charterer

256

SECTION V.

Of demurrage and lay days

260

SECTION VI.

Of the construction of charter-parties

267

SECTION VII.

Of the dissolution of a charter-party, or of its obligations CONTENTS. xv

CHAPTER IX.

ON GENERAL AVERAGE.

SECTION I.

Of the origin and foundation of the law of general average . . 284

SECTION II.

That there must be a voluntary sacrifice of property for the benefit

of other property . 288

SECTION III.

Of some-expenses or charges' usually settled as general average . 810

SECTION IV.

That the sacrifice must be justified by a necessity . 812

SECTION V.

That the sacrifice must be successful

SECTION VI.

When the thing sacrificed could not have been saved . 316

SECTION VII.

Whether the property in peril and rescued must be saved by the

sacrifice . 818

SECTION VIII.

Of contribution for a general average loss . 820

SECTION IX.

Of the adjustment of a general average loss and contribution . 331

CHAPTER X.

OF STOPPAGE IN TRANSITU.

SECTION I.

Of the origin and history of the right of stoppage in transit . . 235 xvi CONTENTS.

SECTION II

That this right is but an extension 'of the lien of the seller

839

SECTION III

When this right may be exercised

842

A. Of the constructive possession of the seller

842

B. Of goods warehoused

843

C. When the delivery on shipboard terminates the transit

847

D. How the lien of the carrier affects this right

850

E. When goods are lodged in the custom-house

851

F. Of constructive delivery of the goods

852

G. Whether the consignee may hasten his own possession

855

H. Of the delivery of a part of the goods

857

I. Of the effect of the bill of lading on'this right

858

SECTION IV.

How far the exercise of this right must be adverse to the seller

866

SECTION V.

What insolveny will give this right

869

SECTION VI.

How the right of stoppage may be exercised and enforced

378

CHAPTER XI.

OF THE DUIES AND FOWERS OF THE MASTER.

SECTION I.

Of the foundation and nature of the master's authority

878

SECTION II.

Of the master's power from necessity

885

SECTION III.

How far the owner is liable for the torts of the master

891

SECTION IV.

Of the contracts of bottomry and of responding

406

A. Of the purpose of a bottomry bond

406

B. Of bottomry bonds made by the owner

410 CONTENTS: xvii

C. When the master may make a bottomry bond 412

D. Of the duty and obligation of the leader on bottomry 418

E. When additional security may be given to the lender 420

F. Of a bottomry bond for supplies or repairs 422

G. Of a second bottomry bond 425

H. To whom a bottomry bond may be made 425

I. A bond may be good in part and void in part 428

J. Of the hypotension of the freight 429

K. Of the construction of a bottomry bond 429

L. Of the power of the master over the cargo 433

M. Of a respondents bond 436

N. Some special rules in regard to bottomry bonds 439

CHAPTERXII.

OF THE SEAMEN.

SECTION I

'How seamen are regarded by the courts 441

SECTION II.

Of the shipping articles 442

SECTION III.

Of provisions 452

SECTION IV.

Of the sea-worthiness of the ship 454

SECTION V.

Of the care of seamen in sickness 456

.SECTION VI.

Of the return of seamen to this country 458

SECTION VII.

Of the disobedience of seamen 468 xviii CONTENTS.

SECTION VIII.

Of the desertion of seamen

470

SECTION IX.

Of the contract of the seamen

476

CHAPTER XIII.

OF FILOTS.

SECTION I.

Who pilots are and what their duties are

479

SECTION II.

How far owners are responsible for the torts of pilots

484

CHAPTER XIV.

OF MATERIAL AND THEIR LIENS.

APPENDIX.

Status of the United States on subjects connected with Shipping . 505

An act to provide for the licensing and government of the pilots and regulating pilotage of the port of New York, passed June 28, 1858,

embodying the amendments, passed April 11, 1854, and April 4,

1857 ; also, the by-laws of the board of commissioners of pilots for the port of New York

651

General regulations for pilotage in the Commonwealth of Massa-

chusetts

662

Rules and regulations for the government of pilots in charge of

steamers. In compliance with the Act of Congress of August 30,

1852

677

Note I.N.D.E.

TO CASES CITED.

A.

7148

Alten v. Mackay 122, 189, 196, 202, 404

Abberg v. The R. L. Stevens 176 v. Mercier 351

Abbot v. Smith 104 v. Sewall 178

Abbot v. Balt & Rapp, S. P. Co. 881 v. Williams 135, 140, 141, 682

Aberofiyo, The 391 Almgren v. Dutilh 230, 233

Active, Sch. 492, 502 Alsager v. St. Katherine's Dock Co. 144

Adair v. New River Co. 84 Aiston, Rerring 170

Adams v. Haught 148, 161, 164, 166 Ameris, The 207, 471

v. N. O. Steamboat Co. 176 American Ins. Co. v. Center 168

v. Penn. Ins. Co. 129

v. Coster 436, 439

Addis v. Baker 81

Addison v. Orenad 103, 104 Ames v. Belden 281

Addisn v. Baker 106 v. Dyer 495

Admiral, The 207 v. Swet 500

Adolph, The 431 Amiha Nancy, The 398

Adonis, The 435 Ami v. Steamboat Lousia 497

African Steambhip Co. v. Swamy 397 Amos v. Temperly 220

Aignerout, The 464 Amset, The 489

Agricola, The 488, 485, 486, 487 Anders v. Meredith 85

Agricultural Bank v. Barques Jane 260, 415 Anderson v. Clark 841

Airy v. Big Ann C. Pratt 449, 469 A. Hillieke 256

v. Merrill 183, 818 n. Sloop Solon 469

Akerman v. Hamphery 344 Andrew v. Moorhouse 293

Alburcos, Steamboat, v. Wayne 107, 156 Andrews v. Duran 76

Albright v. Penn 176 v. Eates 231

Alden v. Pearson 150 v. Roach 164

Alderson v. Temple 368 Ann & Mary, The 196, 210

Aldrich v. Simmons 482 Ann C. Pratt, Brig 408, 419, 421

Alers v. Tobin 438 Ann D. Richardson, The 167, 326, 329

Alexander, The (1 Dods.) 72, 419, 423, Anna Maria, The 393

426, 431 Anne, The 479, 480

(1 W. Rob.) 490, 491 Ament v. Carstairs 115

Alexander Wise, The 196 Anonymous, (1 Hall Am. L. J.) 443, 445

Alexander v. Dovie 83, 382 (Hardres)

v. Galloway 468 (Ld. Raym.) 94

v. Greene 176 (13 Mod.) 125, 127

v. Sinnns 296 (1 Pot. Adm.) 477

Alida, The 494, 495 (2 Shower) 322

Alice, The 205, 429 (Skinner) 86

Alival, The 195 Apollo, The 103

AlAlan v. Gripper 353 Appleby v. Dods 446

Allen v. Hallet 4489466, 475 Ampletion v. Crownshield 413

v. Hitch 477 Arabella, The, & The Madeira 68 XX
INDEX TO CASES CITED.

Araminta, The
448
Baillie v. Mondigliani
166
Arayo v.-Carrel
384, 395

Baker v. Brinson
150, 178, 179

Archer, Steamboat v. Goldstein
108

v. Buckio
115

Argus, The
196

v. Corey
383, 451

Argyle, Sch. v. Worthington
107

v. Gray
72, 77

Ariadne, The
295, 420, 423

v. Hincking
112

Arima, L${}^{\\prime}$
390

v. Jewell
104

Armallo, The
409

Baldney v. Ritchie
41, 98, 91

Armorod v. Union Ins. Co. 66, 149, 165, Balley v. De Arroyo
262

166, 168

Balic Merchant, The
473, 475

Armstrong v. Armstrong
42, 43

Bangor v. Warren
93

Arnold v. Anderson
185

Bang v. Little
465

v. Del Col
393

Barbara, The
410, 415

v. Hienbako
176

Barber, Brace
186, 307, 309

Artaxa v. Smallipico
125

Barclay v. Clyde
154

Arthur, The
278

v. Cucilla y Gana
181, 384

v. Barton
380, 381, 414

Barrell v. Hagan
394

v. Sch. Cassius 151, 155, 235, 435

Baring v. Cortie
363, 365

Ashburner v. Balchen
238, 247

v. Havens
292

Aspinwall v. Bartel
253

v. Hodgson
265, 274

Asisevod v. Cambridge

68

v. Phankir Ins. Co. 996, 298

Aichison v. Steamboat Dr. Franklin
204

v. Windle
238

Achitn v. Barwick
366

Barnaby v. Righah
19

Atkinson v. Bell
75

Barnard v. Adams 288, 991, 992, 996, 310,

v. Coteworth v. 256, 389

v. Maling 58, 57, 80, 112

v. Wheeler
147, 258

v. Stephens
439

Barnadtson v. Chapman
85, 108-

Atkyns v. Burrows
449, 461, 466, 467

Barnes v. Bartlett
85

Atlantic, The (About, Adm.) 446, 457, 458, 460

v. Cole
188

458, 460

v. Freeland
368

(1 Newb. Adm.) 407, 408, 457

v. Taylor
56

420

Barney v. Coffin
477

Atlantic Ins. Co. v. Conard
419

v. Prentis
178

Atlas, The
406, 407, 485

Bara Holberg, The
196, 486

Attory-General v. Case
484, 486

Bartel v. Dutton
264

v. Nortstedt
65

Bartel v. Goddard
543

Atty v. Parish
265

v. Rogers
136

Atwood v. Reliance Transp. Co. 150, 178

v. Williamson
205

v. Williams
500

Bankrick p. Baba
248, 274

Aguesta, The 422, 423, 424, 428, 429

Barrow, Ex parte
84

Aurora, The 225, 381, 885, 417, 418, 419,

v. Coles
140, 361

433, 424, 425, 429

Barnso v. Madan
268

Aurora Borealis, Sch. v. Dobbio
110

Barrow v. Possett
105

Austin v. Dewey
472

v. M. S. & L. Railway Co. 179

v. Wyman
448

v. Walsh
104

Barton v. Boddington
346

Aurvay v. Steamboat Pawnee
109

v. Salter
474

Avery v. Bowden
248, 274, 280

v. Williams
85

Ayers v. Knox
480

Bartran v. Farebrother
366, 376

v. M'Kee
170, 172 INDEX TO CASES CITED. xxi

Bayly v. Schofield
378
Birkley v. Pregrave
289, 313, 334

Bain v. Richardson
124, 151, 182

Birley v. Gladstone
134, 128

Besch v. Sch. Native
490, 492

Bishop v. Shepherd
473, 477

Belle e. Thompson
219, 281, 472

Bissel v. Price
136, 187, 143, 150

Benn v. Groen , 176

Bilby v. Franklin Ins. Co. 41, 56, 296

Benne v. The Mayruk
309, 334

Bleck v. The Louisiana
461, 469

Bearstown, Steamboat, v. Goodrich 108

Bleakstock v. Ledy 236

Benzve v. Ropes 173, 185

Blaine v. The Charles Carter 119, 406,

Bewar, Tho 462

Beck v. Evans 179

Bialdell v. Steamboat Wm. Pope 109

Beckham v. Knight 87

Bleke, The 468, 469

Beckman v. Shouse 178

Biskley v. Dixon 224

Beckwith v. Baldwin
481

Blanchard v. Buchnam 259

Belford Comm. Ins. Co. v. Parker 395

Belleker v. Capper 145, 233, 251

Bland v. Soly 225

Beldon v. Campbell 89, 880, 381, 415

Ball v. Humphries 99

Bland v. Allan 865

v. Kramer 281

Blaine v. Steamboat Robert Campbell 109

v. Moss 843, 359, 374

Blenheim, The 203

v. Fuller 349

Block v. Bannerman

v. Reed 150, 181, 240

Blosom, Pilot boat 194, 195, 196, 201,

v. Smith 321

Belham v. Russell 170, 178

Bloxam v. Hubbard 57

Benares, The 897, 403

Benares v. Sanderst 340

B Benjamin v. Sinclair 137

Blue Wing, Steamboat, v. Buckner 194

Benet v. Moita 485

Bondman v. Brig Elizabeth 471

Bennett v. Dutton 177

Bondington's, The 432

v. Filyaw 175

Bodenham v. Bennett 179

v. Peninsula and Oriental 18

Bodhill v. Schneider 348

Steamboat Co. 176

Bongg v. Martin 358

Benny v. Pegram 3653

v. Russell 173

v. Rhodes 365

Bohdling v. Inglis 347, 348, 375

Benson v. Blunt 254

Bold Bueciegh, The 124, 307

v. Duncan 421

Bolin v. Hufflagio 347

v. Liedhorn 88

Bolin, The 187, 198

v. Schneider 243

Bulton v. American Ins. Co. 481

v. Thompson 90

Bonsparte, The 415, 437

Bentley v. Bastard 178, 179, 184, 315, 314

Bond v. The Cora 198

Benton v. Whitney 464

v. The Superb 298

Berg v. Bond 298

Bonsey v. Amee 77

Bergstrom v. Mills 219, 291

Boon v. The Hornet 492

Berkley v. Watling 137, 359

Boe v. Eyre 268, 270

Bernal v. Pim 258

Bernic v. Riemannet Shenandosh 108

Borex v. The Golden Rose 415, 492

Bessey v. Evans 264

Bort v. Worton 267, 275

Bent v. Saunders 379

Bormann v. Tooke 172, 271

Beesey, The 278, 279, 430

Boston v. Sandford 104, 175

Betsey Caines, The 205

Boston, The (Bianchf. & H. Adm.)

Beeney & Rhoda, The 146

129, 418, 424, 439

Betsey, Brig v. Duncan 474

Steamboat ('Olois', Adm.)

Bette v. Gibbens 358

Bevan v. Bank of the United States 338,

Boncher v. Lawson 170, xxii INDEX TO CASES CITED. Bradstreet v. Neptune Ins. Co. 67,68 Bryant v. Commonwealth Ins. Co. 161, Brainerd v. Steamer Worcester 194,198 Bracker v. Molyneux 115,296 _v._ Brig Lalle Mills 500 Brandt v. Bowly 140,142,123,214 Brack v. Lane 466,449 Brass v. Maitland 171 _v._ Rawlingson 446 Bray v. Ship Atlanta 471,473,474 Bucker v. Kirkregeter 471 _v._ Bates 407,411,418,420 Buckley v. Furniss 854,358,369,370,373 Breced v. Ship Venus 387,412,428 Bercont v. Chapman 262 _Buddington v. Smith_ 467 Bretherton v. Wood 105 _v._ Stewart 82,116,492 Brewster v. Clarke 57 _Buel v._ Miller 573 Brice v. The Nancy 448 Buffington v. Curtis 135,140,362 Bridge v. Grand Junction Railway 188,192 Bulkley v. Barber 88 Bridgeford v. Steamboat Elk 109 _v._ Hondol 69 Bridgewater, Brig 411,418,429 Brice v. Storer 105 Briggs v. Strange 72 \_Buller v. Fisher 180,190,191 _v._ Wilkinson 115 \_Bulloch v. Steamboat Lamar 191,192,193 Bright v. Cowper 122,246,271 Brice v. Page 248,264 Bulmer, The 471 Brinley v. Spring 80,81 Bann v. Morris 104 Broadwell v. Butler 218 Buncney v. Poyrits 358 _v._ Swigert 188 Burchard v. Tapecott 71 Brodie v. Howard 41,87,91 Burgess v. Gan 128 Broder Trow, The 190 Bargball v. Howard 546 Bromwich v. Lloyd 21 _Bargon v._ Sharpe 388 Brook v. Willimas 390 Barke v. Clarke 89 Brooke v. Pickwick 179 Burnham v. Winsor 353 Brookline, The 445,448 Burquin v. Flinn 885 Brooks v. Bondsey 79,115 Burfill v. Cloeman 152,259 v. Dorr 462 Burton v. Salter 449 v. Miturn 152,264,265,266 Busk v. Davis 345 v. Oriental Ins. Co. 939 _v._ Fearon 119,483 Brough v. Whitmore 72 \_Bussy v. Donaldson 485,487 Brouncker v. Scott 263 _Budler v._ The Arrow 187 Brouncker v. Ship Hudson 170,171 v. McEllean 464,465 Browner v. The Maiden 472 _v._ Wildman 305 Brown v. Propeller Albany 491 _v._ Woolcott * 851 v. Coruvell 309 _Butterfield v._ Forster 188,192 v. Delano 274 Butts v. Cuthbertson 106 v. Harris 293,297 v. Dean 93 v. Hodgson 142,113 Buxton v. Bneo 116 v. Howard 464 Byrne v. Furnison 259 v. Hunt 359,267 v. The Independence 460,464,467 v. Johnson 262,266 C. Jones 443,444,445 v. Lali 445,445,446,447 Caboen v. Campbell 354 v. State of Maryland 85 Cabell v. Yanghan 105 v. North 138,295 Cabot, The 431 v. Putnam 243,249 Cadmus, The 474,475,477 v. Ralston 152,261,264 Brig v. Matthews 445,470,473, v. Stappleton 334,325 v. Tapecott 100 \_Caldwell v. Ball 359 v. Wilkinson 397 Calisto; The 116,491,499,500,502 Brownell v. Hawkins 118 Callender v. Ins. Co. of N. A. 166,167, Bruce v. Nicolopulo 282 _Bnnen v._ Taber 463 \_Clypso, The 431 Bruni,In re 473 Cambridge, The 471 Brutus,The 444,451 Cambridge v. Andorton 61 Bryan v. Steamboat Pride of The 497 Camden v. Anderson 43 West 497 Camden & Amboy Railroad Co. v. Bryans v. Nix 134 _Baldauf_ 178,179 INDEX TO CASB5 CITED. xxiii

Calenden & Amboy Railroad Co. v.

Chase v. Westmore

145

Belknap

177

Chauney v. Jackson

107

Campbell v. Ship Alknomse

283

Chereor v. Smith

93,100

v. Jones

268

Cherior v. Fonsant

68

v. Perkins

234

Chesley v. Thompson

85

v. Skin

99

Chester, The

195,195

v. Thompson

57,435

Cheviot v. Brooks

435

v. Williamson

487

Chickering v. Fowler

155

Campion v. Colvin

125

Chidle Harold, Bark

453

Canfield v. Northern Railroad Co.

290

Chulfs v. Steamboat Brunette

501

Caninares v. The Santisima Trinidad

416,452

Chimery v. Blackhouse

115,226

Cannan v. Meaburn 60,396,397,403,485

Chappelato v. Lancashire, etc. Rail-

244

vay Co.

179

Cart v. Hope

86,110

Chouteau v. Steamboat St. Anthony

109

Carey v. Sch. Kitty

469

Christana, The (7 Notes of Cases)

488,

Caris v. Johnston

136

484,485

Carl Johan, The

397

(a Hagg. Adm.)

485

Carlion v. Davis

464

Christie v. Lewis

125,33,529

Carlistie v. Steamer Eadora

87

v. Trott

239

Caroulas, The

197,208,485,486

Christina, The (8 Juriat)

206

Carr v. Lancashire & Yorkshire Rail-

(3 W. Rob.)

209,484

vay Co.

179

Christopher, The

58

Carrington v. Pratt 409,419 Christy e. Row

149,168,21

Carroll v. Waters

89

Chuan, Barque

93,435,492,500,502

Carruthers v. Sydebotham 485,486,487

Citizens Bank v. Nant. Steamboat Co. 175

Carsley v. White

192,193 City of New York, The Steamer 194

Carron v. Steamboat Dhillman 108 City of London, The 197,199

Carter v. Downish

20

Clapp v. Young

191

v. Hall

447

Clara M. Porter, The

196

Casco, The

124,178,185,253,881

Clarence, The

205

Casco v. Woolley

390

Clark v. Barnwell 124,135,143,150,151,

Castalia, The

471

170,175,185

Catherine, The

59,409,410

v. Faxton

177

Catherine of Dover, The 187,188,206,

v. Laidlaw 417,418

v. Bark Leopard

427

Catherine, Sch. v. Dickinson

189

v. Mass. Fire & M. Ins. Co.

160

Callet v. Pacific Ins. Co.

38

v. Mauran

341

Calety v. Winteringham 158,178 v. Ocean Ins. Co.

192

Cato v. Irving

226

v. Smith

495

Caton v. Ramsey

176

v. Spence (10 Watts)

150

Catlin v. Hill

191

v. United Mar. & Fire Ins. Co. 320

Case v. Baltimore Ins. Co. 149,166,167,Clark v. Batters

43

168

v. Cock

332

v. Reilly

299

v. Crabtree

247

Celt, The

187,203,207

v. Needles

182

Center v. Am. Ins. Co.

166

v. Spence (4 A. & E.)

76

Certain Logs of Mahogony 125,144,145,Clarkin. Ed Edges 125,147,339,291

v. Phoenix Ins. Co. 299

Chadwick v. City of Dublin Steam

340

Packet Co.

196

Clement, The 192,195,196,197,201,211

Chamberlain v. Chandler

395

Clemmon v. Blessing

974 xxiv INDEX TO CASES CITED.

Cobban v. Downe
182 Cordray v. Mordesai
116
Cochran v. Retberg
266 Corish v. The Murphy
119
Cock v. Taylor
219, 220 Cortelyou v. Laning
118
Cockburn v. Alexander
244 Cotel v. Hilliard
478
v. Thompson
84 Couch v. Steel
454, 463

Corenine, Sch.
499 Countes of Durham, The
204

Coffin r. Jenkins 470, 472, 473, 474, 475,

Countes of Harcourt, The
443

477 Courtney, The
460

v. Shaw
473 Covell v. Hitchcock
853, 378

v. Storer 166, 167, 168, 169, 259

Cowill v. Hilli
134, 365

Cogne, The 407, 432, 433, 439

Cowen v. Roberts
305

Cohen v. Sch. Amanda
176 Cows-joe v. Thompson'
349

v. Hume
176 Cowsell v. Simpson
145

Cole v. The Atlantic
492, 100 Coving v. Snow
115

v. Bartlett
330 Cox v. Murray
489

v. Goodwin
177 v. Reid
91

Coleman v. Brig Harriet
453 v. Troy
15

v. Lambert
214, 200 Cove v. Harden
145, 212, 366

v. Richos
135 Crabtree v. Clark
247

Collier v. Valentine
184, 270 Craig v. U. S. Los. Co.
295

Collins v. Union Tramp. Co.
229, 255

Cram v. Aiken
186, 307, 309

Colombo, The
143 Cranmer v. The Fair American
468

Colson v. Bonney
41, 45, 57, 113

Orandall, Ex parte
472

Colc v. M'Mochen
150, 175

Cranston v. Marshall
130

Columbia, The 277, 278, 279

Craven v. Ryder

Columbian Ins. Co. v. Ashby
291, 292,

Crawford v. The William Penn
412, 414,

313, 316, 329

v. Calcett
166 Crawshay v. Eades
851

Columbine, The 194, 199

v. Hontry
145

Columbus, The (3 Wm. Rob.)
206, 210

v. Maule
84

(Abott, Adm.)
172, 192,

Creery w. Holly
186

201, 204

Croole, The
207

Comet, The 68 Crockett v. Dodge
816

Commerce, The

196, 202

v. Newton
203

Commissioners of Piliotage v. Low
488 Crockett v. Fletcher
830, 371

Commonwealth v. Ricketson
481 Crocke v. Slack
495

Comstock v. Smith
93 Groby v. Fitch
123, 175, 180

Conard v. Atlantic Ins. Co.
59, 80, 81,

Crow v. Falk
289

119, 360, 411, 419, 425, 437

Crouzer v. Smith
149, 259

Conner v. Smythe
264 Crasade, The 433, 444, 445, 450; 477

Constable v. Cloberie
271 Culebren v. Shaw
194, 201

Constana, The 302, 303, 429, 430, 431,

Couilla v. La. Ins. Co.
68

437, 439, 440

Cunning v. Brown
363

Constania, The 371, 372

Cummings v. Arnold
273

Constania Hariness, The 227 Cummings v. Sprusno
187, 203, 204

Constition, Sch. v. Woodworth
107 Cunningham v. Hall
69, 498

Converse v. Symmes
105 Capping v. Perez
416, 421

Conway v. Forbes
275 Calling v. Long
128, 218

v. Gray
375 Carius v. Hubbard
93

Convers v. Emuls
339, 342, 370

Cool v. Corn. Ins. Co.
434

Curbett v. Cumming
244

v. Gourdin
176 Culler v. Rao
146, 292, 333, 334

v. Jennings INDEX TO CASES CITED.

XXV

D. Dixon v. Ewart 43

v. Yates 358, 371

Da Costa v. Edmunds 309

Dosne v. Keating 307, 334

v. Newnham 295, 300

Dubree v. Schroder 397, 398

Dafter v. Cresswell 448

Dobson v. Droop 264

Dagisin v. Davidson 339

v. Lyall 425, 428, 440

Dale v. Hall 132

v. Wilson 302, 334

Dalzell v. Steamer Saxon 218

Dockwray v. Dickenson 103

Dante, The 409, 422

Doddington v. Hallet 82, 83, 96, 102

Darby v. Baines 98

Dodge v. Barton 307, 309

v. Steamboat Inda 109

v. Union Ins. Co. 435

Dubigy v. Dursi 363

Dodson v. Wentworth 353

David Pratt, The 447, 467

Dowe v. Monson 500

David v. Eloi 89

Domet v. Beckford 222

Davidson v. Cooper 230

Donaldson v. Fuller 481

v. Graham 178, 179

Dundu v. Brownhead 342, 351, 352, 376

v. Gwynne 219, 270

Dor v. N. E. Mar. Ins. Co. 166

Davies v. Mann 188, 192

v. N. J. Steam Nav. Co. 177, 178,

Davis v. Child 117, 489, 492

v. Garrett 123

v. Pacific Ins. Co. 66

v. James 213

Doney v. Smith 185, 186

v. Johnston 88

Dousal v. Kemble 219, 220

w. Marshall 388

Dugias v. Moody 263, 299, 302, 321,

v. A. New Brig 116, 499

v. E. Cope 360

Dousias v. Ergo 444, 445

v. Peck 149, 213

Dowell v. Gen. Steam Nav. Co. 188, 195

Dawn, The 66, 460, 461, 476

Davy v. Noble 434

v. Greene 134

Dean v. Angus 394, 395

Dowhrope, The 429

v. Hogr 233

Draco, The 119, 120, 407, 409, 410, 411,

v. M'Ghie 112, 113, 226

v. Ritter 109, 247

Drew v. Bird 291

D'Aquila v. Lambert 338

v. Steamboat Chesapeko 192, 211

Debrecis, The 477

Drinkwater v. Brigt Spartan 125, 147, 234,

De Cock, The 189, 206

251, 390

Deffell v. Brocklebank 271

Draud, The 124, 392, 393

Delaware, Barque, v. Steamer Osprey 193

Drummond v. Winslow 224

Del Col v. Arnold 393

Drsdale v. Sch. Banger 468, 469

De Mott v. Laraway 176

Droaches De Brbant, The 399

Dennison v. Seymour 482

Duchos of Kent, The 468, 469

Denton v. Great Northern R. Co. 131

Dudley v. Steamboat Superior 46, 389,

Deenv. O Ocean Ins. Co. 333

De Rothschild v. Royal Mail S. P. Co. 179

Duff v. Bayard 115.

Deschallies v. Harris 93, 408

v. Badd 179

D. Silvera v. Kendall 294

v. Lawrence 263

Detonches v. Peck 223

Duffie v. Hayes 242

D'v Vanx v. Salvador 189, 295

Duggins v. Watson 187, 188, 191, 392.

Dewell v. Moxon 388

Dukef of Bedford, The 410, 419, 439.

Dewitt e. Sch. St. Lawrence 106, 497

Manchester, The 484.

De Wolf v. Harris 57, 59, 80, 112

St. Albans v. Shorro 268

v. N. Y. F

**XXVi** **INDEX TO CASES CITED.**

**Dasar v. Murgatroyd** **391** **Evans v. Potter** **363** **Dutton v. Solomonson** **142, 213** **v. Soule** **177** **Dwight v. Brewster** **177** **v. Traman** **365** **Dyer, Ex parte** **233** **v. Williams** **419** **v. Lewis** **69, 70** **Everti e. Saltus** **162, 213, 360** **Everti e. Sylvester** **176, 184** **Everti e. Kerr (1 Rice)** **170, 172** **E.** **E.** **v. Street** **150** **Eagle, The** **278, 451** **Ewbank v. Nutting** **435** **Eagle, The** **19** **Exchange, Tho** **448, 449, 451** **Eaken v. Thom** **454** **Exeter, The** **430, 439, 440, 449, 462** **Eakins r. East India Co.** **59** **Express, The** **209** **Ealing Grove, The** **468** **Eastern Star, Tho** **93** **Eaton v. Jaques** **114** **F.** **Ebenerer, The** **187, 206** **Eekford v. Wood** **331** **Fairchild v. Slocum** **179** **Eden, The** **485** **Faint v. East India Co.** **125, 241, 252** **Edie v. East India Co.** **21** **Falcon, The** **68** **Edmond v. Caldwell** **93** **Fama, The** **485** **Edwards v. Brewer** **340, 342, 351, 354** **Fanny, The** **495** **v. Child** **446** **Fanny & Elmina, Tho** **60, 66** **v. Havell** **381** **Farmer r. Davies** **388** **v. Steamer R. F. Stockton** **207** **Farmers & Mechanics Bank v. Cham-** **v. Sherratt** **177** **plain Transp. Co.** **156, 177, 178** **v. Todd** **150, 172, 207** **Farr e. Smith** **85** **Elephants, The** **410, 421, 422** **Eznar r. Beswick** **85** **Eli Whitney, The** **230, 238** **Farrel v. M'Clea** **388** **Eliza, The** **429, 430, 443, 471** **Farrell v. French** **463** **Eliza & Abby, The** **187** **Fashion, Steamer** **502** **Eizizabeth Frith, The** **449, 454, 463, 474** **Fashion v. Wards** **187, 192, 200** **Eizabeth, Ship v. Rickers** **453, 454, 472** **Faultner v. Wright** **132, 184** **476** **Favourite, The** **449** **Ellershaw v. Magniac** **138, 141, 349** **Feise v. Wray** **341, 342, 366** **Elliot v. Von Glehn** **270, 272** **Fennings r. Ld. Grenville** **85** **Elliot v. Rossell** **175, 180, 384** **Fenton v. Dublin Steam Packet Co.** **234** **Elli v. Hunt** **354, 355, 373** **v. Pearson** **370** **v. Turner** **177** **Feras, The** **498, 501** **v. Willard** **136, 143, 160** **Ferguson v. Olppau** **175** **Elese v. Gatward** **177** **Fernandez r. Silva** **125, 127** **Elsworth v. Woolmore** **447** **Ferrna v. Barque Talent** **453** **Ellwell v. Martin** **464** **Field r. Chase** **266** **Ely v. Peck** **443** **Fidelity r. Kymer** **363** **Emancipation, Tho** **407, 408, 490** **Finney r. Steamboat Fayette** **109** \*\*EINDEX TO CASES CITED. xxvii

Fontaine $v$. Beers-

56, 120

G.

v. Col. Ins. Co.

414, 436

v. Phoenix Ins. Co.

6a

Gather v. Barnet

178

Forbes v. Brig Hannah

119, 416

Gale p. Laurie

73, 397

v. Parsons

464

Gallatin v. The Pilot

89

v. Rice

165, 270

Gallup v. Newman

59

Ford r. Sproule

339

Glowlowy v. Hughes

155

Forest, The

456, 457, 458

v. Jackson

271

Forth r. Simpson

127

Gardiner v. Smith

295

Fortinude, The

60, 89, 885, 886, 414, 419,

v. Bibbins

463, 467

421

v. Cazenovre

226

Fortinado, The

433

v. Cleveland

83

Fortuna, The (4 Rob. Adm.)

277

v. Howland

59, 80

(5 Rob. Adm.)

278

v. Ship New Jersey **389**, 390, 458

(Edw. Adm.)

927

v. Salvador

61

Forward v. Pitard

150, 177, 181, 182

v. Smallwood

185, 187

Foster v. Prampton

353, 356

Garnett v. Willan

179

v. Sch. Miranda **189**, 193, 203, 206

Garhan v. Bennet

384

v. U. S. Ins. Co.

99

Garrison v. McAllister

108

Fothergill v. Walton

268, 271

v. Memphis Ins. Co.

183

Fowler v. Ludwig

89

Gatliffe v. Bourne

154, 183

v. M'Taggart

347, 349

Gannettler, The

412, 423

Fox r. State of Ohio

58

Gazelle, The

195, 198, 199, 204, 205

Fragano v. Long

142, 213

Gazzun c. Cincinnati Ins. Co.

296

Frances, The (8 Cranch)

214

General Brady, Steamboout v. Buckley **498**

(9 Branch)

214

Smith, The 116, 491, 492, 502

Francis v. Ocean Ins. Co.

68

Steam Nav. Co. v. Gillou

203

Franklin v. Hosier

491

v. Mann

188

v. Pendleton

494

v. Tonkin

188,

188

Frasr v. Hopkins

41

Worth, Steamboat v. Hopkins 107

Frau Ibsabe, The

278

Genesee Chief, Propeller, v. Fitchagh 199

Frazer v. Hatton

448

Gentieman, Bark

136, 240, 261

v. Marsh

111

George, The (5 Notes of Cases)

195

Frederick, The

477

(4 Notes of Cases, 9

Frederick Molke, The

278

Jur., 2 W. Rob.) 201, 207,

Freeman v. Baker **69**, 130, 445, 455, 457,

485, 485

470, 472

Brig (1 Summer) **449**, 456, 458

v. Birch

213

George Home, The

443

Sch., v. Buckingham

143, 132, 132, 133

Gerdles v. Donison

295

v. East India Co.

435

Gremain v. Steam Tug Indians

107

v. Taylor

123

Gerrish v. Johnson

481

v. Walker

468

Gibbens v. Buisson

269, 266

French v. Backhouse

99

Gibbon v. Mendez

259

v. Price

82, 93, 93

v. Payinton

178

Fretz v. Bull

200

Gibbons v. Ogden

479, 480

Friend v. Woods

184

Gibbs v. Gray

159, 164

Friends, The

202

v. Potter

405

Frink v. King

109

v. Sch. Texas

414, xxviii INDEX TO CASES GTED.

Gillesp v. Coutts 80 Grecley v. Waterhouse M9, 407, 410, 411,

Gillespie v. Thompson 170 Gillett v. Ellis 307, 321, 387, 330, 455 Grecly v. Smith 409, 410, 411, 420, 421,

Gilmore v. Bussery 93 Gilmore v. Bussery 175, 179, 183 v. Trenont Ins. Co. 289, 296 Giespey King, The 209, 483, 485 Grecu v. Briggs 82, 84 Girard v. Ware 299 Girolomo, The 201, 483, 486 Greenway v. Fisher 363 Gialdiator, The 486 Greenwood v. Cooper 132 Gialdstone v. Birley 124 Greyer v. The Black Warrior 405 Gladolm v. Hays 131, 260, 268, 271 Gifert & Switzer Giscott v. Lang 440 Griffith v. Ingledew 314 Glasgow, The 60 Griggs v. Austin 223, 287 Gledstanes v. Allen 242, 252 Griswold v. N. Y. Ins. Co. 160, 215 Glein v. Steamboat Belmont 497 Giauxeter, The 463 Grout v. Hill 367, 369 Glover v. Austin 77, 82 Grove v. Brien 134, 290 v. Dufour 173, 185 Groves v. Slaughter 58 Goddard v. Bulow 382 Grovier v. Atwood 477 v. Bark Tangier 155, 183 Gailot v. Dossat 85 Gods v. Rose 845 Gorney v. Behrend 359, 360, 362, 365 Goff v. Chikard 132, 175 Gold Hutter, The 124, 439 Gnatvia, The 381, 489, 490, 492 Golden v. Manning 158 Gwillim v. Daniell 238 Goudjic, The 449, 468 Grynne, Ex parte 340 Goot v. Blewitt 84, 103 Goodenov v. Tyler 93 Goodhart v. Lowe 339 Goodridge v. Lord 329, 390 Guckor v. Young 41 Godsill v. Brigu St. Louis 157 Hadley v. Clark 159, 219, 267, 275 Gordon v. Buchanan 176, 179, 190, 181, Hagedorn v. Olvern 184 Haille v. Smith 141, 360 v. East India Co. 57, 80 Hahn v. Steamboat North America 193 v. Little 178, 179 Halderman v. Beckwith 195, 205 v. Mass. F. & M. Ins. Co. 60, 61 Hale v. N. J. Steam Nav. Co. 175, 177, 666 Gore v. Gardiner 423 Halkett, Ex parte 53, 389 Gosloe v. Shuto 199, 911 Hall v. The Buffalo 193 Gosing v. Birnie 134, 346 v. Cazenov 272 v. Higgins 152 v. Ship Chiefain 143 Gess v. Nugent 273 v. Franklin Ins. Co. 61, 62, 64 v. Quinton 178, 183 v. Jansen 81 Gould v. Hill 186, 308, 309, 310 v. Ovean Ins. Co. 72, 289 v. Stanton 86, 98, 100 Halle v. Col. Ins. Co. 235 Governor, The 197 Hallet v. Bousfield 830 Goret v. Radridge 104, 105 Grecu v. Widern 295, 438 Gracic v. Palmer 125, 187, 146, 241 Halverson v. Cole 148, 167 Grafton, The 124, 156 Ham _v. Steamboat Hamburg_ 107 Graham v. Davis 150, 176, 179 Hamilton v. Steamboat Tronon 109 v. Dyster 363 Grand Turk, The 389 Hammond v. Anderson 843, 345, 357 Granon v. Hartshorne 446, 447, 476 v. Blake 481 Grant v. M'Lachlin 66, 68 v. McClures 150 v. Norway 135 v. M'Cric 145 v. Wood 229, 256 v. Rogers 483, 484, 485 Gratiudine, The 302, 303, 312, 412, 429, Hampton v. Brien Thaddens 186, 307, 309 485, 435, 436, 437 Hancov v. Dunning

**INDEX TO CASES CITED.**

**L**axix

\*\*Hanse v. New Orleans${}^{\\mbox{\\sf{\\small{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sf{\\sfsf{\\sfsf{\\sfsfsf{\\sfsfsf{\\sfsfsfsf}}}}} }}}}}}}}}}}}}},\\XXX
INDEX TO GASES CITED.

Holmes v. Pavenstedt
195, 233, 251

Huntress, The
150, 153, 157, 175

v. Sprowl
113

Hurd v. Darling
85
Holst v. Pownal
356, 374, 376

Huron, Canal-boat, v. Simmons
106

Holton v. Smith
363

Hurley v. Milward
310

Homes v. Crane
118

Hurvy v. Hurry
119, 231

Hooe v. Groverman
333

v. Ship John & Alice 119, 417, 419,

v. Mason
166

Hoop, The
299

v. Mangles
343

Hooper v. Lusky
99

Hurst v. Osborne
238, 282, 283

v. The Sam Slick 496, 500, 501, 502

Hurtige Eiano, The
502

Hurtin v. Phoenix Ins. Co.
301

Hope, Theo
903

v. Union Ins. Co.
166, 88

Hopkins v. Forsyth
82, 83, 890

Hussy v. Allen
91, 384

Hopper v. Appleby
68

v. Christie
389

Hore v. Stennobotl Bello of Attakpasas 108

v. Fields
477

Horn v. Bensensan
262

Hutchinson v. Coombs
461, 468

v. Gilpin
86

Hutson v. Jordan
464

Horncastic e. Farran
145

Hutton v. Bragg
125, 393, 250

Horsley v. Rush
381

Hyde v. Stone
84, 85

Hoshkins v. Pickersgill
72

v. Trent & Mersey Nav. Co. 153, 175

v. Slayton
381

v. Willis
247

Houghton, Ex parte .
43

House v. Sch. Lexington
154

Houston v. Darling
112, 326

I.
Howard v. Cobb
131, 139

v. Macondray 147, 254, 273, 363

Idle v. Royal Exchange Ass. Co. 60, 61

v. Shepherd
139

Isley v. Jewett
98

v. Tucker
552

v. Stubble
214, 341, 347

Ship, v. Wisman
136

Indiana, The
193, 195

Howatt v. Davis
376

Inflexible, Theo
205

Howland v. Brig Lavinia
218, 293, 297

Inga, Theo
199

Hoyt v. Wildrare
454, 465, 463

Ingersoll v. Van Bokkelin
256 390

Honey v. Bachanan
44, 56, 57

Ingis U. Uchverwood
348

Hubbell v. Denision
501

Ingham v. Allee
471, 472

Habberty v. Ward
135

w. Wheeler
80

Hudson, Steamboat
477

Inman v. Funk
202, 211

v. Clementson
263

Innis v. Steamer Senator
193

v. Guestier
68

Ins. Co. of Penn. v. Duval
429

Hugg v. Augusta Ins. & B. Co. 161, 612,62

N. A. v. Jones
300

165, 216

Invincible, L'

Hughes v. Morris
57

Ireland v. Thompson
61

Hull of a New Ship
499

Iron Duke, Theo
192, 198

Humberston, In re
349

Humphreys v. Brig America
469

Isabella, Theo
447

v. Reed
170, 179, 176

Isabella Jacobina, Theo
276

v. Union Ins. Co.
329

Isham v. Groenham
144

Hunn v. Bowne
340

Iinternat, Theo
187, 206

Hunt v. Card
480

v. Carlise
481

v. Propeller Cleveland
151

v. Haskell
165

v. Mickey
481

Jackson v. Charnock
393, 331

v. Morris
183

v. Galloway
263

v. Brig Otis
474

v. Nichol
357

v. Ward
354

v. Robinson .82

Hunter, Theo
408, 420, 423, 428, 432

v. Rogers
177

v. Beal
346, 355 INDEX TO CASES CITED. XXXi

James v. Griffin 340, 354, 356, 367, 376 Jones v. Sims 214 v. Jones 384 v. Vorones 177 v. Steamboat Pawnee 109 v. Whyte 204 Jameson v. Drinkald 187, 195, 196, 199 Jordan v. James 125, 340 r. Ship Regulus 450 r. Warren Ins. Co. 159, 160, 162, Jamieson v. Laurie 264, 266 164, 167, 315 Jane, The 411, 412, 419, 420 r. Wilkins 106 Jane & Matilda, The 478 v. Williams 463, 467, 471 Janney v. CoMNbat Lns. Co. 66 v. Young 382 Jansen v. The Heinrich 443, 450, 475, 476 Joseph Cunard, The 489, 490 Jarbe v. Steamboat Daniel Hillman 109 Joseph E. Coffee, The 494 Jarvis v. Sherwood 464 Joseph Harvey, The 484 Jay v. Almy 467, 477 Joshna Barker, The 151, 436 Jencks v. Coleman 175, 177 Joy v. Allen 469, 477 Jencks v. Lewis 464 v. Sears 80, 81 Jenkins v. Brown 349 Joyce v. Williamson 418, 422 Jensens v. Ushorne 138, 344, 360 Judih Randolph, The 189 Jennings v. Griffiths 9 Jaffrow Maria Schroeder, The 378 v. Ins. Co. of Penn. 407, 408 Julia, The 225 v. Merrill 384 Juliana, The 443, 446 Jerusalem, The 430, 492 Juliet Erskine, The 187 Jesse v. Roy 446 Jumel v. Marine Ina Co. 302 Jesson v. Solly 219 Jupiter, The 196 Jeune Eugene, La 225 Justin v. Ballam 116, 436, 491 Job v. Langton 386 Johan & Siegmund, The 86 Johann Friederich, The 203 Johannes Christoph, The 389 John, The 224, 429, 491 Kain v. Old 69 John Brotherick, The 196 Kalamazoo, The 433 John Buddle, The 187 Kammerhevie Rosenkrantz, The 431 John Counter, The 209 Karasan, The 393, 403 John Dunn, The 398 Kaarsang, The 495, 496, 497, 499, 500, John Fehrman, The 431 John Owen, Steamboat, v. Johnson 148 Keating v. Spink 106 John Perkins, The 304, 394 Krecler v. Fireman's Ins. Co. 479, 487 John Walls, Jr., The 501, 502 Keene v. Lizardi 395 Johns v. Simons 80, 414 Keith v. Murdoch 414 Johnson v. Ship Coriolans 467 Kek v. Anderson 262 v. Dalton 448 Kelley v. Merrill 384 v. Doubty 458 Kellogg v. Brennan 106 v. The Eliza 469 Kelly v. Cunningham 188, 193 v. Friar 179, 184 v. Dickinson 381 v. Greaves 406, 487 Kelsey v. Barney 202 v. Huckins 456 Kemp v. Clark 219 v. Hunt 76 v. Conghtry 175, 434 v. Miln 357 Kennard v. Barton 192 v. Steamboat Sandusky 495 Kennedy v. Strong 363 v. Shippen 59, 118, 119, 406, 421 Kennersley Castle, The 412, 420, 432 v. Sims 446 Kenrig v. Eggleston 178 v. Wingte 381 Kentucky, Steamboat, v. Brooks 107, 109, Johnston v. Crane 186, 307 Jones, Ex parte 43 Kern v. Groning 331 v. Blum 91 Kerswill v. Bishop 113, 265 v. Bradner 134 Key v. Cotesworth 138, 449 v. Steamboat Commerce 106 Keyser v. Harbeck 128, 134 v. Hart 94 Kierlighett, The 68 v. Hoyt 148 Kierage, The 132, 495, 499 v. Jones 355, 358 Kimbul v. Blanc 89 v. Steamboat Morrisett 108 Kimball v. Rut. & Burl. Railroad Co. v. Brig Phoenix 475 v. Tucker 40, 41, 176, 179, 181, 191, 211 Kinder v. Shaw XXXii INDEX TO CAESS CITED.

King v. Gillett 273 Lawson v. Higgins 497, 498 v. Lenox 879, 392 Lyng r. Stewart 222 v. Lowry 89, 89 Lask v. Isaacson 447 v. Perry 413 Lavenworth v. Delateld 300, 301, 321, v. Shepherd 150, 175, 181 Xington By-Sea, The * 200 Lebanon, Steamboat, v. Grevison 497 v. Girard 300 Ledo v. Hughes 89, 499, 497, 498 Kinloch v. Craig 341 Lee v. Boardman 93 Kirk v. Gibbs 242 v. Grinnell 287, 289, 293, 298, 304, Kikley v. Hodgson 80 314, 316, 317, 321, 337, 328, 329 Kissan v. The Albert 190 Lech v. Baldwin 170, 172 Kleine v. Catara 242, 243 Leeds v. Wright 354 Knagg v. Goldsmith 474, 475, 476 Leem v. Snaith 238 Knap v. Brig Eliza and Sarah 488 Ler v. Yates 263 Knight v. The Attila 119 Leeson . Holt 177 v. Cargo of Bark Salem 241, 283 Lehigh, Steamboat, v. Knox 108 v. Parsons 457, 477 Leidemann v. Shultz 263 Knowlton v. Sanford 290 Leid v. The Modern 93, 117, 407, 408, Knox v. Campbell 82 420, 430, 433, 492, 500, 502 v. The Nietta 123, 124, 134, 137, Lennan v. Gordon 223 Lengfield v. Jones 176, 239 Kohn v. Packard 154 Lenox v. United Ins. Co. 289, 307, 332 v. Sch. Renasiemo 225 v. The Winisimmet Co. 189, 198, Kuckein v. Wilson 363 Kymer v. Swuercropp 341 Leonard v. Hendrickson 176 Kyrter's Case 71 v. Huntington 41, 56, 119 Leonidas, The 309, 384, 449 L. Le Ray De Chumont v. Griffin 372 Leslie v. Wilson 105 Lacev v. Ingram 485 Lewis, Ex parto 430, 492 Lack v. Seward 188 v. Sch. Cleveland 107 Lacombe v. Wain 261 v. Davis 468 Lady Anne, The 196, 203 v. Haoneck 125, 256, 390 Lady Campbell, The 468 v. Marshall 218 Laidler v. Barinson 76 v. Williams 297, 332 Laine v. Calder 178, 179 Leycaster v. Logan 397, 399 Lelande v. Steamboat C. D. Jr. 200 License Cases * 58 Lamb v. Briard 459 Hickker v. Mason 135, 138, 338, 340, v. Durant 56, 60, 82 v. Parkman 136, 185, 241 Liddard v. Lopes 186, 259 Lamson v. Westcott 456, 457 Lidgett v. Williams 332, 248 Lander v. Clark 125, 234, 251, 252 Lleatur v. Ship Emperor 426 Lane v. Cotton 172, 172, 172, 172, 172, 173 Lioyn v. Orleans Nav. Co. 41, 45 v. Jackson 366, 367, 373 Linzland v. Stephens 471 Leintan 125, 143, 390 Lincoln v. Wright 45 Lanfer v. Sunner 80 Lindsay v. Gibbs 43, 226 Lang r. Holbrook 460, 472, 475 Llnecker v. Ayschford 139 Langdon Cheres, The 239 Lister v. Baxter 380 Langstaff v. Rock 108 v. Pavn 43 Langton v. Horton 43, 73, 226 Litt v. Cowley 374, 375 Lanny v. Werry 564 Littlejohn, The 463 Lane v. Neale 71 v. Jones 176 Larch, The 97, 100, 390 Little William, The 279 Latham v. Lawrence 235 Livingston v. Tremper 106 Laverconi v. Drury 175 Lloyd v.

INDEX TO CASES CITED. xxxiii

Logan v. Poutchartrain Railroad

McIntyre v. Carver

Co.

177

v. Scott

115

London Packet, The

196

M'Tver v. Humble

41

Lopes v. Winter

298

Mackay v. Roberts

193, 195, 196

Lord Cochrane, The

420, 426, 432, 436

Mackensie v. Pooley

41, 91, 382

Lord v. Ferguson

41, 44, 79, 115

Mackensie v. Rowe

394

r. Kimball

474

Mackinosh v. Mitcheson

89

r. Neptune Ins. Co.

159, 161, 167

Mackrell v. Simond

149, 259

215

McLellan v. Reed

236

Lorillard v. Palmer

152

M'Manus v. Crickett

94

Loring v. Neptune Ins. Co.

383

M'Millan v. Union Ins. Co.

487

Lotty, Bark

202, 204, 485, 487

Macomber v. Thompson

466, 468, 469

Louisa, The

281

Macire v. Wirgman

283

Louisa Bercha, The

430, 477

Macy v. De Wolf

82, 83, 89, 93, 100

Low v. Commissioners of Pilatoe - 479

Maddox v. Goddard

85

v. De Wolf

362

Makson, Steamboat, v. Wells

108

v. Mumford

105, 403

Madonna D'Idra, The

430, 452

Lowry v. Steamboat Portland

197, 199, 199

Magalhaens v. Busher

130

203

Mago v. The Moss

444, 445, 467, 471,

v. Russell

193

474

Lowthorp v. Smith

85

Mayer v. Grima

58

Lecas v. Dorrien

344

Magurath v. Church

304, 305, 328

v. Nockells

125, 145

Mahoon v. The Glo XXxiv INDEX TO CASBS CITED.

Martindale _v._ Smith
340 Middleton _v._ Fowler
94 Martini _v._ Coles
363 Midlothian, The 210
391 Milburn _v._ Gugher
82, 85 Mary, The 9 (Pranch)
67 Miles _v._ Gorton
342, 343, 358
1 Masouj
45 Miller _v._ Brant
472 (1 Paine) 119, 408, 410, 411, 412, 413, 414, 415, 416, 417

(Ware) 453, 434 Miles _v._ Fletcher
59 Mary Ann, The (4 Notes of Cases, & Milligan _v._ Propeller B. F. Bruce
450 (10 Jarust) 417, 419, 420, Millict _v._ Lovrett
447 (9 Jarust) 429, 431, 435 Miles _v._ Ball
354, 356, 375
429, 430 _v._ Shul
131 (Abbott, Adm.) 471 (Mlin _v._ Spinola
91, 112, 115 Mary Ann Guest, Sch.
139, 360 Milward _v._ Hallett
381, 385, 386, 419 Mary Blane _v._ Beelier
108 (Marcy Carlino, The 397, 399 Mine _v._ Hrapbeck
460 Maryland Ins. Co. v. Woods
279 Minerva, The 443, 445, 471 Mashiter _v._ Buller
228, 224 Minor _v._ Ship Astracan
203 Massachusetts, The 201, 483, 435 Minot _v._ Durnn
267 Matthews, Ex parte
80, 81, 112 Minturn _v._ Maynard
490 (r. Lowther)
484 Minton _v._ Lord
167 (r. Oiley)
462 Mitchell _v._ Edge
140, 214, 484 Mathewson _v._ Clain
380 Mitchell _v._ Ship Orozimbo\*
469 Maury _v._ Shelden
275 (r. Scaife 115, 252)
177 Marino _v._ Todd
177 (r. Tarbutt - 105 Max v. Roberts
105 (r. Taylor 56, 57 May _v._ Babcock
134, 137 Miteshcon v. Oliver 41, 90, 91, 380, 381, 386)
186 (r. Kelly)
386 (r. Taylor 56, 57 Mayell _v._ Potter
154 Mobile; The 484, 485 Mayell _v._ Herrick
85 Moffat _v._ East India Co. 218 Mayo _v._ Snow
286 Moffat _v._ Faroharson
83, 103 Maeburn _v._ Leckie
60 Mogadara _v._ Holt
20 Medejos _v._ Hill
277, 279, 280 Moller _v._ Young
144, 219, 257 Medley _v._ Hughes
184 Monarch, The 189, 206 Meed _v._ Robinson
291 Monk _v._ Whittenbury
365 Mecker _v._ Klemm
321 Monkhouse _v._ Bray
43, 81 Melanie, La
728 Montgomery _v._ Wharton
86 Meletopulo _v._ Ranking
339, 349 Monticello, Propeller, _v._ Mollison
199 Mellege _v._ Boston Iron Co.
93 Montreal, The 189, 206, 487 Mellingh _v._ Moteux
69 Moody _v._ Brown
76 Mellon _v._ Smith
195, 199 (v. Buck 85 McClon, The 204 Moore _v._ American Transp. Co. 406 Mentor, The 449, 468, 469 Mercantile Mut. Ins. Co. v. Chase 134, _v._ State of Illinois 58 178, 183 v.\_ Moss
203, 211 Mercuris, The 277 (r. Sheridine 214 Merian _v._ Fanck
219, 220 v. Wilson 213 Mercirc _v._ Avery
110, 502 Moorsom _v._ Bell
266 Merrill _v._ Bartlett
82, 96, 102 v.\_ Greaves 219, 281 Merrime, The 214 r.\_ Kymer
221 Merriman _v._ Canal Bout Col.\_ Butts
107 (r. Page 243 _v._ Brig May Queen 150, 119 Morn _v._ Bandin 471 Merritt _v._ INDEX TO CASES CITED. XXXV

Morville $v$. Great Northern Railway

No.

XXXvi INDEX TO CASES CITED.

O.

Parish _v._ Crawford 170, 234

Parker _v._ Ship Calliope 447

Oakev _v._ Russell 175, 384

V. Flagg 175, 182

Oakley _v._ Steam Packet Co. 181

Oakman _v._ Steamboat Rescue 208

v. M.Iver 339, 373

Oaste v. Taylor 19 Parkinson _v._ Steamboat Robert Ful-O'Brien _v._ Gilchrist 134, 137 ton

108

Ocean, The 417, 428, 491

Ocean Ins. Co. _v._ Francis 68

Parmle v. The Charles Means 493, 494

Ocean Queen, The 491

Park v. Applebee 49

Odiorne v. Maxcy 363

Parry, Ex parte 102

Odlin _v._ Ins. Co. of Penn. 267, 274

Parsons v. Hardy 165, 176

Ogden v. Barker 277

v.\_ Monteath 178, 183

v.\_ Coddington 172, 214

v.\_ Scott 299

v.\_ Gen. Mut. Ins. Co. 162, 216

v.\_ Orr 460

Patsacco Ins. Co. v. Southgate 60, 61

v.\_ Saunders 58

Patserson v. Tash 363

Oglew.\_ Wrangham 98

Patrick v. Tafts 496

Ohl v. Eagle Ins. Co. 54, 82

Patron v. Silva 267, 275

Oliver v.\_ Fielden 271

Paterson v. Gunrey 103, 105, 403

Olive v. Booker 131, 270, 271

Patterson v. Chalmers 82, 83, 84, 87, 93, 99

Oppenheim v. Russell 351, 356

Patron v. Magrath 182, 184, 384

Orange Bank v. Brown 175

v.\_ Sch. Randolph 96, 380, 416,

Ortavas, The 189, 194

417, 428

Oregon, Steamer, v. Rocca 200, 203

Paul v. Birch 4252

Orelia, The 412, 418, 419, 429

Pawson v. Donnell 379

Oriental, The 415, 427

Parsson v. Coolidge 232

Orienas, Steamboat, v. Phobus 389, 390

Peak v. Carrington 481

Orone v. Townsend 460, 461, 469, 475

Pace v. Piper 84

Orrok v. Commonwealth Ins. Co. 298

Pearl, The 473, 475

Osborn v. Bank of the United States 58

Pearson v. Bark Tangier 155, 183

Osecola, Brig 443, 451, 473, 476

Pearsons v. Tincker 497

Osgood v. Groning 149

Peck v. Sanderson 199

Osmanli, The 417, 424, 429, 436, 437, 440

Peel v. Price 131

Osprey, The 199

Pierce v. Ocean Ins. Co. 60, 65

Ostrander v. Brown 154, 155

Peterson v. Pountey 18

Otis v. Thom 191

Pelayo v. Fox 226

v. Brig Whitaker 501

Pellecat v. Angell 225

Oviatt v. Sago 84

Pendelton v. Franklin 494

Owston v. Ogle 82, 98

Pennel v. Alexander 360

Penn., Del. & Md. Nav. Co. v. Danthridge 176

Penny v. N. Y. Ins. Co. 300, 301

Penoyer v. Hallett 259

P. H. White, Steamboat, v. Levy 106, 497,

Penrose v. Wilks 221

Pensher, The 204

Pacific, The 223

Peckard v. Shoop Louisiana 432

Peele's Ferry Co. _v._ Beers 498, 499

Packet, The Ship 302, 303, 383, 390, 416,

Perkins v. Hill 125, 241

417, 428, 429, 432, 436, 439

Perry v. Ohba Ins. Co. 297

Pactolus, The 204

Padelford INDEX TO CASES CITED. XXXVII

**Phelps v. Steamboat Eureka** 497 Posten, The 379

v. Williamson\*\* 928 Potter v. Lansing\*\* 218

Philadelphia, The 475 v. Ocean Ins. Co. 296

Philadelphia & Reading Railroad Co. v. Pettis

v. Derby\*\* 399, 395 v. Providence Wash. Ins. Co. 289

Philadelphia v. Naglee\*\* 251 Powell v. Layton\*\* 105

Phile v. The Anna\*\* 392 Power v. Whitmore\*\* 295, 305, 383

Philips v. Ledley\*\* 36, 54, 57, 89, 115 Pozni v. Shipton\*\* 105

Philtimore v. Barry\*\* 348 Pratt v. Parkman\*\* 59, 80

Philipp v. Briard\*\* 273 v. Reed\*\* 386, 490, 491, 492

Philips v. Claggett\*\* 103 v. Tanno\*\* 89

v. Clark\*\* 191 Pray v. Stinson\*\* 457, 458

v. Huth\*\* 365 Price v. Noble\*\* 306

v. Parington\*\* 83 v. Powell\*\* 154, 155, 156, 213

v. Rodio\*\* 128 n. Ship Uriel\*\* 136, 150

v. Tapper\*\* 384 Prig v. Commonwealth of Penn. 58

v. The Thomas Scattergood\*\* 389, Prince Edward v. Trevellick\*\* 471

v. Wright\*\* 494, 495, 502 Prince George, The 450

v. Williams\*\* 80 Prince Regent, The 437

Phoeb, Sch., v. Dignm\*\* 474 Prince of Saxe Cobourg, The 418, 440

Pickering v. Barkley\*\* 20, 180, 181 Pringle v. Mollet\*\* 264

v. Dovson\*\* 69 Pritchard v. Sch. Lady Horatia\*\* 492

v. Holt\*\* 291 Protector, The 485, 486

Pickman v. Woods\*\* 125, 145, 251, 254 Providence, The 449

Piehl v. Balchen\*\* 443, 444, 451, 453, Provost v. Patchin\*\* 382

471, 473 v. Wilcox\*\* 106

Pierce v. Patten\*\* 458\*\* 458\*\* 458\*\* 459

Pierce v. Rablon\*\* 124, 389

v. Stanforth\*\* 249, 268

Pigor's Case\*\* 230 Purrington v. Hull of a New Ship 499, 500

Pike v. Balch\*\* 464 Purvanc v. Angus\*\* 395

Pilans v. Van Mierop\*\* 21, 329 Purts v. Tanno\*\* 340

Pilkeny v. Hall\*\* 21 Putnam v. Dutch\*\* 80, 81

Pinney v. Wells\*\* 127, 145 v. Sch. Polly\*\* 416, 418

Pinto v. Atwater\*\* 166, 167 v. Tillotson\*\* 138

Prie v. Anderson\*\* 40, 41, 44, 45, 56 v. Wise\*\* 84

Pikin v. Brainerd\*\* 230, 325 v. Wood\*\* 238, 239, 240

Piman v. Hooper\*\* 292

Pilst, The 66

Pilsted v. Boston & Kennebec Steam\*\* **Q.**

Nav. Co. 180, 182, 183, 191

Pimmel v. Fletcher\*\* 295 Qaerman v. Burnett\*\* 94

Pimmel v. Widman\*\* 293, 294, 298

Qaerivo v. Trueman\*\* 363

Plymouth Cordage Co. v. Sprague\*\* 42

Pollok v. McAlpin\*\* 483, 484

Peldyore v. Prince\*\* 465

R. Pomeroy v. Donaldson\*\* 176

Pool v. Welsh\*\* 460, 461

Racebons, The 219, 227, 281

Pope v. Bavidge\*\* 260 Raisin v. Mitchell\*\* 199

v. Nickerson\*\* 60, 162, 177, 380, 383, Ralston v. The States Rights 189, 204, 400, 408, 409, 429, 431, 435, 436, 438

v. Steamer R. B. Forbes\*\* 194 Rand v. The Barge\*\* 108

Porcapine, The 450 Randall v. Lynch\*\* 263, 266

Pordage v. Cole\*\* 269 Randolph v. The United States 201

Porter v. Andrews\*\* 455 Rands v. Thomas\*\* 41

v. Steamboat New England 109 Rappanbach, Ship v. Woodruff\*\* 1 XXXVIIII INDEX TO CASBCS CITED.

Rea v. Burnis 245 | Rigby v. Hewitt 191 | Read v. Bonham 59 | Riley v. Horne 150, 177, 178 | v. Chapman 449 | Ring v. Franklin 41, 42, 115 | v. Hill d'A New Brig 116, 49, 500 | Ringold v. Crocker 457, 464 | Read v. Comm. Ins. Co. 93, 414, 426 | Ripley v. Searic 219, 238, 259 | Read v. Steamboat Highland Mary 109 | Ripson, The 485 | Reloca, 180, 184 | Ritchie v. Atkinson 149, 268 | Rebecca, The (Ware) 124, 130, 185, 186 | R. Bowfield 485 | 395, 403 | Ritter v. Steamboat Jamestown 109 | (Blatch. & H. Adm.) 195 | R. B. Forbes, Steamer 208 | 196 | Robert Fulton, Ship 502 | 510 | 511 | 512 | 513 | 514 | 515 | 516 | 517 | 518 | 519 | 520 | 521 | 522 | 523 | 524 | 525 | 53 | 540 | 556 | 56 | 57 | 58 | 59 | 50 | 51 | 524 | 53 | 540 | 56 | 57 | 58 | 59 | 50 | 51 | 525 | 53 | 540 | 56 | 57 | 58 | 59 | 51 | 53 | 541 | 55 | 56 | 57 | 58 | 59 | 51 | 542 | 55 | 56 | 57 | 58 | 59 | 50 | 51 | 52 | 53 | 54 | 55 | 56 | 57 | 58 | 59 | 51 | 52 | 54 | 56 | 57 | 58 | 59 | 50 | 51 | 52 | 53 | 54 | 56 | 57 | 58 | 59 | 51 | 59 | 52 | 54 | 56 | 57 | 58 | 59 | 50 | 51 | 52 | 53 | 54 | 56 | 57 | 58 | 59 | 51 | 59 | 50 | 52 | 54 | 56 | 57 | 58 | 59 | 51 | 52 | 54 | 57 | 59 | 50 | 51 | 52 | 53 | 54 | 56 | 57 | 58 | 59 | 51 | 52 | 54 | 58 | 59 | 50 | 51 | 52 | 53 | 55 | 56 | 57 | 58 | 59 | 51 | 59 | 52 | 54 | 57 | 59 | 51 | 52 | 56 | 58 | 59 | 50 | 51 | 52 | 53 | 54 | 56 | 57 | 58 | 59 | 51 | 52 | 54 | 59 | 51 | 53 | 55 | 56 | 57 | 58 | 59 | 50 | 51 | 52 | 54 | 59 | 51 | 53 | 55 | 57 | 58 | 59 | 50 | 51 | 52 | 54 | 59 | 51 | 53 | 56 | 57 | 58 | 59 | 51 | 59 | 52 | 54 | 59 | 51 | 52 | 55 | 56 | 57 | 58 | 59 | 51 | 59 | 50 | 51 | 52 | 53 | 54 | 56 | 57 | 58 | 59 | 51 | 59 | 52 | 54 | 59 | 51 | 53 | 56 | 58 | 59 | 50 | INDEX TO CASES CITED.

xxxxix

Rucher v. Conygham 407, 416, 419, 423,

Scherherhorn v. Loines 87, 89, 92 -

426 Schieffulin v. Harvey. 178, 181

Rack v. Hatfield 134, 350 - v. N. Y. Ins. Co. 161

Rackman v. Mott 231, 236 Schilizi v. Derry 475

Rugg r. Minett 344 Schneider v. Heath 69, 70

Ruggles v. Bucknor 125, 145, 146, 233,

Scholfed v. Bell 366

251 Schuerman, v. Withers 170, 172

Ranguist v. Ditchell 130 Schioto, The 187, 188, 189, 193, 201, 202,

Russel v. The Asa R. Swift 501-

206 Rascal v. Wiggin 232 Scott v. Libby 152, 167, 259, 277

Rutherford v. M'Gowen 176 v. Miller

118 v. Pettit 353, 354, 373

Ryal v. Rolle 81 v. The Plymouth 106, 493

Ryberg v. Snell 360 v. Russell 468

Scottin v. Stanley 92

Scudder v. Balkam 495

S. v. Bradford 289, 314, 319

Scull v. Briddle 64

Sageman v. Sch. Brandyvine 478 Sea Bird, Steamboat, v. Beehler 109

Sager v. Portsmouth S. & P. Rail-

Seabrook v. Rose 83, 96

road Co. 176, 179 Searle v. Scovell 161, 163, 436

St. Amand v. Lizardi 395 Sears v. Certain Bags of Linseed 145

St. Catherine, The 420, 422, 431, 439 Second v. Nutt 339, 357, 358, 372, 373

St. Jago de Cuba, The 116, 492 Sedgworth v. Overend 108

St. John, Bark v. Bark Mary Bann-

See Renter, The 86

tyno 196, 203 Segura v. Reed 155

St. John v. Paine 197, 199, 200, 203 Sedden v. Hendrickson 119, 408, 414, 417

St. Louis Perpet. Ins. Co. v. Ford 108 v. Hickock 85

Salmon Falls Co. v. Bark Tangier 153, 51s,

Selleck v. Smith 363

Salmons v. Nissen 360, 362 Seringapatam, The 189

Salte v. Field. 366 Servante v. James 104

Salts v. Everett 162 Sewal v. Allen 175

v. Ocean Ins. Co. 160, 161, 162,

v. Hull of a New Ship 495, 499

304 Shackleford v. Wilcox 186

Sam Slick, The 496 Shadforth v. Higgin 260, 271

Samms v. Stewart 176 Shank, Ex parte 116, 491

Sampayo v. Salter 149, 166 Shannon, The (3 Hagg. Adm.) 199, 203

Sampson, Steam Tug 209 (1 W. Rob.) 187

v. Smith 464, 466 Shannon, The, & The Placidia 206

Sanders v. Vanzeller 139, 219, 222 Shannon v. Comstock 247

Sanderson v. Bauser 130 v. Owen 72

v. Columbus 199 Sharp v. United Ins. Co. 45

San Juan Baptista, The 393 Sharplev. Hurrel 407

Sansom v. Ball 999, 305 Shatzel v. Hart 127

Santa Claus, The 193, 195, 197, 203 Shaw v. Gookin 390

Sappho, The 187, 189 v. The Lethe 448

Sarah, The 192 v. Thompson 219, 253

Sarah Ann, The 60, 61, 64 v. York & North Midland Rail-

Sarah Jane, The 444, 446, 477 way Co. 179

Baratoga, The 460, 461 Sheffield v. Page 468

Serchet v. Sloop Davis 490, 492, 493 Shelton v. Brig Mary 296, 298, 302, 305,

Sanders v. Buckup 464 311

**xl**

INDEX TO CASBS CITED.

Sharwood v. McIntosh 449, 471, 473, 474

Smith v. Wilson 259

v. Ruggled 240, 326, 333, 334

v. Wright 186, 307

Shields v. Davis 170, 171

Smyrl v. Niolion 150, 184

Shifv e. La.State Ins. Co. 32

Snalth v. Burridge 140

Shipley v. Kymer 353

Snee v. Baxter 338

Shipton v. Thornton 159, 161, 163

v. Prescot 142, 371, 374

Shoenaker v. Norris 497

Snell v. Faausstut 68

Shone v. Lucas 379

v. The Independence 474, 475

Shorev v. Hennell 464, 465, 466, 467

v. Marryst 130

Shrewshury v. Slop Two Friends 492

v. Rich 482

Shubrick v. Salmond 260

Snow v. Carruth 139, 173, 214

Shultz v. Ohio Ins. Co. 163

v. Wope 444, 467

Shumway v. Reed 93

Sosames v. Longran 260

Sieveking v. Maass 261

Sources v. Hahn 418, 419, 440

Siffken v. Wray 340, 366, 368

Sigard v. Roberts 471

Solly v. Rathboo 363

Silk v. Brown 188, 199, 195

Solom n. Higgins 168

Simmons v. Swift 358

Somes v. Sugrne 60

Simonds v. Hodgson 407, 431

Somre v. Giesen 407

v. White 287, 320, 330, 332

Sophie, Tho 89, 489, 492

Simpson v. Hand 188, 191, 194

Soule v. Rodocanachi 137

Sims v. Brittain 98

Sourre v. Baymore 123, 210

v. Gurney 289, 291, 313, 314

Southeast's Case 178

v. Howard 159, 253

Southern v. Hove 71

v. Sundry Mariners 472

Southern v. Packet Boat Clyde 107, 501

Sinclair v. Bowles 246

Spofford v. Dodge 267, 281, 296, 300, 302,

Singleton v. Hilliard 175, 182

Shiomet v. Skenshout Dresden 211

Spalding v. Mare 106

Siordet v. Brodie 228

v. Rading 861

Sisters, The 51, 52, 565

Sparks v. Klutledge 294, 326

Skinner v. Dodge 363

v. West 173

Skolfield v. Potter 253

Slede v. The State 488

Speering v. Degrave 381

Sleat v. Fagg 179

Sloan v. Ship A. E. I. 416, 423

Sloan v. Fairchild 177, 179

Speering v. Dagret 176

Slabey v. Heyward 357

v. Eastis 470, 473, 474

Smail v. Moates 159, 253, 253

v. White 292

Smith v. Bowles 341

Spes, The, 4 The Inre 279

v. Condry 203, 204, 405, 486

Spidi v. Bowles 296

v. The Crole 209, 485, 486, 487

Sprugne v. Kain 469

v. Davreport 153, 434

v. West 262, 365

v. De Silva 96, 100

Sproat v. Donnell 112, 186, 236, 307, 309

v. Dobson 189, 192, 198

Sprou r. Hemmingway 208

v. Dunenson 76

Sprou r. Keller 176, 181

v. Steamer Eastern Railroad 500

Spirur v. Pearson 468

501

Stainback v. Rao 187

v. Field 367

Stainbank v. Fenning 382, 407, 408, 421

v. Flowers 319

v. Shepard 883

v. Fagg 41INDEX TO CASBS CITED. xli

**Sterling v. Hanson** 97 Sydnor v. Hurd

**Stert, The** 278 Sydney Cove, The\*\* 416, 430, 433

**Stevens v. Steamboat S. W. Downs** 187

**v. Sayvard** 149

**v. Wilson** 364

**v. Hill** 87, 91, 381, 385

**Stiernel v. Holden** 863

**Stijk v. Myrick** 448

**Taggard v. Loring** 56, 112, 229, 236\*\*

**Stilman v. Hard** 436

**Taggart v. Buckmore** 495

**Srinol v. Roberts** 219

**Talbot v. Three Brigie** 393

**Stinson v. Wyman** 185, 186, 391, 395, Tanner v. Soovell\*\* 358

**399, 403 Tapley v. Martens** 291, 255, 256\*\*

**Stocker v. Corlett** 384

**Tararrobia v. Hickio** 270, 271\*\*

**Stoddard v. Long Island Railroad Co.** **Tararar, The** 412, 419, 420, 421, 428\*\*

**178, 179 Tanton Copper Co. v. Merchants** 41

**Stokes v. Carne** 41

**v. La Riviere** 346, 375 Taylor v. Bullen\*\* 70

**Stonard v. Dunkin** 346

**v. Clay** 263, 264\*\*

**Stone v. Ketland** 391

**v. Curtis** 306\*\*

**v. Patterson** 367

**v. Kymer** 365\*\*

**v. Swift** 361

**v. Zaird** 477\*\*

**v. Wait** 434

**v. Steamboat Robert Camp-** **Stonehouse v. Gent** 414

**bell** 108\*\*

**Storer v. Gordon** 968

**v. Truman** 385\*\*

**Stort v. Clements** 488

**Stoughton v. Rappalo** 152, 276\*\*

**v. Martin** 41\*\*

**Stovell v. Hughes** 344, 354 Test, The\*\* 208\*\*

**Stovell v. Westcott** 105

**Thames, The** 391\*\*

**Strachan v. Trustees of Knox** 352

**Trancharo v. Dismmore** 98\*\*

**Stanton v. Babbage** 443, 444 Thatcher v. McCullough\*\* 123, 124, 151, 173\*\*

**Sterell v. Winson** 86

**Stineblo n. Gibbons** 399\*\*

**String v. Hill** 448

**Thielemo v. Gibbons** 399\*\*

**Strog v. Hart** 256

**Thomas Martin, The** 194\*\*

**v. N. Y. Fireman Ins. Co. 332, 333**

**v. Boston & Providence Rail-** 177\*\*

**Stother v. Lovejoy** 106, 109\*\*

**v. Clarke** 238, 242, 244\*\*

**Strout v. Foster** 201

**v. Foyle** 44, 56\*\*

**Stubs v. Lund** 347, 360\*\*

**v. Gray** 467\*\*

**Sturges v. Gaidner** 165, 242, 946\*\*

**v. Menphy** 189

**v. Osborn** 124, 236, 380, 381,\*\*

**v. Gary** 288, 292, 933, 334\*\*

**v. Steamboat Columbus** 218

**v.** Busch\*\* 449\*\*

**Sturgis v. Cary** 273, 310\*\*

**v. Collins** 469\*\*

**Sullivan v. Ingraham** 468

**v. Cook** 85\*\*

**v. Morgan** 462

**v. Davenport** 91\*\*

**Summeril v. Eider** 341

**v. Dominy** 139\*\*

**Sammuiri, Sch.** 501

**v. Finden** 87, 89, 91, 100\*\*

**Sammer v. Hamlet** 77

**v. Gillesp** 172\*\*

**Sunday v. Gordon** 395

**v. Hamilton** 112, 229, 236, 251\*\*

**Sutherland v. Lishman** 447

**v. Havelock** 448\*\*

**Stanton v. The Albatross** 501, 502\*\*

**v. Hoskins** 103\*\*

**v. Buck** 53

**v. Inglis** 24 xlii

INDEX TO CASES CITED.

Thorne v. White 447, 461, 463, 465, 467,

Twitchell v. Steamboat Missouri 109

469 Two Siaters, The 470, 476

Thornley, The 187, 206

Twynes Case 80

Thorn v. U. S. Ins. Co. 296, 332, 338

Tyler v. Carrier 496

Thorgood v. Bryan 191

Thurston v. Blanchard 93

Tilley v. Farrow 480

U. Tilton, Sch. 60, 66, 68

Time, Steamboat, v. Parallee 109

109 Uary v. Ship Washington 471, 474, 475

Tindal v. Taylor 128, 189, 159, 160,

128, 273

121, 275

INDEX TO CASES CITED. xliii

Uran v. Fletcher
112

Vaint v. Gibbs
452, 477

Ure v. Coffman
194

Walcutt v. Willett
388

Utility, The
500

Walden v. Chamberlain
413, 416, 417,

418, 425

v. Leo Roy
296, 801

V. Waldo, The 124, 185, 186, 391, 434

Walker, Ex parte
375

Valentine v. Cleugh
194

Walker v. Jackson
176

Vallejo v. Wheeler
251

V. U. S. Ins. Co.
289, 291

Valpy v. Gibson
354

Walcalc v. Agrty
93

Van Armitage v. Penbody
368

v. Brods
344

Van Breven v. Wilson
460

v. Fieden
415, 427

Van Boklein v. Ingersoll
125, 127

Walker v. Montgomery
140, 141, 147,

Van Castel v. Booker 138, 141, 213, 348,

349

Wallis v. Cook
147, 410

Vandenbeuvel v. United Ins. Co.
302

Walpole v. Bridges
180

Vanderbilt, The 202

V. Ewer
382, 429

Vanderbilt v. Miller
188, 192

Walsh v. Homer
135

Vanderlico v. Steam Towat Supper

Walter v. Brewer

176

v. Ross
140, 360, 361, 865

Vanderwater v. Mills
132

Walton v. Ship Neptune
456, 458

Vanchon v. Turner
19

Wape v. Hremaway
443

Van Norden Litteljohn
167

Ward v. Ames
462, 471

Van Omeron v. Dowick
435

v. Armstrong
194, 200

Vanye v. Sch. Thomas Ewing
487

v. Sch. Doosman
197, 200, 201

Vantine v. The Lake
202

v. Felton
220

Vamer v. Nobleborough
93

v. Green
231

Varna, The 444

v. The Ogdenburgh
197, 198, 199

Vavz r. Sheffer
189

v. Whitney
134, 137

Vescock v. M'Call
447

v. Willson
107

Volons, Brig
167

Wardell v. Mourillyan
152

Veljman v. Thompson
494, 502

Waring v. Clarke
192

Vennall v. Garner
188, 192, 196

v. Morse
173, 185, 186

Vent v. Oggood
473

Warma e. Faithful
233

Vennas, The 57, 214

Warme v. Martin
140, 363

Vernard e. Hudson
143, 185, 187

Warmen v. Peabody
244

Vernon, The 203, 485

v. Sproulo
342

Vertne v. Jewell
341, 371

Waring, The 450

Vertna, Brig, v. Clark
187

Warrido, The Steambot
197

Vibilia, The 89, 418, 419, 429, 432, 432, 432, 432, 431

Vashington, The Steambot
199

Victoria, The (Edw. Adm.)
68

Washington, Pilot Boat, v. The Sa-

${}^{3}$ W. Rob.)
189, 199, 291

Ida
485

Vinal v. Burill
43, 56, 229

Watkins v. Atkinson
107

Virgil, The 187, 192, 198

v. Hill

93

Virgin, The 408, 416, 419, 420, 429, 428, 430, 431

v. Laughton
175, 181, 384

Vlietboom v. Chapman
149, 165, 166, 166, 167, 168, 435

v. Daykinet
293, 294, 237

Volant, The 207, 398

wat v. Potter
435

Voleano, The 202

Wats v. Steambot Soaxon

188

Vulineter, Sch. 124, 125, 144, 145, 233,

Winston v. Mark

**xliv** **INDEX TO CASES CITED.**

**Webb v. Peirce** \*\*112, 236, 253 William & Emmeline, The 124, 407, 409, **v. Winter** **214** **415, 416, 418** **Webster v. Brig Andes** **801 William Harris, The 455, 457, 467** **v. Seekamp** **89, 381, 386, 387 William Young, Steam Tug** **192, 199** **Weed v. Panama Railroad Co.** **394 Williams v. African Steamship Co.** **405** **Wegener v. Smith** **219** **v. Barton** **363** **Weisser v. Maitland** **260** **v. Bosanquet** **115** **Welch v. Hicks** **164, 166** **v. Branson** **179** **w. McClintock** **391** **v. Everett** **345** **Weld v. Oliver** **84** **v. Grant** **175, 180, 181, 184** **Welles v. Gray** **299** **v. Kennebee Ins. Co.** **162** **Wells v. Liduran** **460, 461** **v. London Ass. Co.** **398** **W. Steam Nav. Co.** **176, 178** **v. Steamboat Morrisett** **108** **Wendover v. Hogeboom** **56** **v. Nichols** **434** **Wentworth v. Outwaite** **340, 353, 358** **v. Petyavin** **182** **West v. Barge Lady Franklin** **107** **v. The Polly** **492** **Westerdell v. Dale** **43, 57, 89, 115, 116** **v. Smith** **166** **Western v. Wildy** **409** **v. Steadman** **409** **Westernmida, The 444, 470, 475** **v. Snffolk Ins. Co.** **314, 315** **Weston v. City Council of Charleston** **58** **v. Williams (Carthew.)** **20** **v. Foster** **243** **w. Minot** **243** **Wilimson v. Barrett** **205, 211** **v. Penniman** **41, 51, 52, 54** **v. Steamboat Missouri** **108** **v. Train** **325** **v. Price** **485, 487** **Westinluks, In re** **361** **Wilmer v. The Smilax** \*\*119, 409, 410, 432, **Wheeler v. Bavigde** **281** **v. Curtis** **168, 243** **Wilmhurst v. Bowker** **340, 349** **v. The Eastern State** **197, 198, Wilson v. Dickson** **396, 397, 398, 403** **203, 211** **v. Hamilton** **176** **v. Samner** **57, 80** **v. Hicks** **247** **Wheelwright v. Depeyater** **68, 103** **v. Kymer** **125, 230** **Whitall v. Brig William Henry** **240** **v. The Mary** **466, 467** **Whitcomb v. Williams** **93** **w. Millar** **435** **White v. Baring** **256, 389** **v. Reed** **85** **v. Crisp** **202** **Winchester v. Patterson** **148** **v. Ship Dacadians** **407** **Winslow v. Norton** **380** **v. Osborn** **84** **v. Prince** \*\*\* **481** **v. Wilson** **447** **v. Tarbox** **115** **Whitehead v. Anderson** **353, 374, 376** **Winsor v. Cutts** **336** **Whitehouse v. Frost** **345** **v. McLellan** **80,81** **Whitepan v. The Neptune** **447** **Winthrop v. Carleton** **458** **Whitesides v. Russell** **150, 179, 184, 218** **Wirghan v. Mactier** **294** **p. Thurkill** **191** **Wirshall** **192** **Wirshall v. Parfit** **43** **Wiseman v. Vandepat** \*\*338,INDEX TO CASES CITED. xlv

Wright v. Hunter 82, 89 Young Mechanic, The 118, 139, 491, 499

v. Lares 355, 356 Young Sam, The 491, 495, 500

v. Snell 179 Young v. Steamboat Virginia 106

v. Wilcox 394 Ysabel, La 414, 429, 432

Wyat v. Marguis of Hertford 93, 100

Wjid v. Pickford 179

Wyone v. Raikes 233 2 Z.

Zachrisson v. Ahman 364

Y. Zagary v. Furnell 344

Zame v. Brig President 490, 492, 502

Yallop, Ex parte 40, 43, 57 Zenobia, The 181, 293, 227, 391

Yates v. Brown 482, 485, 487 Zenphi, The 420, 429, 431, 438

v. Draft 131 Zerge n. Poppe 150, 178

v. Hall 449 Ziele v. Campbell 105

v. Whyte 204 Zolica, The 387, 418, 432, 433, 491

Yorkiserman, The 205 Zwilchenbart v. Henderson 319

Young, Ex parte 82, 96, 100, 102 Zwinger v. Samuda 344
B 0 0 K I.

ON THE LAW OF SHIPPING.

_ededex. clay de la Srid_

"Lae Celge, &

_Barandia C&L.S., &g_

LAW OF MARITIME PROPERT. AND CONTRACTS.

CHAPTER I.

ON THE HISTORY AND ORIGIN OF THE LAW OF SHIPPING.

SECTION I.

OF THE PRINUPIAL FOREIGN CODES AND WRITERS WHICH TREAT OF THIS LAW.

While the common law of England was acquiring form and authority, the commerce of England was much less than that of some other of the states of Europe; and, in comparison with that of the same country in recent times, was slight and unimportant. Hence the principles ,of the common law are not adequate nor always applicable to the present exigencies of commerce.

There are occasional intimations, in even the oldest books of the law, that England had then shipping and merchants, and that questions in relation to ships came sometimes before the courts. Even in those ages, the usage of merchants was evidently -- and sometimes expressly -- referred to as a guide, if not a master, in cases of this kind. As, with the growing commerce of England, these questions grew more frequent, more diversified, and more important, this usage was referred to more and more constantly, and perhaps with increasing defence, until, out of this usage, or rather in conformity with it, but yet importantly modified by those rules of law with which the courts were most familiar, the law merchant of England gradually acquired force and authority. Sometimes it is said to have grown up alongside of the common law. But, in-fact, it was adopted step by step, as an integral part of the common law ; and the flexibility of that system, and the yield force with which, as a living thing, it yielded to the, hey, influences and supplied the new wants presented by successive changes in the condition of the people, are well, if hydrated by the way in which the law merchant became, to.f. very great extent, a part of the common law, and as such, came over to this country, and is our law as it is that of Kogelhad.

As, this, mercantile law was formed under the modifying, though not controlling, influence of the common law, so, on the other hand, it exerted a reciprocal influence upon the common law, through nearly all branches of the law of contracts. Thus the rules respecting sales, agency, parties, consideration, assent, and construction generally, all exhibit the clearest indications that the customs of merchants have produced important modifications of them. But the law of shipping, the law of marine insurance, and the law of negotiable paper, may be regarded as the principal topics which belong in an especial manner to the law merchant. They may be said to have had no other origin than the custom of merchants. The common law yielded somewhat slowly and reluctantly to their demands; and even when it adopted them, insisted upon the application of its own principles. In some instances these were retained and enforced, when they were incongruous, and incompatible with those customs ; and sometimes the law merchant has suffered detriment from this cause, which has not, perhaps, wholly ceased to operate in England, or even in this country.

By the custom of merchants, which is thus regarded as the parent of the law merchant, is not meant merely the custom of English merchants at the time the English courts first took cognizance of them ; and not merely the custom of English or American merchants at different periods from the beginning of
\[\] PRINCIPAL FOREIGN CODES AND WRITEERS. \[5\]

the law merchant of England to the present day. For, if this were the case, we should have no other sources of authority for this custom, or for the rules derivable from it, especially in its earliest periods, than the brief and unfrequent cases in the early English reports in which questions of this kind are considered.

The common law has its old books of authority ; and they are numerous and excellent; Statham, Fitzherbert, Glanville, Brooke, in the sixteenth century, and in the next, Bracton, Fleta, Britton, Rolle, Sheppard, and -- at the head, perhaps, of all -- Coke, give not only to the antiquarian, but to the student, for present and practical purposes, needed and trustworthy information. To these we may add the reports of adjudged cases, which exhibit with the utmost clearness the history of the law for six centuries. But, in the treatises and digests above enumerated, we find little that can indicate more than the existence of a law merchant, or of the custom of merchants. And, although the earlier reports are not quite so barren in this respect, the notices they give of the law merchant are scanty, and of comparatively little value.

We are not, however, constitute of authority and precedent for the earlier, and, as they may well be called, the fundamental rules, of this great branch of the law. Indeed, this authority ascends to a far remoter antiquity ; and the books, to which we must refer for it, have two other important advantages over their brethren of the common law. One of them is, that they give us the rules, not of one people or country, but of the commercial world, and therefore they are more free from local and partial causes of error or limitation. The other is, that, founded as they were upon the experience, the necessities, and the usages of the merchants generally of the then civilized world, they are characterized by a profound rationality and an exact justice, which are seldom, if ever, materially affected by the rights or prejudices of estate or class, or by that devotion to, and perpetual consideration of war with, one's neighbors, which was the soul of the feudal system, and, through that system, necessarily influenced and injured the whole body of municipal law in all feudal nations.

These books retain at this day their utility, if not their authority. And no lawyer should consider himself _safe_ in his knowledge of the law merchant, who has not studied them, at the very least,

## 6 on the law of shipping.

book I enough to enable him to make use of them when professional exigencies require him to do so. These books are, those of the Roman civil law, the Consolato del Mare, the Laws of Oleron, the Laws of Wisbuy, Le Guidon, the Marine Ordonnance of Louis XIV., with the Commentaries of Valin, and the principal treatises on this branch of the law by Pothier and other eminent writers of continental Europe.

It is true that neither the civil law nor either of these earlier codes treats of negotiable paper;1 for that'was a later invention. But it is also true, that the laws of continental Europe in relation to bills and notes are of much and growing importance and utility in the investigation of the questions presented under our own law in reference to those instruments; and these European systems are based upon the civil law, and qualified by it, at least as much as our own law is by the common law.

Footnote 1: But see on this subject, Domat, Cushing's edition, sect. 1200.

A similar remark may be made of insurance; excepting that, as the law of marine insurance is obviously dependent upon the law of shipping, as, for example, in questions of wreck, jettison, average, and contribution, and maritime contracts generally, we may learn much that is now useful, not to say indispensable, for the understanding and application of the existing rules of insurance law from those earliest sources.

When we come to the law of shipping itself, we find at once that the present rules and principles, some even of those which might seem to be most peculiar, ascend to a higher antiquity than any thing in the common law, or in any other existing system of law. Even the Roman civil law, in the rubric de lege Rhodia de jacta, (Dig. 14, 2,) quotes and confirms the law of Rhodes concerning jettison. It would seem that this island possessed a flourishing commerce, at least a thousand years before the Christian era; that a system of law was there in force, which won a general acceptance in those ages, and was itself probably founded upon their established usages. Of this system 'we have preserved, certainly, only the fragment contained in the above cited rubric; for the collection of maritime laws which may be found in the commentary of Vininius, under the name of the Rhodian Laws, is undoubtedly a later compilation. But in this fragment we have the modern law of jettison, average, and con \[CHL I\] PRINCIPAL FORRISH CODES AND WRITERS. 7

tribution, as distinctly stated as in any recent text-book. It is in these words : "Lee Rhodia cavetur, ut si levante navis gratia jactus mercium factus est, omnium contribuione sarciatur quod pro omnibus datum est." And the whole title of the Digest about this rule is wise and instructive.

There are, however, many other rubrics of the civil law which relate to shipping, and are not traceable to any earlier origin. The rubric immediately preceding that just quoted, is, " De Exercitoria acetone," of which the general purpose is to make the ship-owner responsible for the acts of the master of the ship.

The rubric, " Naute, caupones, stabularii, ut recepta resultant," (Dig. 4, 9,) provides that mariners, (limited, however, in the title to the master of the ship,) and the keepers of inns and stables, should be responsible for property committed to their charge. And this is confirmed in the rubric, " Furti adversus nantas, caupones, stabularios." Dig. 47, 5.

The rubric, " De nautico fenore," (Dig. 22, 2, Code, 4, 33,) gives us the present rules which regulate loans on bottomry and resondentia.

In the rubric " de Incendio, ruina, naufragio, rate, naive expugnata," (Dig. 47, 9,) it is provided that fourfold damages should be paid by the plunderer of a vessel in distress.

In these rubrics there are provisions applicable especially to ships, and to those who own or navigate ships. And it should be added also, that, upon some other topics of deep interest in the law merchant, as payment, and imputation (or, as we term it, appropriation) of payment, carriage of goods, novation, loans, and hiring of money, pledge, partnership, and finally the great topic of sales, the civil law is full of most profitable instruction.

It is perhaps to be regretted that the study of this system of law, which certainly deserves, if ever any system of law did, the proud title of " ratio scripta," is not more extensively pursued in this country. In England there was, formerly at least, a positive hostility to it; and it lingers there still, and may have come over to this country, and still exert some influence. If this were the proper place, it might not be difficult to show that it is at least questionable whether the common law doctrine of sales,--which, upon the central question, when and how the property or ownership in the thing sold passes from the seller to the buyer, is in direct antagonism with the civil law,--is quite so well adapted to mercantile purposes; and whether, even now, a more extensive use of the civil law distinction between the _jus ad rem_ and the _jus in re_ would not assist in determining questions which must still be regarded as unsettled. If we do not mistake, there are some indications that the courts and the profession are beginning to find that the common law, which is ours by inheritance, may be usefully illustrated at least, and, possibly, qualified, by principles drawn from the Roman civil law.

Students are often deterred from any examination of the civil law, by a belief that useful knowledge of it cannot be acquired, without the expenditure of a vast amount of time and labor. But this is a mistake. A thorough knowledge of all its principles cannot be acquired by less than a life of labor. This, however, is not necessary; and the orderly arrangement of this law, the exactness and clearness of its phraseology, the complete and well adapted apparatus for its study, which now exist, and the excellent introductions to it, which have been published in our language, enable a student in his hours of collateral study alone, to learn much of its history and general character, and of the order in which its topics are presented, and of the manner in which the principal books of reference to this law are constructed. Having learnt this, he will find no difficulty in afterwards examining fully any question which may arise in his study or practice; and we are persuaded that no lawyer who shall pursue this course will afterwards find reason to believe that the hours thus employed were wasted. " It is most certain," says Dr. Strahan, in his preface to his translation of Domat, " that it is in the body of the civil law that we have the most complete, if not the only collection, of the rules of natural reason and equity, which are to govern the actions of mankind." This is high praise; but even if it be deserved, the advice of Chancellor D'Agueseau to his son may not be the less necessary. He wishes him " to distinguish for himself that which belongs to natural and immutable justice from that which is only the work of a positive and arbitrary will; to avoid being dazzled by the subtilties which are frequently diffused in the Roman jurisdiconsuits; and to draw with safety from their treasury of reason and common sense."

The Consolato del Mare is a code of maritime law of great antiquity and equal celebrity. But it is not open to the English * \[CL L\] PRINCIPAL FORKIGN CODES AND WRITERS.

- \[\] student, as no translation into our language, excepting of a few chapters, has ever been published. The origin of this code is not certainly known; neither the names of its authors, nor the time nor the place of its earliest promulgation, can now be ascertained. It was first printed, however, somewhere in the fourteenth century, but is supposed to have been in force and in general use for a considerable time before. And, indeed, we consider the most reasonable theory of its origin to be that which regards it as a gradual collection, or digest of all the principal rules and usages established among commercial nations from the twelfth to the fourteenth century. Very many topics of maritime law are treated of in it, and various commercial regulations have been added in the editions which have appeared, from time to time, in Europe. It may be referred to profitably, in relation to the ownership of ships, and the rights and the obligations thereto; to the rights and responsibilities of master and seaman; to the law of freight, of equipment and supply, of jettison and average, of salvage, of ransom, and especially to the law of prize, in regard to which it has of late years exercised an important authority. The best edition by far, and by common consent, is that of Pardessus, in his Collection of Maritime Laws. We are in hopes that an English translation from this edition will soon be made and published in this country.
- \[\] Next to the Consolato in time, or, perhaps, -- for this is disputed, -- before it, come the Laws of Oleron. We know that these were collected, or at all events promulgated and published, as the rules then in force for the regulation of shipping, in the small island of Oleron, off the coast of France. The French claim that Queen Eleanor, who was Duchess of the province of Guienne, near which Oleron lies, authorized and caused their publication; the English say that her son, Richard L, did this. The only thing certain is, that no one knows who their author was; but they were undoubtedly first established somewhere in the twelfth century. This code has been repeatedly published in English, and is most accessible to American students in the Appendix to the first volume of Peters' Admiralty Reports. Their value to the student of the law of shipping may be inferred from an enumeration of the principal topics. These are the navigation and sale of a ship, the duties and the rights of master and mariners, wreck, freight, salvage, jettison, injuries to cargo, quarrels on board ships, collision, anchorage, supplies and repairs, the intentional stranding of a ship, pilots, partnership in vessels, and goods taken from wrecked ships.

The next code of which we shall speak is that known as "The Laws of Wisbuy." The exact date of these also is uncertain; and by some they are supposed to be older than the Laws of Oleron. The weight of authority is, however, that they were founded upon the Laws of Oleron, and were only modified so far as to make them better adapted to the usages or the wants of the commercial states or cities of northern Europe; and that the code was published about the twelfth or thirteenth century, immediately after the Laws of Oleron. Wisbuy was a convenient port on the north-western coast of Gott-land, an island in the Baltic, about equally distant from Sweden, Russia, and Germany. These laws, its former celebrity, and the works of art and luxury now found among its ruins, indicate that this city was the emporium of a great trade; although there is nothing in its position, and nothing preserved in its history, which explains either this or the rapid and total decay of its prosperity. Some historians, however, attribute its decline and destruction to dissensions and conflicts among its own citizens; and if they existed and endured, they would have been, indeed, a sufficient cause for swift and utter ruin.

This code covered a wide ground, embracing most of the topics of the law of shipping; but it is concise and sententious, and very brief, occupying but a few pages in the Appendix to Peters' Admiralty Reports; and a cursory examination shows a coincidence with the Laws of Oleron quite too uniform to be casual.

The sixty-sixth section of the laws of Wisbuy has given rise to a curious question. It is in these words: " If the merchant obliges the master to insure the ship, the merchant shall be obliged to insure the master's life against the hazards of the sea." Here is a distinct recognition of the contract of insurance; and in terms which imply that it was familiarly known to mercantile persons. It follows, therefore, either that the Laws of Wisbuy are a much later work than is commonly supposed, -- and against this theory the internal as well as the external evidence is very strong, -- or that this section is an interpolation of later \[OL L\] PRINCIPAL FOREIGN CODES AND WRITERS. 11

date, which is perhaps the prevailing opinion; -- or that marine insurance and life insurance existed, and were common, centuries earlier than is commonly supposed. It is not the place here to go into a critical examination of this question; but we confess a strong disposition to adopt this last view, which seems to us supported by facts as well as arguments, and for which we have the high authority of Emerigon.

Sometime in the sixteenth century, there was published a French work, commonly known by the name of "Le Guidon," of which the whole title is "Le guidon utile et necessaire pour ceux qui font merchandise et qui metent a la mer." This work was highly praised, as well as published and illustrated, by Cleirac, about a century after its first appearance, and is not un-frequently cited by writers on maritime law. But it relates mainly to bottomy and insurance, and, though there is some reference to other topics of the law of shipping, they are not presented with much fulness, and the work is of less value than those previously mentioned.

At length we reach the Ordonnance de la Marine of Louis XIV, published in 1681. Our own Kent calls this "a monument of the wisdom of his reign, far more durable and more glonious than all the military trophies won by the valor of his armies." It covers the whole ground of maritime law, including insurance; enacting with clearness and perspicuity all the provisions then in force, whether derived from the sources above enumerated, from a more general tradition, from previous enactments, or from usage. These it arranges in an excellent order; and displays a learning and ability in those who prepared it which forbids the supposition that they were mere compilers. But, strange to say, the authors of this ordinance are wholly unknown. This, also, is inserted in the Appendix to Peters' Admiralty Reports.

Almost a century after this ordinance appeared, Valin published his Commentary upon it. This admirable work acquired at once celebrity and authority, and is now often referred to in this country than any foreign work on maritime law. It was not, like Coke's Commentary on Littleton, a vast and ill-arranged mass of learning, that utterly submerged the treatise which it proposed to illustrate. But, while doing full justice to the ordinance, not only admitting its excellence in general, but on THE LAW OF SHIPPING. \[B00K L\] exhibiting it clearly in detail, it is itself a work of the greatest utility, and of the highest authority.

We might now enumerate a long list of commentators and jurisdicons who have written, in some instances, for the purpose of illustrating the above-mentioned codes or laws, but more frequently, independent works of their own. The catalogue of names would, however, be of little use, unless we could present at least a general view of the particular merits of each one ; and this would require far more space and far more labor than we could give to it. It may, however, be of some assistance to the student, if we mention the names of a few of the most important, and describe their writings briefly.

We begin with Cleirac, a French author, who published, in 1647, at Bordeaux, a volume entitled "Us et coutumes de la mer" -- (Usages and Customs of the Sea). It is divided into three parts, which upon the title-page are called, 1st. Of navigation. 2d. Of naval commerce and maritime contracts. 3d. Of the jurisdiction of the marine. In fact, however, the first part, containing 212 pages, consists of the Laws of Oleron, the Laws of Wisbuy, and the Ordinances of the Hause towns, determined at Luebeck in 1597. The second part contains Le Guidon, in twenty chapters, of which we have already spoken. To this are added certain formalities or rules upon some of these subjects, which were in force in Antwerp and Amsterdam. The third consists of various ordinances of the governments of France, Spain, and the Netherlands, concerning the jurisdiction of the admiralty. All of these, however, and especially Le Guidon in the second part, are accompanied by very valuable notes and comments, making the whole book a complete and most trustworthy exhibition of the whole maritime law of that age.

In 1655, Roccus, a Neapolitan jurisconsult and lawyer, published a large work on maritime law, from which was taken and compiled a smaller work, published in Amsterdam in 1708, entitled " De Navibus et Naulo, item de associations, notable " (of ships and freight, and of insurance). This is a learned, very able, and, at this day, very useful work. It does not purport, like Cleirac's volume, to be a reprint or compilation of any previously existing works. But it gives the whole law merchant of that day, as it was known to a lawyer of full practice and high authority. The orderly arrangement of the topics,
CH. L\] PRINCIPAL FORHEGN CODES AND WRITERS. **13**

and the directness and simplicity with which they are treated, make a reference to this book, and the use of it, very easy. Each of the "Notabilia " contains a distinct statement of some rule or principle, followed by citations of authorities. Most of them are very brief, few covering so much as a page. An excellent summary at the beginning of the first part, of ships and freight, and another at the beginning of the second part, assurance, enables a student to turn readily to the precise thing he wishes to see. To these two parts are added select answers and arguments of Roccus in actual cases. We find this work more frequently referred to than the former; they are, however, very different, and neither supersedes the other.

Passing over a century, we come to another Italian legist, Casaregis; who, after many years of full practice in mercantile cases, received the appointment of judge in the high courts of Tuscany, and held it for twenty years. His works were published after his death in four volumes, folio. The first two of these consist of two hundred and twenty-six "Discursus Legales," which cover the whole ground of commercial law, including insurance, the law of shipping, partnership, and exchange. The third volume contains an edition of the Consolato del Mare, with an ample commentary. The fourth volume is usually bound up with the third, both together being only about as large as either of the others. This last volume does not treat of commercial law, but of successions, and other analogous topics. Casaregis is a far more voluminous author than either of the preceding; and his matter is not so well arranged; certainly not so well for the mere convenience of the student. But his volumes contain a treasury of the law merchant. "Scareely any topic is omitted; and many curious questions seem to have been anticipated, and are illustrated with the combined light of learning and genius. Story said of him, " I cannot say much about this book from my own knowledge, for I have only referred to it occasionally. But rarely have I looked into his works upon. any contested question, without being instructed and enlightened by the perusal." And Valin has declared emphatically, that Casaregis is incontestably the best of all maritime authors.

We close this list with the name of Pothier; in some respects the greatest name of all. Born in 1699; at the age of fifty, after he had acquired the highest reputation as a juris consult, he ook I.

accepted the office of Professor of Law in the University of Orleans, to which he was appointed by D'Agueseau. A year before, he had begun the publication of the Pandects. In the two centuries which have followed, there have been celebrated civilians, whose almost boundless knowledge may have surpassed Pothier. But the common consent of those of the English and American judges and lawyers, who have sought the aid of the civil law in deciding questions of the present day, has given to Pothier the credit of being the most useful and the most trustworthy of civilians.

He was for some years employed in completing his edition of the Pandects. And then he poured forth in rapid succession a series of treatises upon a great variety of subjects, in which the student will find all that the most complete acquaintance with the civil law could give, but qualified, illustrated, and made thoroughly practical by an equal knowledge of the actual law of his time, and, yet more, by the clearest view of the great and abiding principles of truth and justice and order, of which the rules of law must be the exponents, or be erroneous and perishable. Of these treatises, those which refer especially to commercial law, are, on obligations, in 1761; of the contracts of sale, in 1762; of bills of exchange, in 1763; of hiring, in 1764; with a supplement to this latter, in 1765, which treats of maritime hiring, and of partnership. Of the treatise on obligations, an English translation by Martin was published in 1802, and a better one by Evans, in 1806; this last has been republished in this country several times. The treatise on maritime hiring has been translated by Caleb Cushing, in 1821, and that on the contract of sale, by L. S. Cushing, in 1839. Both of these translations are excellent, and the books are in common use.

Sir William Jones, in a passage in which he claims the credit of introducing Pothier to the acquaintance of his countrymen, and regards this alone as discharging his debt to the profession, says: "I seize with pleasure an opportunity of recommending Pothier's admirable treatises on all the different species of express or implied contracts to the English lawyer; exhorting him to read them again and again."1
It is undoubtedly true, that the books above mentioned are wholly unknown to the great body of the profession in this country, and to many of those who stand in its front ranks. But it is quite as certain that some of those who have attained the very highest position, and who have been most useful, and have done for the law of their country a good, a great, and a permanent work, have studied these books, and from these ancient and abounding sources have drawn the principles and arguments, the rules and the reason, which have enabled them to strengthen the foundations of the jurisprudence of their countries, or incorporate in the superstructure that which will never be taken away.

To speak only of the dead, and of two only of them. In 1756, Mansfield took his place upon the bench of England. Then, her commercial jurisprudence began to acquire form and regularity. He had the sagacity to see that the technical rules, and indeed the principles, of the common law, were not sufficient for the growing exigencies of British commerce. And he had the greatness to leave his own peculiar ground, and go where he could find the resources which he needed.

He brought to the commercial law of England three distinct in conflict with each other, coincides with Pothier, and says that he is "a most learned and eminent writer upon every subject connected with the law of contracts, and intimately acquainted with the law merchant in particular." In the case of Cox v. Troy, 5 B. & Ald. 474, relating to the law of bills of exchange, Abbott, C. J., and Hidayed, J., speak of Pothier as of very high authority, and Best, J., says, " The authority of Pothier is expressly in point. That is as high as can be had, next to the decision of a court of justice in this country." And closes additional remarks in his praise, by saying, " His writings have been constantly referred to by the courts." " We cannot, therefore, have a better guide than Pothier on this subject." Byles, in the preface to his excellent work on bills and notes, says that Pothier "erinces a profound acquainted with the principles of jurisprudence, and extraordinary acumen and sagerity in their application ; the result of the laborious exercise of his talents on the Roman law." He adds, " There cannot be a greater proof of the surpassing merit of his works, than that, after the lapse of more than half a century, and a stupendous revolution in all the institutions of his country, many parts of his writings have been incorporated, word for word, in the new Code of France. The Trudie du Contre de Chames is often cited in the English courts of law." For the estimation in which he is held in this country, I can only refer to the very frequent reference to him, not only in numerous cases, but by all our writers who look at all to civilians and writers of continental Europe. In some of Story's works, for example, we find note after note repeating Pothier's name, through many successive pages ; and frequently with expressions of the highest commondation.

elements. One of these was his own accurate and profound knowledge of the common law. Another was the usage of merchants, which he openly adopted as a guide, and endeavored to ascertain, as well by personal inquiries among them, as by special juries composed of them, and by examination of merchants as witnesses. But he added also yet a third, and it was a diligent study and a careful consideration of those old codes and writers that we have enumerated. In Scotland, the civil law is the basis of the municipal law, as the common law is in England. Murray, afterwards Lord Mansfield, was a Scotchman, and received a Scotch education, and thus became an excellent civilian. And the use he made of this knowledge was never obtruded, but never concealed. In one case, Luke v. Lyde, 2 Burr. 882, where the important question of freight proata was for the first time fully considered in an English court, he cited, from the Pandects, the laws of Rhodes, calling them " the ancientest laws in the world," -- the Consolato del Mare, the Laws of Oleron, from Cleirac's Us et Coastumes de la mer, the Laws of Wisbuy, and Roccus de Navibus et naulo, and the Ordinance of the Marine of Louis XIV. Thus, in this one case, referring to nearly all those works which we have enumerated. Marshall, in his book on insurance, exhibits Mansfield as almost the creator of the law of insurance for England, and supposes him to have drawn much of his knowledge on this subject from the ordinance of Louis, and the commentary of Valin. I have already mentioned the name of our own Story. Placed in early life upon the bench of the supreme court of the nation, it was his fortune to be called upon to exercise the judicial functions in the infancy of our national jurisprudence. One great question met him at the beginning : what is the admirality jurisdiction secured to the courts of the United States by the constitution. Many, and probably a great majority, of the lawyers of this country, had no other idea of it than that which the shattered and fettered admiralty of England could give them. And, judging from all human probability, we have some right to say, that, if Story had not at that time held that place of high authority, the present admiralty jurisdiction of England would have been ours at this moment. None can deny that it was he who settled this question; and he was obliged to maintain his ground against obloquy and CHL I\] PRINCIPAL FOREIGN CODES AND WRITERS.

repreach which might well have shaken any man. But the great and admitted utility of the free and wide admiralty jurisdiction, actually established among us, may induce an opinion that if Story had not taken that ground, and if, at his day, and at the beginning, this question had been decided otherwise, this same jurisdiction would have vindicated itself, and by some other instrumentality been restored to the fair proportions of which it was curtailed in England in a succession of ages, by the attacks of rival and victorious courts. The answer is, that it was only by the greatest effort and the greatest firmness that the difficult work of restoring the admiralty system to its original extent and vigor was then accomplished. If it had been delayed, this work would have been with every added year more difficult, until it became impossible. And it is to be remembered that the profession would not then have had the opportunity of judging by experience of the utility and safety of this jurisdiction.

Story could not find all the true and original principles of admiralty, or of the law of shipping, in English law. He followed the lead of Mansfield, and went where they could be found; went to continental Europe; to the successive codes which in successive ages have defined that jurisdiction and built up that law, and to the many learned men who have illustrated both. But he went with a freer step than Mansfield, and a still wider research brought to him, on every point of the law merchant, still greater and more constant assistance. Story's fame does not need exaggeration nor concealment. If it be admitted that his vast and various official duties and personal undertakings, and the very extent of his inquiries, necessarily resulted in much knowledge that was only superficial, and some opinions that were erroneous, it will still always remain true, that to his sagacity, his firmness, his industry, his learning, and though last, not perhaps least, to the beautiful amenity and charming courtesy of his personal demeanor and the universal kindness which helped him so much in the many conflicts he was obliged to sustain, this country is very largely indebted for its admirable system of commercial law and commercial jurisprudence.

## Section II

OF THE ENGLISH ADJUDICATION WHICH CREATED OR DEFINED THIS LAW.

It has been already intimated that the common law has welcomed and adopted the law merchant; at least, to a certain extent. It is instructive to observe the successive steps of this progress. Indeed, at the beginning, or in the early ages of the common law, the "customs of merchants" appear to have had almost a greater respect paid to them, and a more positive authority allowed them, than in later times. And this, if it be a fact, may be explained in part by the want of that power and that rigidity in the common law which came with age, and its accumulation of precedents, and its observance of technicalities; and in part by the infrequency of questions of a commercial nature, and the apparent absence of danger, even if the few which came up were permitted to be decided by a law of their own. In Magna Charta itself (1215), the forty-seventh section1 runs thus, 4 All merchants shall have safe and secure conduct to go out of and to come into England and to stay there, and to pass as well by land as by water, _to buy and sell by the ancient and allowed customs_, without any heavy tolls, except in time of war, or when they shall be of any nation at war with us." And the next section defines the rights of alien merchants in war time.

Footnote 1: Forty-seventh in Professor Bowen's excellent edition, but usually cited as the thirtieth.

In subsequent reigns, especially those of the Edwards, various statutes were passed, expressly "de mercatoribus," securing to them valuable privileges. At a later period, a question arose whether the "custom of merchants" was to be pleaded as a custom of certain places, or to be regarded as a part of the general law, of which the courts would of themselves take cognizance. In Peirson _v._ Pounteys, Yelverton, 135 (1609), the court say, " the judges ought to take notice of that which is used amongst merchants for the maintenance of traffic."
And in Vanheath _v._ Turner, Winch's Rep. 24 (1622), Chief Justice _Hobart_ declared that "the custom of merchants is part of the common law of this kingdom, of which the judges ought to take notice;" and he added, " and if any doubt arise to them about their custom, they may send for the merchants to know their custom." And Coke, 1 Inst. 182 a, says that " the lex mercatoria is part of the laws of this realm;" and in 2 Inst. 68, in commenting upon Magna Charta, he uses similar language.

There also arose another question; it was, whether the custom of merchants applied to mercantile contracts between any parties, or only to contracts between merchants. At first, the latter view seemed to be held, as in Oaste $v$, Taylor, Cro. Jac. 306, (1613,) where a drawe of a bill was sued on his acceptance, and it was held that the declaration was insufficient, because it was not alleged therein that the defendant was a merchant at the time of the acceptance.

A similar doctrine was maintained in Eaglechildes case, reported in Hetley, 167. This occurred in 1632; but in 1634, in Barnaby _v._ Rigalt, Cro. Car. 301, where the defendant was called a merchant, it was held that the court would intend that he was a merchant at the time. And in 1666, in Woodward _v._ Rowe, 2 Keble, 105, and afterwards, page 132, it was distinctly held, that the custom of merchants was a part of the law of the land, that it attached to the contract, which was a bill of exchange, and that " the custom is good enough generally for any man without naming him merchant."

Two years afterwards, in an anonymous case, in Hardres, 485, (in 1668,) which seems to have been very carefully considered, being declared by the court to be " of weight and concern for the future," it was held that a reference to the custom of the realm in the declaration was unnecessary, the Chief Baron adding, " it were worth while to inquire what the course has been amongst merchants, for although we must take notice in general of the law of merchants, yet all their customs we cannot know but by information." It would seem, from these words, that the court would ask merchants to tell them the law; and this again might appear so inconsistent with the duty and the position of the court, that it would be supposed that mer chants testified only as to the facts for the jury. But in 1649, in Pickering _v._ Barkley, Style, 132, where to covenant on a charter-party containing the exception " perils of the sea," the defendant pleaded capture by pirates, and the plaintiff demurred bringing up the special question of law, whether this was a peril of the sea. "The court desired to have Granly, the master of the Trinity House, and other sufficient merchants, brought into the court, to satisfy the court _viva vice._" And on this evidence and sundry certificates, the court decided the law against the demurrer, and in favor of the defendants.

It is very remarkable how long it continued to be made a question in the courts, whether the lex mercatoria, or custom of merchants, was a part of the law of the land, or only a special custom or usage, which affected only those persons, or those agreements, that were alleged, and could be proved to be within it. For many years, and indeed ages, the profession seems to have resisted the doctrine, that it was a part of the general law of the realm; but this was held by the courts uniformly and emphatically.

Twenty-two years after the case in Hardres (1689), there was a demurrer in Carter _v._ Downish, 1 Shower, 127, which raised precisely this question, and again it was held that " all this law of merchants is part of the law of the land, and the judges are obliged to take notice of it, as well as of any other law." _Ventris,_ one of the justices, said, " You here depend on the law of merchants, which at present, I think, we ought to take notice of." The uncertainty implied in the words " at present," is nearer to a doubt on this subject on the part of the court than we find in any other case. Again, this question was raised two years later (1691), in Mogadara _v._ Holt, 1 Show. 317, and 12 Mod. 15; and _Holt,_ Chief Justice, said, " the time is well enough by the law of merchants, and that is the same with our law." And _Egres,_ Justice, said: " The law of merchants is _jus gentium,_ and we are to take notice of it." And again, three years later (1694), in Williams _v._ Williams, Carthew, 269, the same question being raised, the rule in Carter _v._ Downish was emphatically confirmed; so also by Lord Holt in Hodges _v._ Steward, 12 Mod. 36 (in the same year); and, four years afterwards, the same question and the same decision may be found in Pink * \[ point may be addressed to the court for the purpose of removing doubts from their minds; but then it is their duty, when they have ascertained what the general custom of merchants is, to consider that as the law of merchants, and therefore as a part of the law of the land, and to recognize it, and apply it accordingly.

It may certainly be regarded as a well-established rule of American law, that this law merchant is an integral part of our own law, equal in its .force and authority to any other. But there is still another principle in regard to the law merchant, which needs a more profound recognition, a fuller development, and a more constant recollection. It is, that the law merchant is not so much a branch of our municipal law as of public law. It belongs to both; and stands in such a relation to both, that the municipal law must constantly look to the law of nations for instruction and guidance in relation to it; or, in other words, the common law of any country adopts it from the common law of the world, and must not forget its origin.

In Molloy's work, de Jure Maritimo et Navali, he says, B. 3, e. 7, s. 15 : "Merchandise is so universal and extensive, that it is in a manner impossible that the municipal laws of any one realm should be sufficient for the ordering of affairs and traffic relating to merchants. The law concerning merchants is called the law merchant from its universal concern, whereof all nations do take special knowledge." And the same idea is expressed in some of the cases from which we have already quoted, where it is said that the _lex mercatoria_ is a part of the _jus equilibrium_. This doctrine is of great practical importance. If it had been more freely admitted in English jurisprudence, their law of shipping, especially in relation to liens, would have escaped some embarrassment and some uncertainty, much of which we are free from.

This principle recommends itself so strongly, and equally on the grounds of justice and expediency, that its early and general recognition is not surprising. There is a remarkable passage in the Pandects, which we think bears strongly upon it. In the title de Lege Rhodia de Jactu, to which we have already referred, Dig. L. 14, tit. 2, 3, 9, occurs what we should call a case stated to the Emperor Antonine, calling for a decision. The answer is, "I, indeed, am lord of the world; but the law is (the lord) of
CH. I.\] ENGLISH ADJUDICATION WHICH DEFINED THIS LAW.

the sea. Whatever the Rhodian law prescribes in the premises, let that be adjudged." Here is precisely the distinction we would suggest. The imperial despotism of Rome, while asserting its absolute and universal sovereignty, acknowledges that the ancient code of the little island of Rhodes,'because it had been sanctioned and established by long usages among all whose business is on the sea, must govern there. So, too, we find the later codes, of Oleron, and Wisbuy, and the Consolato, for example, made not for one state or nation, but for all ; and imposed upon them, not by the authority of a sovereign right, but by the sanction of a sovereign custom.

So should it be. We may well hope, for not theory only but history begins to promise this, that the great function of commerce is to bring the nations of the world together. Of the splendor and wealth derivable from commerce, there were examples in the earliest ages, even before Tyre ; but they were very limited in their influence and in their duration. In that olden time, the same word sometimes meant a stranger and an enemy. In Greece the merchant was a pirate when occasion offered. He was better than this in Rome, but commerce held no high position there. In the middle ages, it began to assert its worth and dignity, and the greatest perhaps of the Medici was too proud of his success as a merchant, to permit that any other title should be added to his name. Still more lately, commerce has grown stronger, and with its strength its good influence has grown also. And, not to pause upon illustrations which might be drawn in great numbers from intermediate history, we may well believe that the great commerce, which now bridges the Atlantic, operates powerfully, and we may hope that it will operate successfully, to preserve the peace,--this peace so fertile of all good,--between the old world and the new. If, in the beginning of mankind, it was much that the family gathered its members into one fold; and if it was a later step which gathered families into states, this may not be the last step. The reasonable, as well as the hopeful, must be permitted to regard it as within the wide circle of possibility, that all states and nations may be gathered into one brotherhood of man. And if this--dream, perhaps it may be called--should ever become fact, assuredly commerce will be one of the most potent of the instruments by which so great a good shall be wrought.

**The commerce of the world has reached at this moment an enormous development. It may well seem to us that it can go no further; that it stands on its culminating point. But it is more probable that the future will regard only as the beginning, that which may seem to us a consummation.** **Assuredly the growth and extension of commerce, its conformity with the essential principles of justice and of reason, and with the needs and the progress of mankind, and, indeed, all its prosperity and all its utility, from the highest to the lowest ground, will be advanced by constantly regarding the laws of commerce as intended to be universal; and, therefore, by respecting what in them is universal, in preference to that which is local and limited, and by giving to all questions that answer which shall make the principle or precedent resulting from it conform most perfectly with those which the nations have already settled by a general usage.**

**That the common law has already done this to a very great degree, and that it has not done this perfectly, has been already intimated. And it may not be out of place to close this sketch of the history of the laws of commerce, with the hope, that it may be one of the effects of the established freedom of this country that we may set such an example of wide and far-reaching sagacity in our shaping of the laws of commerce, that the nations of the world may join with us effectually in making the law merchant the law of the whole world.**
CH. II.\] OF THE HISTORY OF THE REGISTRY ACTS.

**CHAPTER II.**

**OF THE REGISTRY AND NAVIGATION LAWS.**

**SECTION I.**

**OF THE HISTORY OF THE REGISTRY ACTS.**

**Wz have seen in the preceding chapter, that the common law of England, from which that of America is derived, was formed while the great mass of valuable property consisted of land, and things fixed to the land. Negotiable choses in action and all those interests, represented and transferred by means of certificates and serip, were either unknown or little used; and movables, or personal property in possession, constituted but a small portion of the wealth of the country. Hence the law of personal property is of comparatively recent origin; and only of late has it assumed that systematic and scientific form which now belongs to it.**

**Between these two,-- the law of real property, and the law of personal property,-- and differing in some particulars from both, is the law of shipping. That a ship is personal property, and not real property, is certain;1 but it is a very peculiar kind of property, both in fact and in contemplation of law; and this was true in very ancient systems of law,2 although neither commerce nor its great instrument, the merchant ship, had then reached any thing like the importance and magnitude they have now attained.**

Footnote 1: Recent note xxxviii.; Jacobsen's Sea Laws, 21.

Footnote 2: See Jacobsen's Sea Laws, _ut supra_.

**We have said the ship is the great instrument of commerce; and as England, from its insular, and otherwise favorable position, found its commerce becoming one of the most important sources of its power and prosperity, the laws we have mentioned** in the previous chapter were enacted some centuries ago, providing, with great precision, for the nationality of the ship, and the trustworthiness and preservation of the evidence of that nationality. These laws are usually called The Registry and Navigation Laws. "It is said that they originated in their present form some two hundred and fifty years ago, in the desire of Spain to preserve for herself the valuable commerce of her colonies in America.1 In England, they may be regarded as beginning substantially with the 12 Car. 2, c. 18.3

Footnote 1: **Revere's History of the Law of Shipping, p. 35. See also 2 Browne's Civil and Adimirally Law, p. 125.**

Footnote 2: **The first statute passed for the benefit of navigation was the 43 Ed. 3, which enacted that all ships of England and Gascoigne which came into Gascoigne should be first freighted to bring wines into England before all other. This being, however, of but little importance, the statute of 5 Rich. 2, St. 1, c. 3, which provided that none of the king's subjects should themeforth ship any merchandise in going out or coming within the realm of England, except in English ships, under penalty of forfeiting the merchandise or the value of it, has been considered as the primary one. Stat. of 6 Rich. 2, c. 8, enacted that this law should only apply, "as long as ships of the said legescion were to be found able and sufficient in the parts where the merchandise happened to dwell." For various subsequent statutes on this subject, prior to Stat. 12 Car. 3, c. 18, see the valuable trecate of Mr. Reeves on the History of the Law of Shipping.**

The principal purpose of this and subsequent statutes was to prevent other nations from having the carrying trade between England and her colonies, and between other countries and England; and it was therefore provided, that only British ships should carry merchandise between England and her colonies, and that no merchandise should be brought from foreign countries to the British dominions, except by British vessels, or the vessels of the countries, of which the goods imported were the growth.3 No vessel was to be deemed British, unless wholly built somewhere in the British dominions, excepting only those condemned and sold as prize;4 and if a British ship became by any sale the property of an alien, it could not afterwards become a British ship again, by resale to a British subject.5

Footnote 4: **3 & 4 Will. 4, c. 55, ! 9.**

In order to secure to British ships these advantages, and to the British nation this monopoly, an exact and almost severe system of registration was adopted, and has remained in force, with but little change, for nearly two centuries. In 1850, how

**CL. IL.\]** **OF THE HISTORY OF THE REGISTRY ACTS.**

ever, by the 12th and 13th Victoria, c. 29, the principle of " free trade " was, partially at least, introduced into the navigation laws; for it was provided, that ships, other than those of British build, may become British ships by register, if wholly owned by British subjects; and all ships may bring to England all merchandise, excepting that the queen (or king) of England, in council, may interpose against the commerce, or against the ships, of any country, such duties, charges, restrictions, or prohibitions, as will put the ships of those countries in British ports on the same footing on which British ships stand in the ports of that country.

The principal acts of registry and navigation in this country are those of December 31, 1792, entitled " An act concerning the registering and recording of ships and vessels;"1 of February 18, 1793, entitled " An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same;"2 and of March 1, 1817, entitled " An act concerning the navigation of the United States."3 By this last act, it is provided that no merchandise shall be imported into the United States from any foreign port or place, except in vessels of the United States, or in vessels wholly belonging to citizens of the country, of which the merchandise is the growth or manufacture; or from which such goods, wares, or merchandise can only be, or most usually are, first shipped for transportation; under penalty of forfeiture of ship and cargo. And no merchandise whatever shall be imported from port to port of the United States in any foreign ship, (other than those imported in such vessel from some foreign port, and which shall not have been unladen,) under penalty of forfeiture of the merchandise. But it is provided, also, that this regulation shall not extend to the vessel of any foreign nation which has not a similar regulation in force. In an appendix to this volume, we shall give the principal statutes now in force; and it will be seen that we have not as yet relaxed our navigation laws, so far at least as to permit foreign built ships to become our own, or foreign ships to share in the advantages derived by our own from their nationality, in any degree.

**Section II** ,

**What SHIPS MAY BE REGISTED, AND WHAT ENROLLED.**

**The first registry act of 1789**1 **provided that any ship or vessel built within the United States, and belonging wholly to a citizen or citizens thereof, or not built within the United States, but on the 16th May, 1789, belonging, and thereafter continuing to belong, to a citizen or citizens thereof, and of which the master is a citizen thereof, may be registered as directed in the statute. And, being so registered, shall be deemed a vessel of the United States. The twenty-second section of this act provides that vessels which come under the preceding description, and are of twenty tons burden or more, if destined for the coasting trade or fisheries, and not registered, must be enrolled, in order to enjoy the privileges of a ship of the United States.**

Footnote 1: On. 11, 1 U. S. Stats. at Large, 55.

**This act, after a slight amendment by a** **suppletory act passed at the same session,2 was repealed by the 30th section of the act of December, 1792.3 But this last statute begins with providing, that all vessels registered under the provisions of the former act shall continue to be considered vessels of the United States, as long as they are wholly owned and commanded by a citizen or citizens of the United States.**

Footnote 2: On. 1, 1 U. S. Stats. at Large, 94.

**This statute is now in force. It provides that all ships or vessels built within the United States, whether before or after July 4, 1776, or not built in the United States, but on and after the 16th May, 1789, belonging wholly to a citizen or citizens of the United States, may be registered as therein directed. Also, all ships or vessels hereafter captured in war by a citizen or citizens of the United States and lawfully condemned as prize; also, all that are adjudged to be forfeited for a breach of the laws of the United States.**

**To all these classes, the requirement is expressly attached, that they must be owned wholly by citizens of the United States. And there is an express proviso, that no such ship or vessel** .

**GH. IL.\] WHAT SHIPS MAY BE REGISTERED AND ENROLLED.** **29**

shall be so registered, or if registered shall be entitled to the benefits of registry, if owned in whole or in part by any citizen of the United States, who usually resides in a foreign country during the continuance of such residence; unless he be a consul of the United States, or a member of, or an agent for, some house of trade or copartnership consisting of citizens of these States who are actually carrying on trade within the States. And by the act of March 27, 1804, $\\lx@sectionsign$ 1,1 it is provided that no vessel is entitled to registry, or to the benefits of registry, if owned by a non-resident naturalized citizen, who resides more than one year in the country from which he originated, or more than two years in any foreign country, unless he be a consul, or other public agent of the United States.

Footnote 1: Ch. 52, 2 U. S. Stats. at Large, 296.

If any registered ship shall be sold or transferred, in whole or in part, in trust, confidence, or otherwise to a subject or citizen of any foreign state or prince, and the transfer is not made known to the collector and her register delivered up within seven days after the transfer, if in port, or within eight days after her arrival in the United States, if she were absent when sold, she shall be forfeited.2

Footnote 2: Act of 1792, ch. 1, $\\lx@sectionsign$ 16, 1 U. S. Stats. at Large, 287, 295.

The 22d section of the first statute of registration, that of 1789,3 provides that ships, not registered; but destined for the bank or whale fisheries, or " from district to district," meaning the coasting trade, may be enrolled; and then follow certain provisions in respect to enrolment. This was afterwards deemed so important, that these two subjects were provided for in distinct statutes; that of Dec. 31, 1792,4 above referred to, spefka only of registration. And at the same session was enacted the statute of Feb. 18, 1793,5 which relates only to enrolling and licensing ships for the coasting trade and fisheries. It provides, in the first place, that all vessels, which may be registered, may be enrolled, and in a similar way, and a certificate given, which differs from the certificate of registry only in substituting the word " enrolment." Under this statute (sect. 8), a vessel that is only enrolled and licensed cannot proceed on * \*\*a " foreign voyage," without giving up her certificate of enrolment and her license, and being duly registered; and by a breach of this law, the vessel and cargo become liable to forfeiture. From the fear that the whalding fishery, which carries a vessel round the world, might be deemed a " foreign voyage" within this prohibition, a custom grew up of considering whalers as not bound on a foreign voyage. By the Statute of 1803, ch. 9,1 the master of any vessel bound on a foreign voyage is required to give a bond for four hundred dollars, that the certified copy of the list of the crew shall be delivered to the first boarding officer, at the first port in the United States, at which he shall arrive on his return home, and produce the persons, etc. Of this act we shall speak again, in reference to seamen. We advert to it now, only to remark, that in 1839 the master of a whaling ship having incurred the penalty of this bond, and, being sued, took the defence that it had been improperly required, as the ship had not been "bound on a foreign voyage." The question came before Judge Story, and he decided that a whaling vessel was not bound on a foreign voyage, however far it might be the intention of her owners that she should go. Because, a foreign voyage meant a voyage to some definite foreign port or ports, for purposes of trade. No part of the ocean was foreign to us; only a port of another country could be so. And, even if a whaling ship proposed to enter into one or another distant port for the purpose of refitting, or otherwise supplying the exigencies of a whaling voyage, this did not make it a foreign voyage."2 In 1838, Judge Story also decided that no registered ship can engage in the whale fisheries, without first surrendering her register, and being enrolled and licensed for the fisheries. And he quashed an indictment for a revolt on board such a ship, on the ground that it was not an American vessel.3 But, on the other hand, Judge Betts, in the same year, held that a ship, with a register, might be legally employed on a whaling

## 1 Introduction

The discovery of the 1972, 1973, 1974, 1975, 1976, 1977, 1978, 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1989, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022, 2023, 2024, 2025, 2026, 2027, 2028, 2029, 2029, 2030, 2040, 2051, 2031, 2032, 2033, 2034, 2035, 2036, 2037, 2038, 2039, 2041, 2042, 2043, 2044, 2055, 2056, 2060, 2071, 2072, 2081, 2082, 2090, 2091, 2092, 2093, 2094, 2095, 2096, 2097, 2098, 209

**Congress, authorizing the register of foreign ships which become in some way the property of American citizens, but which are not entitled to registers under the general law.1**

**Section III**.

**IN WHAT WAY VESSELS MAY BE REGISTERD, OR ENROLLED.**

**The statutes of 1792 and 1793, already referred to, are the principal statutes in relation to this subject, and we give them in full in the appendix. Here we would only remark, that the principal requirements are, that vessels should be registered or enrolled in the district in which is comprehended the port to which the vessel shall belong, which is that, " at or nearest to which," the owner or ship's husband usually resides. That her name shall be conspicuously painted upon her stern. That before registry or enrolment, the collector shall be assured by the oath of the owners, and the certificate of the builder and of surveyors, and, in some instances, of the master, as to the ownership, the build, burden, and description of the ship. And, if a ship, to be owned by foreigners, is to be recorded, in order to obtain the privileges of a ship built and recorded in the United States, similar precautions are required. The oath to be taken by the owner as to the ownership respects only the legal title, so far as concerns citizens of this country; the disclosure of any equitable interests vested in our citizens is not required; but only a denial that any subject or citizen of any foreign prince or state is directly or indirectly interested in the ship, or in the profits thereof.**

**Previous to the registry of any vessel, the owner and master must give a bond, which is graduated in the amount of the penalty in proportion to the size of the vessel, that the certificate of registry shall be used only for that vessel, and that it shall be delivered up if the vessel be lost, captured, burnt, or broken up, or otherwise prevented from returning to the port to which she belongs.**
GEL IL\] HOW VESSELS MAY BE REGISTERED.

Steamboats may be registered or licensed in the name of the president or secretary of an incorporated company, without designating the names of the persons composing the company; but no part of such a vessel can be owned by a foreigner.\[1\] Vessels employed in the whale fishery, if owned by an incorporated company, may be registered in a similar way, as long as they are wholly employed in that fishery.\[3\] Any vessel which is entitled to registry, and is in a port other than that to whlch she belongs, may be registered at that port. This, however, is only a temporary register, and must be surrendered and cancelled when she arrives at the port to which she belongs, and a permanent register granted.\[8\] If the master of a registered vessel be changed, the name of the new master is indorsed upon the register, upon his making oath that he is a citizen of the United States.\[4\] If any register be lost, the master of the vessel may make oath to the fact, and obtain a new one.\[5\] As every register must state accurately the ownership, and the form and burden of the vessel, if a registered vessel be sold, in whole or in part,\[6\] to a citizen of this country, or be altered in her form or in her burden, the old register must be delivered up, and a new one taken out, or the vessel is no longer entitled to the privileges of a vessel of the United States. If the sale take place in a district, other than that to which she belongs, a temporary register may be there given, to be exchanged for a permanent one when she reaches her home port, in the same way as is done in respect to the original register.\[7\] So, too, if a ship be bought by an agent or attorney for a citizen of the United States, in a district more than fifty miles from that to which she belongs, she shall be temporarily registered there, until her arrival at her home port.\[8\] By the act of June 27, 1797,\[9\] it was provided, that no regis

**Abstract**

The study of the effects of

**CH. IL.\]** **EFFECT OF REGISTRY OR ENROLMENT.** **35 licensed annually for the employment or business in which they are to engage, and this is stated in the license, and they are not authorized by it to engage in any other; and if they be found with a forged or altered license, or making use of a license granted to any other ship or vessel, the vessel and cargo are forfeited.** **These words, however, do not apply to a vessel licensed for one thing and doing another thing under her license; it would seem, therefore, that such a vessel is only not entitled to the privileges of a vessel of the United States.** **If they are in a port other than that to which they belong at the time when their license expires, they may there obtain temporary registers. All licenses must be renewed within three days after they expire, or within three days after the vessel's arrival at a port, if they expire while she is at sea. A registered vessel may engage in the coasting trade, becoming thereafter subject to the regulations provided for coasting vessels; and an enrolled and licensed vessel, if bound on a foreign voyage, may be registered.** **We have quoted but a small part of the requirements of these statutes. It must, however, be obvious, that all this complication between the registering and enrolling of vessels, and these frequent changes, must cause a great deal of trouble, not to say embarrassment, which should be avoided, if this can be done without sacrifice or greater inconvenience. When they were originally enacted, and for some time afterwards, heavy tonnage duties were levied in certain cases, which were thought to constitute quite an important part of the revenue. These are practically abolished, or nearly so. The details and exact provisions to which we have referred were perhaps necessary to carry all the original objects of these statutes into effect. But it is, we believe, a general opinion among commercial men, that they are not necessary now, and that all the advantages and securities of our navigation laws would be preserved, and in a far simpler and more convenient way, if but one register were given to all vessels, whether engaged in the foreign or in the coasting trade, or in the fisheries. This might be permanent, and all transfers of title, and all interests and ownership, in part or in whole, and all such changes of employment, as it should be thought necessary to notice, might be indorsed upon the register.** \*\*
**36** ON THE LAW OF SHIPPING. \[BOOK I.

Our statutes do not positively require any registration or enrolment of any vessel. The owner of a ship may keep it. lying at a wharf until it shall decay there, and not violate any law. But until he registers or enroll his ship, she is not an American vessel. Nor, indeed, can he carry on in her any trade whatever, because she can have neither the papers nor privileges of a foreign ship, nor of an American ship. If she engages either in the foreign or coasting trade, or fisheries, she is liable to forfeiture. These disadvantages and disabilities, springing from the want of a register, are quite sufficient to make an exercise of the right of obtaining registry universal. A similar practice exists, under similar requirements, in nearly all commercial and civilized nations. And probably no vessel of any magnitude now sails the ocean without having documents on board to prove her nationality and ownership.

It may be well to remark, that an act of congress passed March 5, 1856,'authorizes the secretary of the treasury to change the name of any vessel, when, in his opinion, good cause exists therefor.

Some interesting questions under these and later registry acts have passed under adjudication, beside those already presented. Stating these chronologically, we begin with a case which occurred the year after the statute of enrolment was passed.1 A schooner, licensed as a coaster, cleared for St. Mary's in Georgia, but went to Port-de-Paix, and was there sold to a Frenchman by the master, by order of the owner. Upon her return to South Carolina, she was libelled, and decreed to be forfeited; the court recognizing a distinction between the two acts, because that for registering permits sales of vessels at sea, or in a foreign port to foreigners, while the act for enrolment and license prohibits a sale to foreigners altogether. But it was also said that a licensed owner might dispose of his vessel as he would, upon delivering up his license.

Footnote 1: United States _v._ Schooler Hawke, Boe, 34.

In 1805, upon a sale of a licensed vessel to an alien in Phila-delphia, it was said,2 that if a _sea vessel_ (meaning a registered vessel) is assigned to a foreigner, she loses the privileges of an
American bottom; but if a _coasting vessel_ (meaning one enrolled and licensed,) be so sold, the sale is not void, but the vessel is liable to forfeiture.

In 1806,1 a vessel was forfeited because a false oath was taken to procure a register. The interesting question arose, when and by what means the property in a forfeited vessel vested in the United States. And it was held that the United States might elect to proceed against the vessel as forfeited, or against the party taking the false oath for its value. But that unless, and until, process for forfeiture is begun, the property in the vessel does not vest in the United States. Therefore, the vessel having been sold to the assignees of the party taking the false oath, and they having sold the vessel, and received the proceeds in trust for his creditors, the United States could not maintain an action for money had and received against the assignees.

In 1807,3 a ship, while at sea, was sold in part to an American citizen, but was not registered anew. And, after the arrival of the ship in Philadelphia, she was resold by the purchaser to the original owners, before any report or entry. And it was held that the ship did not thereby lose her privilege as an American ship, or become subject to foreign duties.

Footnote 1: United States v. Grundy, 3 Cranch, 387.

Footnote 2: United States v. Willings, 4 Cranch, 48; s. c. 4 Dall. 374.

Footnote 3: The Venus, 8 Cranch, 258.

Footnote 4: United States v. Gillies, Peters, C. C. B. 159.

In 1814,4 it was decided, that, if the master of an American ship be an American citizen resident abroad, the ship does not thereby lose her right to pay only domestic duties. But that if such a person be the owner of a vessel, it cannot be entitled by registry to the privileges of a vessel of the United States.

In 1818,1 it was decided, in a somewhat curious case, that the provisions of the 27th section of the Act of 1792,2 that a ship shall be forfeited if any certificate of registry or record shall be fraudulently or knowingly used for her, to the benefit of which she is not then actually entitled, apply as well to vessels, which have never been registered, as to those, to which registers have been previously granted.

In 1824,3 it was held, that, if a registered vessel be transferred in a foreign port to an alien, for the purpose only of evading the revenue laws of a foreign country, and with an understanding that, when this purpose is accomplished, she shall be reconveyed to the original owner, the vessel is liable to forfeiture under the 16th section of the act. And if she continues to use her original register after such transfer, she is liable to forfeiture under the 27th section.

In 1826,4 it was decided, that, as the original register is required by law to be transmitted to the register of the treasury, when a vessel is lost; and, as this register is to be then cancelled, but not destroyed, it is a document which the law requires to be deposited and preserved in the register's office. And it was also said, that, in a time of universal peace, the register is the only document which must be on board, to satisfy a warranty of national character.

In 1835,5 occurred a case of some interest, from its peculiar facts. The United States sought to enforce a forfeiture against a brig, of which it was alleged that a Spaniard, resident in Cuba, was an owner or part-owner, under cover of the name of an American citizen. Many circumstances indicated this, and had a strong tendency to prove it. But the court said, that, the prosecution being highly penal, the infractions of the law must be established beyond reasonable doubt. And that, although most ingenious frauds are often practised under our revenue laws, such acts cannot alter the established rules of evidence.

In 1839,6 it was found that enrolments in a certain custom CH. IL.\] EFFECT OF REGISTRY OR ENROLLMENT. 39

house were occasionally made, as matter of convenience, on the oath of the master only. But, on such a case coming before the District Court of Maine, it was held that such an enrolment was wholly void; and could not confer upon the vessel the rights and privileges of a vessel of the United States.

In 1816,1 a case came up under the first section of the Act of March 1, 1817, (3 U. S. Stats. at Large, 351,) which provides that goods shall not be imported from any foreign port, except in vessels of the United States, or in such foreign vessels as belong to the citizens of that country of which the goods are the growth, etc. The question arose, whether goods, the growth or production of the East Indies, could be brought to this country in English ships. It was held that they might, because by country was meant the entire nation, and not merely a section or portion of territory belonging to the nation.

It is important to remember, that presentation to the custom-house for registration is wholly voluntary; and that the owners of the ship present it for registration, only to secure to themselves certain benefits or privileges thereby. For this circumstance assists in determining some of the numerous and difficult questions, which have arisen in reference to the force and authority of the register, as a record, as public notice, or as evidence of ownership or interest, or the want of it. Thus, if one claims to prove his title by the fact that his ownership appears on the register, it may be answered that he caused it to be there by his own act, and cannot in this way make evidence for himself.

On the other hand, if he wishes to prove his interest,when his name is not there, or if another wishes to charge him as owner by proof outside of the register, which does not show him to be an owner, it may be said that registration is no necessary incident to ownership, and therefore the want of registration or of any name in the register justifies no conclusion against the ownership. And, in general, as the law simply offers to registered ships certain privileges, which are exactly defined, it is not willing to recognize in the fact of registration, any other efficacy than that of imparting these privileges, or to permit the absence of registration to have any other effect than merely to prevent these privileges from attaching to the ship.

On the other hand, registration is founded on the oath of the party, and is a solem act of the law, and it is not reasonable to make it wholly insignificant. And, an eminent judge in England, (Lord Eldon,) has intimated that the registry laws of that country have, as one of their purposes, the identification of property.1

Footnote 1: _Ex parte_ Tallop, 15 Ves. 60.

The questions of this kind, which have arisen, are very many, and very various. The whole subject of registration of ships is unlike any thing else required by the law, or known to the law. The register has been offered by a party litigant in cases of sale of ship or goods, of contracts of affepithment, of insurance, of forfeiture, or for breach of law. It would be very difficult to exhibit these questions, or the principles which may determine them, aside from the cases in which they arise. And we have preferred to present them together in a note to this passage, in which all the cases are cited and classified, as well as we have been able to do it, and those of most interest examined at some length.2

\*\*States $v$. Johns, _supra_, that the register is not entitled to more credence in this country than in Great Britain.

It follows from this _ex parte_ character of the registry, that it is not even _prind facie_ evidence to charge those who are not shown to be parties to it, _by their own act or assent_, although their names appear upon its face. Flower $v$. Young, _supra_ ; Tinkler $v$. Walpole, 14 East, 226 ; Baldney $v$. Ritchie, 1 Stark. 338 ; Jones $v$. Pitcher, _supra_ ; 1 Greenl. Ev. 4 494 ; MI'Iver $v$. Humble, 16 East, 169 ; Fraser $v$. Hopkins, 2 Taunt. 5; Cooper $v$. South, 4 Taunt. 802 ; Pirie $v$. Anderson, 4 Taunt. 652 ; Randus $v$. Thomas, 5 M. & S. 244. See, however, Stokes $v$. Carno, 2 Campb. 839, where Lord _Ellenborough_ seemed to think, that, where no notice of an intent to deny the ownership was previously given, the register might be _prind facie_ evidence to charge several partners, when obtained on the south of one of them only, although admitting that, had the facts of the case been different, he should have required stricter proof. In Myers $v$. Willis, 17 C. B. 77, 83 Eng. L. & Eq. 204, 209, _JerviA_, C. J., said :- "It is admitted that the law is now different from what it was formerly, when it used to be considered that the register only was to be looked at, and that it alone was conclusive as to the ownership of the vessel, and conclusive therefore of the liability of the party appearing thereon as owner ; but it is now settled that the question of liability in these cases is to be determined in the same way as in all other cases of contract, by ascertaining with whom the contract was made." This case was affirmed in the Exchequer Chamber, 18 C. B. 886, 36 Eng. L. & Eq. 350. See also Hackwood $v$. Lyall, 17 C. B. 124, 33 Eng. L. & Eq. 211 ; Mitcheson $v$. Oliver, 5 Ell. & Bl. 419, 32 Eng. L. & Eq. 219 ; Brodie $v$. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146 ; Mackenzie $v$. Pooley, 11 Exch. 638, 34 Eng. L. & Eq. 486.

Against the person on whose affidavit it is obtained, the registry may be evidence of the facts recited, being his own declaration made under the sanction of an oath. Cooper $v$. South, _supra_ ; Pirie $v$. Anderson, _supra_, _pare Chamber_, J.; Flower $v$. Young, _supra_ ; Hacker $v$. Young, 6 N. H. 95 ; Ligon $v$. Orleans Nav. Co. 19 Martin, La. 682 ; as in favor of his creditors, Bixby $v$. Franklin Ins. Co. 8 Pick. 86. But to make it so, he must be connected with it by proper proof of the oath. Smith $v$. Fuge, 3 Campb. 456 ; Jones $v$. Pitcher, _supra_. And, where the affidavit had been destroyed by fire, Lord _Ellenborough_ held that the register book was not sufficient as secondary evidence of its existence, but that witnesses must be called who had seen the affidavit, and knew it to have been made by the party sought to be charged. Teed $v$. Martin, 4 Campb. 90.

So, the register is not by itself evidence in a suit between third parties, of the national character of the vessel being _res inter alios\_\_acta_. Rensse $v$. Meyers, 3 Campb. 475. And it does not affect the question of property in such a case. Bixby $v$. Franklin Ins. Co. _supra_.

As to some of the facts sworn to, such as the national character of the ship at the time of registry, we apprehend that the registry and affidavit are _conclusive_ against the party making them, he being estopped to deny what he has affirmed under oath. But as to the fact of _ownership_, the registry in this country is only _prind facie_ evidence against him. Ring $v$. Franklin, 2 Hall, 1 ; Weston $v$. Penniman, 1 Mason, 306 ; Leonard $v$. Huntington, 15 Johns. 298 ; Bixby $v$. Franklin Ins. Co. _supra_ ; Colson $v$. Bonzey, 6 Greenl. 474 ; Lord $v$. Ferguson, 9 N. H. 380.

The reason of this is, in the first place, that the oath required by the American registry act has been determined to apply only to the _legal_ ownership, so that registry in the name of one person is consistent with an equitable title in another. Weston $v$. Penniman, \_supra_of the United States, but only a denial that any subject or citizen of any foreign price or state is directly or indirectly interested by way of trust, confidence, or otherwise, in the ship, or in the profits or issues thereof. It is sufficient that the legal interest is truly stated ; and if there be any equitable interest or trust in favor of any other citizen of the United States, no fraud is committed upon the law. Suppose a mortgage made of a registered ship, may not the mortgage truly declare himself the legal owner, notwithstanding an equitable right of redemption in the mortgage? "

See also that a mortgage may take out a registry in his own name. Ring v. Franklin, 2 Hall, 1.

Such being the case, it follows that the legal owner, as a mortgage or trustee, is not estopped by the register to show that the actual beneficial ownership is in a third party, and consequently it is not conclusive evidence against him. See Plymouth Cordage Co. v. Sprague, Sup. Jad. Ct. Mass., 2 Law Reporter, 365. There is an early Connecticut case, Starr v. Knox, 9 Conn. 215, 229, which maintains a contrary doctrine, namely, that registry is such a publication of ownership to the world as will make the party to it liable as owner, unless the qualified nature of his title as mortgage appears on the register itself by indorsement or otherwise. But, from the authorities above cited it appears that this would not now be considered law.

Under the British Registry Acts, 8 & 9 Vict. c. 89, $\\dagger$ 37, 38, and 45, the question has arisen whether, if a party, who is the registered owner, makes a contract to sell the ship, which agreement is not registered, and subsequently transfers the vessel, for a valuable consideration, to a person having notice of the former agreement, who has it duly recorded, the party making the first agreement has any remedy against the ship or its proceeds. In McCalmont v. Rankin, 8 Hare, 1, 2 De G., M'N., & Gor. 403, it was held that he had not. So in Combes v. Mansfield, 3 Drewy, 193, the builder of a vessel mortgaged her to A, and afterwards by a second mortgage to B. He afterwards had her registered in his own name. The mortgages were never recorded. The ship was then transferred by an absolute bill of sale to B, and a registry taken out in his name. This was only meant to be a mortgage. To obtain more money, and to pay of B, the builder agreed with B that he should transfer the vessel to C. This was done, and C's name appeared on the registry as owner. C knew of the mortgage to A. Held, that A had no claim against C. The court said : "Now it is clear that, if this were any other species of property, land or leseholds, or indeed any other kind of property, any person taking by a decd an assignment of the legal interest, with notice at the time of a prior equitable charge, would take only subject to that charge. The question is, whether the ship registry acts preclude the application of that doctrine. The cases in this court are numerous, and they clearly establish this : that a mere contract in writing, however precise and regular, for the purchase and sale of a ship, does not entitle the purchaser to any relief, either as against the vendor, or as against any other person, who coming afterwards, with knowledge of the contract, takes an assignment of the ship and has it registered."

In Armstrong v. Armstrong, 21 Bear. 78, shares in a ship, purchased with A's money, were registered in B's name. After A's death, B entered into an agreement with his representatives admitting their right, and for a valuable consideration agreeing to sell the shares at the end of twelve months, and to account for the proceeds. B accordingly sold to C. Held, that though the ship registry act prevented the representatives enforcing any right against the ship, still they were entitled to recover the purchase- money in the hands of C. In Parr v. Applebee, K. Bruce, L. J., 35 Eng. L. & Eq. 218, the owner of a ship, being indebted to a firm, mortgaged it to A. B., one of the partners, to secure the debt. This mortgage was duly recorded. Afterwards, he executed a further charge to A. B. for money due from himself, or from him and his partners, from time to time, to the firm of which A. B. was a member. This was not registered. He afterwards executed a further charge in favor of other persons, who registered their security. The court held that the unregistered charge was inoperative. See also Lindsay _v._ Gibbs, 2 Jur. (x. a.) 1039, Ch. The case of Whitfield _v._ Parfitt, 4 De G. & Smale, 240, 6 Eng. L. & Eq. 48, may seem to contravene the doctrine laid down in Coombs _v._ Mansfield, _supra;_ but they are entirely consistant. In Whitfield _v._ Parfitt, the plaintiff, the registered owner, transferred the ship to the defendant by an absolute bill of sale. There was indorsed on the bill a memorandum of the same date as the bill itself, that, on the plaintiff's repaying to the defendant, the sum of 1001, with interest, the bill of sale should be null and void. The bill of sale was registered, but the indorsement was not. Subsequently, the defendant transferred the vessel to a third party, but this was never registered. It was held, that the plaintiff was entitled to redeem. The registry acts do not apply to the cargo or freight. Armstrong, 21 Beav. 78; Langton _v._ Horton, 5 Beav. 9. Nor, do they prevent a lien being created on a certificate of original registry deposited by an unregistered owner to secure advances made for the use of the ship. Clarke _v._ Batters, 1 Kay & Johns. 241. The registry of a ship is, however, conclusive as to the ship being in a fit state to be registered under the 8 & 9 Vict. c. 89, although there may be evidence to show that the ship was not so completed at the time of the registry. Coombes _v._ Mansfield, 3 Drewry, 198. Under the former acts a distinction was taken by Lord Eldon, between trusts created by the act of parties, and those arising by implication of law. The former were held to be within the acts, the latter not. Hence, under them the registered owner would have been estopped to show an equitable title in another, where it did not appear on the registry. Curtis _v._ Perry, 6 Ves. 739; _Ex parte_ Yallop, 15 Ves. 60, 68. See also, as to the equitable ownership under these laws, _Ex parte_ Houghton, 17 Ves. 251; Dixon _v._ Ewart, 3 Meriv. 832; 'Mair _v._ Glennie, 4 M. & S. 240; Robinson _v._ Macdonnell, 5 M. & S. 228; Hay _v._ Fairbairn, 2 B. & Aid. 193; Monkhouse _v._ Hay, 2 Brod. & B. 114; Lister _v._ Paryn, 11 Simons, 348; Thompson _v._ Smith, 1 Madd. Ch. 395.

**1d.** From its very nature, the registry can only be evidence of ownership at the time it was made, and the continuation of the exclusive title in the parties, whose names appear on its face, is a mere presumption of fact, liable to be disproved by competent evidence of a subsequent transfer to others.

But, by the provisions of the British acts, as we shall see hereafter, such a change of ownership, unless inserted in the registry, was null and void; hence, the registry became, as against all the world, conclusive evidence of the state of the title at any moment subsequent to its execution, and therefore conclusive against the existence of any legal ownership in other persons, at any such time. Camden _v._ Anderson, 5 T. R. 709; Westerdoll _v._ Dale, 7 T. R. 306 ; Marsh _v._ Robinson, 4 Esp. 98; Curtis _v._ Perry, _supra;_ _Ex parte_ Yallop, _supra;_ _Ex parte_ Houghton, _supra;_ Mestaer _v._ Gillespie, 11 Ves. 621, 625.

But the registry acts do not preclude the persons, who are named in the certificate of registry, from showing how, and in what proportion, they are respectively entitled. _Ex parte_ Jones, 4 M. & S. 450. And the statutes, having been passed for the reasons of domestic policy, have no application to foreigners, whose rights are to be determined by the law of nations. Therefore, the foreign part-owner of a privateer is liable for damages decreed against the owners generally, although his name is not on the registry. The Nostra Signora de los Dolores, 1 Dods. 290.

In this country, a transfer, against the provisions of the registry act, may be valid and binding, and therefore the registry can never be conclusive evidence against parties to it, that the legal title is in them at any moment, except that, when it is made. See cases before cited, and especially Colson _v._ Bonzey, _supra._ See also the case of Vinal _v._ Burill, 16 Pick. 401, which was assumpist with a count on an \_insulin com putsmeent, by one claiming to be the ship's husband, for displacements relating to the ship on a certain voyage, against several defendants as joint owners. In this case, the court held, that, although the registry was in the name of one of the defendants only, the plaintiff might introduce parol evidence to show that the others were jointly interested with him in a particular voyage, and liable as owners _pro hoc_ vice.

The precise ground of this ruling does not appear in the decision ; it would seem, on the whole, as if the judges were of opinion that the ownership, under the registry act, means only the general property or title, and does not exclude a transient and special property in another, such as an ownership _pro hoc_ vice.

On the other hand, it may be that the agreement, between the registered owner'and the others, was subsequent to the registry, and that the court meant merely to affirm the principle that registry is not conclusive evidence of ownership, and it is cited as an authority to this point, by Perkins in his notes to Abbott.

As the registry in this country is not conclusive evidence of property against those who are parties to it, and not even _primal facie_ evidence between third parties, it follows, as a matter of course, that it is not, by the force of the statute, made _exclusive_ evidence of ownership in such cases. Lord e. Ferguson, 9 N. H. 380 ; Hoasoy . Buchanan, 16 Pet. 215.

And it has been held, that possession and assertion of ownership, and notorioriety are stronger evidence of property in a ship than registry without possession. Bas v. Sneele, 3 Wash. C. C. 381, 390. See also The S. G. Owens, 1 Wallace, Jun. 386.

In Great Britain, the distinction has been taken that although property in a ship may be proved, as in the case of any other chatel, at least _primal facie_, by proof of possession and claim of title, proof of registry is necessary to make such evidence admissible. Fritz v. Anderson, supra. In an earlier case, however, where the plaintiff proved possession under claim of title, Lord _Elemborough_ held this to be _primal facie_ sufficient, and that he need not produce any evidence of registry, although it came out in cross-examination, that his title was derived from a bill of sale. A prior registry in the name of a third party, one Vincent Williams, and a subsequent register to the same person, upon a sale by decree of a vice court of admiarity, were offered in evidence to disprove the ownership by the defendants; but his lordiable considered that they were both perfectly consistent with a title in a third person in the interval, agreeably to the averment in the declaration, and did not render any further proof by him requisite. Robertson e. French, 4 East, 130. With respect to the last part of this ruling, Lord _Elemborough_ may have considered that the defendants having shown by their own evidence that Williams must have parted with his title, at some time or other in the interim, it came to the same thing, as to the period in question, as if they had offered no evidence whatever, leaving the presumption arising from the plaintiff's possession in full force. It seems to us likewise, that the registries in this case were by themselves _res inter alice actor_, and consequently, if objected to, could not have been admitted at all in evidence of facts stated therein, as was subsequently held by the same learned judge in Reusse v. Myers, 3 Campbell, 475, before cited. But we cannot help thinking, that, since the claim of title appeared to be founded on a bill of sale, the latter should have been produced by the plaintiff as the better evidence, as was objected by the counsel for the defendants'; and that any such proof, without some evidence of compliance with the registry laws, was contrary to the policy of those acts, the true rule being that stated in the later case, above cited. See also Thomas e. Foyle, 5 Exp. 88, where the same learned judge permitted the plaintiff to prove his ownership by parol, although it was objected that the bill of sale should have been produced in evidence, no attempt being made to set up any title elsewhere.

Lastly, is the register _primal facie_ evidence of ownership _in favor_ of parties to it ! In England, a practice of admitting it as such seems, from the language of Lord \_Elem

## 6. II.

**Effect of Registry on Enrolment.**

**borough, at one time to have prevalled, and at Nisi Prins,** _Bayley,_ **J., remarked, in the case of Tinkler** _v._ **Walpole,** _supra,_ **" This is very different from the case of a person, publicly asserting that he is owner, by the act of registering a vessel in his own name; that may be** _prind facie_ **evidence for him that he is owner; because the** **dreply publicly challenges all persons that he is so." But Lord** _Ellenborough,_ **in Flower** _v._ **Young,** **denied that such could be the case; the registry amounting to nothing more than the declaration of the party, be remarked, was clearly not admissible in his favor. And the court were of the same opinion in Pirie e. Anderson,** _supra,_ _Gobo,_ **J., saying:** \_" It was strongly urged for the defendant, that, because the title cannot be complete without the register, therefore the register shall be\*\* _prind facie_ **evidence of the title; that does not at all follow. If the legislature makes an act necessary to complete a title, it does not thereby make that act alone to be proof of the title; if such were the law, a man might make for himself a title to any thing in the world. With respect to the** _dictun of_ \*\*_Bayley,_ **J.," (**ited** _supra,_ **)** " I am satisfied that he said that, because he would not take on himself to decide a point which had never been decided, which was not the point raised at** _nisi prins,_ **and which it was not necessary to decide in that case." The argument, here stated to have been used in favor of the admission of the evidence, has no force in this country, where registry is not made necessary to complete a title; nevertheless, we should consider the question as more open to doubt than these cases left it in England.**

**In the case of The Mary, 1 Mason, 365, a similar objection was made. But** _Stoy,_ **J., held, without reference to its validity, that the defendants were, under the circumstances,** **stopped from making it by their own acts on record. And it was held by the court in Sharp v. Unit. Inc. Co. 14 Johns. 2014, that the registry was not** _prind facie_ **evidence in favor of the plaintiff, whose names did not appear on it, as proof that they were not owners of the ship. But it is to be remarked, that this ruling does not seem to have been requisite to the decision of the case. The question being, whether the plaintiffs should be allowed to make use of the register to rebut the presumption of ownership arising from their having procured a policy of insurance on a ship in their own name for the purpose of recovering back the premium. This case cannot, therefore, be considered as of authority otherwise than as a dictun. See also Ligon v. Orleans Nav. Co. 19 Mart. La. 682.**

**On the other hand, in Weaver** _v._ **The S. G. Owens, 1 Wallace, Jun. 365, the court take no such distinction between the effects of the register as** _evidence for_ **and** _again_ **those in whose name is stands, but hold generally, that in a question of ownership** _inter parts_ **it is** _prind facie_ **evidence of title in the person in whose name the ship is registered, liable to be rebutted by proof of actual ownership in another, whether temporary or absolute, as lessee or vendee.**

**See, however, Lincoln** _v._ **Wright, 23 Penn. State Rep. 76. The action was brought against the plaintiff in error for supplies furnished by the defendants for a vessel. The case turned on the point, whether the plaintiffs were owners at the time the supplies were furnished. There was evidence of a sale prior to the time, but it was shown that subsequently the plaintiffs made** **ach at the custom-house that they were the sole owners, and it was held that this evidence was admissible. The court said:** -- " A vessel may be sold, and, because the vendor retains the legal title as security for the purchase-money, he has her registered in his own name; a mortgage may do the same thing, while the mortgage keeps the possession; or an unconditional sale may be made, and the register be left unchanged. For these reasons, a certificate of the register is no evidence in favor of the person named therein as owner, nor in actions between other parties. It will not establish an insurable interest in the registered owner as against an underwriter, nor will it disprove such interest in the assured when the policy has been taken for the benefit of other persons. Neither would it be any defence whatever, in an action for supplies against one for whose profit the ship is navigated, to show that she is registered in another name. But all this does not prevent us from saying that a man's declaration on oith is some evidence _again_ him of the fact therein asserted. It is not conclusive, certainly. The defendants were permitted to show, if they could, that they had no actual interest in the ship ; but the jury did not think they succeeded, and if they were wronged in this we cannot help it." See also Dudley $v$. The Steam-boat Superior, U. S. Dist, C. Ohio, 3 Am. Law Reg. 622. In a criminal case,"where it is necessary to prove that the person indicted was on board a ship owned wholly or in part by an American, it has been held that the register is not even _primal facie_ evidence of such ownership. United States v. Brune, 2 Wallace, C. C. 264.

GL. III.\] OF THE SALE OF A SHIP WITHOUT WRITING. **47**

**CHAPTER III.**

**OF THE TRANSFER OF A SHIP BY SALE.**

**SECTION I.**

**OF THE SALE OF A SHIP WITHOUT WRITING.**

**It has been already remarked, that a ship is a chattel, and can only be regarded as such by a system of law which divides all property into real, (or land, or of the land,) and personal, which includes whatever is not real. It would seem, therefore, that the sale of a ship should be, so far as that law is concerned, governed by the same rules which are applied to the sales of other personal property. But these rules neither prescribe nor prefer any method or form, nor do they require any special or peculiar evidence of the few things which are essential to a sale of a chattel.**

**A transfer of real estate has been always a more solemn transaction. It was regulated by somewhat complicated and technical principles, which were adhered to with great exactness. In this country they are, for the most part, certainly, superseded by our statutes of conveyance and record. These require, in general, that every transfer of real estate shall be by** \*\*ded, which must be entered upon a record that is open to the public. And by adjudication it has been fully determined, but not without some strong reasons to the contrary, that, as the prescribed record is intended only to give notice to a party preparing to buy the land, or take it as security, actual notice or knowledge of an unrecorded deep shall supply the want of record, and have the same effect, so far as concerns the party having such notice or knowledge.**1**

**The English Statute of Registry of 26 Geo. 3, passed in 1786, was in force when our own statute of 1792 \[1\] was enacted. By its 16th and 17th sections it was provided, with much muteness, that " every alteration in the property of any ship or vessel " should be indorsed on the certificate of registry before witnesses, and should itself be registered; and that at every transfer the certificate of registry should be " truly and accurately recited in words at length in the bill or other instrument of sale thereof, and that otherwise such bill of sale shall be utterly null and void, to all intents and purposes." In speaking of this in 'Weston _v._ Penniman, 1 Mason, 317, _Sory_, J., said : " To entitle ships to be registered, and to be deemed ships of the United States, with the privileges and exemptions of such ships, it is necessary that the transfer should be made according to the form prescribed in the registry acts; that is to say, that it should be made by some instrument in writing, which shall recite at length the certificate of registry; but the acts do not declare any other transfer void and illegal, but simply deny to ships transferred in any other manner the privileges of ships of the United States, and deem them alien or foreign ships. _In this respect our acts differ from the English registry acts._**

It was remarked in a former section, that our statutes of registry copied the English statute substantially, and almost literally, with one important exception. That exception is the omission of the clauses just quoted. This is the difference to the which Judge Story refers. It may be stated briefly thus. The English statute makes a transfer of a ship wholly void, if not in writing and recorded; our statute only denies to a vessel transferred without writing or registry the privileges of an American ship. It is very important to determine, if we can, the cause of this difference.

It is impossible, or at least unreasonable, to attribute this difference to accident or inadvertence. The care with which our statute is drawn, the obvious purpose and utility of every other departure from the English statute, and the better adaptation of our statute to our own wants and circumstances, by reason of those departures, forbid the supposition, if it were otherwise ad

**CH. III.** **OF THE SALM OF A SHIP WITHOUT WRITING.** **49**

**misiable, that the framers of our statute did their work with so little thought or care or knowledge as to account for this important difference in this way. These clauses must have been known to the framers of our statute.**

**It is equally impossible to suppose that these provisions were omitted because they were unimportant and useless, or because we did not need them as much as they did in England. It must be remembered that England had then no system whatever of recording transfers, even of land; we had already gone before her in this respect, and the utility of the change was universally admitted, throughout our country. And yet, even in England, the registry of the transfer of ships was deemed necessary, and no reason existed for it there, which did not exist in equal force here. All this, our legislators of 1790 knew; and, in addition to this, there were those among them who must have been aware of the ancient and universal rule of the law merchant, which asserts the propriety, at least, of transferring a ship by a written document. In view of all these facts, it is impossible to suppose that these important provisions of the English statute were omitted in our own, except intentionally, deliberately, and for what was at that time deemed sufficient reason.**

**It then becomes desirable to ascertain this reason, if we can. We think it was a doubt whether Congress had any constitutional power to enact these provisions. There is in the Constitution of the United States no provision or expression which could give Congress this power, unless it be the clause in the eighth section of the first article, which mentions, among the powers given to Congress, that which permits them " to regulate commerce with foreign nations, and among the several States." And the question is, whether a just construction of this language could authorize Congress to regulate the sale or transfer by mortgage of our own ships in our own ports. It is true that a ship is an instrument of commerce; and has no other purpose or value. But it cannot be said, that the power to regulate commerce, means a power to regulate the ownership, transfer, and evidence of title of every thing which is used in commerce.**

**It is true that this section closes the enumeration of powers with the general provision " to make all laws which shall be YOL, L.** **5**necessary and proper for carrying into execution the foregoing powers." But this provision could not have been intended either to enlarge or to define the powers enumerated in the preceding part of the section, but only to give to those powers the fullest efficiency. Perhaps a distinction might be taken, which would bring the ship, after she was enrolled, and as it were, thus delivered up into the control of the United States, within their right to regulate the evidence of title and of transfer; and possibly this might be extended to the ship as soon as launched and completed; leaving her, previously, to the exclusive control of the State in which she belongs.

We are quite clear, that the framers of our statute of registry omitted these peculiar provisions of the English statute, because they deemed it unconstitutional to include them. And this inference is much strengthened by the fact that they did expressly and carefully provide for transfer by writing, certified and registered, so far as they were certain that these provisions related to commerce; that is, so far as related to the privileges, exemptions, or obligations of the ship while engaged in commerce; making such transfer and registry indispensable to her continuing to possess the rights of an American ship. But here they stopped. And we think that they stopped here, because they supposed that they had now exhausted all their authority on this subject derivable from the power to regulate commerce, and were, therefore, obliged to leave all that lies beyond this, as all regulation of title, transfer, and evidence of property in the ship when sold or mortgaged as mere merchandise or security, to the State government, which takes the ship up in all those relations in which it is property only.

Still it may be said, that this was the rigorous and cautious construction which would result from the principle that the Constitution was an adverse instrument, and therefore to be construed _strictly_,--but not the reasonable construction which would be justified by the supposition, that the Constitution was an instrument favorable to all parties, and should be, if not enlarged, certainly not restrained by construction; and such seems to have been hitherto the construction of this very clause, in all other cases.

But this question, which we admit to be a difficult one, has a

**GE. III.\]** **OF THE SALE OF A SHIP WITHOUT WRITING.** **51**

**very great importance in its reference to the Act of 1850, ch. 27.1** For this statute has changed, or, at least, has attempted to change, the law on this subject, very materially. It enacts, in substance, precisely those provisions which the Congress of 1792 refused to enact. As the statute is copied in the Appendix, we state here only that it declares that " no bill of sale, mortgage, hypotension, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devices, and persons having actual notice thereof; unless such bill of sale, mortgage, hypotension, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled." It might possibly be argued that this, statute meets only the case of a transfer of a ship by " bill of sale " or other " conveyance;" and therefore an' oral transfer, with delivery of possession, would be as valid as it was before. We should say, however, that the word " conveyance" must be construed as equivalent to " transfer," and that such oral transfer would be void, excepting under the proviso of this statute. Under this proviso, a transfer of any kind, which before the statute was adequate to pass the property in the ship, is now perfectly valid in reference to persons having notice of it. And if the statute be, for the reasons we have presented, or for any reasons, unconstitutional, the law on this subject stands as it did before. It becomes, therefore, important to consider whether any transfer of a ship, in good faith and for valuable consideration, without writing or record, would be effectual to pass the property of the ship, either under the exception of this statute, or on the supposition that it is unconstitutional, and therefore void. In the first place, we consider it certain that a transfer by written document is the ancient, customary, and proper way;2 but more than this may be necessary to make it the only legal way. On this question we must begin by remembering that a ship is personal property, a chattel, capable of delivery from seller to buyer. Now the rule of the common law, which prevails
52 ON THE LAW OF SHIPPING. \[BOOK I.

in respect to every species of personal property, is quite certain ; it is, that an oral sale for a valuable consideration, with delivery of possession, passes the property in the thing sold, absolutely, and is itself a completed transaction, which no writing, however convenient, or even requisite, on other grounds, can make more perfect. If we begin with this rule, the obvious question suggested is; whether this rule applies to shipping also; and the equally obvious answer is, that it must so apply, unless there be some rule or provision of law which makes the exception.

The earlier statutes of registration do expressly make this exception; but only for a specific and exactly defined purpose; and by a familiar rule of law this expression should exclude the -implication of any further effect. This question, however, has passed under adjudication; and we have an opinion, cited before, which we regarded as authoritative, that "the registry acts have not, in any degree, changed the common law as to the manner of transferring this species of property." \[1\] But there may be such a rule, derived from the known and established "_Lex Mercatoria;_" and this we may gather from a sufficiently ancient, recognized, and universal custom of merchants. We do not, however, find any evidence of such a custom on this point as would have the force of law.

Undoubtedly, as has been already intimated, the usage of merchants in all nations, the repeated statements of writers of authority, and indeed the nature of the property, lead to the inference that a transfer of a ship by a written instrument of some kind is usual and proper. But further than this we cannot go, because we see no sufficient ground for saying that what may even be called the rule of practice in this behalf has anywhere, by mere usage, the force of law. We doubt whether such intimations as occur in Jacobsen's Sea Laws, \[3\]-- that the writing is indispensable, \[4\] are to be taken as literally and exactly true.

Sometimes this is said to be the rule of the English admiralty. In much the strongest case, however, \[5\] Lord Stowell goes
**CH. III.\]** **OF THE SALE OF A SHIP WITHOUT WRITING.** **53**

**no further than to say, that "a bill of sale is the proper title, to which the maritime courts of all countries would look. It is the universal instrument of transfer of ships, in the usage of all maritime countries; ....it is what the maritime law expects, what the court of admiralty would, in its ordinary practice, always require." But the case did not turn on this question; and these remarks are, to a certain extent,** _obiter;_ **and if the whole case be examined it will be seen, we think, that Lord Stowell regarded the general question as an open one. Immediately after the words just quoted, he refers to the English statute of registration, which, as we have seen, requires such instrument in writing in the most positive terms, declaring, indeed, that no transfer without it shall be valid or effectual for any purpose whatsoever, in law or in equity. It cannot, therefore, be suprising to find all the English courts, whether of law or of equity, asserting that any transfer of a ship is incomplete and ineffectual, unless there be a bill of.sale.1**

Footnote 1: See _Ex parte_ Halkett, 19 Ves. 474, 475; Atkinson v. Maling, 2 T. R. 462, 466; Sutton v. Buck, 2 Tannt. 302.

**They have a reason for this in the stringent provision of their own statute. We have no new reason for it here. And whether the views we have above expressed as to the reason of the difference be accepted or not, it would seem that no court in this country would be justified in supposing this difference between the American and the British statutes to be merely accidental, or in holding that the American statute was intended to express the same thing as the British, when its language is so entirely different.**

**It is, moreover, to be noticed that the English courts of equity seem disposed to confine the operation of this clause within strict limits. So far as the decisions of this country, out of admiralty, go, we have** in the first place very positive declarations of common law courts, that the property in a ship may pass like that of any other chattel, without any instrument in writing. This would seem to settle for us the law on this subject, aside from the statutes, or from an admiralty construction or application of them. But we have in the next place, in 1817, a positive declaration by a court exercising full admiralty

**54** on THE LAW OF SHIPPING. \[B00K L powers, that the United States " registry acts have not in any degree changed the common law as to the manner of transferring this species of property."1 Here would seem to be a plain assertion that the common law rule above stated is in admiralty the rule as to shipping. But the very next sentence is, " To be sure, a bill of sale is necessary to pass the title of a ship; but this does not depend upon any enactment peculiar to our municipal law, but grows out of the general maritime law, which requires such a document as the proper monument of the title of the ship." It might seem that these passages are to be reconciled only by supposing that the court, by the "common law," mean to include the _lex mercatoria_ or " the general maritime law " as a part of it, and that this requirement of a written instrument thus becomes a part of the common law. But, an examination of the whole case, or even of the whole paragraph in which these passages occur, would show, we think, that this was not the meaning of the court. And if it was, it was certainly an _obiter_ opinion, not called for by the facts, nor by the questions raised, nor by the decision, for this distinctly sustains a merely equitable title, resting upon no bill of sale whatever. In Philips _v._ Ledley,2 the court said: " The difference between the law of England on this point, and the law of the United States, is _striking_." Thus far, then, we have no case in any American court, in which the rights of any party are made to depend upon this rule, or are distinctly affected by the assertion of it: But it may seem the case of Obl _v._ Eagle Insurance Co.3 goes this length. It involves directly the question of title to a ship. The plaintiff endeavored to maintain a title to one half of a ship by a merely oral transfer; and he' was not permitted to do so. _Shorg_, Justice, saying, " I think that a title to a ship cannot pass by parol, when she is sold to a purchaser;" and he quotes with approbation the remarks of Lord Stowell which we have cited above. But when we look at the facts in the case, the force of the language is very much abated. We find that the plaintiff had received a bill of sale of the ship toCH. III.\] OF THE SALE OF A SHIP WITHOUT WRITING. 56

himself and another; and he undertook to show that the bill of sale was in fact intended to pass the property in the whole ship to him alone. But says _Story_: " The legal title passed to both; and to introduce the parol proof would be to contradict the direct allegations of the deed." This was, of course, made impossible by the most familiar rules of the law of evidence; that is, of the common law, without any reference to the law merchant. The admission of this proof would have materially varied the meaning and effect of a written instrument of title, and that a sealed instrument, by parol evidence. Only to say that this could not be permitted, would have been abundantly sufficient to decide the whole case. So far, therefore, as this case is to be regarded as authority, we must consider the preceding remark of the court as either altogether _obiter_, or as applicable only to facts like those that the court were then considering.

On the whole, therefore, and as a conclusion from all these premises, we should say that there was no case in America in which a purchaser in good faith of a ship, or a part of a ship, was dispossessed of his property by the operation of that rule; or, in other words, because the purchase, or transfer to him, had not been made by means of, or accompanied by, any written instrument. We are confident that no court of common law would ever apply this rule to such a case, and with such an effect, unless so far as they might be constrained by the Statute of 1850. That is, no court of common law would consider a written instrument absolutely indispensable, and an oral transfer without one necessarily void and of no effect whatever. And still.less would a court of equity. And as a court of admiralty always possesses and exercises full equity powers, we are of opinion, that in any such case; where the equity or moral justice of the case required it, even a court of admiralty, if it considered a written instrument indispensable, would either require of the seller that he should make such instrument as the law required, or, acting upon a familiar equity principle, would consider that to be done which ought to be done, and assuming that such written instrument had been made, would protect the rights of the purchaser accordingly.1 question open to argument, appears to be the import of his concluding words in the case of The Sisters, 5 Rob. Adm. 155, 160. " Whilst Charnock was left in possession of the bill of sale, such a delivery as is here said to have taken place could not be a delivery of the title to the property. It was merely putting the property into the hands of another, for the purpose of executing a particular contract, but which contract was in fact never executed. Nothing less than an express declaration, made by Charnock to Tabbs, 'I deliver this to you for the use of Marsden,' could fairly raise the argument, how far delivery, coupled with the correspondence, could be held equivalent to a hill of sale." But see The Helena, 4 Rob. Adm. 8.

That, independently of the registry acts, no bill of sale was necessary to transfer the property in a British vessel, would seem to follow from those cases which have deter- mined that, where these acts do not apply, the ownership may be, at least _prind_foci_, established by evidence of possession under claim of title, or other matter in _pains_, as in the case of any other chatel. Robertson v. French, 4 East, 150; Thomas v. Fogle, 5 Exp. 88; Prie e. Anderson, 4 Tann. 652 ; The Nostra Signony, 1 Doda. 290. See, also, Bas v. Steele, 3 Wash. C. C. 381 ; United States v. Amedy, 11 Wheat. 392, 409; Honey v. Buchanan, 16 Pet. 215.

Under the American registry acts it is well settled, that a parol sale of a ship with delivery is good to pass the title from the vendor to the vendee, although the privileges of an American bottom are thereby forfeited. Wendover v. Hogeboom, Anthon's, N. P. 121, 7 Johns. 308 ; Taggard v. Loring, 16 Mass. 386, 340; Lamb v. Durant, 19 Mass. 54 ; Bixby v. Franklin Ins. Co. 8 Pick. 86 ; Weaver v. The S. G. Owens, 1 Wallace, Jun. 389 ; Fontaine e. Beeng, 19 Ala. 729 ; Leonard v. Huntington, 15 Johns. 298 ; Badger v. Bank of Compleand, 26 Maine, 428; Vinal v. Burril, 16 Pick. 401 ; Barnes v. Taylor, 31 Maine, 329; Mitchell v. Taylor, 32 Maine, 434.

Nor is the national character, _ipso facto_, gone by such a transfer, but the registry act makes the production of a bill of sale requisite to entitle the ship to be registered anew, and the want of such new registry forfeits the national character. If, therefore, a bill of sale is executed at any time before application made for a new registry, it is sufficient. United States v. Willings, 4, Cranch, 48; Hatch v. Smith, 5 Mass. 42, 58.

The effect of the forfeitture is not that the ship acquires the character of an alien ship for all purposes, but that she loses the privileges of an American vessel. Fontaine v. Beers, supra.

The difference in the result of a non-compliance with the terms of the registry acts in the two countries has been well established in the case of other provisions common to the acts, and classed with them and enforced by the same penalties as the requirement of an instrument in writing, thus affording a strong presumption, independent of direct authority, that this diversity extends to the clause requiring such instrument.

Thus the same section requires that the bill of sale shall " recite the certificate of Footnote 1: Note that the $\\alpha$-function is not a function of $\\alpha$, but it is not a function of $\\alpha$.

the registry of the transfer in the custom-house sufficient, so that registry under the State statutes is unnecessary; or, secondly, is registry in the custom-house indispensable, or is it enough that the transfer is recorded under the State statutes. Waiving the question of the constitutionality of the Statute of 1850, which we have already considered, we are of opinion that the United States statute controls the State statute, so far, that record under this latter would have no effect as legal notice of the transfer. At least, if it be constitutional, we do not see how its requirements can be superseded or supplied by those of a State law.1

Footnote 1: It is well settled that a law of Congress, which is in accordance with the constitution, is the supreme law of the land, and that a State law which comes in conflict with it must cease to operate, so far as it is repugant to the law of the United States. License Cases, 5 Horv. 504, 574; Fox $v$. The State of Ohio, 5 Horv. 410; United States $v$. Margold, 9 How. 560; Moore $v$. The State of Illinois, 14 How. 13; Grova $v$. Slangbird, 15 Pt. 44; Passenger Cases, 7 How. 383; Nathan $v$. The State of Louisiana, 2 Horv. 73; United States $v$. Peters, 5 Crandh, 115; Magne $v$. Grima, 8 How. 490; Weston $v$. City Council of Charleston, 3 Pet. 449; McCulloch $v$. Maryland, 4 Wheat. 316; Osborn $v$. Bank of United States, 9 Wheat. 738; Prigg $v$. The Commonwealth of Penn. 16 Pt. 593; Ogden $v$. Sanderds, 12 Wheat. 213; Brown $v$. The State of Maryland, 13 Wheat. 419; Norris $v$. City of Boston, 4 Met. 389, 288; People $v$. Brooks, 4 Den. 469. See also, Port Wardens of N. Y. v. Cartwright, 4 Sandf. 286, opinion of $v$. Plain, 3 It is provided by statute in New York, that a steamboat navigating the waters of that State at night shall carry no lights. It is also provided by an act of Congress that steambeat carry one or more lights. In Fitch $v$. Livingston, 4 Sandf. 492, a steam propeller, licensed as a center, going up the Hudson on a voyage from Philadelphia to Albany, came into collision with another steamer, and was found by the jury to be in fault because she carried only one light. It was argued, that, having compiled with the provisions of the United States statute, she had done all that was necessary, but the court held that she was bound to comply with the statute of the State through whose waters she was passing. See, however, The Steambost New York $v$. Res, 18 How. 228. ${}^{\\rm 3}$ Rev. Stats, ch. 74, 6. ${}^{\\rm 4}$ This question of possession will be more fully considered in a subsequent section.

CH. III.\] OF THE SALE OF A SHIP BY THE MASTER. 59

principle would apply to a mortgage of goods at sea; for, in general, all the principles which apply to the sale of the ship at sea, apply to the sale of her cargo.1

Footnote 1: Gardner v. Howland, 2 Pick. 599, 603; Pratt v. Parkman, 24 Pick. 41; Gallop v. Newman, 7 Pick. 283; D'Wolf v. Harris, 4 Mason, 515; Conard v. Atlantic Ins. Co., 1 Pet. 389, 449. Quite recently some further points have been decided in respect to this act of 1850. Thus, it has been hold, that mortgages must be recorded at the custom-house where the vessel was last registered. Potter v. Irish, Sup. Jud. Ct., Mass., March T. 1859, 91 Law Report, 108. It has also been held in Admiralty that the act does not apply to charter-aries. Hill v. The Golden Gate, 1 Newb. Adm. 308. And by Judge Hoffman, in the Superior Court of New York City, that the act does not abolish State statutes, and, therefore, that a mortgage which is recorded according to the act of Congress, and also according to the State statute, take precedence of a prior mortgage which is registered only according to the act of Congress. Thompson v. Van Vocheten, Nov. 1857. But we doubt whether this be law.

In Marsh v. The Brig Minnie, U. S. D. C., South Carolina, 6 Am. Law Register, 328, it was held, that the lion on a vessel for supplies, was not a "hypothecation." within the meaning of that phrase in the act of 1850, and need not, therefore, be recorded.

${}^{\\bullet}$ It is expressly declared by several foreign ordinances, that the master shall not sell the ship without special authority for that purpose from the owners. He was, however, authorized to borrow money upon the credit of the ship, with the consent of his crew. Consult, par Boucher, c. 156 ; Laws of Oleuron, art. 1; Laws of Wisbay, art. 13; Laws of the Hanes Towns, art. 57 ; French Ord. liv. 2, 4, 1.

It seems probable from the early case of Tremenhere v. Treillian, Siderfin, 452, that the power of the master to sell his ship under any circumstances whatever, without interactions from the owners, was not originally recognised in England, although there is a case in Jenkins' Centuries, p. 165, which might contenance a different doctrine. It is there observed, that in case of famine a master may sell his ship, although it does not belong to him. Lord Raymond, in Johnson v. Shippen, 3 Ld. Raym. 982, considered a bill of sale given by the master vold at such, but valid as a hypotension of the vessel, upon which process it even might issue in admiarity, although not in permanent. The passage in Eklins v. East India Co., 1 P. Wms. 935, 9 Bro. Parl. Cas. 381, cannot be considered, as we apprehend, an authority one way or the other; for, although it is there stated that the captain had no power to sell the ship, it was also expressly found that there existed no necessity for a sale. It is now well settled by a series of decisions, that the master, in a case of necessity, has the power to sell. See cases info. And Dr. Lauslington, in the case of The Catherine, 1 Eng. L. & Eq. 679, ever, be imminent and extreme; and the master must have acted in good faith, and with the exercise of a sound discretion. It is not quite easy to determine by exact definition what the power of the master is in this respect. It is certainly not enough that he acted in good faith, if the necessity were not so cogent as to give him the authority.1 It is sometimes said also, that it is not 681, says : "In later days I think a wiser view of the question has been taken, because I take the law now to be, that, where an urgent necessity exists, which the master cannot meet, if is competent to him to sell the vessel." But in such a case, the burden of proof lies on the purchaser to show that the sale was necessary. The Glasgow, 28 Law T. (Adm.) 13.

1 The Fanny & Elmira, Edv. Adm. 117; Hunter _v._ Parker, 7 M. & W. 322 ; Canman _e._ Masburn, 1 Bing. 243 ; Meaburn _v._ Leckie, 4 Dow. & By. 207, n.; Idle _v._ R. Exch. Ass. C., 8 Teunt. 755 ; Tanner _v._ Bennett, Ryan & M. 182 ; Hayman _v._ Molton, 5 Esp. 65 ; Robertson _v._ Clarke, 1 Bing. 445. The law is stated with great accuracy by Tindal, C. J., in Somes _v._ Sagree, 4 C. & P. 376: "A great deal has been said about the word necessity. Undoubtedly, it is not to be confined to, or so strictly taken, as it is in its ordinary acceptation. There can, in such a case, be neither a legal necessity, nor a physical necessity, and therefore is must mean a moral necessity; and the question will be, whether the circumstances were such, that a person of product and sound mind could have a doubt as to the course he ought to pursue. The points principally for consideration will be, the expenditure necessary to put the ship into a condition to bring home her cargo; the means of performing the repairs, and the comparison between those two things, and the subject-matter which was at stake; and it must not be a mere measuring cast, not a matter of doubts in the mind, whether the expense would or would not have exceeded the value; but is must be so preponderting an excess of expense, that no reasonable man could doubt as to the propriety of selling under the circumstances, instead of repairing. A captain has no power to sell, except from necessity, considered as an impulse, acting morally, to excuse his departure from the original duty cast upon him of navigating and bringing back the vessel. If he has no means of getting the repairs done in the place where the injury occurs; or if, being in a place where they might be done, he has no money in his possession, and is not able to raise any, then be is justified in selling, as the best thing that can be done." And in this country the same rule exists ; the sale must not only be _bond idea_, but the necessity for it must exist. Pope _v._ Nickerson, 3 Story, 465, 504 ; Robinson _v._ Commonwealth Ins. Co., 8 Sumn. 320 ; Patapico Ins. Co. v. Southgate, 5 Pet. 604 ; The Brig Sarah Ann, 3 Sumn. 306, s. o. New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 887 ; The Sch. Tilion, 5 Mason, 465. The necessity which will justify the sale is termed by Shaw, C. J., an "imporious, an-controllable necessity." Peice _v._ Oceans Ins. Co., 1 Pick. 88, 88. In Somes _v._ Sagree, _supra_, and in Pope _v._ Nickerson, 3 Story, 465, 504, it is called a moral necessity. Mr. Justice _Stery_, in the case of The Ship Fortintado, 3 Sumn. 328, 248, thus defines the meaning of _morally necessity:_ " Some criticism has been employed upon the words $t$ moral necessity' as applied to the conduct of the master acting in cases of this sort; and it has been more than intimated, that the expression is quite new, and can scarcely be traced beyond the case of Gordon _v._ Mass. F. & M. Ins. Co., 2 Pick. 349. It does not appear to me that the criticism has any just foundation, or that the expression is either new or inspot. It seems to indicate precisely that which such a case requires. Moral necessity arises, where there is a duty incumbent upon a rational being to per

**CH. III.\]** **OF THE SALE OF A SHIP BY THE MASTER.** 61

enough that he sells in the exercise of a sound discretion, because the danger must be actual. But it is quite certain that the validity of the sale is not to be judged of by the event. That may show that the danger was apparent only, because the first tide, or an immediate change of wind, lifted her off:1

form, which he ought at the time to perform. It presupposes a power of volition and action, under circumstances in which he ought to act, but in which he is not absolutely compelled to act by overwhelming, superior force." And in Hall v. Franklin Ins. Co. 9 Pick. 466, it is said: " The sale should be indispensably requisite. The reasons for it should be cogent. We mean a necessity which leaves no alternative; which prescribes the law for itself, and puts the party in a positive state of composition to act." The master may sell where the ship is a total wreck. Cambridge v. Andron, 2 B. & C. 693; Ireland v. Thompson, 4 C. B. 149. Or, in an insurance case, if the expense of repairs would exceed the value of the vessel when repaired. Gordon v. Mass. F. & M. **In. Co., 9 Pick. 249.** See also, on this point, the remarks of Mr. Justico _Bayley_, in Gardner v. Salvador, 1 Moody & B. 116. " If the situation of the ship be such, that, by no means within the master's reach, it can be treated so as to retain the character of a ship, then it is a total loss. If the captain, by means within his reach, can make an experiment to save it, with a fair hope of restoring it to the character of a ship, he cannot, by selling, turn it into a total loss." The master's opinion of the necessity, and the benefit resulting from the sale, and his professional skill, will not justify him in the absence of a real necessity. Patapeco Ins. Co. v. Southgate, _supra;_ The Henry, 1 Bl. **& Howl. Adm. 466.** The presumption however is, that he has done his duty. Robin-on v. Com. Ins. Co. 3 Sum. 290. In Post v. Jones, 19 How. 150, the vessel was vrecked on the coast of Behring's Strais. The cargo, consisting of barrels of oil, was taken out and saved by three other whaling ships. The form of an auction was gone through with, the captains of the three vessels being the bidders, and the ship and tackle were sold for five dollars, and the cargo, part at a dollar, and the root at seventy-fore cents per barrel. The sale was held invalid. The court said: " All the cases assume the fact of a sale in a civilized country where men have money, where there is market and competition. They have no application to wreck in a distant ocean, where the property is derelict, or about to become so, and the person, who has it in his power to have the crow, and salve the cargo, prefers to drive a bargain with the master. The necessity in such a case may be imperative, because it is the price of safety, but it is not of that character which permits the master to exercise this power." 1 The Brig Sarah Ann, 9 Sumn. 206, 215; affirmed on appeal, New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387. Mr. Justice _Wayne_, delivering the opinion of the courts in this case, said: " Nor can the necessity for a sale be denied, when the peri., in the opinion of those capable of forming a judgment, makes a loss probable, though the vessel may in a short time afterwards be got off and put afloat. It is true, the opinion or judgment of competent persons may be falsified by the event, and that their judgment may be shown to have been erroneous by the better knowledge of other persons, showing it was probable that the vessel could have been extracted from her peri without great injury or incurring great expense, and the master's incompetency to form a judgment or to act with a proper discretion in the case may be shown. But from the mere fact of the vessel having been extracted from her peri, no presumption can be raised of the master's incompetency, or of that of his advisers." See also Idle v.

If, however, we understand by actual danger the actual probability of destruction, as far as that could then be measured or estimated, then, it is true that the authority of the master to sell springs only from a necessity which is caused by actual danger; for danger is one thing, and destruction another; from danger there may be escape, and this may even be swift and easy, and yet the danger have been real and great.

The rule must be, that, if the circumstances were such that if any master of ordinary skill and intelligence, carefully observing all the facts, and weighing all probabilities, would be led to the conclusion that an escape from destruction was but little more than possible, and that a delay sufficient to acquaint his owners with his condition and receive their instructions would in all probability cause a greater loss, he may then sell.1

Footnote 1: See post, p. 64, n. (1) and (2).

**We may be guided, in applying this rule to any case, by**

**would have done if present; not always what that identical owner would have done, because a peculiarity of temperament might make him hope too long or despair too soon. The ship must not, we repeat, be sold on a mere**
**experiency; or because that may turn out to be the best course. But if it is quite certain that any owner of common understanding and acquaintance with ships and navigation, being on the spot and conusant of all the facts, would conclude that the only thing left for a prudent man to do was to sell the ship at once, then the master may sell.2**

\*\*Royal Ex. As. Co. 8 Taunt. 755; Fontaine _v._ Phoenix Ins. Co. 11 Johns. 293; Hall v. Franklin Ins. Co. 9 Pick. 466, 484; The Henry, 1 Bl. & Howl. Adm. 465. 1 See post, p. 64, n. (1) and (2). 2 Where the master sells the ship, and the question of the validity of the sale is disputed by the former owner, so that the only question is between him and the vendee, it is clear that the sale will be deemed valid, if the circumstances attending it were such that a jury would be warranted in finding that a prudent owner would have done as the master did. Hayman v. Molton, 5 Exp. 65. But we are not disposed to carry the doctrine of " prudent uninsured owner" further than this. And in a case of insurance, we should say, that, in judging of the necessity of the sale, what a prudent owner uninsured would have done, if present, should not be considered. We are aware that this is said to be a test, in numerous cases; but to show the fallacy of it let us take the case of " memorandum articles,' where the rule is that if the goods arrive in specie there is no total loss. Now, probably in every case, the best thing that can be done is to sell the * \[50\] \*\*The same way that the same way is to say, the same way that the same 64. ON THE LAW OF SHIPPING. \[BOOK I\]

owner himself, if there under similar circumstances, would have found a sale the only thing he could do; for, it must be such as to show that the sale was _clearly_ of _necessily_, and not of _expedi-ency_ only.

At one time, a distinction was made between the power of the master if abroad, or if wrecked on the coast of his own country.1 But this has disappeared. The only rule now is, that he must inform his owners, and wait their instructions, if he can.2 The general introduction of the electric telegraph will much extend this possibility, and consequent duty. For, let the master be where he may, and his owner far or near, it is certain that he can only dispossess the owner of his property by a sale, when his authority for this rests on necessity, and only when that necessity is such as to preclude intercourse between them without an unreasonable exposure of the property to peril. In other words, if he can become the agent of the owner with instructions, then he cannot be his agent from necessity.3

Footnote 1: Sell v. Briddle, 2 Wash. C. C. 150.

Footnote 2: The Brig Sarah Ann, 9 Sumn. 206, 215. In this case, Mr. Justice Story states the law as follows: " It has been suggested at the argument, that, as the stranding was on a home shore, at no great distance from the residence of the agent of the owners, the master was not authorized to sell without consulting the agent or the owners. I agree at once to the position, if there is no urgent necessity for the sale. But if such an urgent necessity does exist, as renders every delay highly perilous, or ruinous to the interests of all concerned, the duty of the master is the same; whether the vessel be stranded on the home shore, or on a foreign shore, whether the owners' residence be near or be at a distance. I am aware of the doctrine maintained by my brother, the late Mr. Justice Washington, in Scull v. Briddle, 2 Wash. C. C. 150 ; and, unless it is to be received with the qualification above stated, I cannot ascent to it." Same case affirmed, New Eng. Ins. Co. v. Brig Sarah Ann, 15 Pet. 887.

- In Pike v. Balch, 38 Maine, 309, a vessel on a voyage from Calais, Maine, to New York, was wrecked on an island of Little Machis Bay. There was a telegraph station distant twenty miles from the wreck. It was held, that if the master could " by any available means " in his power communicate with his owners, he was bound to do so. The vessel was sold by the master without notice being given to the owners, and the sale was held to be invalid. And in the New England Ins. Co. v. Brig Sarah Ann, 13 Pet. 887, 401, the court say : " The true criterion for determining the occurrence of the master's authority to sell is the inquiry, whether the owners or insurers, when they are not distant from the scene of stranding, can by the earliest use of the ordinary means to convey intelligence, be informed of the situation of the vessel in time to direct the master before she will probably be lost. If there is a probability of loss, and it is made more hazardous by every day's delay, the master may then act promptly, to save something for the benefit of all concerned, though but little may be saved." See also The Brig Sarah Ann, 2 Sumn.-215; Scull v. Briddle, 2 Wash. C. C. 150. In Hall v.

\*\*

**CH. III.\]**

SALE UNDER A DECREE OF ADMIRALITY. 65

**If a sufficient necessity existed, and the master proceeded to make sale, he does so as the agent of the owners, and binds them by his acts or words in the same manner that he would if otherwise authorized to make the sale.1**

**SECTION IV.**

**OF THE SALE OF A SHIP UNDER A DEGREE OF ADMIRALITY.**

\*\*The ship is sometimes sold, abroad or at home, under a decree of the court of admiralty. If this be a condemnation as prize, or for forfeiture as contraband, or for smuggling, or for any such cause, or to pay salvage, or discharge a bottomy bond, or to satisfy any of the liens known to the maritime law, it would seem to be valid and binding upon all courts and all parties, unless it be shown to be vitiated by fraud.2 But if it be merely a decree on a survey, and rest on the ground of unfitness for service, or unseaworthiness, then it would seem that the courts of the country in which the ship belongs will look behind the judgment in admiralty, receiving the decree as of little more authority than the report of surveyors, or a similar statement, on the authority of which it probably rests. And the sale will then be valid or void, accordingly as the actual facts shall show it to have been necessary and justified, or the opposite.3 The courtsof the United States have asserted that this subject is within the general jurisdiction of admiralty, and that such a decree may be made. And there are intimations, perhaps, that such a decree would be the best protection of a master, and that it would be wise in him, therefore, to obtain it. It might be inferred from this, that they would consider such a decree of a foreign court of the same force as a decree of condemnation. But we are of opinion that they would not only inquire into the foundation on which such decree was founded, and into all facts bearing upon the question of jurisdiction, but also into the distinct question whether the facts connected with the condition of the ship were such as justified the decree.1

Footnote 1: The author is grateful to the anonymous referee for his constructive support.

**The practice of selling by decree of admiralty merely for unseaworthiness is not much known in this country, and the rule repaired." The same doctrine is reaffirmed in Hunter v. Prinsop, 10 East, 878 ; Morris v. Robinson, 3 B. & C. 196, 303. The English court of admiralty, though they admit, yet regret, the want of jurisdiction. The Fanny and Elmira, Edwards' Adm. 117, 119 ; The Warrior, 2 Dods. 288, 293 ; The Pitt, 1 Hagg. Adm. 240.**

1 Thus, Mr. Justice Story, in the case of the Schoener Tiltou, 5 Mason, 465, 474, says : " To what is suggested in that case, (Reid v. Darby,) as to the want of jurisdiction in the admiralty courts to decree the said of a ship in a case of necessity upon an application of the master, I, for one, cannot assent. I agree, that in such a case the decree of sale is not conclusive upon the owner or upon third persons, because it is made upon the application of the master, and not in an adverse proceding. But I cannot but consider it as strictly within the admiralty jurisdiction. It is _primal facie_ evidence of a rightful exercise of authority, but no more. The proceeding, being _ex parte_, cannot be deemed conclusive in favor of the party promoting It." See also Janney v. Columbian Ins. Co. 10 Wheat, 411, 418 ; Dorr v. Pacific Ins. Co. 7 Wheat, 581 ; Armorod v. Union Ins. Co. 2 Binn, 394 ; Steinmets v. United States Ins. Co. 2 S. & R. 1988 ; The Dawn, Ware, 488, 487.\*\*

In Grant v. M'Lachlin, 4 Johns. 34, an American vessel was captured by a French primator, and carried into port, but was never condemned as a prize. Subsequently she was employed by the French government to carry passengers to Barroso, and arrived there in a dismantled condition. After remaining there several months, she was sold by order of the Spanish commisary, and got off and repaired. She subsequently arrived in New York, where her original owners brought an action of trover against the vendee. The court held that the sale was fair and _bond fida_, and, being made in accordance with the laws of Spain, was binding on all parties. Mr. Justice _Z Thompson_ said : " As sale according to the law of the place where the property is "must vote a title in the purchaser, which all foreign courts are bound, not only from _comity_, but on strong grounds of public utility, to recognize. Without this rule, there could be no safety in derivative titles. The only inquiry in these cases is, Was the sale under a competent authority ! " Where a sale is made by the advice of survergons, it is _primal facie_ valid, and the burden of proof is on the party seeking to impeach it. Gordon v. Mass. F. & M. Ins. Co. 2 Fick. 249, 265.\*\*

**CH. m.\]** **SALE UNDER A DECREE OF ADMIRALITY.** **67**

**which permits such a decree to be examined into so freely is an exception to the general rule, which makes a decree of admirality** _in rem_ **binding upon all the world. But the reason of this rule in some degree qualifies it. The reason is, that all persons who have an interest in the property may interfere to protect it; but, in order that they may do this, there must be proper notice given, and reasonable opportunity afforded to them to assert and maintain their claims. Probably it would never be a sufficient reason for setting aside a decree of a foreign court of admirality, that the person who seeks to avoid it bad not actual notice or opportunity to present his rights and claims before the court, provided the usual notice and opportunity were given generally, and these were such as would import or carry with them a sufficiency of notice. But if these were wanting, if the proceedings were hastened, or so conducted that all persons interested would be in fact exposed to be deprived of their property unheard, this would taint the decree, and might have the full effect of fraud upon it.1 So if the property sold were never within the possession or reach of the court, either actual or constructive, or if the question upon which the case depended was not within their**

1Savryer \*\*r. Maine F. A Mar. Ins. Co. 12 Mass. 291; The Mary, 9 Cranch, 126. In Bradstreet v. Neptune Ins. Co. 3 Sumn. 600, 607, Mr. Justice Story is very explicit upon this point. He says: " If a seizure is made and condemnation is passed without the allegation of any specific case of forbiture or offence, and without any public notice of the proceedings, so that the parties in interest have no opportunity of appearing and making a defence, the sentence is not so much a judicial sentence as an arbitrary overcigni cdict. It has none of the elements of a judicial proceeding, and deserves not the respect of any foreign nation. It ought to have no intrinsic credit given to it, either for its justice or its truth, by any foreign tribanal. It amounts to little more, in common sense and common honesty, than the sentence of the tribanal, which first punishes and then bears the party --_custigtiguous, audigue._ It may be binding upon the subjects of that particular nation. But upon the actual principles of justice it ought to have no binding obligation upon the rights or property of the subjects of other nations; for it traamples underfoot all the doctrines of international law; and is but a solem fraud, if it is eluded with all the forms of a judicial proceeding. I hold, therefore, that if it does not appear upon the face of the record of the proceedings in rem, that some specific offence is charged, for which the forfeiture in rem is sought, and that due notice of the proceedings has been given, either personally or by some public proclamation, or by some notification or motion, acting in rem or attaching to the thing, so that the parties in interest may appear and make defence; and in point of fact the sentence of condemnation has passed upon car _parte_ statements without their appearance, it is not a judicial sentence, conclusive upon the rights of foreigners, or to be treated in the tribanks of foreign nations as importing verity in its statements or proofs."

### 68 ON THE LAW OF SHIPPING.

\[BOOK L \] jurisdiction, this would show the proceedings to be either grounded upon a fatal mistake, or upon intentional fraud. But this possession may, as it is now settled, be constructive; for both the English and the American admiralty will, as we shall state more fully in another part of this work, condemn as prize a captured ship which has been carried into a neutral port, and is lying there at the time of the decree.1

Footnote 1: The Christopher, 2 Rob. Adm. 207; The Henrick & Maria, 4 Rob. Adm. 43, 54; affirmed on appeal, 6 Rob. Adm. 139 n.; The Falcon, 6 Rob. Adm. 194; The Comet, 5 Rob. Adm. 285; The Victoria, Edwards' Adm. 97; Hopner _v._ Appleby, 5 Mason, 71; The Arabella and The Madera, 2 Goll. 886; Cherlot _v._ Foussat, 3 Binn. 290. But see Wheelwright _v._ Depeyster, 1 Johns. 471, _constr._

Footnote 2: The Flat Oyen, 1 Rob. Adm. 135; The Kierlighett, 3 Rob. Adm. 96; Havelock _v._ Rockwood, 8 T. R. 268; Wheelwright _v._ Depeyster, 1 Johns. 471.

- Grant _v._ M.Lachlin, & Johns. 34. In the case of the Schooner Tilton, 5 Mason, 465, the vessel being wrecked on the coast of North Carolina, was sold by a wreckmaster as she lay, under the laws of this State; and _Story,_ J., said, p. 479: " Where the sale is made by a wreck commissioner in cases falling within the language of the law, "without any person present to claim the same as owner,' a very different interpretation ought, as I conceive, to be given to his act. He is there made _virtate official_, the agent of the owner for public purposes, and his authority to sell, if exercised in good faith, is conclusive to transfer the property to any purchaser at the sale. Such a sale, however, though generally conclusive upon the title of the owner, is so only in cases of good faith. A statute salo by a public officer may be impeached, as, indeed, more solemn acts may be, for fraud; and the purchaser can protect himself only by showing that he is a _bond fide_ holder, without notice of, or participation in, the fraud. _A fortiori_, a sale made by the consent of the owner or his agent may be avoided for fraud." CH. III.\] COMMON RULES RESPACTING THE SALE OF A SHIP. 69

SECTION V.

HOW FAR THE COMMON RULES RESPECTING THE SALE OF A CHATTEL

APPLY TO THE SALE OF A SHIP.

**1.**_As to the Rules of Evidence and Agency._

The common rules as to evidence, agency, warranty, and the like, in respect to sales of personal property, apply to the sales of a ship. Thus, for example, if a ship is ordered to be built for a particular purpose, there is an implied warranty that she shall be fit for that purpose.1 So, also, the rule of _caveat emptor_ applies.2 But material representations, made to affect the sale, and doing this, have much the same effect as warranty.3 If, however, the contract of sale be reduced to writing, it would, generally at least, be very difficult to add new stipulations, or introduce representations and assertions, merely by oral evidence.4 If the ship be sold, as is done more often abroad than in this country, "with all her faults," this was once held to make it obligatory on the seller to disclose a fault which the buyer could not possibly ascertain.5 The later and prevailing doctrine seems to be, that the seller may, under such a sale, be silent as to any or all the faults which he knows, without any reference to the buyer's ability to discover them; but he must not be _active_ in concealing them, for this is a positive fraud.1 The rule cannot be better illustrated than by the old dictum in Rolle's Reports; if one sells a blind horse, he is not held without warranty; but

Footnote 1: In the paper we have not been able to find a complete proof of the claim.

CH. III.\] COMMON RULES RESPECTING THE SALE OF A SHIP. 71

if he sells a horse whose missing eye is supplied by a glass eye, he is liable for the deceit.1

Footnote 1: Southeastern _v._ Howe, 2 Rol. R. 5, _" Si home vend chivall que est lame null action gist pear co, mes caveat emptor ; low je vend chivall que ad null coulus la null action gist ; autrement lou il ad un counterfeit faux et Bright Eye."_ These words have generally been understood as in the text; but Mr. Oliphant, in his work on Horses, p. 73, says : " Probably by ' Bright Eye' is meant 'glass eye,' or _puta serena_, (which is a palsy of the optic nerve, and very difficult to detect), and the words, 'counterfeit et faux' may be an attempt of the reporter to explain an expression which he did not understand. Because putting a glass eye into a horse is very far in advance of the sharpest practice of the present day, or of any former period." This seems reasonable ; and then the case cannot be cited to illustrate the law of sale as stated in the text, which, however, rests upon sufficient reason.

## 2 What are the Appartenances of a .Ship.

How much passes by the word "ship," or the phrase "ship and her appurtenances, -- or apparel, -- or furniture," -- or the like, cannot be positively determined by any definition. Stowell and Abbott agree, that whatever is on board a ship for the objects of the voyage and adventure in which she is engaged, belonging to the owners, constitutes a part of the ship and her appurtenances, within the meaning of the English statute of 53 Geo. 3, c. 139.2 To define what would pass by these, or similar words, in a sale, we should add to this definition some expressions denoting that the thing in connection was distinctly connected with the ship and the proper use of her. Usage would have much effect in deciding this question ; and it is obvious that things may be part and parcel of a "ship" at one time and place, and under some circumstances, and not at others. In the note we show all that has been done to define the term by adjuications.3

Footnote 1: In Kyrter's Case, 1 Leon. 46, it was decided by the court, that _ballast_ was not included in the furniture appurtening to a ship, on the ground that the ship may sail without it, as where the cargo serves instead. And this seems to be the reason assigned by Lord _Ellaborough_, in a modern case, Lano _v._ Neale, 2 Stark. 105, for holding that iron kentledge, (pigs of iron cast into a particular form for ballast, see McCulloch's Dictionary of Commerce, under " Kentledge,") was not included in a bill of sale of a s ship with all her stores, tackle, apparel, etc., in the usual form, because, said his lordish, " it could not be considered as part of the ship or necessary stores, since common ballast might have been used." So in Burchard _v._ Tapscott, 3 Duer, 363, where the bill of sale conveyed the vessel with her masts, bowsprit, sails, boats, anchors, cables, and all other necessaries thereto appertaining and belonging, it was held, that ballast of any

**A ship would undoubtedly remain and continue to be the same ship, however extensively or frequently repaired; and even kind whatsoever, on board at the time of the sale, would not pass as a necessary appurentance to the ship. It would seem to be deducible from these cases, that nothing is to be considered an appurentance of a ship, unless requisite to its proper use, although connected with it at the time.**

**In Hokins** _v._ **Pickersgill, & Marsh. Ins. 737, Lord** _Mangfield_ **was of opinion, that the boats, rigging, and stores were included in the insurance on a whaling ship, her tackle, furniture, etc.; but as to the fishing lines, tackle, and stores, the question must depend upon the usage of the trade. The jury negatively the existence of this usage; and when the case came up on motion for a new trial, the judges were unanimous that they were not part of a** _ship's_ **tackle or furniture.** **Park. Ins. (8th edit.) 166. That** _provisions_**, put on board for the use of the crew, are protected by a policy on the ship and furniture, was considered as well settled in Brough** _v._ **Whinmore, 4 T. R. 206. But as to the boat, which Lord Mansfield likewise included, there seems to exist more uncertainty. Both Molloy, B. 9, ch. 1, 4, 8, and Beaves, p. 56, hold that in the sale of a ship, etc., the boat does not pass, and the point was determined the same way in an early case, in this country.** **Starr** _v._ **Goodwin, 2 Root, 71.**

**On the other hand, in Briggs** _v._ **Srange, 17 Mass. 405, a boat, cable, and anchor seemed to have been classed together, both by counsel and court, as appurentances of a ship, which could not be separated from her, so long as they were requisite to her use and safety, but might be attached by the sheriff, when the vessel was at the wharf and stood in no need of them.** **See also Roccus,'. 20 ; Straccha de Navibus, Pars 2, No. 12. In a policy of insurance, the word ship usually includes the boat.** **Hall** _v._ **Ocean Ins. Co. 21 Pick. 472; Emergi. c. 6, 4 7, Meredith's Ed. 143. See also Shannon** _v._ **Oven, 1 Man. & R. 392.**

**So a radder and cordage purchased for a ship are part thereof. Woods** _v._ **Russell, 5 B. & Ald. 942. In Goss** _v._ **Quinton, 3 Man. & G. 825, A ordered a radder to be made for his ship. The ship-builder began to work upon it, and stated that it was for A. This fact was not communicated to A till after the bankruptcy of the builder, which took place while the radder was yet unfinished. A, being then informed that the radder was intended for him, took it away.** **Held, that the property was in him. This case is, however, doubted in the Exchequer Chamber in the case of Wood** _v._ **Bell, 25 L. J. q. s. 321, 36 Eng. L. & Eq. 148, where it was held, that materials which had been fitted to and formed part of the ship would pass, even though they were not attached to the ship, but that those which had merely been bought for the ship, and intended for it, would not pass.** _Jervis_**, C. J., said: " Nothing that has not gone through the adrenal of being approved as part of the ship, passes, in my opinion, under the contract." This decision overrules, in part, the same case in the Queen's Bench, 5 Ell. & Bl. 712, 34 Eng. L. & Eq. 178. See also Baker** _v._ **Gray, 17 C. B. 462, 34 Eng. L. & Eq. 887. In The Alexander, 1 Dods. 278, a question arose whether a bottorny bond on the ship, her tackle, apparel, furniture, etc., could be enforced against the sails and rigging, which had been, according to the custom of the port, detached from the vessel for safe-keeping, and with the view of being returned to the ship when she was about to sail. The court held that it could.**

**In the case of The Dundee, 1 Hagg. Adm. 109, Lord** _Slowell_ **decided that the** _fishing stores_ **of a vessel engaged in the Greenland fisheries were** _appurentances_ **of the ship within the meaning of 53 Geo. 3, c. 159, restricting the liability of ship-owners in cases of loss to the value of the ship, freight, etc.** " The word\*\* _appurentances_\*\*, said he,

**CL III.\] COMMON RULES RESPECTING THE SALE OF A SHIP.** 73

**if at last all her original materials had disappeared.1 So, if she were taken to pieces with intent to reconstruct her and this was**

Footnote 1: There is a number of ways to do so, but it is not possible to use the same method.

**"is a word of wider extent than** _furniture_**, and may be properly applied to many things that could not be** _so_ **described (with propriety, at least) in a contract of insurance. It may not be a simple matter to define what is, and what is not, an appartenance of a ship. There are some things that are** _universally_ **so, things which must be** **appurtenant to every ship,** _qui_ **ship, be its occupation what it may. But, I think it is rather gratuitously assumed that particular things may not become so, from their immediate and indispensable connection with a ship, in the particular occupation to which she is destined, and in which she is engaged. A ship may have a particular employment assigned to her, which may give a specialty to the apparatus that is necessary for that employment.** **. The word 'appurtenances' must not be construed with a mere reference to the abstract, naked idea of a ship ; for that which would be an incommensance to a ship one way employed, would be an indispensable equipment in another, and it would be a preostrogens above to consider them alike in such different positions.** \*\*. You must look to the relation they bear to the actual service of the vessel.\*\*1

Footnote 1: There is a number of ways to do so, but it is possible to use the same method.

**This decision was affirmed in the Court of King's Bench. Gale v. Laurie, 5 B, & C. 156, where it came up on a declaration in prohibition.** _Abbot_\*\*, C. J., however, makes a distinction between the use of the word in the statate and in contracts of insurance, which renders it doubtful whether such stores would pass under a bill of sale of a ship, etc., and leaves it to be determined by usage. " We think," he says, (p. 164,) " that whatever is on board a ship for the object of the voyage and adventure on which she is engaged, belonging to the ovnes, constitutes a part of the ship and her appurtenances within the meaning of this act, whether the object be warfare, the overspace of passengers or goods, or the fishery. This construction furnishes a plain and inteill-gible general rule ; whereas, if it should be held that nothing is to be considered as part of the ship that is not necessary for her navigation or motion on the water, a door would be opened to many nice questions, and much discussion and cavil. It is true, that, in the case of insurance, these stores are not considered as covered by an ordinary policy on the ship. But insurance is a matter of contract, and the construction of the contract depends in many cases upon usage. And the construction of a policy can furnish no rule for the construction of this act of parliament, which was passed for purposes of a different nature."

**The cargo of a whaling vessel does not pass by a bill of sale of the ship, stores, and their** _appermances_**. Largton v. Horton, 5 Beav. 9, 23 Legal Observer, 524.**

**A** _chromaticer_\*\* belonging to the owner, which was on board at the time of the sale, was held to pass by the sale of the ship, the vessel being then at sea. s. c. 6 Jarist, 910. But in a similar case in Maine, the bill of sale was held, in the absence of any agreement of the parties or usage of trade shown, not to include the chronometer as an appurtenance of the ship, Mr. Justice\*\* _Emery_ \*\*remarking, however, " We do not intend to decide but what, in the improvements of canonical science, chronometers may become necessary spurtenances to ships." Richardson v. Clark, 15 Maine, 421, 425.\*\*done. But it is said, that, if taken to pieces without this intent and afterwards reconstructed in part, she is a new ship.1

Footnote 1: Molly, Book 2, ch. 1, SS 6.

## 3 _Of the Sale of a Ship by the Builder._

The builder of a ship is its first owner. It is true, that a party might contract with a builder to perform all the labor upon materials which that party would supply, and then the ship would belong to him for whom it is built, from the beginning, and would never be the builder's. But this is never done in practice. The ship-builder constructs the vessel either upon an order, or a contract for building or sale, or to sell it to any purchaser who may offer, or to own it himself. But it is possible, that the contract for building and sale may be such as to make the ship become the property of the future owner, by instalments, paid in the course of the building. The cases are not quite clear on this subject; there is in them some reference to provisions in the English statutes as to builders' certificates, etc., which do not exist in our own; but on general principles we should say, that, where the owner is to pay for her by instalments, if the instalments are merely _on time_, without reference to the state or forwardness of the ship, the property remains in the builder until the ship is finished and delivered; and if she be lost or destroyed in the mean time, it is the builder's loss, and he is still bound to build, finish, and deliver a ship at the appointed time. But if the instalments, although on time, are graduated, expressly or impliedly, upon the condition of the ship, CH. III.\] COMMON RULES RESPETING THE SALE OF A SHID. 75 and are intended to pay the builder for work and labor and materials to the time of payment, and to purchase the fabric as it then existed, each payment is in full for a purchase of the ship at the time it is made, and has the effect of passing the property absolutely to the vendee, subject only to the lien of the builder for the purpose of finishing the ship.

It will be seen in the note below, that the cases on this subject are quite irreconcilable. We think, however, the law must be this: A may sell his lumber, out of which a ship is to be made, to B, and B may buy it whenever they please, and where ever the lumber may be. And if, from all the facts, it is plain that it was the intention of the parties that one should sell and the other buy the fabric before it was completed, there is nothing in the law to prohibit or avoid the bargain. But such a bargain is not proved by the mere fact of instalments, however graduated, nor by the employment by the payer of a superintendent, (on which fact great stress is laid in some of the cases,) although these facts may go far towards identifying the structure, and sustaining an action for a breach of the contract in not finishing or not selling that very ship; and they may have an important bearing on the amount of damages. But they may, nevertheless, be insufficient to prove an actual sale and transfer of the property.1 the contract given portions of the price were to be paid according to the progress of the work, by the payment of those portions of the price, the ship was irrevocably appropriated to the person paying the money. That was a purchase of the specific articles of which the ship was made." And also, though with considerable doubt and hesitation, in Clarke a. Spence, 4 A. & E. 448, where the court seem to have reoted their acquiescence in the doctrine of _Abdet_, C. J., more upon the ground of precedent and expediency than principle. The case itself was similar to Woods v. Russell, with the omission of the registration, and the additional fact that no agent was employed by the purchaser to superintend the building and approve the materials employed. Whence "it follows," said _Williams_, _J.,_ "that, as soon as any materials have been approved by the superintendent, and used in the progress of the work, the fabric consisting of such materials is appropriated to the purchaser, otherwise the superintendent might be called upon, when one vessel had been nearly constructed, to begin his work _de novo_, and superintend the building of a second : and, in this point of view, the appointment of a superintendent by the contract appears to be of considerable importance."

In Moody v. Brown, 34 Maine, 107, there is a dictum, which admits that where payment is to be made by instalments the property will pass. In New York, however, a different rule of law is laid down, and it is there held that in such a case the property will not pass until the vessel is completed and delivered. Merritt r. Johnson, 7 Johns. 473. See also Johnson v. Hunt, 11 Wend. 135. It was so held also in a case where, in addition to the price being paid by instalments, a person was appointed by the vendee to superintend the work, though the court admitted that in such a case the builder would be bound to deliver the identical vessel. Andrews v. Durant, 1 Kerr. 35. In Scotland, the law as it is in England was settled by a very early case. Smith v. Duncan's creditors, decided in 1786, Bell on Sales (1844) p. 17. But where payment is to be made in a specific manner, without reference to the progress of the work, the property will not pass. Laidler v. Burlington, 2 M. & W. 602. In the late case of Wood v. Bell, 5 Ellis & B. 772, 34 Eng. L. & B. 176, 17e-vessel was to be paid for by instalments, the first four on certain days named and unconditionally; with no express reference to the stage in her building to which she might be advanced on the arrival of those days, and it was not apparent that the sums specified for each payment were to be commensurate with her probable progress on the days named. The next three instalments were also made payable on days certain ; but the first two of these payments were made to depend on her having been carried on to certain specific stages in her building on those days respectively. The payment of the third depended on her being, on the day named, built according to contract. The next circumstance was, that the vessel was to be built under the direction of a person appointed by the future purchaser. It also appeared in evidence that the builder, at the instance of the plaintiff, punched his name on the keel, for the express purpose of securing the vessel to the plaintiff, and, although he refused after this to execute a formal assignment to the plaintiff, yet at the same time he admitted her to be the plaintiff's progeny. It was held that whether the property passed was to be shown by the intention of the parties, as gathered from all the circumstances of the case. In regard to the payment by instalments, no decided opinion was expressed. As to the appointment of a person to superintend the work, the following language is used : "It certainly could not be contemplated that he was to superintend the building of more than one vessel under this

## 6 Conclusion

In this paper we have presented a new method for constructing the _local_ and \_local

**78**ON THE LAW OF SHIPPING. . \[BOOK L

this distinction does not exist, or not for any practical purpose, in this country.1

Footnote 1: See also, p. 57, note 2.

The builder should deliver to the first owner his certificate, that the owner may give it to the collector, as required by the statatte of registration.3

Footnote 1: See also, p. 57, note 2.

Footnote 2: At the end of the chapter, the author is entitled to thank the author.

## 4 Of the Possession of the Purchaser

The ship, although only a personal chattel, is one of a peculiar character; and these peculiarities introduce some modifications in the principles of the law of sale, or in the application of them; particularly in the rule as to delivery and possession. This rule, in reference to chattels generally, is, that if possession do not pass at once, or with but little delay, it is a badge of fraud, and the sale is defeated. But a ship may be sent to sea, not merely to go to the antipodes, but to pass from port to port as profitable engagements shall offer, for many years. It is certain, however, that the owner should, in the mean time, be able to sell his ship, if he wishes to. And the rule which we would lay down is this: that a _bond fide_ sale, on consideration, with whatever transfer of papers and of registry can be made, is valid, if possession be taken by the purchaser as soon as is practicable by reasonable endeavor, however long it may be before such possession is or can be taken.

The principles, we should say, are these: first, that the sale, meaning a transfer on good consideration and in good faith, does not give merely an inchoate right, to be completed by possession; but does in fact pass the whole property in the ship, and is a complete transfer thereof, vesting the same in the pur

**GL. III.\] COMMON RULES RESPECTING THE SALE OF A SHIP.** 79

**chaser, but liable to be divested by his laches in taking possession. The second would be this : that the purchaser is not bound to take possession as soon as possible by any means; he is not bound to go, or send an agent, or even transmit authority at once to a foreign and a distant port; but may, generally at least, wait her arrival in her home port. He ought, however, in prudence, if not in law, to forward notice of the sale and transfer to him to the master of the ship, (which has been held equivalent to taking possession,) and also to cause his name to appear on the register of the United States as owner, as soon as practicable, that he may give the public whatever notice such a record gives.**

**The distinction we make in the first principle is of much practical importance. If such a sale gives only an inchoate right, to be completed by possession, then of two innocent transferrees which ever can, by any means, get possession first, prevails over the other. This we deny to be the law, and hold that the cases which seem to lead to this conclusion are either erroneous, or are to be justified only by their peculiar circumstances. Undoubtedly, priority of possession may lead to an inference of laches in him who does not get possession; but it by no means proves it; and that is the only question. This will always be a question of mixed law and fact, and may sometimes be a difficult one. We say, however, that a subsequent purchaser cannot defeat the title of an earlier purchaser, by using means to get possession which the first purchaser either could not use or was not bound to use, and the non-user of which was not laches. Even that court which has permitted a second purchaser to complete his title by a first possession, and defeat a former purchaser without laches, has held that an attaching creditor has not a similar right. For if there be a sale in good faith, then an attachment by a creditor of the seller, and after that, but without any laches, possession is taken by the purchaser, the attachment is defeated.1**and Elizabeth, where they are recognized, and generally because a failure to take possession is evidence of fraud. _Ex parte Matthews_, 2 Yes. Sen. 273 ; Atkinson v. Maling, **2 T. R. 463** ; Gordon v. East India Co. T. R. 288\*\*, **334** ; Robinson v. Macdonnell, **5 M. & S. 228** ; Philpot v. Williams, **2 Eden**, Ch. 231 ; _Ex parte_ Batson, **3** Bro. Ch. 362\*\* ; Kirkje v. Hodgson, **1 B. & C. 588** ; Maric v. Glennie, **4** M. & S. 240\*\* ; Hay v. Fairbairn, **2** B. & Ald. 198\*\* ; Portland Bank v. Strobbs, **6** Mass. 429\*\* ; Portland Bank v. Stacey, **4** Mass. 661 ; Putman v. Dutch, **8** Mass. 287\*\*. In Lamb v. Darant, **12** Mass. 84\*\*, **5**, _Parker_, C. J., held to be well settled that such a conveyance by _ded_ passes the property. But the distinction, if any was meant, in not recognized in the other cases. See Tucker v. Buffington, **15** Mass. 477 ; Baldam v. Tucker, **1** Pick. 389\*\* ; Gardner v. Howland, **9** Pick. 599 ; Joy v. Sears, **9** Pick. 4; Pratt v. Parkman, **24** Pick. 41\*\*; Turner v. Coolidge, **2** Met. 350 ; Winsor v. McLellan, **2** Story, **499** ; Brinley v. Spring, **7** Greenl. 241 ; Morgan\* ExTx v. Biddle, **1** Teates, **3** ; Wheeler v. Sunner, **4** Mason, **183** ; D'Wolf v. Harris, **4** Mason, **5**; Conrad v. Atlantic line. Co. 1 Pet. 386, **44**. But the purchaser takes possession subject to all valid claims before notice of transfer. See cases _supra_, also Gillesp v. Conts, Ambler, **659**. It is true that in Portland Bank v. Stubb, **6** Mass. 429, **45**, _Parsons_, C. J., says : " The conveyance by Weeks & Son to the plightiffiths being a mortgage, it is a pledge of a personal chatted. But to such pledge a delivery of the chatted is essential to give the parnee a special property in it. And although a ship at sea may be mortgaged, yet the mortgage must take possession as soon as he may on her return, before the mortgage is complete." But by this is meant only that it is not complete in regard to a third person without notice. The cases also of Lamb v. Durant, **12** Mass. 54\*\*, and Lanfer v. Sunner, **17** Mass. 110\*\*, have been supposed to support the doctrine that as between two innocent parheas he who first acquires _actual_ possession completes his title as against the other; and the latter case has been questioned on that ground. Ingraham v. Wheeler, **6** Cona. 277, **284** ; Ricker v. Cross, **5** N. H. 570, **573**. See, also, **6** Law Reporter, **95**. This is owing, we think, to a misunderstanding of the principles on which those cases were decided. It is well settled, that, as between the parties, the property in goods sold will pass to the vendee, although the possession may remain in the vendor. But under the statue of 13 Elizabeth, to render the transfer valid as to third parties without notice, there must be a change of possession. **1** Parsons on Contracts, **441**, **442** ; Twyne's case, **1** Smith\* Lead. Cas. 1. But, where actual delivery is impossible, constructive, or, as it is sometimes called, symbolical delivery, is sufficient. The difficulty has arisen from overlooking this fact. In both Ingraham v. Wheeler and Ricker v. Cross there was a delivery of this nature. But in Lamb v. Durant and Lanfer v. Sunner this was not the case. In the latter, the goods were supposed by their owners in Phillet delphia to be **6** sea. They were actually landed in Boston. A written assignment was made in Philadelphia and delivered, but no money was paid, no bill of lading transferred, and there was no pretence whatever of any symbolical delivery. The goods were subsequently attached by creditors of the vendors, and possession taken by the shetiff, against whom the action was brought. The court did not deay, that if there had been a legal, as distinguished from an actual delivery to the first purchaser, his title would have been protected. See also Gardner v. Howland, **2** Pick. 599, **603**, per _Parker_, C. J. In Lamb v. Durant, the vessel was owned by a firm. One partner was abroad, and in actual possession of the vessel. It was held, that, under the cir
CH. III.\] COMMON RULES RESPECTING THE SALE OF A SHIP. 81

such registration, presents questions connected somewhat with that which we have just considered. The question is, in fact, whether this custom-house record is intended to be, or is in law, a public record, having a similar effect upon title that the public registry of deeds has on land titles. That is, is an entry of transfer or title in that registry, public notice to all the world; and can a subsequent transferee hold wherever there is no such register, unless, -- agreeably with the equitable construction of the statutes of land registry, -- a knowledge of the transfer can be brought home to him, which shall have, so far as he is concerned, the same effect as a public registry ? This subject has already been fully considered, and we refer to what we have said upon it in a former section and notes.1

Footnote 1: See p. 40, note 2, and sect. 1, of this chapter.

\*\*cumstantances of the case, a transfer by the home partner must be subject to all incumbunces, made by the partner in possession before notice of transfer, and that accordingly a sale with delivery of possession by the latter would intercept the title attempted to be passed by a sale by the former. In such a case it might well be held that there could be no constructive delivery by the home partner. See Hewitt _v._ Sturdevant, 4

B. Mon. 453. The purchaser must, however, take possession within a reasonable time : after the vessel arrives in port, and what is such a reasonable time is a question for the jury to determine from all the circumstances of the case. Joy _v._ Sears, 9 Pick. 4. Possession must be taken before the departure of the vessel on a new voyage, where the tranference is aware of her arrival in port. _Ex porte_ Matthews, 2 Yes. Sen. 272. In

Brinley _v._ Spring, 7 Greenl. 241, the court say that it may be deduced from the case of Mari _v._ Glennle, that notice to the captain supercedes the necessity of taking possession of the ship. So in Turner _v._ Coolidge, _apru_, the court strongly inclined to the opinion, that the possession of one part-owner who acted for himself and also for the other part-owner, who had purchased the rest of the vessel, superceded the necessity of the vendee's taking formal possession, and vested the property in him. See, also, Addis _v._ Baker, 1 Anstr. 222; Winsor _v._ McLellan, 2 Story, 492. Where the assignment is conditional, as in the case of a mortgage, an agreement that the mortgage shall remain in possession until condition broken likewise relieves the mortgage from the obligation to take possession. Badlam _v._ Tucker, 1 Pick. 889; Conard _v._ Atlantic Ins. Co. 1 Pet. 886, 449. As to the consequences of allowing the assignor to remain in possession, where there is no such agreement in the bill of sale, and the ship is not at sea, under 21 Jac. c. 19, 11, see Monkhouse _v._ Hay, 2 Brod. & B. 114; Robinson _v._ McDonnell, 2 B. & Ald. 134; Stephens _v._ Sole, cited in Ryll _v._ Bowles, 1 Yes. Sen. 355; Hall _v._ Gurney, 24 Geo. 3, B. R., 1 Cooke's Bankrupt Laws, 344. I would seem in accordance with the general principle governing such transfers, that it is not essential to their validity that the ship should be at sea at the time, provided she is equally beyond the immediate control of her owner, and accordingly in

_Ex porte_ Batson, 3 Bro. Ch. 362, and in Putnam _v._ Dutch, 8 Mass. 287, the court held a sale of a vessel in another port to be effective, provided the vendee was guilty of no laches in taking possession on her arrival in the port where he resided.

1
Footnote 1: See p. 40, note 2, and sect. 1, of this chapter.

## Chapter IV.

Of Part-Owners.

## Section I.

How Partnership in Vessels is created.

Two or more persons may own a ship by building it together, or purchasing it together, or by even purchasing a part. However it be acquired, they are tenants in common and not joint-tenants, unless by force of a special agreement between them. Therefore if one dies, his share goes to his representatives, and not to the surviving part-owners.1 If the register or instrument of transfer, or written evidence of ownership, do not define the proportions in which they hold the property, they will, in the absence of proof to the contrary, be presumed to have equal shares.1 GL IV.\] how partnership in vessels is created.

A ship, like any other chattel, may be held in partnership, and constitute a part of the stock in the firm.1 And then all the powers, duties, and obligations of the owners towards each other will be determined by the law of partnership. And if persons who own a ship as part-owners, and not as partners, equip and fit the ship out in all respects, and load her and send her forth upon adventure, in the cost and profit and control of which they are to share as partners would, there seems no reason for denying that they hereby form a partnership, or, at least, a _quasi_ partnership for this voyage and adventure;2 and that the law of partnership will apply to it so far as to give each of them a lien on the property for his disbursements and advances, for and upon this ship and voyage, and render them liable in the same way as partners;3 although it might be doubted, perhaps, whether, if the partnership be such a constructive one, it would give to each part-owner the absolute power of disposing of the whole property, in the same way in which a partner would have that power.4

Footnote 1: Doddington _v._ Hallet, 1 Yes. Sen. 497 ; Wright _v._ Hunter, 1 East, 20 ; Munford _v._ Nicoll, 20 Johns. 611 ; Barding _v._ Foxcroft, _v._ Greenl. 76 ; Phillips _v._ Parington, 15 Maine, 425 ; Sebrook _v._ Rose, 2 Hill, Ch. 3 ; Patterson _v._ Chalmers, 7 B.\_ Mon. 595 ; Hewitt _v._ Sturdervant, 4 B. Mon. 453.

Footnote 2: Doddington _v._ Hallet, 1 Yes. Sen. 497 ; Manford _v._ Nicoll, 20 Johns. 611, re-reming the decision of Chancellor \_Kent in the same case, 4 Johns. Ch. 592. See, also, Macy _v._ DeWolf, 3 Woodb. & M. 193 ; Hewitt _v._ Sturdervant, 4 B. Mon. 453 ; Hinton _v._ Law, 10 Mo. 701 ; Gardner _v._ Cleveland, 9 Pick. 384. See, however, Hopkins _v._ Yorylb, 14 Penn. State, 34, 38.

Footnote 3: Doddington _v._ Hallet, 1 Yes. Sen. 497 ; Eidderness _v._ Shackels, 8 B. & C. 612, 3 Man. & B. 25 ; Mumford _v._ Nicoll, 20 Johns. 611, 625 ; Hewitt _v._ Sturdervant, 4 B. Mon. 453, 466.

Footnote 4: Hewitt _v._ Sturdervant, 4 B. Mon. 453, 466. In this case it was held, that, where a stanboat was built to carry freight and passengers, and not to be sold, although held in partnership by her owners, one could not sell without the consent of the others.

There is certainly no right of survivorship among part-owners of a ship; and it is said _jus accrescendi, inter mercatores, pro beneficio commercial locum non habet.5_

Footnote 5: See _ante_, p. 82, note 1, and Bulkley _v._ Barber, 6 Exch. 164, 1 Eng. L. & Eq. 506, * Moffatt _v._ Parugharson, 2 Brown, Ch. 338. This, however, is not now the law; but a bill may be brought by one part-owner on behalf of himself and the others.

It has been held, (but is not now,) that all the part-owners of a ship must be parties to a bill filed for an account of the profits of a ship,6 however arising, or in whatever form existing;

**Abstract**

The general rules of cotenancy of a chattel apply to this case. Thus, if a part-owner sells the whole ship, or the share of another part-owner, they whose shares he sells may, if they please, confirm and ratify the sale; and then it takes effect as their sale;\*\* but without such confirmation it is wholly void. And it seems to be now held, that an unauthorized sale by a part-owner of the whole vessel, if carried into effect, is a constructive destruction of the property of the other owners, and trover may be maintained by them against the seller, or against the purchaser, if he also sells the property as his own.\*\* ButCCL IV.\] POWERS OF A PART-OWNER. 85

tover does not lie against a part-owner of a ship, or, indeed, any tenant in common, for merely dispossessing his co-owner; 1 nor can one part-owner maintain replevin against another; 2 nor, perhaps, bring trespasas for the sale of the whole.8 Neither can a part-owner recover damages against another at law, for fraud-

9 Cow. 330; s. o. 7 Wend. 354; Wilson v. Reed, 3 Johns. 175; Thompson v. Cook,

2 Southard, 580; Farr v. Smith, 9 Wend. 338. See, also, on this point, Barton v. Williams, 5 B. B. & Ald. 395; Farrar v. Beswick, 1 M. & W. 682, per Park, B.; Mayhew e. Herrick, 7 C. B. 299.

1 Fennings v. Ld. Grenville, 1 Taunt. 341; Selden v. Hiekock, 2 Caines, 166; Messeran v. Norton, 15 Johns. 179; Hyde v. Stone, 9 Cow. 230; Hurd v. Darling, 14 Vt. 214. There appears to be some controversy as to what will authorize one vacant in common to commence an action against a co-tenant. In the old case of Graves e. Sawer, T. Raym. 15, the court held that case would not lie at the suit of one part-owner against another for fraudulently carrying the ship to foreign parts, and there converting her to his own use, for " there cannot be any fraud between tenants in common, because the law supposes a trust and confidence between them." See the same case, reported 1 Lav. 39, 1 Keble, 38. But in the subsequent case of Bar nardiston v. Chapman, cited 4 East, 121, the plaintiff was tenant in common of one moiety of a ship, and the defendants cotenants of the other moiety. The defendants took the vessel by force from the possession of the plaintiff, and sent it to Antigua, where it was lost. It was contended that trover would only lie in case of an actual destruction, to which King, C. J., agreed, but left it to the jury whether, if it was found that the ship was taken away by force and secreted and carried beyond the reach of the plaintiff, an ensuing loss would not amount to a destruction.

The jury found that it would, and the Court annumiously agreed to the directions of the chief justice, and refused to grant a new trial. And in Lowthorv v. Smith, 1 Hayv. (N. C.) 255, the court state the law as follows: "If one of two joint-owners takes possession of the whole, no action will lie for this, for one hash as much right to the possession as the other; but if, after taking possession, he destroys the property, he is then liable, because the joint ownership does not empower him to destroy the property of the other; and if such joint-owner, after getting the sole possession, shall, without the consent, or against the will of the other owner, send the vessel to see, and she be lost in that voyage, the jury may consider such loss as a destruction of the vessel, occasioned by the joint-owner by means of sending her to sea, and find for the plaintiff." And so, generally, if a tenant in common, though rightfully in possession, yet by negligence causes the destruction of the property, an action will lie against him. Cheiser v. Thompson, 3 N. H. 9; Herrin v. Eaton, 13 Maine, 198; Maddox v. Godard, 15 Maine, 218; Anders v. Meredith, 4 Dev. & Bat. 199. But in Moody v. Beck, 1 Sandf. 304, where one of two joint-owners of a vessel took upon himself the management, direction, and control of the 'whole vessel, and by his carelessness, in-attention, and negligent and improper conduct the vessel took fire and was consumed, it was held that he was not liable to the other part-owner. See also, as to actions between part-owners of a ship, generally, Milburn v. Guyther, 8 Gill, 92; Guillot v. Dossat, 4 Mar. La. 203.

3 Barnes v. Barlett, 15 Pick. 71.

1 Furnog v. Barlett, 21 Pick. 401.

70L L
087ON THE LAW OF SHIPPING. \[BOOK L\]

ulently and deceitfully sending the ship on a foreign voyage, whereby she was lost; 1 nor in equity for the loss of a ship sent to sea against his consent.2

It is said, that, at common law, the majority of the part-owners may control and employ the ship at their pleasure, and put on board or remove whatever officers or masters they choose.3

We doubt, however, whether this majority could dispossess a master who was himself a part-owner,4 although such master, if dispossessed, could have at law only his claim for damages, and if he were removed for good cause, they would of course be only nominal.5 Questions of this sort do not often, in this country, come before our courts, either of common law or of equity; as our admiralty courts claim and exercise a complete jurisdiction over this whole subject-matter; and we shall consider this at some length in our chapter upon admiralty.

It is said that a part-owner of a ship, if the other part-owners are absent, and have not prohibited his action, has an implied authority to represent them in the management of the vessel, and that they will therefore be bound by his acts and contracts.

Footnote 1: See _amts_, p. 85, note 1.

Footnote 2: Anonymous, Skinner, 230 ; Strelly v. Winson, 1 Vern. 297. It is said in Horn v. Gilpin, Amb. 255, that the reason for the decision in Strelly v. Winson is not stated correctly in the reports, the real ground of the decision being that the part-owner did not expressly dissent.

Footnote 3: Anonymous, Skinner, 230 ; Strelly v. Winson, 1 Vern. 297. It is said in Horn v. Gilpin, Amb. 255, that the reason for the decision in Strelly v. Winson is not stated correctly in the reports, the real ground of the decision being that the part-owner did not expressly dissent.

Footnote 4: Anonymous, Skinner, 230 ; Strelly v. Winson, 1 Vern. 297. It is said in Horn v. Gilpin, Amb. 255, that the reason for the decision in Strelly v. Winson is not stated correctly in the reports, the real ground of the decision being that the part-owner did not expressly dissent.

Footnote 5: Our _J. Hope, 2 B. & C. 661 ; Gould v. Stanton, 16 Com. 12_.

Footnote 6: An The New Draper, 4 Rob. Adm. 287, 290, an action was instituted by the majority of the part-owners against a part-owner who was the master, to dispossess him of the command. Sir _William Scott_ said: " The dispossession of a master is in its nature not an uncommon proceeding; all that the court requires, in cases where the master is not an owner, is, that the majority of the propriators should declare their disinclination to continue him in possession. In the case of a master and port-owner, something more is required before the court will proceed to dispossess a person who is also a proprioter in the vessel, and whose possession, therefore, the common law is upon general principles inclined to maintain. It is not, however, by any means unprecedented for this court to proceed even to that extent; but then some special reason is commonly stated to induce the court to interpose." See also, Boulay Paty, Droli. Comm. Tom. 1, it. 3, 5. In the case of a foreign ship, as a general thing, the court will not interfere, on application of the other part-owners, to dispossess a captain who is also an owner. The Johan and Siegmund, Edv. Adm. 243. The court, however, in a subsequent case exercised the power where a force of the tribunal of the country to which the vessel belonged, exercising admiralty jurisdiction, was produced, directing the master to deliver up the vessel. The See Reuter, 1 Dods. 23.

Footnote 6: Montgomery v. Wharton, 2 Pet. Adm. 397, Beo, 388, 1 Dall. 49.

CCI. IV.\] POWERS OF A PART-OWNER.

Something of this is perhaps true of all cotenants of chattels ; and it may possibly be carried further in the case of ships, from the nature of the property ; but there must be a limit to this rule, for certainly absent part-owners would not be bound by any act of a part-owner, which was in itself or by force of circumstances so utterly and obviously unreasonable or prejudicial, that no one could rationally believe that they had authorized the act. Indeed, a consideration of the cases, and especially the latest, would lead to some doubt, whether a part-owner of a ship, as such, that is, when not authorized by being master or ship's husband or otherwise, has any more power to bind his copart-owners, than the cotenant of any other chattel has.1

Footnote 1: It is said in Abbott on Shipping, 105, " With regard to the repairs of a ship and other necessitates for the employment of it, one part-owner may, by ordering these things on credit, render his companions inside to be used for the price of them, unless their liability be expressly provided against." In \_.\_support of this proposition several cases are cited, but it will be found on examination that they are either cases of part-nership, or those in which the repairs were ordered by a person who was also the ship's husband or the master. The question, whether one part-owner is liable for repairs ordered by another who is not the ship's husband, has seldom arisen, though there are numerous diets on the subject. In _Ex porte_ Bland, 2 Rose, 91, 93, and in Stewart _v._ Hall, 2 Dow, 230 the repairs were ordered by the master. In Beckham v. Knight, 5 Scott, 619, and in Patterson _v._ Chalmers, 7 B. Mon. 595, the parties were partners, and not part-owners merely. In the following cases the repairs were ordered by the ship's husband, and the other part-owners were held liable. Chapman v. Duarant, 10 Mass. 47 ; Schemherhorn v. Loines, 7 Johns. 311 ; Muldon v. Whitlock, 1 Cow. 290 ; Thompson v. Finden, 4 Car. & P. 158. In Carlisio v. The Steamer Eudora, 5 La. Ann. 15, the action was brought by a pilot against the steamer and owners. The plaintiff was employed by one owner, who represented the vessel, by a written contract. There was paid evidence that at the time of entering into the contract the plaintiff contemplated the liability of all. Both owners were held liable. See also Hardy v. Sproule, 29 Maine, 258.

This question has been recently the subject of much discussion in England, in the case of Brodie v. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146. The action was brought for work done, and for goods barguined and sold. The vessel was owned by two part-owners, one of whom appears to have been in possession, though not the ship's husband, and the repairs were ordered by him. "The action was brought against the other owner, who, prior to the repairs being made, told his co-owner that he would not repair, and on finding that the repairs were actually in progress, he gave the plaintiff expense notice that he would not be liable. It was held, that the plaintiff could not recover. It might seem that the fact of notice having been given to the plaintiff might be . an element in the case which influenced the decision, but it is evident that if the copart-owner had authority to order the repairs, a subsequent contermand could not affect the vested rights of the parties, and indeed this point is not noticed by the court, who put their opinion on the broad ground that one part-owner has no authority to bind his co-owners. Mr. Justice _Williams_ states the law as follows : "Part-owners of a ship

**It has been held, that, if a part-owner expressly dissents from the employment of a ship on a certain voyage, and the ship is lost, he is not liable, in equity, for his share of the loss; but if he objects, and nevertheless does not expressly dissent, he is so liable.1 If a part-owner arrests a ship and prevents a voyage, after the other owners have expended money to repair and fit her out, he has been held bound to pay his proportion of these expenses. But the repairs in this case were of a permanent nature, and such as would be beneficial to the ship after the voyage was ended.2**

**are not in the situation of partners. To this extent they resemble partners, that they are all liable for repairs and such other necessary expenses for the ship which may be presumed to have been incurred with their assent; but they differ from partners in this respect, that the authority of one part-owner to pledge the credit of the others does not exist, as in the case of partners, unless such authority has been determined only by express dissent, communicated to third parties. There is no authority that any such law is applicable to part-owners." And**_Jervis_\*\*, C. J., in the same case says: " The only matter of difficulty which I have felt is the authority of Lord Tenetred," (cited in the beginning of this note,) " from which it would seem that something must be expressly done by a part-owner to limit his liability. I think, however, that means this, --that, when a ship goes into deck to be repaired, where the part-owner has previously allowed his credit to be pledged, or has held himself out as liable, he must give express notice in order to determine the authority; but where there has been no such credit, or holding out as liable, no such notice is necessary. The explanation of it is this, that the authority once given continues, unless notice of the contrary has been given." So in Revens v. Lewis, 2 Paine, C. C. 202, the court say: " Where one of the part-owners is the master or ship's husband, in the absence of all special agreement on the subject is is _presumed_ to have authority to do every thing necessary to be done for the employment of the vessel, and has of course authority to make repairs, and bind the vessel for the same; but as this is only an _implied or presumed authority,_ it must, like all other implied powers, cease when it is revoked, or any thing is done to rebut the presumption." But in King v. Lowry, 20 Barb. 539, where one part-owner assumed the control of the vessel to the exclusion and against the will of the others, is was held that all were liable for the supplies ordered by this one in the home port, the party making the repairs not having knowledge of the differences which existed between the part-owners.

1 See supra, p. 86, note 2.
2 Davis v. Johnston, 4 Sim. 539.\*
GR. IV.\] LLABILITY OF PART-OWNERS. 89

SECTION III.

OF THE LIABILITY OF PART-OWNERS FOR REPAIRS OR SUPPLIES.

In general, all the part-owners are liable _in solido_ for the repairs of a ship, or for 'necessaries actually supplied.1 This rests in part upon the general principle, that one receiving and holding a benefit must pay for it; and in part upon the peculiar nature of this property, and the necessity there is for the public good, as well as for the advantage of each owner, that, wherever the ship may be, all who are interested in her should be regarded as authorizing such expenditure for repairs or supplies as she may require.2 We shall see hereafter, that persons making repairs or furnishing supplies have also a lien on the ship. But they can neither have a lien on the ship, nor a personal claim against those of the part-owners who do not order them, if the repairs or supplies are wholly and obviously unnecessary, and therefore unreasonable.3 But the necessity in this case may not be a strict one. If the things furnished are in any reasonable conformity with the character of the ship, or the nature and purposes of the voyage, or if, in fact, they are such that any rational part-owner may be supposed to have desired them, it will be difficult for the absent part-owners to escape their liability.4

Footnote 1: Westerdell \_v. Dale, 7 T. R. 306 ; Chapman v. Durant, 10 Mass. 47 ; Scherehorn _v._ Lones, 7 Johns. 311 ; Muldon _v._ Whitlock, 1 Cov. 290 ; Hardy v. Sproule, 29 Maine, 258 ; Wright v. Hunter, 1 East, 20 ; Baldney v. Ritchie, 1 Stark. 338 ; Thompson v. Finden, 4 Car. & P. 158 ; Macy v. De Wolf, 3 Woodb. & M. 193, 204 ; Gallatin _v._ The Pilot, 9 Wallace, C. C. 592. In Louisiana, it is held that part-owners are not liable in solido, except when they form a partnership. Carroll v. Waters, 9 Marl. Le., 500 ; Kimbal v. Blanc, 20 Mar. (Le.) 386 ; David v. Eloi, 4 La. 106, 108 ; Burke v. Clarke, 11 La. 206.

- See remarks of Parker, J., in James v. Blixby, 11 Mass. 34, 36.
- Mollow, B., 3, ch. 1, 1 10; The Vibilia, 1 Wm. Rob. 1, 10 ; The Sophie, 1 Wm. Rob. 388 ; Mackintosh v. Mitcheson, 4 Exch. 175 ; The Ship Fortitude, 3 Sumn. 228, 333 ; United Ins. Co. v. Scott, 1 Johns. 106, 111 ; Pratt v. Tanno, 1 Brev. 449 ; Wainwright v. Crawford, 3 Yeates, 131, s. c. 4 Dall. 225 ; Mervin v. Shailer, 16 Conn. 489 ; Philip v. Ledley, 1 Wah. C. C. 226 ; Boldon v. Campbell, 6 Exch. 886, 6 Eng. L. & Eq. 473 ; Ledo v. Highen, 15 Ill. 41.
- Webster v. Seokamp, 4 B. & Ald. 359, and cases supra. 8\*
  It has been said, that a part-owner of a vessel is not liable to another for repairs made at a home port without his consent. If made against his prohibition, he would not be liable; but we should suppose his consent would generally be inferred, if the repairs were reasonable and proper, and he made no objection. A considerable distinction exists in respect to all the powers of a part-owner, a master, or a ship's husband, between the exercise of them abroad and in a home port. The reason is obvious. A ship far from its home might perish for want of aid which was delayed until all the owners could be consulted. But if at home, all who will have to pay have an unquestionable right to be consulted. It is not, however, quite certain whether the fact that the vessel is in a home port, which certainly limits these powers, goes so far as to destroy them. In other words, the question, whether one part-owner can bind another in a home port without specific authority, may be regarded as still open.1

Footnote 1: Benson w. Thompson, 37 Maine, 470; Hardy c. Sproule, 31 Maine, 71. In Mitcheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 319, 336, the question arose, whether a master had authority in a home port to make repairs. The point was not decided. _Parke_, B., stated that the court considered it an open question.

If one who has a claim for repairs or supplies receives a part of his claim from one or more of those liable _in solido_, those who thus pay a part, even if it be their share, or more than their share, are still liable for the residue. And they are thus liable, although the supplier expressly promised to discharge them in consideration of their paying as they did; for their payment alone would not be consideration enough in law to sustain the promise, even if they paid more than their shares, because they were legally bound to pay the whole.2 But if they paid on request, before they were bound to pay, or otherwise in any manner beneficial to the promisor, and not obligatory on them, or if they received a discharge under seal, the part-owners paying would be no further liable.8 It may, however, be doubted whether, in admiralty, the presence of a seal upon the discharge would make much if any difference. This we shall consider in our chapter on Admiralty practice.

**CL. IV.\]** LIABILITY OF PART-OWNERS.\*\* **91**

If especial credit is given to one only of several part-owners, the others are not liable; 'but it must be clear that this was the intention of the creditor; that is, it must be certain that he not only intended to charge one, but intended also that the other part-owners should not be charged.1 If the creditor knew but one, and for that reason charged him only, that we should not deem a sufficient discharge of the rest.3 If the charge were to "ship and owners," and were in any way authorized by those who were owners, they are all held, whether known or unknown; 3

1_Ex parte\_ Bland, 2 Rose, 91 ; Baldney v. Ritchie, 1 Stark. 338 ; Stewart v. Hall, 2 Dow. 29 ; Thompson v. Finden, 4 Car. & P. 158 ; Hasey v. Allen, 6 Mass. 163 ; James v. Bixby, 11 Mass. 34 ; Muldon v. Whitlock, 1 Cov. 290 ; Cox v. Reid, 1 Car. & P. 602 ; Reed v. White, 5 Esp. 122. In Jennings v. Griffiths, Ryan & Moody, N. P. 43, the court go so far as to say : The true question is, upon whose credit was the work done. This will generally be determined by the legal ownership, but may be rebutted by proof that the defendant has parted with the beneficial ownership, and all management of the vessel. This doctrine is entirely overthrow in England. Numerous recent decisions settle the law now to be, that where repairs are ordered by one person, and another is sought to be charged, the only question is, whether the party ordering was held out by the other as his agent, for if not he cannot be held. Thus _Parke, B._, in Mitchoson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219, 32 says : " We have often said the expostion, " Upon whose credit the work was done, or the goods were supplied,' is an incorrect expression, and likely to mislead the jury; the correct mode of leaving the question to the jury is, "who was the contracting party." See also, \*\*Myers v. Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204 ; affirmed, 18 C. B. 886, 36 Eng. L. & Eq. 350 ; Brodie v. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146 ; Mackenzie Pooley, 11 Exch. 638, 34 Eng. L. & Eq. 486. 3

- Thomson v. Zenverop, 9 B. & C. 78.
- Mitin v. Spinola, 4 Hill (N. Y.) 177. But it is perfectly clear that the fact of credit given, of which the charge " to the ship," or to "A. & B. owners of the ship Hero," or whatever the words used may be, is evidence, cannot, unless ruffled or adopted by the party or parties intended, enure to charge them, if they are not otherwise liable. The only effect it can have is, on the one hand, to restrict the liability to one or more of several parties who would otherwise be answerable, by showing the intent of the creditor to look exclusively to those named, and of this it is at best but _primal facie_ evidence, and liable to be rebutted by proof that the repairs, etc., were credited to those named, because the furnisher knew of no other; and, on the other hand, where words sufficiently comprehensive are employed to embrace all those who for any reason are legally chargeable, as, " To the ship and all concerned." This is bat evidence of an intent to preserve the remedy of the party entire, which the law will, generally at least, imply as well without it. In Jones v. Blum, 2 Rich. 475, supplies had been furnished for the ship by the plaintiff on a contract with one Stocker, who was the owner, but had mortgaged her to the defendants by a sarcomder of the old register, and taking out a new one in their names. He'continued, however, in possession of her, and said her for his exclusive benefit until she was taken possession of by the defendants. The goods were charged in the plaintiff's books " to the Brigand if the service is rendered to the ship, the fact that it is charged to one part-owner by name, might raise a presumption of intention to sell or work on his personal credit alone ; but we should say that this presumption was removed by showing that no others were known, because this was, of itself, a sufficient reason, and a more probable reason for charging only one of many who are liable. For the same reason, if payment is made by the negotiable paper of one, which paper is dishonored, the others are liable.1 In Maine and Massachusetts, the rule that

Hayne, master and owners." The bill was presented to Stocker, and his note for the amount taken. Upon these facts, the court were of opinion that the plaintiff had contracted with, and given credit originally and exclusively to, Stocker. That, consequently, the defendants never were liable, and that the charge in the books could not make them so.

In this connection, the case of Scottish v. Stanley, 1 Dall. 129, is worthy of attention. A vessel had been put upon the stocks, and a-contract entered into with the plaintiff for the painting by one Taylor, who subsequently interested the other defendants, Stanley and Carson, in a share of the vessel, but continued to act as ship's husband, receiving from them their share of the building and outfit. Subsequently he failed, and the plaintiff brought his action against all three. He had made his charges in his book " to Ship Hannah," and showed that on the 4th of April Stanley & Carson had engaged a captain for the ship. All the items of the account, but one, were dated subsequently to this act of ownership. Taylor offered to confes judgment ; on the part of the other defendants it was contended, that reference should be had to the time of the contract made, which being when Taylor was sole owner, the plaintiff could resort to him alone ; that no purchase made, or interest acquired afterwards, could make Stanley and Carson liable for a contract made with Taylor only, and on Taylor's sole credit, and that this case was particularly strong, it being proved that they had paid their proportions already to the ship's husband, Taylor. But Shippen, president, instructed the jury, that, as the work was performed after they had become owners, and appeared avorevly so, it was certainly done on their credit, and not only the ship's husband, but all the real owners at the time of the work done, were liable."

It is difficult to gather the precise ground on which this case stands, from the report. If, as might be inferred from the language of the court, the plaintiff recovered, not upon the original undertaking, but upon an implied assumpie for work and labor done and materials furnished, for no new undertaking or unification of the original contract by Stanley and Carson appears, they might be liable in respect of the benefit received ; the question of credit given becomes then unimportant, being a mere inference of law. On the other hand, if they were charged as principals for the act of Taylor, as their agent, some other satisfaction than the mere acquisition of the ownership of the vessel seems requisite to the adoption of his previous contracts by them. It is possible that the plaintiff did not originally contract upon the mere personal credit of Taylor, of which the charge " to the Ship Hannah," if not an after-thought, might raise a presumption ; but this would not, that we perceive, strengthen his claim as against the actual defendants. The probability is, that there existed circumstances in the case not reported. See also, upon this point, Henderson v. Mayhew, 2 Gill, 393.

1Higgins v. Packard, 2 Hall, 547; Muldon v. Whitlock, 1 Cov. 290 ; Scheme
GEL IV.\] LIABILITY OF PART-OVNEERS. 983

presumes negotiable paper to be intended as absolute payment,

unless the contrary be shown, might be applied in the common

law courts; \[1\] but we think it would not in the admiralty courts

sitting in those districts. \[2\]

Insurres who accept an abandonment of a ship become

thereby owners, and are liable as such; \[8\] but not _in solido_; for if

there be many insurers, each is liable only for his proportion, unless he promises to pay more. The reason of the exception is,

that the ownership is in this case cast upon them by misfortune

and necessity, and, if not against their will, at least is not assumed by their free choice and voluntary action. \[4\]

horn v. Loines, 7 Johns. 311; King v. Lowry, 20 Barb. 532; Patterson v. Chalmers,

7 B. Mon. 595. See also, Chever v. Smith, 15 Johns. 276; Wyatt v. The Marquis of Herford, 3 East, 147.

1 Chapman v. Darnan, 10 Mass. 47; French v. Price, 24 Pick. 13, 20; Wilkins v.

Reed, 6 Greenl. 220; Descallias v. Harris, 8 Greenl. 298; Newall v. Hausey, 18

Maine, 249. See also, Thacher v. Dinsmore, 5 Mass. 299; Manely v. M'Geo, 6

Mas. 143; Goodenow v. Tyler, 7 Mass. 36; Whitcomb v. Williams, 4 Pick. 228; Reed v. Upton, 10 Pick. 529; Watkins v. Hill, 8 Pick. 529; Wood v. Bodwell, 12

Pick. 685; Ilikey v. Jewett, 1 Met. 168; Butts v. Dean, 20 Met. 76; Curtis v. Hubbard,

9 Met. 329; 328; Thunstrom v. Blanchard, 22 Pick. 18; Milledge v. Boston Iron Co.

5 Cush. 158; Yanner v. Nobleborough, 2 Greenl. 121; Bangor v. Warren, 34 Maine,

334; Fowler v. Ludwig, 34 Maine, 455; Shumway v. Reed, 34 Maine, 560; Gilmore

v. Bassery, 3 Fairf. 418; Comstock v. Smith, 23 Maine, 902. See also the learned

opinion of Mr. Justice _Syngrove_, sitting as referee, in the case of Page v. Hubbard, 19

Law Reporter, 607. But this new expertise to notes not negotiable. Trustees, &c.

v. Kendrick, 3 Fairf. 381; Edmond v. Caldwell, 15 Maine, 340. In the case of The

Barge Resort v. Brooke, 10 Mo. 531, it was held, that it was competent evidence, in a

mit against a boat, on a note given by a former owner for services, to show that the

note was given and accepted as the individual node of such former owner, and for this

purpose the maker of the note was a competent witness. See also, Reed v. White,

5 Exp. 129.

- See Wallace v. Agry, 4 Mason, 336; The Barque Chusan, 2 Story, 455; The Brig

Restor, 1 Summer, 73, 87; Edmond v. The Medros, 9 Wood. & M. 99; Macy v. De

Wolf, 3 Wood. & M. 193; The Eastern Star, Ware, 185.

- United Ins. Co. v. Robinson, 2 Caines, 280; United Ins. Co. v. Scott, 1 Johns. 106; Reader v. Com. Ins. Co. 3 Johns. 352; Lee v. Boardman, 3 Mass. 338, 247; Emerg. on Ins. ch. 17, 8, 6, 1 (Meroldt, Ed. p. 684); Pothier, Contract d'Assurance,

n. 188.

- United Ins. Co. v. Scott, 1 Johns. 106, 110. Mr. Justice _Thompson_, in this case,

states the law with great accuracy. He says: "It cannot be controverted, that the

derriters upon the ship, after the abandonment and acceptance, became owners

thereby, and answerable for all necessary repairs and expenses. The acceptance must, I think, have a retroactive effect, and the underwrites be deemed owners from the

the accident happened. They cannot, however, be considered joint-owners, so as to

constitute them partners, or so as to make them responsible, one for the other. It cor of the LIABILITY OF PART-OWNFERS FOR THE TOTRS OF THOSE WHOX THEY EMPLOY.

\*\*The liability of part-owners of a ship for the torts of those whom they employ, or of each other, is governed by the principles of the law of agency. There may be something in the peculiar nature of this property, or in the powers and duties of those who are placed in charge of it, which, in particular cases, will, to some extent, qualify this law. But we are not aware that any questions of this kind have arisen, which this law of agency, rationally considered, has not sufficed to answer. The persons employed about the ship are the agents or servants of all the owners, and each owner is, to a certain extent, the agent and servant of the rest. Now every principal or master is liable for the torts of his servant or agent, if they were committed in the execution of the service or agency; or, in other words, if committed by the servant or agent by express order of the master, or in the discharge of the general duties belonging to such agent or servant; but not if they are the torts of one who is their agent or servant, but who, in this wrong doing, did not act as such agent or servant1 If a master or part-owner, while employed about a vessel, by a gross and faulty negligence set fire to one adjoining, or force her upon a rock or shore, or cause a collision, all the owners are answerable _in solido_; but

**OL. IV.** **LIABILITY OF PART-OWNERS TO BACH OTHER.** **95**

not if the same act were done by the same persons intentionally, and without any connection with the ship or any service rendered on board of her.

\*\*To illustrate this rule, if we suppose that a part-owner who is in charge of a ship, and clearing out a stove in a ship in the night time for the benefit of the ship, throws living embers out of his own ship in such a way that they fall on board of an adjoining vessel, which is thereby burned, all' the owners of the ship might, on general principles, be liable for this _in solido._ But if he took these embers from the stove for the purpose of setting fire to the other vessel, and executed this purpose, this would be his own felonious act, for which he alone would be responsible.1

Footnote 1: See post, ch. 11, 4 3.

**Section V.**

**OF THE LIABILITY OF PART-OWNERS TO BACH OTHER.**

**Part-owners are not, at common law, liable to each other for injury or loss to their common property by negligence. The reason given is, that each cotenant may protect himself, and need not leave the property in the uncontrolled possession of the other, unless he choose to do so; and if he does so choose, he must take the consequences. He has, therefore, no right of action if his cotenant or part-owner loses or injures the property by his gross negligence; although he would have it, if the cotenant had wildly destroyed the property.2 But this rule is rather technical than just, and we doubt whether it would be applied in admiralty; especially as the civil law, which is the common law of these courts, makes no such distinction.3**

Footnote 2: See ante, p. 85, note 1.

\*\*Where part-owners agree to fit out a vessel and load her for a voyage at their common expense and for their common profit, and one of them fails to advance his share, and then becomes bankrupt before the adventure is closed, the part-owners do not.\*\*96 ON THE LAW OF SHIPPING. \[hook L\]

pay over to his assignees all his profit, and take their dividend on the deficit of his advances; but they have a kind of lien on the adventure, for they may first deduct from his share of the profit whatever stands charged to him on account of the expenses and disbursements, and then pay over only the balance to the assignees.

This right of deduction is said to be confined to that very adventure, and not to extend to any former or general balance or indebtedness. But this question has been much discussed, and the authorities are quite conflicting. Probably in each case the decision would be much affected by the circumstances, as they 'showed a general partnership, or quasi partnership, or a partnership limited with all its rights and liabilities to that special adventure. Indeed, beside limiting the lien of part-owners of ship, as above stated, we should perhaps be justified by the best authorities in saying that part-owners have no lien _as such_ ; that is, none, excepting so far as they are in fact partners.1

Footnote 1: We have seen that part-owners of a ship may hold the same in partnership, but that such is not their necessary nor even their _primal facie_ relation to each other. The only point really decided in the much discussed case of Doddington _v._ Hallet, 1 Yes. Sen. 497, Belt's Sup. to Yes. 205, 2 Rose. 78 (n), whether rightfully or wrongfully decided, was, that the connection in that instance was one of partnership. That being decided, the existence of the lien resulted from it as a necessary consequence, according to the principles common to all coperturbing. See the remarks of _Spencer_, C. J., on this case in Mumford _v._ Nicoll, 20 Johns. 611, 633. All that later English cases have done seems to have been to contest the application of those principles to that particular case, and we appended that it was not intended to, and does not authorize the doctrine that part-owners of a vessel, _as such_, have any lien on the ship whatever. The contrary seems to be settled by the case, both in England and America. Ex parte Young, 2 Yes. & B. 249 ; Ex parte Harrison, 2 Rose, 76 ; 2 Bell's Comm. Sect. 1921, 4 ; Nicoll _v._ Mumford, 4 Johns. Ch. 592 ; Braden _v._ Gardner, 4 Pick. 456 ; Merrill v. Barlett, 6 Pick. 46 ; Thorndike v. De Wolf, 6 Pick. 120 ; Patton v. The Sch. Randolph, Gilpin, 457, \_g.\_i all the cases where the existence of the lien was recognized, the court were of opinion that there existed upon the facts a partnership between the parties for the purposes of the action. See Smith _v._ De Silva, Cowp. 469 ; Holdernes v. Shackels, 8 B. & C. 612 ; Mumford _v._ Nicoll, 20 Johns. 611 ; Hewitt _v._ Sturdevant, 4 B. Mon. 458 ; and although in Mumford _v._ Nicoll the judges go out of their way to express an opinion favorable to the existence of such a lien; they expressly state that their decision is based upon the existence of a partnership in the case before them ; hence that opinion is merely _other_. See also, Seabrook _v._ Rose, 2 Hill's Ch. 553. Where the part-owners of a ship are engaged in a joint enterprise, this does not necessarily create a partnership in the ship which is an instrument of that enterprise.

Thus in Holdernes _v._ Shackels, it is expressly stated by Ld. _Tentreden_, C. J., that the * \[\] & HUSBAND. 97

SECTION VI

OF THE SHIP's HUSBAND.

The ship's husband is usually, but not necessarily, a part-owner. He is the general agent of the owners in respect to the ship, and may be appointed, like other agents, by a written instrument or orally. Or his appointment may be inferred from his exercising the duties of his office with the knowledge and

claim of Iien is not on the ship, but on the proceeds of their common adventure, -- in that case, a quantity of oil, with regard to which he considered the defendants as standing in the relation of coppartners to each other.

In Mumford v. Nicoll, the partnership was held to extend not only to the fruits of the voyage, but to the ship itself, on the ground that such was the agreement of the parties. " I is true," says _Woodward_, J., " the appellant and Stillwell were tenants in common, and part-owners of the ship; and if no further connection appeared, the question would be very different from the one which arises in this case. It is admitted that here the parties were partners in the cargo and voyage; is it not equally clear

they were so in the vessel? _It is not the case of a vessel being chartered or earning freight_

so some, but the vessel is to be sold, as well as the cargo; the avails of both are to be invested in such a manner as the master may consider most advantageous. This has been carried into effect. ... After all this, to say that in respect to the ship the apellant and Stillwell stand as tenants in common and part-owners merely, and that the ship formed no part of the partnership property, is to my mind a proposition not founded in fact."

And further on he adds : "I consider these parties as commencing the business of a limited partnership in vessels, cargoes, and trading voyages. After having sent out one vessel and cargo, they proceed to a second, and then to a third. To say that each vessel and cargo is to be considered as being the subject of a distinct and separate partnership, rather than parts and parcel of the same transactions, does not appear to me warranted by the evidence." But in this last opinion the majority of the court did not concur.

_Spencer_, C. J., in delivering their opinion, is, however, equally explicit. "I must not be supposed to overrule," he says, " the distinction between partners in goods and merchandise and part-owners of a ship. The former are joint-tenants, and the latter are, generally speaking, tenants in common; and one cannot sell the share of the other. But I mean to say, that part-owners of a ship may, under the facts and circumstances of this case, become partners as regards the proceeds of the ship; and if they are to be so regarded, the right of one to retain the proceeds, until he is paid what he has advanced beyond his proportion, is unquestionable."

In the case of The Larch, 2 Curtis, C. C. 427, it was held that a part-owner, though ship's husband, has not a lien on the share of his tenant in common for advances and disbursements. See also, Sterling v. Hanson, 1 Cal. 478.

VOL L

\*\*

**on THE LAW OF SHIPPING. \[BOOK.I.**

**consent of the owners. These duties are determined by usage.1**

**They are, in general, to provide for the complete sea-worthiness of the ship; to take care of her in port; to see that she has on board all necessary and proper papers; to make contracts for freight, and collect the freight and all returns.2 He cannot borrow money;**

**nor give up the lien for freight;**

**nor insure, nor purchase a cargo for the owners,6 without especial authority;**

1 1 Bell, Comm. p. 410, 4th ed. * These duties are thus enumerated by Mr. Bell, 1 Comm. 410, ! 428 (4th ed.); id. p. 504 (5th ed.). 1. To see to the proper outfit of the vessel, in the repairs 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 it shall be sea-worthy. 3. 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 requisite in the performance of those duties. 6. To enter into proper charter-parties, or engage the vessel for general freight, under the usual conditions ; and to settle for freight and adjust averages with the merchant. 7. To preserve the proper certificates, surveys, and documents, in case of future disputes with insurers or freighters, and to keep regular books of the ship. See also, on this subject, Sims _v._ Brittain, 4 B. & Ad. 375; Owston _v._ Ogle, 13 East, 538 ; Benson _v._ Heathorn, 1 Young. & C. 326 ; Turner _v._ Burrows, 8 Wend. 144, 151 ; Gould _v._ Stanton, 16 Conn. 12, 23. In Benson _v._ Heathorn, _supra_, it was held by the court of chancery that for one of several managing directors of a joint-stock company for the acquisition and employment of vessels to take on himself the office of ship's husband was _prind facie_ a breach of trust; as his interest "In the one capacity was in conflict with the duty he owed the company in the other, and that he could not in consequence be allowed to make the usual charges against them for his services as ship's husband. But in Smith v. Lay, 3 Kay & Johns. 105, it was held that the owner of a majority of sharros in a ship might constitute himself managing owner, and, in that capacity, act as broker to the ship in collecting and distributing freight, there being nothing incompatible between such services and his fiducary character as managing owner. But the court, before allowing him a commission for these services, directed an inquiry whether, according to the custom of ship-owners or otherwise, he, being managing owner, was entitled to any, and if so, what commission.

Where there was an agreement between part-owners that one of them should have the exclusive management of the vessel as ship's husband, and that, after her return, a full account should be made out of the ship and her concerns, and the net profits, after all charges had been deducted, should be divided amongst the owners; it was held that this duty devolved upon the ship's husband, and that for not so accounting and dividing the profits an action lay against him by each of the part-owners. Owston v. Ogle, supra. So the agreement between the managing and other part-owners will be enforced in chancery. Darby v. Baines, 9 Hare, 369, 12 Eng. L. & Eq. 238.

8 1 Ball, Comm. 411, (4th ed.). * 1 Bell, Comm. 411, (4th ed.). * Hewett v. Buck, 17 Maine, 147.

- Ogle v. Wrangham, coram _Kapson_, C. J., Guildhall Siting, H. T. 1790, Abbott

**GE. IV.\] SHIP's HUSBAND.**

but if he makes such insurance, the parties for whose benefit this insurance is made may ratify this insurance for their own benefit; and it is said that they may do this even after a loss.1 A ship's husband cannot delegate his authority;2 and it is said that he cannot commence and prosecute an action at law, and bind the owners to the expenses,3 but this we doubt.

**If a part-owner, who is also ship's husband, advances the share in the outfit of another part-owner, he may sue that part-owner; but has no lien on the ship therefor.4**

**The ship's husband, (called, in our statutes of registration, the managing owner,) being the general agent of the other owners, binds his principals, while acting within his authority; but a creditor may waive their liability, and trust to him alone; and he will be estopped from denying this, and setting up a claim against the other owners, if he has dealt with the agent in such a way as to justify the principals in believing that he dealt with the agent on his personal credit only, and therefore has permitted them to settle their accounts with their agent in**

\*\*on Shipp. 107 ; French v. Bachouse, 5 Burr. 2727 ; Bell v. Humphries, 2 Stark. 345 ; Turner v. Burrows, 5 Wend. 541 ; s. c. 8 Wend. 144 ; Patterson v. Chalmers, 7 B. Mon. 595 ; Foster v. U. S. Ins. Co. 11 Pick. 85 ; Robinson v. Gleadow, 2 Bing. N. C. 156. And therefore, where he has insured in the name of, and for the benefit of the part-owners, he cannot recover from them the amount of the premium he has paid. Cases nayro. ${}^{1}$ Hagedorn v. Oliverson, 2 M. & S. 485 ; Routh v. Thompson, 18 East, 274. And see post, chapter on insurance. But one partner of a firm which owns a vessel may effect insurance for all. Hooper v. Lashy, 4 Camp. 66. ${}^{2}$ Mr. Bell, in treating of the limitations of the powers of a ship's husband, says: "1. That, without special powers, he cannot borrow money generally for the usvof the ship; though he may settle the accounts of the creditors for furnishings, or grant bills for them, which will form debts against the concern, whether he has funds in his hands or not, with which he might have paid them. 2. That, although he may, in the general case, levy the freight, which is, by the bill of lading, payable on the delivery of the goods, it would seem that he will not have power to take bills for the freight and give up the possession and lien over the cargo, unless it has been so settled by charter-party, or unless he has special authority to give such indolgence. 3. That, under general authority as ship's husband, he has no power to insure, or to bind the owners for premiums; this requiring a special authority. 4. That, as the power of the master to enter into contracts of affreightment is supersedded in the port of the owners, so is it by the presence of the ship's husband, or the knowledge of the contracting parties, that a ship's husband has been appointed." 1 Bell, Comm. 411, ; 429 (4th ed.); 1 Bell, Comm. 504, 505, (5th ed.). ${}^{3}$ Campbell v. Stein, 6 Dow, 116, 185. ${}^{4}$ Helme v. Smith, 7 Bing. 709.

100 on THE LAW OF SHIPPING. \[B00K L.

such a way as to be damnified, if made responsible to the creditor.1

If a ship's husband be not a part-owner, then he is the common agent of all the owners, and all the owners are responsible to him _in solido_ for his just charges, on the general principles of agency. If he be a part-owner, each is liable for his share,2 and we should say, that, if one or more became bankrupt, each of the solvent owners would be held, in equity and in admiralty, to make good his share of the insolvent's deficit, the ship's husband himself sustaining his own share of the loss by the bankruptcy and no more; agreeably to the rule of equity in cases of contribution.

Footnote 1: Thompson o. Fanden, 4 Car. & P. 158 ; Maldon v. Whitlock, 1 Cov. 290 ; Reed v. White, 5 Exp. 122. See also, Wyatt v. Marquis of Hertford, 3 East, 147 ; Cheever v. Smith, 15 Johns. 276.

As to the lien of the ship's husband, it may not be quite certain. If a partner, then he has the lien of a partner; if not, he may have a lien on the proceeds of a voyage, or of the ship itself if sold, or on her documents, provided any of these have come into his actual possession. And this lien covers all his actual expenses and disbursements for the ship, and his indemnity for any obligation incurred for the ship. But it is doubtful whether the mere office of ship's husband gives him any lien.8 Footnote 1: This is the case of the $\\alpha$-theorem, which is the case of the $\\alpha$-theorem, which is the case of the $\\alpha$-theorem.

persons build a ship together, to be owned by them in certain proportions, and one of them advances more thab his proportion, he has no lien on the ship for the balance due to him.1 And elsewhere it has been expreally denied that a part-owner has a lien on the shares of other bojners for his advances on account of a voyage.3 The claire are in irreconcilable conflict on this subject. Most, of thein are complicated with the question, how far part-owner may be treated as copartners.8 But we should say that, if a part-owner, or even if a ship's husband, who is not a _owner_, makes advances for a certain voyage, and then comes into possession of the proceeds of that voyage, he sflould have a lien on them for his advances, by the general principles of agency ; and as between the cases which admit and those that deny that a part-owner, merely as such, has a lien on the ship for his advances, while the more numerous authorities agree that there is no such lien, we cannot but think that those who favor it, -- we may name Hardwicke in England,4 and Story here,6 -- find some reason for their opinion in the nature of the property and of the ownership. But no principle will go so far in reconciling the leading cases on this subject as this; a part-owner, merely _as such_, has no lien whatever; but acquires such a lien when any of the elements of partnership or agency with EL. IV.\]LENS OF PART-0WNEERS, ETC. 103

bailment, upon which a lien may rest, enter into his relation with the other part-owners.

So, too, the admission or acknowledgment of a partner, in relation to the business of the firm, biads all the partners.1 But this rule has been held not applicable to the case of a part-owner of a ship; 2 although we have no doubt it would be applied, with other principles of copartnership, to cases of part-owner-ship, to which particular circumstances gave a character of partnership. So it has been the custom 'for part-owners of a ship to bring a bill against each other in equity for adjustment of accounts, in like manner as is done by partners.8 And although some doubt is cast upon the admiralty jurisdiction of this question in England,4 there can be none whatever as to our own admiralty courts. All part-owners should join in an action for a tort committed against all; but if they do not, no advantage can be taken of the non-joinder, except by a plea in abatement.5

Footnote 1: Story on Partnership, SS 107.

Footnote 2: Jagers _e._ Binnings, 1 Stark. 64.

Footnote 3: Story on Partnership, 449; Moffatt _v._ Farquharson, 2 Brown's Ch. 388; Good v.

Footnote 4: The Apollo, 1 Bagg. 306, 313, per Ld. _Sloewl._

Footnote 5: Cabell v. Vaughan, 1 Wms. Saund. 291, SS 2; Dockwray v. Dickenson, Comb. 865; Child v. Lands, 1 Salk. 31; Addison v. Overend, 6 T. R. 766; Sedgworth v.

Overend, 7 T. R. 379; Barnadison v. Chapman, cited 4 East, 122; Wheelwright v. Depeyster, 1 Johns. 472; Hart v. Fitzgerald, 2 Mass. 509; Thompson v. Hoskins, 11 Mass. 419; Patten v. Gurney, 17 Mass. 182.

In Addison v. Overend, _supro_, Ld. _Karyon_ held that it made no difference in this respect, that the defect appeared on the plaintiff's declaration. The succeeding case of Sedgworth v. Overend was an action brought by the remaining part-owner, who had not joined in the first action against the same defendant for the injury to jus share in the ship. The non-joinder was now pleaded in abatement, to which the former recovery was answered, and upon denumer the court were of opinion that the plea was bad. _Lawrence, J._, remarking : " The defendants, not having pleaded in abatement in the first action, cannot now make this objection; by omitting to plead in abatement then,' they assented to the severance of the actions. There might have been greater weight in this objection, if there had been several remaining owners, and only one of them had sned; but here the whole remaining interest in the ship is rescued in this plaintiff; however, if there had been several remaining part-owners, I do not think the defendants could ever have objected to the severance of the actions after they had omitted to plead in abatement in the first action." In Phillips v. Claggett, 10 M. &, W. 103, the declaration contained ten counts. The first five were in trover; the rest set forth that the plaintiffs having employed the defendant at his request, for reward, as agent or factor, to receive and take into his possession certain goods belonging to the plaintiffs, the defendant misconducted himself after the receipt thereof, in and about the care and disposal of the same, and by reason of such misconduct they became and were

**If, however, the action is for freight, or on any contract, the defendant may show the non-joinder in evidence under the general issue.1 But part-owners of a ship may be sued separately on separate covenants.2**

Footnote 1: The author is grateful to the anonymous referee for his comments.

Footnote 2: The author is grateful to the anonymous referee for his comments.

Footnote 3: The author is grateful to the anonymous referee for his comments.

Footnote 4: The author is grateful to the anonymous referee for his comments.

Footnote 5: The author is grateful to the anonymous referee for his comments.

If an action is brought against part-owners of a ship on a contract, and all are not joined, if the defendants do not avail themselves of the non-joinder by a plea in abatement, they cannot afterwards.3 It is now well settled, that an action of tort can widly lost to the plaintiff. The defendant pleaded in abatement to the whole declaration, that the goods therein mentioned were not the property of the plaintiffs only, but were the joint property of the plaintiffs and two other persons. On demurrer the court ordered a judgment of _responddat ouster_, on the ground that the plea was no answer, except to the first five counts, and that, being bad as to part, it was bad as to the whole.

Footnote 1: In Stanley \_v._Ayles, 3 Feb. 444, _Hale, C. J._, was of opinion that _indoblatus_ assumpiv_ by one joint-owner of a ship for his share of the freight was joint or several at the plaintiffs' election, and that evidence of the custom of merchants to bring it alone was sufficient. It seems, however, well settled, that, where the contract is joint, either by agreement or implication, as where the part-owners are general partners or quasi partners in the particular adventure, they must use together. "The necessity of all the part-owners joining as plaintiffs in the suit in this case," says _Abot_, in his treatise on Shipping, p. 115, "is founded upon the consideration, that all of them are partners with respect to the concerns of the ship." Perhaps it is more accurate to say that the part-owners are all parties to the contract, which () but to the use of the property which they hold as tenants in common. And if they do not, it need not be pleaded in abatement, but may be shown under the general issue. Hart s. Fitzgerald, 3 Mass. 509 ; Austin r. Walsh, 2 Mass. 401 ; Peters \_v.\_Davis, 7 Mass. 257 ; Baker v. Jewell, 6 Mass. 460 ; Robinson v. Cushing, 2 Fairf. 480.

In Baker _v._ Jewell, _supra_, the court were of opinion that the want of proper plaintiffs in actions of contract is an exception to the merits, and is to be taken advantage of either upon demurrer, in bar, or on the general issue, but not in abatement. The other cases seem, however, to consider that it may be so pleaded. In _replica_, all must join, and if they do not, the court will abate the wrist or _offico_. Hart v. Fitzgerald, _supra_.

- Servante v. James, 10 B. & C. 410, where the part-owners of a vessel agreed to load and despatch her on a voyage, the loss or profits arising from which were to be shared in proportion to the lading they respectively put on board, it was held, that a third person, who promised expressly to pay to each his share, could not object to an action by some of them, that they were partners. Bann v. Morris, 3 Caines, 54.
- "Formerly, indeed," remarked Lid. _Kayson_, in Addison \_v.\_Overnd, 6 T. R. 766, 770, "especially in cases of contract, it was held, that, if it appeared at the trial that there was a joint contract, and only one of the contracting parties was sued, it was a decisive objection against the plaintiffs action. But afterwards, for the convenience of the minors, on considering the principles on which those decisions proceeded, it was held, that, if a defendant meant to avail himself of such an objection, he must plead in abatement." See also, Boson v. Sandford, 9 Show. 478, 2 Salk. 440, 3 Mod. 321 ; Govett r. Radridge, 3 East, 62 ; Rice v. State, 5 Burr. 2611 ; Abot v. Smith, 2 Wm. Bl. 947 ; Marquand v. Webb, 16 Johns. 89 ; Hathaway v. Russell, 16 Mass.

CH. IV.\]

LINES OF PART-OWNEERS, ETC. 105

be maintained against one or more part-owners, as well as against all.1

If an action, which should be brought against all the part-owners of a ship, is brought against some only, and they satisfy the judgment recovered, they will have an action for contribu-

473; Converse v. Symmes, 10 Mass. 317; Robertson v. Smith, 18 Johns. 459; Ziele v. Campbell, 2 Johns. Cas. 382.

But where to a declaration in assumpist, alleging that the defendants A. and B. being owners of one fourth part of a certain vessel, and that C. D., etc., being owners of the other three fourth parts, the several owners individually, in their several proportions, and the defendants jointly, in their said proportion, promised the plaintiff to pay him for certain repairs of the vessel by him performed; and averting that the other owners had paid, but that the defendants had not paid, the defendants pleaded in basement that,it appeared by the plaintiff's own showing, that there were other persons liable who ought to have been joined, and subsequently, from a judgment of "_repowal contact_," appealed, the judgment was affirmed. Barstow v. Fossett, 11 Mass. 250.

1 One part-owner cannot, therefore, plead in abatement, that there are others who should be joined with him. An exception to this is where land is held in common, and the title is put in controversy by the suit. 1 Chitry on Plead. 73; Mitchell v. Tarbut, 5 T. R. 649; Low v. Mumford, 14 Johns. 426; Patten v. Gurney, 17 Mass. 189.

But where the declaration assumes the form of an action _exdict_, alleging a breach of duty and not a breach of contract, the question has arisen, and has been the subject of much discussion in England, whether one part-owner who is used alone can plead in abatement that there are others who should have been joined with him. The question being, whether the tort or breach of the duty resulting from the contract is to be considered as the gist of the action, instead of the contract itself. It was held in Goretu v. Radridge, 3 East, 62, that the plea was not available. This was in the Court of King's Bench. Subsequently, the court of common pleas decided the opposite way. Powell v. Lydon, 5 B. & P. 365; and in another case, that a plaintiff who failed to prove all the defendants to be part-owners could not recover at all. Max v. Roberts, 5 B. & P. 454. This case was afterwards argued in the King's Bench and in the Exchequer Chamber before all the judges. It is stated by the reporter that a difference of opinion was understood to prevail among them upon this question. The case, however, went off on a collateral point. Max v. Roberts, 12 East, 89. In the subsequent case of W'all v. King, 12 East, 452, the plaintiff declared in case, alleging a deceit to have been effected upon him by means of a warranty made by two defendants upon a _joint sole_ to him by both of sheep, their joint property, it was held that the plaintiff could not recover upon proof of a contract of sale and warranty by one only, as of his separate property, as the action, although laid in tort, was founded on the joint contract alleged. See also, Leslie v. Wilson, 3 Brod. & B. 171; Betherton v. Wood, 3 Brod. & B. 54. In Pozzi v. Shipton, 8 A. & E. 963, the court may: " We purposely abstain from giving any opinion, whether the doctrine in Goretu v. Radridge, or that in Powell v. Layton, be the true doctrine, as we do not feel ourselves called upon to decide between them, supposing them to differ." In Conacetti-cut, declarations in the form of tort, stating the injury to have been effected by breach of a contract, have been sustained. Stoyel v. Westcott, 2 Day, 418; Bulkley v. Stover, 2 Day, 531.

106 ON THE LAW OF SHIPPING. \[B00K L

tion against those who do not pay. If persons are joined who did not contract, or were not contracted with, this misjoinder may be shown, either by defendants or plaintiffs, on the general issue, and it is a fatal variance.1

In fourteen of our Western and Southern, States, actions may be brought against vessels by name. They are Georgia,2 Florida,3 Alabama,4 Arkansas,6 Kentucky,6 Ohio,7 Michigan

1 Spalding $e$. Mure, 6 T. R. 363; Tom $e$. Goodrich, 2 Johns. 113; Livingston's

Ex'rs $e$. Tremper, 11 Johns. 101; Jordan $e$. Wilkins, 2 Wash. C. C. 482.

2 Act of Dec. 11, 1851, Hotchkiss, Stat. Law, 625. See Robinson $e$. Steamer Lotus, 1 Kelly, 317; Butts $e$. Outherston, 6 Ga. 159; Adkins $e$. Baker, 7 Ga. 56.

3 Stat. of 1847, Thongs. Dig. 414. See Flint River Steamboat Co. $e$. Roberts, 2 Florida, 102.

4 Act of 1836, Clay's Dig. 139. See Steamboat Robert Morris $e$. Williamson, 6 Ala. 50; George $e$. Steates, 19 Ala. 738.

5 Rev. Stat. ch. 14. In a suit by attachment against a boat, the plaintiff should declare on the contract as having been made by the party making it, as the case may be, and not as made by the boat, but the attachment must run against the boat by name or description. Holeman $e$. Steamboat P. H. White, 6 Eng. 337. See also, Steamboat Napoleon $e$. Eter, 1 Eng. 103; Steamboat P. H. White $e$. Levy, 5 Eng. 411.

6 Act of 1839, 3 Stat. Law, 112; Act of 1841, 3 Stat. Law, 113. See Strother $e$. Lovejoy, 8 B. Mon. 135.

7 Ohio Stat. Swaw's ed. ch. 26, p. 185; Curven's Stat. in force, 508. This statute has been held to be constitutional. Kesting $e$. Spink, 3 Ohio State, 105. It substitutes the boat for the owner, and authorizes suit against it by name for all money demands against the owner arising from debts contracted on account of, or for the use of the boat, or for injuries resulting to passengers or property the boat, or from misconduct of officers and crew. The Canal Boat Huron $e$. Simmons, 11 Ohio, 458. In a suit against a boat, however, the controversy is really and practically between the plaintiff and the owners, and the provisions of the code applicable to parties in other suits apply. Young $e$. Steamboat Virginia, 1 Handy, 156. It only establishes the liability of the craft, but gives no line prior to its seizure. Scott $e$. The Plymouth, 1 Newb. Adm. 56; Wick $e$. The Samuel Strong, 1 Newb. Adm. 188. Therefore claims against the vessel are to be satisfied in the order of actual seizure by warrant. Jones $e$. Steamboat Commerce, 14 Ohio, 408. In this case, and in that of Steamboat Waverly

$e$. Clements, 14 Ohio, 28, it was held that a purchaser of a craft with notice of a debt or liability created or incarred on account of it by the original owner, takes it subject to such debt, but that a judicial sale vests the title in the purchaser free from all liability to be again proceed against under the statute for a claim existing at the time of the sale. It was decided in Kellogg $e$. Brennan, 14 Ohio, 72, that a mortgage of a craft has not a line to be preferred to the claims of creditors, especially if the vessel is running for the joint interest of owners and mortgages. So also in Provost $e$. Wijcox, 17 Ohio, 359. An action does not lie against the boat for money loaned ; nor for breach of an executor contract for the transportation of goods where the goods are not delivered to the vessel, and where, therefore, the obligations of a carrier have not arisen. Dewitt $e$. Schooner St. Lawrence, 3 Ohio State, 325. The statute does not extend to a claim for salvage, but if the boat receives the property saved, and promises to pay a certain sum, an action can be maintained against the boat for this. Boyd _v._ Steamboat Falcon, 1 Handy, 362. In Lewis _v._ Schooner Cleveland, 12 Ohio, 341, the state was held to apply to the recovery of seamen's vages. See also, generally, Wayne _v._ Steamboat Gen. Pike, 16 Ohio, 421 ; Steamboat Albatross v. Wayne, 16 Ohio, 513 ; Schooner Argyle v. Worthington, 17 Ohio, 460.

1 The first statute in Michigan, relative to this subject, was passed in 1839 (Sess. L, 1839, p. 70). This was repeated in 1846, (R. S. ch. 129.). Under the statute of 1839, it is held that there is no line until the vessel is attached. Robinson _v._ Steamboat Bed Jacket, 1 Mich. 171 ; Moses _v._ Steamboat Missouri, 1 Mich. 507. In declaring upon a bond executed under $v$ 13, ch. 123, R. S., it is not necessary to are that the plaintiff made the application in writing the manner and form required by sections two and three of said chapter. Nor is it necessary to are that the vessel released upon the execution of the bond was, at the time of its seizure, within the jurisdiction of the court. Truesdale _v._ Hazzard, 2 Mich. 344. See also, Ward _v._ Wilson, 3 Mich. 1. Where a vessel was attached at the instance of a creditor, and notice to creditors to produce their claims published three months, and before any order of sale, the owner of the vessel procured her discharge by giving the bond provided by statute, it was held that creditors, who failed to file their demands with the proper officer within three months after the first publication of notice, lost the benefit of the line given them by statute. Watkins _v._ Atkinson, 2 Mich. 151.

2 Indiana Stat. 1888. Under this statute it has been held, that, where there are several lines on a boat, and the boat is sold on a judgment in a suit under the statute for one of the claims, the purchaser takes the boat discharged of the rest. Steamboat Bover _v._ Stiles, 5 Blackf. 483. See also Southwick _v._ Packet Boat Clyde, 6 Blackf. 148.

3 Ber. Stat. 1845, p. 71, ed. 1856, p. 107. It has been held, that, to enable the owner or consiope of a vessel to take an appeal from the judgment of a justice of the peace, be must make himself a party defendant to the suit before the justice. 8th. Constitution _v._ Woodworth, 1 Scann. 511. The master cannot proceed against the vessel in rem for his vages. Channery _v._ Jackson, 4 Gilman, 485. And in German _v._ Steam Tag Indians, 11 Ill. 535, it was decided that the line attaches the moment the liability is incurred, but it cannot be asserted to the prejudice of creditors or purchases, unless the remedy be pursued within three months; but a party is not bound to enforce his line till that period has elapsed, and when once acquired it remains in force, unaffected by any proceeding to enforce subsequent lines. And the sale of a vessel under a judgment on an attachment obtained by a seaman or material man does not divert any lines of a superior degree, nor any antecedent lines of the same degree. An attachment will not lie for towing a canal boat. Merriman _v._ Canal Boat Col. Butts, 15 Ill. 585.

4 Missouri **R. C.** 1845. The action must be commenced within six months after the action has accrued, and in the county where the boat may be found at the time. If the boat does not come within the jurisdiction till after that time, the line will be gone.

## 108 On the law of shipping.

\[B00E I. consin,1 California.2 But in these States, it seems that actions

Williamson _v. Steamboat Missouri, 17 Mo. 574._ Process cannot issue until a bond is filed. Steamboat Archer _v._ Goldstein, 13 Mo. 24. The attachment is dissolved by giving a bond, and after this the court cannot order the boat to be sold. St. Louis Perpet. Ins. Co. e. Ford, 11 Mo. 295. On an open running account, the lien continues for six months from date of last item. Carson _v._ Steamboat Daniel Hillman, 16 Mo. 256. But where the articles are furnished under a special contract, and delivered on different days, the lien attaches upon the delivery of the first. In computing the time within which the suit should be commenced, the day on which the delivery is completed should be excluded. Steamboat Mary Blane _v._ Boehler, 12 Mo. 477. It is provided by statute, that when a constableatches goods or property be shall take possession, if they are accessible, and if not, be shall declare to the party in possession that he attaches the same in his hands, and summon such person as garnibee. It has been held, that the return of a constable on a warrant against a steamout that he executed it by going on board the boat, and by reading the same to the clerk, finding the shelf in charge, is sufficient to give the justice issuing the warrant jurisdiction to hear and determine the case against the boat. Steamboat Rareka _v._ Noel, 14 Mo. 518; Parkinson _v._ Steamboat Robert Fulton, 15 Mo. 258. A boat cannot be sold under an execution issued by a justice of the peace. Markham _v._ Dozier, 12 Mo. 288. In a suit against a boat before a justice, a judgment by default against the boat being rendered, and a motion to set aside the same being overculed, an appeal will lie. Horse _v._ Steamboat Belle of Attackabas, 11 Mo. 107. One of several part-overs can see, under the statute, in the name of the boat. Steamboat Beardtown _v._ Goodrich, 16 Mo. 153. But he must give notice to all the others of his intention to see, twenty days before the commencement of the action. Langstaff _v._ Rock, 18 Mo. 579. Whether a part-owner be mortgage, or his right be absolute, he cannot acquire a lien on the boat for services rendered while he was owner. Nor can be sure the other part-owners without giving them the notice required by law, and he must show affirmatively that he gave them, such notice. Steamboat Rarian _v._ McCloy, 10 Mo. 584. The St. Louis Court _v._ Steamboat Pies has jurisdiction of actions of trespas against boats. Holloway _v._ Steamboat Western Belle, 10 Mo. 147. Under the statute an interladder cannot be entertained. Garrison _v._ McAllister, 13 Mo. 579. The statute provides that the demand must be for services rendered _on board the boat._ It is sufficient if the demand be for services rendered as frennan, Jones _v._ Steamboat Morriset, 21 Mo. 149, or as deck-hand, Williams _v._ SteamboatMorriset, 21 Mo. 144. An action will lie against the boat by name for the non-performance of a contract made by her master, upon a trip up the river, for the transportation of freight upon the return trip. Taylor _v._ Steamboat Robert Campbell, 20 Mo. 254. A boat is not responsible for a breach of a contract of affieightment made by a person in possession as trespaser. Steamboat Madison _v._ Wells, 14 Mo. 360; Bates _v._ Steamboat Madison, 18 Mo. 99. But persons furnishing supplies are not bound to tapin whether the master or agent who has the actual possession of a vessel is legally entitled to such peoseoseism, in order to secure a lien. Steamboat Lehigh _v._ Knox, 12 Mo. 508. There is no lien upon a steamout for the use of a private wharf boat. Bersie _v._ The Steamboat Steamboat Steamboat.

1 Wisconsin, Rev. Stat. 116. See Rand _v._ The Barge, 4 Chand. 68.

- Laws of California, First Sess. p. 189, ch. 75, ! 2; Compiled Laws of 1853, p. 576, ch. 6, ! 318.

**CH. IV.\]** **LINES OF PART-OWNEERS, ETC.** **109**

**of this sort will not be sustained under their statutes, if the cause of action arose out of the States.**1****

\*\*dosh, 21 Mo. 18. The state divides debts into four classes. Each class is to be preferred according to its number, the highest number being the last class. But a judicial rule of a boat under the State law to satisfy a lie of one class, conveys to the pursu character a title free from the lions of every other class, superior or inferior. Steamboat Baritan v. Smith, 10 Mo. 527. So, of a sale under a similar law of another State. Finney v. Steamboat Fayette, 10 Mo. 619. But a sale in another State, which has no such law, does not divest the lie. Steamboat Sea-Bird v. Beehler, 13 Mo. 569. An action does not lie against a boat for damages sustained by a deck hand in being forced on shore by the master in breach of the contract of thiring. Blaas v. Steamboat Robert Campbell, 16 Mo. 266. If the affidavito to a complaint against a boat is made by the plaintiff's agent, it must show his means of knowing the truth of the particulars specified in the complaint. Bridgeford v. Steamboat Elk, 6 Mo. 356 ; Hamilton v. Steamboat Ironto, 19 Mo. 538. And it must appear from the demand filed that the claim gives a lieen. Luit v. Steamboat Evoy, 19 Mo. 476. The return of the officer to the wrist must state that he seated the boat, but it need not state that he retains it in his custody. Blaisdell v. Steamboat Wm. Pope, 19 Mo. 157. Where a boat is seized and a bond given under the 9th section of the act, the lieen is discharged, and the party cannot, after the boat has been sold, present his demand for allowance against the proceeds. Aravry v. Steamboat Parneve, 19 Mo. 877. Unless the boat is bonded within five days after seizure, it is life duty of the officer to apply for an order of sale, and he has no authority to hold her without bond, subject to final process in the suit. Blaisdell v. Steamboat Fery Bost Wm. Pope, 19 Mo. 538. For other decisions under the statue, based upon general rules, see Ready v. Steamboat Highland Mary, 17 Mo. 461, 20 Mo. 264; Whitmore v. Steamboat Caroline, 20 Mo. 513; Choutsen v. Steamboat St. Anthony, 16 Mo. 216, 20 Mo. 519; Dean v. Ritter, 18 Mo. 182; Porter v. Steamboat New England, 17 Mo. 290; Darby v. Steamboat Inda, 9 Mo. 645; Barge Resort v. Brooke, 10 Mo. 531; Jarbe v. Steamboat Daniel Hillman, 19 Mo. 141; Renshaw v. Steamboat Pavne, 19 Mo. 532; Ritter v. Steamboat Jamestown, 23 Mo. 548.

\*\*1 Ohio -- Steamboat Champion v. Jantsen, 16 Ohio, 91; Goodsill v. Brig St. Louis, 16 Ohio, 178; Missouri -- Steamboat Baritan v. Pollard, 10 Mo. 583; Steamboat Time v. Parneve, 10 Mo. 586; Noble v. Steamboat St. Anthony, 12 Mo. 961; Twichell v. Steamboat Missouri, 19 Mo. 419; Fisk v. Steamboat Forest City, 18 Mo. 587; James v. Steamboat Pavne, 19 Mo. 517. In Swearington v. Steamboat Lynn, 13 Mo. 519, it was held that the Missouri River, from the northern to the southern boundary of the State of Missouri, is one of the waters of the State referred to in the state, and that the Missouri courts have jurisdiction over a tort commited on the river, though it be on the Illinois side. In Illinois, the statue has no extrateritical jurisdiction. Frisk v. King, 9 Scann. 144. So in Michigan. Bidwell v. Whitaker, 1 Mich. 469 ; Turner v. Lewis, 2 Mich. 550. And in Iowa, Steamboat Kentucky v. Brooks, 1 Greene, 398. The law is the same in Kentucky. Strother v. Lovejoy, 8 B. Mon., 185. In Ohio, in 1848, a supplementary act was passed, declaring-that a wrong construction had, been placed upon the statue by the court, and declaring that the courts should have jurisdiction in suits then pending as well as in future suits, notwithstanding the boat was out of the jurisdiction of the State at the time the tort was committed or the supplies furnished. The court, however, in a subsequent case, held that this act, so far as it provided for cases then pending, was unconsititutional and void,
It should be added, as a general remark, that part-owners of a ship are bound to deal fairly by each other, and that each, in the exercise of his own powers, must respect the rights of all the rest. This would flow from the principles of justice and molarity ; but it would seem that public policy comes in aid of these principles, in relation to a property, of which the proper use and management are so important to the public. Hence, in one interesting case, where some part-owners in a valuable ship sold their shares by an indenture between them and the part-chaser, which contained covenants, that, in the opinion of the court, tended to control the appointment of persons to be employed in the management and navigation of the ship, it was held that such a contract violated the rights of the other owners, and also principles of public policy ; and that the deed of transfer was therefore void.1

because those cases arose under a statute, which it was the province of the court, and not of the legislature, to interpret. The Sch. Aurora Borealis _v._ Dobbie, 17 Ohio, 125. For a learned exposition of the various provisions and objects of the statutes of the different States upon this subject, see Merrick _v._ Avery, 14 Arkansas. 370.

1 Card _v._ Hope, 2 B. & C. 661.

CH. v.\] LIABILITIES OF OVNERS GENERALLY. **111**

**CHAPTER V.**

**OF THE LIABILITIES OF OVNERS GENERALLY.**

**An owner of a ship, in possession of her, and having both the legal and equitable title, is liable for all supplies furnished and all repairs made to her, and all work and service rendered for her benefit, by order of the master, and in general, for all the contracts made by him for the benefit of the vessel; because, from the necessity of the case, the master is invested with a very wide authority to do and provide whatever is requisite for his ship. An owner who should resist any claim of this kind would probably be held to prove not only that the supplies or the work rendered was of no use or benefit to the ship or to him, but that it was so obviously useless that the furnisher could not have supposed the master authorized to obtain it.1 Cases of this kind often occur; but those which depend upon the question, how far and when a** _quasi_ **owner is liable in the same way as an actual owner, or in the stead of the actual owner, are more numerous and important."**
Most of these questions occur in reference to mortgagees. It is quite certain that a mortgagee should take possession as soon as he reasonably can; and that, if he fails to do so, unless protected by the provisions of some statute in his behalf, he is liable to have his title defeated by any third party who acquires a right to the ship in ignorance of the mortgage's prior title, and in good faith.1 If a mortgagee takes possession, and especially if he 'takes out a new register in his own name, or if he does any acts which can be deemed in some degree equivalent to public notice that he is owner, this actual or apparently actual possession, added to his legal title as owner, seems to confer upon him the responsibilities and liabilities of an owner.3 The principal diffi

**CH. v.\]** LIABILITIES OF OWNERS GENERALALLY.\*\* **113**

**culty occurs when the question arises, whether a mortgagor in possession is liable for supplies and repairs, or a mortgagee out of possession. For if a mortgagee chooses not to take possession, he may, at his own pleasure, incur the danger of having his title defeated by a third party, without any risk of impairing it as between himself and the mortgagor. And if he takes no possession, but is equally protected against all the world, either by record or by any statutory provisions, as if he had possession, this circumstance does not clothe him with all the liabilities which spring only from actual possession. And then the question occurs, Is he liable for supplies or work rendered to the vessel?**

It is not unfrequently said, that this question is to be answered by ascertaining to whom the credit was given.1 But this is certainly not so. The answer must be made by compounding three elements, and in their due proportion; one of them being this question of credit; another is, by whom was this credit authorized or justified; and there is still another, who has received and holds the benefit of the service rendered. It is a principle of very wide application, that, if any person accepts and holds the benefit of any service, he cannot deny that it was rendered to him, and for his benefit. This may seem to conflict with another principle, that no man can make himself the creditor of another against that other's will or without bis consent. But they are reconciled by this rule, that if the benefit be rendered, then he who may receive it may also reject it; it is wholly at his choice whether to accept and hold it or not; and if he does choose to accept and hold it, then on all grounds, both of moral and legal justice, he puts himself in the same position as if he had originally requested this service. But this rule, again, has one important qualification; for it is not applicable at all, or if at all only in a modified form, where the party to be made debtor has no such choice, because the benefit done cannot be renounced or rejected without a positive loss and detriment. Does the conferring of it in that case, and the subsequent holding of it, create a legal claim against the holder ? Perhaps the precise answer should be, that the holder, who retains a benefit because he cannot reject it, -- as if repairs were made to a ship, of such a kind and extent that they could not be removed without dismantling her, -- should pay for it, not the whole cost, but so much as it is certainly worth to him after deducting full compensation for all the damage and inconvenience of paying for it against his will. But the law cannot well apply such nice distinctions in practice; and the cases which hold an unconditional purchaser not in possession liable for supplies, although the furnisher had no knowledge that he was owner, or a mortgagee who has taken possession liable although the furnisher did not know of his title or possession, may rest, either upon the ground that he holds the benefit and must therefore admit his request for it, or that his ownership confers a constructive agency and authority on the person -- usually the master -- who ordered the supplies or repairs. But it cannot be said, with any accuracy, that in these cases credit is given to these _persons_, even if the charge in the furnisher's books is " to the Ship Henry and her owners." And it can never be true, that the owner or mortgagee in possession is liable for _repairs_ put in _against_ his will, although, being put in, he lets them remain.

The question, however, recurs, What is the liability of a mortgagee out of possession ? And the general answer now is, undoubtedly, that he is not liable.1 The question of credit will

# AL v.\] LIABILITIES OF OVERERS GENERARALLY. 115

always be decisive where the parties have made a bargain, and credit is given according to it, for there is nothing to prevent true nature of the interest of a mortgage out of possession, were subsequently orreplied in Great Britain, (see Williams \*, Boanaquet, 1 Brod. & B. 338,) so far as they applied to real estate, they maintained their ground successfully in the case of chips. In this country, they were generally ratified to their full extent, almost from the first.

A doubt certainly has been expressed, _vide_ Wetterdell v. Dale, 7 T. R. 306, 312, per Lord Expos, C. J.; Tucker v. Buffington, 15 Mass. 477 ; but those cases in which the mortgage was held liable as owner, _Ex parte_ Machi, 1 Koso, 447 ; Star v. Knoz, 2 Conn. 215 ; Lord v. Ferguson, 9 N. L. 800 ; Henderson v. Mayhew, a Gill, 383, turn entirely on the rejection of the evidence offered to show the true nature of his tide, whilst they recognise the truth of the general rule, which seems now well settled, namely, that where the mortgage has neither taken possession nor exercised any other act of ownership over the vessel, he is not answerable for, nor entitled to, the benefit of the acts of the master or other agent of the ship. Thus, he is not liable for _supplies_ and _supairs_ furnished to her. Jackson v. Vernon, 1 H. Bl. 114 ; Twentyman v. Hart, 1 Stark. 866 ; Annett v. Carstairs, 3 Camp. 353 ; Baker v. Buckle, 7 J. B. Moore, 349 ; Briggs v. Wilkinson, 7 B. A. C. 30 ; MITrup v. Scott, 8 Johns. 159 ; Ring v. Frank-In, 9 Hall, 1 j. Birkbeck v. Tucker, 8 Hall, 111 ; Miln v. Sponja, 4 Hill (N. Y. ) 177 ; Heckleu, 8 Stevens, 7 Park. 488 ; Brooks v. Bondsey, 17 Pick. 441 ; Winslow v. Tarbox, 18 Maine, 133 ; Cauler v. Thurlo, 203 ; Olson v. Bonney, 6 Greenl. 474 ; Lord v. Ferguson, 9 N. H. 380 ; Philips v. Ledley, 1 Wash. C. C. 226 ; Duff v. Bayard, 4 Watts & S. 340 ; Corburg v. Mortocal, 2 Rich. 518.

And generally, he is not liable for the _contracts of negligence_ of the mortgage who is master. Thoru v. Hicks, 7 Cow. 697 . Nor for the wages of the master and crew. Annett v. Carstains, 3 Camp. 353 ; Fisher v. Willing, 8 S. & R. 118.

On the other hand, he is not entitled to the freight earned by the ship. Chinnerv v. Blackburne, 1 I. Bl. 117, (n.); Brancher v. Molyneva, 8 Scott, N. R. 352. See also, post, ch. 7, 4 ; R. In Myren v. Willis, 17 C. B. 77, 83 Eng. L. & Eq. 904, the ship was transferred by the owner to the defendant by an absolute bill of sale, and the transfer July recorded. The vessel, at the time, was at sea. The transaction was not intended as a sale, but merely as a collateral security for a loan. Subsequently the master, in ignorance of what had passed, entered into a content of affichgment with the plaintiff. This action was brought to recover damages for the breach of said contract. Held, that the plaintiff could not recover. _Jervis,_ C. J., delivering the opinion of the court, said: " I am of opinion, that the defendant is entitled to judgment. It is admitted that the law is now different from what it was formerly, when it used to be considered that the register only was to be looked at, and that it alone was conclusive as to the ownership of the vessel, and conclusive, therefore, of the liability of the party appearing thereon as owner ; but it is now settled that the question of liability in these cases is to be determined in the same way as in all other cases of contract, by asceraining with whom the contract was made. That will depend, in this case, on the relation of principal and agent -- who' agent was the master ? It has been admitted, that, in the case of a mortgage of a vessel who takes merely the security of the ship, not intending to incur liability as owner, a mere entry by him into possession does not render him liable for the contracts of the master, made after the execution of the mortgage and before entry, because that alone does not prove an intention on the part of116 ON THE LAW OF SHIPPING. \[BOOK L

their making what bargain they will. A furnisher of supplies may agree with the master ordering them, even if there be an absolute owner in possession, to charge them only to the master and look to nobody else; and then he has no claim beyond the master. So a mortgagee out of possession, or indeed a stranger, may order the goods or service as for himself, or may agree to pay for them if supplied to the ship, and then he will be bound to pay for them without any reference to his interest in the ship.

And this bargain, or any other, may be proved by, or inferred from, circumstances. But, on the one hand, a mortgagee who does not have the possession and control of the ship does not authorize a furnisher to consider him the owner; and if credit be given him, it does not bind him unless given with his consent. On the other hand, so long as the mortgagor retains possession and control, the ship may be regarded as being only a security for a debt which is less than its value, the mortgagor not only owning the equity of redemption, but keeping possession of the vessel, that he may, by her earnings, enable himself to pay the debt, and, by adding to, or preserving her value, add to or preserve his own interest in her if he proposes to pay the debt without her, or in the excess of her value over the debt. And therefore the mortgagee cannot be made liable on the ground of accepting and holding the benefit rendered by the supplies or repairs.

It should be noticed here, and will be more fully stated hereafter, -- that " material-men" so called, that is, those who supply the materials for supplying and repairing a ship, and all who work upon her for such purposes, have, by the maritime law, a lien on the ship itself for the whole amount due them, excepting in the home port.1 But this is usually enforceable
GL. v.\] LIABILITIES OF OVNEERS GENERALLY. 117

only in admiralty, although some recent State statutes seem

to give a similar right and remedy in the State courts, and

we prefer considering the subject hereafter, when treating of admiralty process and jurisdiction:

Child, Darcis, 71 ; The Sch. Marion, 1 Story, 68 ; Leland v. The Ship Modern, 9

Woodb. & M. 92, 96.

118 ON THE LAW OF SHIPPING.

\[BOOK L

## Chapter VI.

Of Hypothescation by Bottomar.

In some respects this is analogous to the mortgage of a ship, but in others it is wholly different. The questions which arise from the bottomry of a vessel are, in this country, frequently settled in admiralty, and some of them must be so; and it is to be regretted, perhaps, that the principles of admiralty law are not always, and in all courts, applied to these questions. These principles are, partly from usage and precedent and partly from statutory provision, as we shall hereafter state more fully, those of the civil law. Our common law mortgage, where the _property_ must pass to the creditor, and it is a matter of indifference whether the _possession_ remains with the debtor or accompanies the property, was, strictly speaking, unknown to the civil law. And it is quite common for our courts to speak of _pledging_ a ship by _hypothecation_. But this is not accurate. It was of the essence of a _pledge_ (pignus) of the civil law, that the possession of the thing pledged passed to the pledgee, and remained with him;1 and this rule has lately been applied and recognized by courts of common law.3 But in _hypothecation_ the thing hypothecated might remain in the possession of the owner. The creditor might acquire neither the _property_ nor the _possession_ of it. Thus, he had no _jus in re_, but he had a _jus ad rem;_ a right or interest in or to the thing hypothecated, a _privilegium_, or, as we call it, a lion, which could be enforced for the payment of his debt.4
\*\*We consider that this rule has been expressly applied by the Supreme Court of the United States to hypothecation by bottomry.1 In the case in which this was done, (in 1808,) the court intimate a doubt whether a bottomry bond, made by the owner in a home port, can be within the admiralty jurisdiction.2 It has been repeatedly asserted, that every valid bottomry bond, wherever or however made, is wholly within that jurisdiction; but this is certain only of bottomry bonds made abroad, and perhaps should be limited to those which are made by the master to meet the necessities of the ship.**8 It would be very difficult for a court of common law, by any common law process, to enforce a liein by bottomry on a ship, in any other way than by considering that the contract of bottomry gave the creditors the property or possession, or both, of the ship, subject only to defeasance on payment of the debt; and then, permitting him to make it available for his security, in the same manner as if it were a pledge. But unless it were a mere pledge or mortgage of the ship, at home, there would be need of admiralty jurisdiction.**

Footnote 1: **Blaine $v$. The Charles Carter, 4 Cranch, 388. See also, United States $v$. Delaware Ina. Co. 4 Wash. C. C. 418.**

- The same is also stated by Abbott, p. 153. But this opinion of the learned author is founded entirely on a dictum of _Holt_, C. J., in Johnson $v$. Shippen, 2 Ld. Raym. 862. There is also a dictum of _Lawrence_, J., in the case of Busk $v$. Fearon, B. R., Mich. T., 44 Geo. 3. The case is reported in 4 East, 819, but the dictum is not noticed.

- In this country, this question has been much discussed. Besides the intimation of the court in Blaine $v$. The Charles Carter, supra, the following cases support the view, that there is no jurisdiction in admiralty if the vessel is hypotheced by the owner in the home port. Forbes $v$. Brig Hannah, Hopk. 99, Bee, 848; Knight $v$. The Attila, Crabbe, 326, and affirmed in circuit court, but not reported; Harry $v$. Ship John & Alice, 1 Wash. C. C. 293; Hurry $v$. Assignees of Hurry, 2 Wash. C. C. 145. On the other hand, the jurisdiction has been sustained by Mr. Justice \_Wind_ester in Wilmer $v$. The Smilax, 2 Pet. Adm. 895, n.; by Mr. Justice _Thompson_, in the case of The Shoop Mary, 1 Paine, C. C. 671 ; and by Mr. Justice _Sory_, in an elaborate judgment in the case of The Brig Draco, 2 Sumner, 157. See also, Selden $v$. Hendrickson, 1 Brock. C. C. 396. The jurisdiction was also maintained by the court of admiralty in Ireland, Corish $v$. The Murphy, 2 Browne, Civ. & Adm. Law, Appen. 580.\*\*

- See cases supra, also Thorndike $v$. Stone, 11 Pick. 183 ; Groeley $v$. Waterhouse, 19 Maine, 9. So of a respondents bond. Conard $v$. The Atlantic Ins. Co. 1 Pet. 386.\*\*

\*\*B originally, and, as we think, more properly, this bond was seldom made, excepting by a master in a foreign port, where money, which was necessary, could not be raised otherwise. And it will be more convenient to defer what more we have to say on this topic until we treat of the powers and duties of the master.

It may be added, that the statute of 1850,\[1\] which requires that mortgages of ships shall be registered at the custom-house, expressly provides that the lion by bottomry created on any vessel during her voyage by a loan of money or materials, necessary to enable such vessel to prosecute a voyage, shall not lose its priority, or be affected by the provisions of the act. And it has been decided that bottomry bonds are not withiy the purview of a State statute requiring record of mortgages of personal property.\[3\]

1 Chapter 27, 9 U. S. Stats. at Large, 440.

2 The Brig Draco, 2 Sumner, 157, 189; Fontaine v. Boers, 19 Ala. 729.

GLYLYL\]CARRIAOG OF GOODS ON FRIGHT. 121

CHAPTER VII

OF THE USE OF THE SHIP BY THE OWNER.

SECTION I

OF THE CARRIAOG OF GOODS ON FRIGHT.

A SHIP, as the great instrument of commerce, may be regarded as of great importance, not only to its immediate owner, but to the community ; and the public policy or general expediency of promoting and assisting the profitable use and employment of the ship, in the commercial interchange of commodities between distant nations, has a considerable effect upon the law of shipping. It is probable that the system of liens hereafter spoken of, and many of the duties and rights of the owner and master of the ship, on the one hand, and of the shippers of goods on the other, if they do not arise from this policy, are nevertheless affected by it, and owe to it whatever modifications cause them to differ from what they would be under the ordinary rules of the law of contracts.

The owner sometimes uses his own ship, and sometimes lets it out to others, who use it. We will begin by considering the use he makes of it himself.

He may carry his own merchandise, or that of others, or both. The word "freight" has several meanings. Beawes defines it as "the sum agreed on for hire of a ship, entirely or in part, for the carriage of goods."1 This is now the usual meaning of this word in law. In common conversation, however, it often. means also the goods carried. And that this was, if not its original meaning, one of its early meanings, is certain from the case of Bright _v._ Cowper (1620),1 the report of which begins," Action of covenant brought upon a covenant made by the merchant with a master of a ship, that, if he would bring _his freight_ to such a port, he would pay him such a sum." Now, however, it means the sum to be paid for such carriage, and also the sum which might be payable therefor.3 For, if a ship-owner carries his own goods only, he may insure his freight _eo nomine_, meaning what another would have paid him for carriage of the same goods on the same voyage, or include it in a valuation of his ship or of his cargo.8

Footnote 1: 1 Brownal. & G. 21.

Footnote 2: In Robinson v. Manufacters' Ins. Co. 1 Met. 148, 145, Shaw, C. J., said :

Footnote 3: The term freight is somewhat equivocal, and has several meanings. It is sometimes used to describe the compensation for the carriage of goods, sometimes for the hire of a vessel, and sometimes it is used in a loose sense to signify the goods or property carried. It is never, however, used in the latter sense, when intended to describe a separate subject of insurance; but is then used in contradistinction to ship and cargo, to designate the compensation to be paid to the ship-owner for the use of his vessel, either for the carriage of merchandise, or for the hire of the vessel, in whole or in part." See also, Adams v. Penn. Ins. Co. 1 Rawle, 97, 106.

Footnote 4: What amounts to a deviation, and what circumstances will excuse it, we shall treat of in our chapters on Insurance. We speak of it here only so far as it bears upon the relation existing between the owner of the ship and the freighter. It is well settled, that, if the vessel derivates, and the cargo is insured, the risk terminates, and the underwriters are exonerated. It follows, as a necessary consequence, that the ship-owner having put an end to the contract existing between the freighter and the underwriter,

**CH. VIL.** **CARRIAGE OF GOODS ON FRIGHT.** **123**

**the goods are thereby injured or lessened in their value to their owner, the ship-owner is responsible, and the ship itself is**

\*\*should stand in the place of the latter, and assume his risks. But a question has arisen, whether the frightner is bound to show not only that the vessel deviated and the goods were subsequently lost or damaged, but also that the loss occurred in consequence of the deviation. In Souter v. Baymore, 7 Barr, 415, a contract was entered into for the exclusive use of the ship for a specified voyage. The master, however, put into an intermediate port, and took a deck load of wood. After the vessel said from this port, she encountered a storm, and the cargo was damaged. The master-brought an action for his freight in one of the State courts of Pennsylvania, and the damage done to the goods was set up in defence. It was contended, that, as the master deviated unnecessarily, be was liable for any subsequent loss during the voyage; and that, as the contract was for the exclusive use of the vessel, the taking of the deck load made the owner responsible as an insurer, but the court held that he was only liable for the damage occasioned by the deviation or breach of the contract, and that he was entitled to his freight without any deduction. Although we think it clear that the owner was entitled to the freight, if the consignee accepted the goods, yet a deduction should have been made for the damage done to the cargo. After the suit was commenced in the State court, but before trial, the shipper brought an action in the District Court of the United States against the ship to recover for the damage done to the cargo. Knox v. The Nineta, Crabbe, 534. And it was held, that, by the deviation, the captain became an insurer, and the ship was liable for any subsequent loss. This we consider to be the well settled rule of law. Davis v. Garrett, 6 Bing. 716; Freeman v. Taylor, 8 Bing. 194; Parker v. James, 4 Camp. 111; Hand v. Baynes, 4 Whart. 204; Crosby v. Fitch, 12 Conn. 410; Bond v. The Cora, 3 Pet. Adm. 373, 379, 3 Wash. C. C. 80; Walsh v. Homer, 10 Mo. 6. In M'Andrew v. Adams, 1 Bing. N. C. 29, a charter-party was entered into on the 20th of October, by which the owner of the ship agreed to go in ballast from Portsmouth to St. Michael's, and bring back a cargo of fruit direct to London. The charterver was to be allowed thirty-five running days for loading and unloading, to commence on the first of the next December, and if the vessel did not arrive at St. M.'s by the 31st of January of the next year, the charter was to be at liber to reach the charter-party. It was held that the ship-owner was bound to send the ship at once to St. Michael's, and was not at liberty to make an intermediate voyage for his own purposes, notwithstanding he arrived there before the 81st of January. In Nichols v. Tremlett, U. S. Dist. Ct. Mass., Boston Courier, June 29, 1857, the charter-party represented the vessel to be lying in the harbor of Boston. It appeared by the evidence that she was in point of fact at Searsport in Maine undergoing repairs, and was detained for that purpose some days. The action was brought for demurrage at the port of loading, and it was contended that none was due, because this deviation having taken place, it was said to be impossible to ascertain whether there would have been any, or if any, how much, destruction beyond the rightful lay-days, if the libellant had used due diligence and arrived at the proper time. But the evidence on this point being very fall, the court were of opinion, that, if the vessel had said immediately, the would have arrived at the port of loading on a certain day, and at that time, as there was not a full supply of the merchandise which she was to carry ready for shipment, a delay of a certain number of days would have happened, and for that the respondent was liable. An intention to deviate is not sufficient. Hobart v. Norton, 8 Pick. 159. Usage to deviate may be shown. Lowry v. Russell, 8 Pick. 860; Thatcher v. McCulloh, Olecott, Adm.

**124** ON THE LAW OF SHIPPING. \[**book I.**

**subjected to the lien of the shipper of the goods, in order that he may enforce his rights, or obtain indemnity for a violation of them.1 On the other hand, if the goods are so carried, the**

**365. If the shipper receive the goods, he is bound to pay freight, but may offset the damage. Knox _v._ The Ninetta, _supra ;_ Thatcher _v._ McCulloh, _supra._ In Duneeth _v._ Wade, 2 Secam. 285, 389, it is said, that: " If a common carrier attempts to perform his contract in a manner different from his undertaking, he becomes an insurer for the absolute delivery of the goods, and cannot avail himself of any exceptions made in his behalf in the contract." This applies where goods are carried on deck without the knowledge of the shipper. See post, ch. 7, 4 5, n. So if goods are to be sent by a specified ship, and they are sent by another, this is a breach of the contact, and makes the ship-owners liable as insurors. Basin , Richardson, U. S. C. C. Penn. 20 Law.**

**Report, 129. See also, as to the effect of a deviation on the contract of bottomary, post, ch. 11, 4 4, n., and on the contract of acamen, post, ch. 13, 4 8, n.**

1 Cieirac, Ue et Constantes de la Mer, 72. _About_, in his treatise on Shipping, 127, is of the opinion that in England the court of adimarity has no jurisdiction to enforce the lien against the ship in such a case. See also, Birley _v._ Giadstone, **3 M. & S.** 200 ;\*\*

**Giadstone v. Birley, 3 Merl.** 401 ;\*\*

**Pierson v. Robinson, 3 Swarnst.** 139, n.\*\*

**In this country, the existence of the lien is not only fully recognized, but it can be enforced by process** _in_ **in\_ **adimarity. The Gold Hunter, 11 & Bowl.** **Adm.** 800 ;**

**The Boston, id. 309 ;**

**The Grafton, Olcott, Adm. 43, 1 Blatch. C. C. 178 ;**

**The Bebecca Ware, 188 ;**

**The Waldo, Daveis, 161 ;**

**The Brig Casco, id. 184 ;**

**The Schl Volunteer, 1 Sumner, 561 ;**

**Clark v. Barnwell, 12 How. 272 ;**

**Rich v. Lambert, id. 347.**

**And every contract of the master, entered into within the usual scope of his authority, binds the vessel to the fulfilment of it. The Paragon, Ware, 382 ;**

**The Phebe, id. 265 ;**

**Howett v. Buck, 17 Maine, 147. In the case of the Drud, 1 Wm. Rob. 391, 399, Dr.**

_Lushington_ \*\*need the following language in reference to a lien on the ship : "In all cases of action which may arise from circumstances occurring during the ownership of the persons whose ship is proceeded against, I apprehend that no suit could ever be maintained against a ship where the owners were not themselves personally liable, or where their personal liability had not been given up, as in bottomy bonds, by taking a lien on the vessel. The liability of the ship, and the responsibility of the owners in such cases are convertible terms ; the ship is not liable if the owners are not responsible, and vice veraf, no responsibility can attach upon the owners if the ship is exempt and not liable to be proceeded against." See also, The Bold Bacchengh, 8 Wm. Rob. 290, 331, 2 Eng. L. & Eq. 536, 540. We have seen that if the charters have the entire control of the vessel, and the master is their agent, the general owners are not personally liable for a breach of a contract entered into by the master with a third party. The question then arises, Is there any remedy against the vessel, or is it confined to the personal liability of the charters 1 The language used by Dr. _Lushington_, above, must be confined to the case then before him, and is not susceptible of a general application. In The Drud, the action was in _ren_ against a vessel for damages caused by a collision, occasioned by the wififlat tort of the captain. The court held, that, as the owners would not be personally liable in such a case, the vessel was not. It is now settled, that a vessel is liable _in_ **for a breach of a contract made by a master within the scope of his employment, although he be appointed by the charterter. The Phebe, Ware, 368 ;**

**The William and Emmeline, 1 Bil & Howl. Adm. 70, 71 ;**

**Sch. Freeman _v._ Buckingham, 18 How. 182 ;**

\*\*Thomas v. Osborn, 19 How. 22. And in Jackson _v._ The Julia Smith, 1 Newb. Adm. 61, 6 McLean, C. C. 484, it was held, that, where the pos
CEL VII.\]CARRIAGE OF GOODS ON FRIGHT.125

owner of the goods is bound to pay to the owner of the ship the freight earned by the carriage, and the ship-owner has a lien on the goods to enforce his rights against them.1 And if the session of the vessel is not tortious, but under color of right, a contract of affiliation made with the master would bind the vessel. But for acts not within the scope of his employment, the owners are not personally liable, nor is the ship. See post, p. 185, p. 1.

1 That the ship-owner, and the master, as his agent, have a lien on the goods carried in their ship for the freight, is a proposition which appears never to have been dispatted. Molloy, Lab. **5**, **4**, **11**; **2**; **Beaves, Lex Mercatoria, Titt. Freight, 118**; **Jacob-seu, Sea Laws, 261**; **Anonymous, 12 Mod. 447**; **1**; **611**; **1**; **Artaas e. Smallipeeo, 1 Exp. **23**; **S**odergreen v. Flight, cited 6 East, 622; Wilson v. Kramer, 1 M. & S. 157; Mitchell v. Seifer, 4 Camp. 298**; \*\*Huton v. Bragg, 3 Marth. 339, 845, 7 Tannit. 14, per _Gibos_, C. J.; Faith v. East India Co. **4**. B & Ald. 680; Christie v. Lewis, 2 Brod. & B. 410, 5 Moore, 211; Lucas v. Nockells, 4 Bing. 729; Campion v. Colvin, 3 Bing. N. C. 17, 3 Scott, 388; Lane v. Peninma, 4 Mass. 91; Lewis v. Hancock, 11 Mass. 92; Cowing o. Snow, 11 Mass. 415; Plekman v. Woods, 6 Pick. 448; Clarkson v. Eds. & Cow. 470; Chandler v. Belden, 18 Johns. 157; Van Bokkelin v. Ingersoll, 5 Wend. 815; Lander v. Clark, 1 Hall, 355, 874; Holmes v. Pavestestad, 5 Sandf. 97; Jordan v. James, 5 Ohio, 88; Fernandez v. Silva, 1 La. 269; Palmer v. Gracde, 4 Wash. C. C. 110; Gracde v. Palmer, 3 Wheat 605; Inggies v. Backnor, 1 Paine, C. C. 885; ; Drukwater v. The Brig Sparata, Ware, 149; The Sch. Volunteer, 1 Sumner, 551, 569; Certain Logos of Mabogamy, 2 Summer, 889, 601; Perkins v. Hill, 2 Woodb. & M. 158. But respecting the true character and origin of this Ian, the same unanimity by no means exists. On the one hand, it is supposed by Mr. Justice Ware to exist by the custom of merchants, and to be derived from the rule of the maritime law. " The general right of the master and owner to retain the merchants-disc for the freight due upon it," he says, " has not been denied. It is too well established to admit of doubt. It is a principle of the general maritime law, the common law of the commercial world, sanctioned by all the maritime codes, ancient and modern, and confirmed by numerous decisions of the highest courts, both in this country and England. Nor does there appear to be any difference in principle, nor is any recognized in law, whether the merchant takes the whole vessel by a charter-party, or sends his goods in a general ship. The lien of the owners is as perfect for the hire of the vessel stipulated in the charter-party, as it is for the freight stipulated in the bill of lading. In both cases the claim is privileged in the same degree and to the same extent." Drukwater v. The Brig Sparata, Ware, 149, 155.

The rule of the maritime law, here alluded to, is thus given by Cleirac: "Le batel est oblige a la marchandise, et la marchandise an batel." See Cleirac on the 21st Mar. of the Jagemens d'Oleron. Recons declares, in his treatise " De Navibus et Nanola," Not. 87, "Naulam soliv delet via exequativis, ex mereolus conductis, vel a domino picparam," (upon the accomplishment of the voyage, the freight is to be paid out of the merchandise carried, or by the owner of the same,) and further on in Not. 88: "Naulam conventum solvendum est infra dies octo, decurrendos a die quo naris perrenenti ad potran desitman pro exomenation merciant or magiter navis non potcat complil ed consignation mericum, quousque nalamu sibl non solvstart; imo antequam exoncentur mercos, nalamu est solvendum; nisi aliter covenenti dominus mercium cann navis magistro." (The freight agreed upon is to be paid within the eight days following the day upon which the ship reached the port designed of the first law of skipping.

goods are once laden on board, the ship-owner has a completed right to carry them the whole distance; nor can the shipper re- for the discharge of the goods, and the master cannot be compelled to deliver over the goods in so far as the freight is not paid to him; indeed the freight is to be paid before the goods are discharged, unless the owner has obcruge agreed with the master.)

The Ordonance de la Marino, Lib. 3, Ti. 1, Art. 11, declared, that, " Lo navise, ses agres, a spraysar, le fet et les marchandines charges, seront reapecivement affotetes aux conventions de la charre-partie." (The ship, riging, etc., the freight and the goods laden shall be respectively bound to the conditions of the charter-party.) On which Valla remarks: " The privilege granted by this article is to be understood respectively and distributively, that is to say, that the goods of the shipper are specially liable to the payment of the freight," " man et ipsum nualum poetaitis eut," says the Law, 6, ! 1, "qui poiores in pigapore." According to the same author, this privilege did not empower the master to obtain the goods on board if the freight was not paid, but when they had been discharged, he might proven their transportation or take possession of them in the ligthers or the storehouse, or even after they had reached the consique, provided he did so within fifteen days, and before their transfer to a third party. The provision of the ordinance has been modified by the Code de Commerce, Art. 306, under which the master is entitled to cause the goods to be deposited in a warehouse, while the freight is paid, subject to the same conditions as before.

From the language of the earlier English writers on commercial law, it certainly appears as if they considered the rule of the English law to be derived from these sources. Molloy says, De Jure Marino, Lib. 3, ch. 4, ! 19, " The lading of the ship in construction of the law is _tacility_ obliged for the freight, the same being in point of payment preferred before any other debts to which the goods so laden are liable, though such debts as to time were precedent to the freight, for the goods remain, as it were, _balied_ for the same."

So Beawes, in his Lax Mercatorio, 118, remarks: " Freight must be paid in preference to all other debts for whose payment the goods stand engaged, but as those are responsible to the ship for her him, so is the ship to the owner of the goods," etc. And About, p. 284-286, seems to incline towards this river, although he "peaks vagnely of the lies depending in cases where it is not created by special contract, on _some general principle_, without specifying what principle. Indeed, the origin of the lien in question does not appear to have been over discussed by the English courts. See also, Chandler v. Belden, 18 Johns. 157, 162, per Spensor, C. J. " The right to retain the cargo for the freight has grown out of the usage of trade."

But it is to be remarked, that, although derived from the maritime law, the lien, as known to the courts of Great Britain and America, is clearly not a maritime lien, properly speaking. It is not a " privilegingm," a privileged claim upon the goods, following them wherever they go, like the reciprocal lie which binds the ship by the maritime law to answer for the destruction of the goods. It is not so considered, we have seen, by the continental writers, who speak merely of the master's right to retain the goods for hisfuight, whilst the Ordonance de la Marino merely allows him to resume the possession against the original consique, and within fifteen days; and Chancellor Walworth expyed distinguishes it therefore. " The right of the master to retain the freight money, after it has come into his possession, for a general balance against the owner, and his lien upon the cargo to compel payment of the freight, as the agent and acting in behalf of the owner, are frequently mentioned in the reports, and are sometimes confounded with the lien or claim of the master on the freight, as against the owner, before it has been actually received from the shipper. _The two first are in the nature of common low lines ; and if the master part with the money in the one case, or the possession of the goods in the other, the lion is gone;_ but the lion on the freight, as such, by the maritime law, which is now under discussion, is incidental to, or a consequence of the lion upon the ship ; and it may be enforced in the same manner, by a proceeding in rema in the admixtures courts. It is not strictly a lion, or more right to retain possession of the subject until payment of the debt charged thereon, but it is the privilege of the civil law, or an equitable lion which may be enforced, although the claimant never was in the actual possession of the subject, out of the proceeds of which thisfa- tion is sought." Van Bokleijn _v._ Ingersoll, 6 Wend. 815, 225.

This opinion of the learned chancellor is in strict accordance with the vast majority of the cases, from the early anonymous one in 12 Mod. 611, down to the present day.

It may be this common law character of the ship-owner's lien on the goods for his fudigh, the fact that it appears to consist in a mere right to detain them, as a security for payment, which has induced the courts and text-writers in some instances to make the same depend not on the maritime, but on the policy of the common law. This has been usually done by identifying it with the lion of the common carrier, from which it would result that the lion must be confined to such chip-owners as fall within the denomination of common carriers, whereas Lord _Holt_ expressly stated, in an early case, Anonymous, 12 Mod. 447, that every master of a ship was entitled to it, (in the absence of any agreement to the contrary). It is true that ship-owners and masters engaged in carrying the goods of others for them are usually styled common carriers by the courts, without distinction, a proposition which, although constantly reiterated, we shall hereafter have occasion to contest. See Whitaker on Llena, 95 ; Cross on Lions, 297 ; Pinney _w._ Wells, 10 Conn. 104 ; Gracie _v._ Palmer, 8 Wheat. 605, 639.

It is a little singular that in this last case Mr. Justice Johnson, in another part of his decision, gives a somewhat different definition of this lien ; he says, p. 685 : " On what principles rests the general lion of the ship on the goods for freight! The master is the agent of the ship-owner to receive and transport ; the goods are improved in value by the cost and cases of transportation. As the ballee of the shipper, the goods are in the custody and possession of the master and ship-owner, and the law will not suffer that possession to be violated until the laborer has received his hire."

This appears to us a ground, on which to rest the ship-owner's lien, entirely distinct from his character as a common carrier. The principle here advocated applies as fireibly to the case of a private carrier as a common carrier, and is indeed the application to the case of carriers of another species of lien, that which every ballee who, by his labor and skill, has conferred value upon a specific chatel bailed to him, possess on it, for his stipulated reward. See MTnytz _v._ Carter, 8 Watts & S. 892 ; Forth &. \*\*Bimpson, 13 Q. B. 680 ; Morgan _v._ Congdon, 4 Comet. 551.

It has been said that by parting with the possession of the goods the owner loses his lien, but this is not the case where his delivery of them is procured by fraud, for such a delivery is void in the sight of the law. Bigelow _v._ Heaton, 6 Hill (N. Y.) 48. But he is free to waive his lion and resort to his personal remedy against the owner of the goods, if the bhitss proper. Shatzell _v._ Hart, 3 A. K. Marsh. 191. And it was held in a Louisiana case, that a master who refused to deliver the goods on other grounds than the non-payment of the freight, thereby lost his rights to avail himself of the want of tender. Fernandes _v._ Silva, 1 La. 269, 274. It has been decided in England, that the tion for any trouble or loss sustained by him. How far the obligation of the shipper extends seems however not to be settled by the authorities.1

ship-owner has no lien for dead freight on goods carried; that is, for the freight which is due for the unoccupied portion of the ship. Birley _v._ Gladstone, **3 M. & S. 205** ; Phillips . Bodio, 15 East, 547.

1 It is said in Curling . Long, 1 B. & P. 634, that, before the ship breaks ground, the ship-owner has no lien for freight; but notwithstanding this case, it is now well settled, that, as soon as he has them on board, and perhaps as soon as he has taken charge of them, he has a right to retain them and carry them on. There seems, however, to be some conflict of authority in regard to the right of the master to demand any thing more than a compensation for the trouble and expense he has been put to in consequence of having to unload the goods. Thus in Clemson _v._ Davidson, 5 Binn. 399, 401, Mr. Justice \_Broadbridge says: " It has been made very clear to me, that the ship-owner had no lien on the goods put on board, beyond the compensation for the taking on board, the stowage, unshipping, and putting on the wharf again, and the demurrage to ber sailing which this might occasion, this being before he broke ground." These remarks are _obiter_, the controversy being between two other parties, both of whom were willing to send on the goods. See also, Burgess . Gun, 8 Harris & J. 295. In Keyser _v._ Harbeck, 3 Duer, 378, the master of a vessel gave written receipts to the owner of goods delivered on board, and on these receipts being given up, issued a bill of lading in good faith to the party returning them, who had obtained them by false pretences from the shipper. It was held that the captain was not liable in trover to the shipper, unless the bills of lading were surrendered, or fully indemnified against, and all damages consequent upon the delay necessary to unload them and all expenses of loading and unloading them were paid. Lord _Tenderds_, in his treatise on Shipping, p. 595, states the law as follows: " A merchant who has laden goods cannot insist upon having them related and delivered to him, without paying the freight that might become due for the carriage of them, and indemnifying the master against the consequences of any bill of lading signed by him." In Tindai _v._ Taylor, 4 Ellis & B. 191, 28 Eng. L. & Eq. 210, the Court of Queen's Bench cite the above passage with communication, and Lord _Campbell_ says: " It is argued that there can be no lien on the goods for freight not yet earned or due; but when the goods were laden, to be carried on a particular voyage, there was a contract that the master should carry them in the ship upon that voyage for freight; and the general rule is, that a contract once made cannot be dissolved except with the consent of both the contracting parties. By the usage of trade, the merchant, if he redemands the goods in a reasonable time before the ship sails, is entitled to have them delivered back to him on paying the freight that might become due for the carriage of them, and on indemnifying the master against the consequences of any bill of lading signed for them; but these are conditions to be performed before the original contract can be effected by the demand of the goods. It would be most unjust to the owners and master of the ship, if we were to bold that upon a simple demand at any time the goods must be delivered back in the port of outfit." See also, Thompson _v._ Small, 1 C. B. 388, 384 ; Thompson _v._ Trail, 2 Car. & P. 334. In Bartlett _v._ Carnley, 19 Law Reporter, 579, an action was brought by the master of a vessel against a sheriff for seizing and removing from his vessel certain goods under an attachment against the shipper, the plaintiff having executed and delivered to the shipper a bill of lading for the goods before the lery of the attachment. The court held that the plaintiff was entitled to recover, by way of dam

**GL VII.** **CARRIAGE OF GOODS ON FRIGHT.** **199**

\*\*The whole law of freight consists of little else than the application of these two rules or principles. They are of equal force and value; equally ancient and well established; and ought to be equally regarded and enforced in every court. But this is not the case in England, nor indeed in this country. There are obvious difficulties in the enforcement of the lien which the cargo has against the ship, in any court of common law, or even of equity. But admiralty finds no difficulty. The hostility to admiralty in England abridged its power of enforcing this lien there, and at the same time the courts of common law devised no method of their own for doing the same thing with anycompleteness. Abbott, in his Law of Shipping, (p. 284,) says: "The right of the merchant who would seek to make this privilege available, ranks low in the order of precedence of privileged claims against the ship." He then enumerates a long list of these claims, and says, that "most of them are justy preferred to it." And then adds, "the privilege of the ship-owner against the goods for his freight is of a more beneficial character." But we apprehend that this opinion rests mainly upon the imperfect manner in which the common law of England has adopted the law merchant, and its very successful opposition to that system of judicature, the law of admiralty, which would have suppliedall deficiencies. The lion of the ship on the cargo for the freight is fully as beneficial as he states it to be. But the lion of the cargo on the ship is, in this country, enforced in admiralty by process _in rem_ as fully as any other maritime lion whatever. We defer speaking of it particularly until we treat of the Law of Admiralty; here only remarking, that it is enforced with us even against a subsequent purchaser of a vessel, either when he bought with a knowledge of the claim of the cargo, or when he bought so soon after the arrival of the ship that the owner of the cargo had no previous opportunity to enforce his lion.1

Footnote 1: The Rebecca, Ware, 188.

The owner of the ship carries only his own goods, or carries all of them that he chooses to send, and fills up his ship with the goods of others, or carries only the goods of others. And if he carries only the goods of others, he does this by offering his ship as a general ship, or letting her out by a charter-party.

If he offers his ship as a general ship, this is usually done by advertisement stating the names of the ship and of the master, the general character of the ship, the time of sailing, and the proposed voyage. An owner would not be bound to strict accuracy in all these particulars; but would be obliged to make compensation to a shipper who was injured, without his own fault, by a material misrepresentation in any of these particulars.2 GL. VII.\]

CARRIGAGE OF GOODS ON PREIGHT.

And, if the course or ultimate destination of the ship were changed, it would be the duty of the ship-owner to notice the same in his advertisement, and vary that accordingly.1

28th of August, nor from Plymouth till the 4th of September. On the 31st of August the plaintiff sailed from Plymouth in another vessel. The court said: " When parties by advertisement hold out that they are ready to give a written guaranty that a vessel shall call on a particular day, and a contract is entered into specifically on that footing, in substance that is a warranty to sail on the day named." The question, however, in this class of cases is, what was the intention of the parties, and also, whether time was of the essence of the contract. Thus, in the case above cited, the defendants offered to give a written guaranty that the vessels would call on such days. For this guaranty nothing extra was to be paid, and the court therefore held that this showed that the guaranty was given by the advertisement and the circular. In Yates v. Duff, 5 Car. & P. 369, the court left it for the jury to say whether time was of the essence of the contract, and if not, whether the ship called within a reasonable time. See also Glahlom v. Bays, a Man. & G. 287 ; Ollive v. Booker, 1 Exch. 416. In Howard v. Cobb, U. S. C. C. 19 Law Report, 377, it was assumed by Mr. Justice _Nelson_, that time was of the essence of the contract. The case was similar to Cranston v. Marshall, supra. The vessel did not arrive at the port from which the parties were to sail on the day named, being detained by stress of weather. The court held this to be no excess, and said: " The contract bound the owner to have his vessel at the place and time designated ; that he had stipulated for as a part consideration for the price paid, and assumed upon himself the responsibility of performance ; and the failure operated a breach of the engagement, and subjected him to a return of the price-paid. The winds and weather are no excuse for the non-fulfillment of a contract as to the time of the commencement of the voyage. If these circumstances had been intended as elements of it, they should have been expressly provided for by the owner, and then all parties concerned would have understood it." See also Denton v. The Great Northern B. Co. 5 Ellis & B. 860, 34 Eng. L. & Eq. 154. In Mills v. Shul, 2 E. D. Smith, 139, an action was brought against the owner of a steamship for the breach of a condition set forth in a handhill in which the steamer was advertised to sail. It appeared in evidence that when the plaintiff went to buy his ticket he saw at the office a handbill, which stated that the steamer would sail direct for New York on a day mentioned. The handbill was signed by A & B as agents of the steamer, of whom also the plaintiff bought his ticket. The vessel gailed on the day mentioned, but did not proceed directly to New York, but stopped on the way to perform a salvage service, for which her owners were paid. The ticket bought by the plaintiff was recognized on board as a valid one. The court held that these facts were not sufficient of themselves to warrant the presumption that A & B were the agents of the steamer, and so authorized to bind the company. The correctness of this decision we are inclined to doubt.

1 In Peel v. Price, 4 Camp. 243, _Gilde_, C. J. said: " When a card has been published, advertising a ship for a specific voyage, if that be altered, I am of opinion that the owner is bound to give specific notice of the alteration to all persons who afterwards ship goods on board the vessel, and that he is otherwise answerable for the loss which they sustain by supposing that the destination of the vessel remains unaltered."

## Section II

Of the Bill of Lading.

The reception of the goods by the master on board of the ship or at a wharf or quay near the ship, for the purpose of carriage therein, or by any person authorized by the owner or master so to receive them, or seeming to have this authority by the action or assent of the owners or master, binds the ship to the safe carriage and delivery of the goods.1

Footnote 1: In Molloy, b. 3, c. 2, 1 2, the law is stated as follows : " And therefore so soon as merchandises and other commodities are put aboard the ship, whether she be riding in port, haven, or any other part of the seas, be that is _Exercior navis_ is chargeable therewith. In Golf v. Clinkard, cited in Dale v. Hall, 1 Wilson, 281, an action was brought against a master of a ship who undertook to carry goods from London to Amsterdam. A punched of run was delivered on board, and, while being let down into the hold, was stayed. A verdict was rendered for the plaintiff, though the defendant proved that he endeavored to let it down with all possible care. See also Morse v. Slae, 1 Vent. 190 ; Rich u. Knceland, Hob. 17 ; Williams v. Petyavin, 4 Mart. La. 304. In Cobban v. Downe, 5 Exp. 41, an action was brought against a wharfinger to recover the value of goods which had been delivered to the mate of a vessel by the wharfinger. Lord Ellborough held, that, under these circumstances, the liability of the wharfinger had ceased, because that of the vessel had commenced. As soon as a delivery is made, the vessel is bound. Faulkner v. Wright, I Rice, 107 ; Grenwood v. Cooper, 10 La. Ann. 796 ; Clarke v. Needles, 25 Penn. State, 338 ; Snow v. Carruth, U. S. Dist. Ct. Mass. Dist. 19 Law Reporter, 198. In this last case the damage was done to the goods after they were delivered, but before the bills of lading were signed. See also Greenwood v. Cooper, 10 La. Ann. 796. Mr. Justice Betts has, however, in a recent case in the District Court of New York, held that a vessel is not liable in res until the goods are on board, although they have been delivered to the officers of the vessel, Dill v. The Bertau. In support of this the following cases are cited. The Sch. Freeman v. Buckingham, 18 How. 182 ; Vandewater v. Mills, 19 How. 82 ; The Young Mechanie, 2 Curtis, C. C. 404 ; The Klemage, 2 Curtis, C. C. 421. But, after a careful examination of these cases, we are entirely of the opinion that they do not support the principle contended for by Mr. Justice Betts, although there are dica in some of them which seem to lead to such a conclusion; but the points actually decided are in every respect consistent with the law as stated in the text. See note 1, p. 135. In Trowbridge v. Chapin, 23 Conn. 595, goods were delivered on board a stcamer, which was a common carrier between New York and New Haven. The defendant proved that the cleft of the boat was the only person whose duty it was to receive freight and give receipts for it. 'The goods were taken on board by a porter, who testified that he saw but one man on board, who was either a deck hand, or one employed to sweep the decks. He told this man that he had goods for New Haven, and the man told him to put them down CH. VII.\] BILL OF LADING. **133**

**We say any person** _on board;_ **but it is not unusual in some of our commercial cities, for the bill of lading to be** **eigued and delivered in the counting-room of the owners, by a clerk of the owners. If he says, " A B, for C D, the master of said ship," the master would only be held by it being proved that he had given this authority, which, however, might be inferred from his knowledge and assent, or even knowledge and silence. Then the master and owners would be bound in the same way as if he signed it himself.1 If the clerk says, " A B, for E F, etc., owners of ship, etc." the owners would be bound on proof of authority, which would be inferred from knowledge and assent or usage. But it may be open to doubt whether this would bind the ship, the owners, and the master, in the same way and to the same extent as a bill of lading signed by the master. Perhaps, however, the courts would give it, substantially, the same effect. We are not aware of any adjudications on this precise question.**

Footnote 1: Putnam _v._ Tilloson, 13 Met. 517.

**If a written receipt is given for the goods, the obligation is no stronger, but the receipt is** _primal facie_ **and very strong evidence** of the reception of the goods.1 If, however, a bill of lading is given, this has an important influence over the rights and obligations of the parties.

Footnote 1: By the usual course of trade in England and in this country, the master or mate signs a receipt for the goods, at the time of the shipment, and delivers it to the shipper. The master should then be careful not to give a bill of lading till the receipt is given back to him. If the does, he will render himself doubly liable. Beaves, Lex Mercatoria, p. 127 ; Abbott on Shipping, 346 ; Craven v. Ryder, 6 Tamut. 483 ; Bryans v. Nix, 4 M. & W. 775 ; Evans v. Nichol, 3 Man. & G. 614 ; Thompson v. Small, 1 C. B. 328 ; Gosling v. Birnie, 7 Bing. 389 ; Ruck v. Hatfield, 5 B. & Ald. 632 ; Hawes v. Watson, 9 B. & C. 540 ; Jones v. Bradner, 10 Barb. 193 ; Merc. Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115 ; Keyser v. Harbeck, 3 Duer, 373.

Footnote 2: Public on Maritime Contracts, Cushing's Trans. p. 11, 16 ; Beaves, Lex Mercatoria, 146.

Footnote 3: Brons v. Nix, 4 M. & W. 775. In New York, a bill of lading, given for goods to be transported by a canal, is called a commercial instrument. Dows v. Greene, 16 Barb. 72. See also, Grove v. Brien, 8 How. 429.

Footnote 4: O'Brien v. Gilchrist, 34 Maine, 554 ; Wolfe v. Myers, 3 Sandf. 7 ; Ward v. Whitney, 8 Sandf. 899 ; Knox v. The Nireta, Crabbe, 854 ; May v. Babcock, 4 Ohio, 334 ; Wayland v. Moosley, 5 Ala. 430 ; Dickerson v. Seoley, 12 Barb. 99. Because the bill of lading must be signed by the master or by some one authorized by him, and must state by whom the goods are shipped, and where, and to whom they are to be delivered, the following instrument was held not to be a bill of lading : " Elmira, July 3, 1849, shipped on boat Occidental, H. Banks, captain, 59,900 feet white pine boards and plank, to Albany." This was signed by the agent of the consignor, and delivered to the captain. Covill v. Hill, 4 Denio, 333.

The bill of lading is a very ancient document; in general use among all commercial nations, and is much the same in its form and provisions in various countries ; 2 and long and repeated adjudications have left but few open questions as to its effect. The usual form we give in our Appendix. It is now quite common for our railroad companies, and perhaps other carriers, to give a receipt closely resembling a bill of lading ; but it is intimated in a recent English case, that the bill of lading is properly a sea document, not applicable to land carriage, or inland carriers by water.8 We do not know, however, any important consequences or influences of a bill of lading as used in shipping which might not be applied to a similar document in case of land carriage, if the facts and circumstances were, in other respects, similar. It is in substance the written acknowledgment of the master that he has received such goods as it describes, for the voyage stated, to be carried on the terms stated, and delivered to the persons specified in the bill.4 It is a document of * \[EL. VII\] BILL OF LADING. **135**

great force, and therefore should not be signed and delivered until the goods are actually received, (and if only _signed_, but not _delivered_, it has no force,) 1 nor should it contain any statements but those which are exactly accurate. If it be signed before the goods are received on board, or even before the shipper owns them or has bargained for them, it might nevertheless apply, as between the _master_ and the _shipper_, to any goods shipped afterwards as and for those which are named in the bill of lading. But, in general, as the master has no authority to sign a bill of lading until the goods are received, such a bill would not bind his owners2

Footnote 1: **Buffington v. Curtis, 15 Mass. 528 ; Allen v. Williams, 12 Pick. 297. But in the case of The Peyton, 2 Curtis, C. C. 21, it has been held that an agreement for a bill of lading might bind the master, although none were signed or delivered.**

Footnote 2: **In Bowley v. Bigelow, 12 Pick. 307, _Shue_, C. J., said : " The bill of lading acknowledges the goods to be on board, and regularly, the goods ought to be on board before the bill of lading is signed. But if, through indevterance or otherwise, the bill of lading is signed before the goods are on board, upon the faith and assurance that they are at hand, as if they are received on the what ready to be shipped, or in the ship-owner's warehouse, or in the shipper's own warehouse, at hand and ready, and afterwards they are placed on board, as and for the goods embraced in the bill of lading, we think, _as against the shipper and master_, the bill of lading will operate on these goods by way of relation and by estopel." The controversy in this case arose between the former owners of some corn, which was obtained from them by fraud, and the _load fide_ incidences of a bill of lading given to the person thus obtaining the corn, and by him sent to the defendants. But the question arises whether if a captain sign bills of lading before the goods are on board, or delivered to some one authorized to receive them, _and_ they are never shipped, the owners of the vessel are equipped from showing this fact in a suit brought against them for non-delivery by _bond fide_ indoreses of the bill of lading. It is clear that they are not. It is a fraud on the part of the master to sign the bills before the goods are on board, and an act not within the scope of his authority as master. And the owners therefore are not liable. Lickbarrow v. Mason, 2 T. R. 63, 75, per Buller, J.; Grant v. Norway, 10 C. B. 645, 3 Eng. L. & Eq. 337 ; Hubersy e. Ward, 8 Exch. 330, 1 Eng. L. & Eq. 551. See also, Coleman v. Riches, 16 C. B. 104, 29 Eng. L. & Eq. 323. Nor, in such a case, is the vessel hiable in _rem_. Sch. Freeman = Buckingham, 18 How. 188.**

**In Hastings v. Pepper, 11 Pick. 41, an action was brought against the master of a vessel, to recover the value of a glass bottle containing twenty pounds of oil of clores.** against the claim of the shipper on the ground of intrinsic defect, he might doubtless discharge himself by proof of such defect, whether apparent or not, unless the contract were one which amounted to or implied warranty to carry the goods and take the risk of that defect.${}^{1}$ But if the claim were made by a

The receipt of the box, containing the bottle, on board the vessel was acknowledged, but the defendant contended that the breaking of the bottle was owing to its being insufficiently packed, and that the bottle itself was imperfect, and not well annealed. Shaw, C. J., said : "It may be taken to be perfectly well established, that the signing of a bill of lading acknowledging to have received the goods in question, in good order and well conditioned, is _primal facie_ evidence, that, as to all circumstances which were open to inspection and visible, the goods were in good order ; but it does not preclude the carrier from showing, in case of loss or damage, that the loss proceeded from some cause which existed, but was not apparent, when he received the goods, and which, if shown satisfactorily, will discharge the carrier from liability. But in case of such loss or damage, the presumption of law is, that it was occasioned by the act or default of the carrier, and of course the burden of proof is upon him to show that it arose from a cause existing before his receipt of the goods for carriage, and for which he is not responsible.${}^{1}$ See also, Clark R. Barnwell, 12 How. 272; Cariss A. Johnston, Ang. on Carriers, 413, n. ; Barrett v. Rogers, 7 Mass. 297 ; McIntosh v. Gastonhofer, 2 Rob. La. 403 ; Price v. Ship Uriel, 10 La. Ann. 413 ; Bissel v. Price, 16 Ill. 408. In Ellis v. Willard, 5 Seld. 539, it was held that the statement in the bill of lading, that the goods were received in good order, would not prevent the carrier from showing that this was incorrect, and that is made no difference whether the goods were open to inspection or not. ${}^{1}$ Gaidon, ch. 7, art. 7, 10; Clark v. Barnwell, 12 How. 272 ; The Ship Howard v. Wissman, 18 How. 381 ; McIntosh v. Gastonhofer, 3 Rob. La. 408 ; Bissel v. Price, 16 Ill. 408. In Clark v. Barnwell, a quantity of cotton thread was shipped at Liverpool, under a common bill of lading for a voyage to Charleston, 8 C. On its arrival, the thread was found to be stained and spotted by dampens and mould caused by the humidity of the atmosphere of the hold, in a long passage, and by the transition from a colder to a warmer climate. The court held that damage caused by humidity, in the absence of any defect in the ship, or navigation of the same, or in the stowage, was a peril of the sea, for which the carrier was not liable. They said : "For it has been held, if the damage has proceeded from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation, or only in the confinement and closeness of the ship, the merchant must bear the loss, as well as pay the freight." In Lamb v. Parkman, U. S. Dist. Ct., Mass., 20 Law Reporter, 186, an action, was brought on a charter-party for freight. The defence was set up that the goods were damaged by sweat. The vessel came from Calcutta, and the damage was caused by the condensation of vapor in the hold by the transition from a warm to a cold climate, producing moisture directly under the upper deck, whereby the upper part of the cargo was injured. Mr. Justice _Sprague_ held, that, as the goods were stored in the usual manner, the ship-owners were not responsible for the damage, and freight was therefore due. If a cargo of hides is liable to perish from worms, and the beat of the vessel, at an intermediate port, it is the duty of the master to preserve them by having them beaten or ventilated. The Bark Gentleman, Olcott, Adm. 110. This case was reversed on

\*\*
is the consignee. The shipper himself is sometimes consignee as well as consignor; that is, the goods are deliverable to him or to his assigns. And if no person is named as consignee, (which is, however, unusual,) then the law-merchant, or usage, inserts the name of the consignor, and gives to the bill the same effect as if he were the consignee.1

Footnote 1: In Chandler _v._ Sprague, 5 Met. 306, A. of Brazil was indebted to P. H. & Co. of New York. At their request, and to pay his debt to them, he shipped goods to this country, on his own account and risk, under bills of lading, making the goods deliverable to his own order, and endorsed by him in blank. The bills of lading were sent to H. & Co. of New York, successors to P. H. & Co., with authority to make the goods thereby deliverable to themselves, or such persons as they might name, with authority to sell the goods, and to apply the proceeds to the payment of their own debt. On the arrival of the goods, H. & Co. filled up the bills of lading, making the goods deliverable to the plaintiffs, who were to sell them and account for the proceeds to P. H. & Co. The plaintiffs received the goods, and afterwards they were attached by the defendant, a deputy sheriff, as the property of P. H. & Co. The court decided in favor of the plaintiffs. They said : " In the first place, we are of opinion that no property in these goods vested in P. H. & Co. Had they filled up the blank in the bill of lading, as they had authority to do, so as to make the goods deliverable to themselves, and accepted the consignment, the property would have vested in them as consignees liable to account to the consignor." The court also said, that, although A., the consignor, was not in strictness the consignee, yet he had a right to direct the delivery of the property in any way he might think fit, and by sending the invoice and bills of lading to H. & Co., and authorizing them to name the consignee, and by their naming the plaintiffs the property thereby vested in them. See also, Turver _v._ Trustees of The Liverpool Docks, 6 Exch. 548, 6 Eng. L. & Eq. 507 ; Ellershaw _v._ Magniac, 6 Exch. 570, n.; Wait _v._ Baker, 2 Exch. 1 ; Van Castel _v._ Booker, 3 Exch. 691 ; Key _v._ Cotestworth, 7 Exch. 595, 14 Eng. L. & Eq. 485 ; Brown _v._ North, 8 Exch. 1, 16 Eng. L. & Eq. 486.

- Evans v. Marlett, 1 Ld. Raym. 271 ; Lickbarrow _v._ Mason, 2 T. R. 63, 1 H. Bl. 857, 6 East, 21, n.; Wright _v._ Campbell, 4 Burr. 2046 ; Hibbert _v._ Carter, 1 T. R. 745 ; Jenkyns _v._ Uaborne, 7 Man. & G. 678, 698.
- If the action is brought upon the hill of lading, it must be in the name of the

**CL VII.\]** BILL OF LADING.\*\* **139**

**erally,** _sue on the bill of lading_ **in his own name. It is said that even if the word assigns be omitted, an order written and signed by the consignee on the back of the bill, with delivery of it, binds the ship to the delivery of the goods to the indorsee.**1****

Footnote 1: In the following, we will use the term _in the following form_: \_The term _in the right_ of the110 ON THE LAW OF SHIPPING. \[BOOK L\]

An agreement, on good consideration, by a consignee to assign upon receipt of the bill is an assignment, or, at least, an equitable assignment of the bill of lading, valid against all subsequent assignees with notice.1

Footnote 1: We have not been able to use the word

**CH. VII.\]** BILL OF LADING. **141**

\*\*signee. If the consignor chooses to do so, he may send his copy of the bill to the consignee by another conveyance. If the bill contains the name of the consignee, and the bill is sent to him, this completes the title of the consignee; the goods are his, and are carried at his expense and risk; subject only to the right of the consignor to stop the goods for any breach of the conditions of sale before their actual arrival into the possession-of the consignee.1 If the consignor be himself consignee, and sends the bill to a third party, who has ordered the goods, or is to receive them, either endorsed to him or indorsed in blank, it is the same thing as if such person were named as consignee in the bill.3 If the consignor, being also consignee, sends such a bill without indorsement, the party receiving it acquires no rights under it,\*\*but only has notice by it that such goods are shipped in such a vessel to such a port.1 And it is quite common for the consignor to send such a bill to the party ordering the goods, and then to send to the agent of the consignor in the same port or country a bill indorsed to that agent, or to the party ordering the goods, or in blank, with orders to deliver the bill, or to receive the goods and deliver them, if payment be made or secured, or such conditions as the consignor chooses to prescribe be complied with. This prevents all question as to the right of the consignor to retain them for the price; although it might raise a question whether the goods in this case ever were sold by the consignor, and consequently, whether his holding them until the price is paid or secured, could be considered as a stoppage _is transitu_.

If this precaution be not taken, but the party ordering the goods is made consignee in the bill which is sent to him, the consignor runs the risk of his getting them into his possession, or transferring them by an indorsement for good consideration before the consignor can stop them _in transitu_. For shipping goods to one who has ordered them, is, in general, a completed sale, vesting the property in him, and is a _constructive_ delivery, subject only to be defeated by stoppage for the price before actual delivery.2 The obligation of the master to deliver the goods according to the bill of lading is so strong, that, where an mindorsed bill was sent to one ordering the goods, and he obtained possession by assuring the master that the goods were sent to him, and were his own and deliverable to him, and the shipper sued the ship-owner on the bill, who defended himself on the ground that the party to whom the goods were delivered was in fact the owner of them, and had a right to them, it was admitted, both by court and counsel, that if the defendant established the title and right of that party, the plaintiff must still recover against him, although with only nominal damages.3
CH. VII\] BILL OF LADING.

The billa of lading are evidence against the master or the owner of the ship, not only as to the reception of the merchandise, but as to any material fact stated in them respecting the quantity, or quality, or any other element in the description of the goods.1 It is therefore usual to describe them only as so many boxes, or bales, or parcels, numbered and marked as per margin; sometimes the words "contents unknown," or " said to contain," etc., are added; and if the words "containing," etc., are added, which is also not unusual, the master and ship are held only to deliver the boxes as they were received by them.2 The evidence of the bill of lading, however, is not conclusive as between the ship-owner 'and shipper, but may be rebutted by showing mistake or fraud.3 It is not usual for the right of lien on the goods for the freight to be expressly reserved by the owner; but whether it is so or not, the law-merchant gives this lien.4 The master is bound to deliver, and the shipper is bound to pay; nor can the master demand his freight, without being ready to deliver the goods on payment of it, nor can the shipper demand his goods without a tender of the freight.5 But al

**144**: **ON THE LAW OF SHIPPING. \[BOOK I**

though the law gives this lien, though it be not expressly reserved, yet it does not give it where it is expressly waived, or where it is waived by implication and necessary construction. As the right of lien, at common law,'means precisely the right of retaining or continuing possession until the price is paid, if the bargain be that freight shall be paid in so many days after arrival and delivery of the goods, this is held to mean that that the goods are to be delivered first, and at a future day the freight is to be paid; and this, of course, is destructive of the idea of a continued possession by the master or owner of the ship, and consequently of his lien. So the courts of law have generally held.1 We think, however, that the influence of the until the freight be paid or tendered, yet he must be ready to deliver the cargo on payment or tender. See also, Palmer, Lorillard, 16 Johns. 348; Prothingham, v. Jenkins, 1 Cal. 4; Isham v. Greenham, 1 Handy, 357; Certain Logs of Mahogary, 2 Summer, 589. See also, Moller v. Young, 5 Ellis & B. 755, 34 Eng. L. & Eq. 95, reversing the same case in the Queen's Bench, 5 Ellis & B. 7, 30 Eng. L. & Eq. 345.

1 The law seems now to be well settled, that, where the time and place of the payment of the freight are inconsistent with the right of lien, it will be considered as waived. What will be regarded as such an inconsistency, is said by Chancellor Kant to be, " When the payment of the freight is, by agreement, postponed beyond the time, or is at variance with the time and place for the delivery of the goods." 3 Kent, 211. In The Schoomer Volunte, 1 Sumner, 551, 569, _Stery_, C. J., said : " If the delivery of the goods is, by the charter-party, to precede the payment, or security of payment of freight," there will be no lien. In Chandler , Belden, 18 Johns. 157, 162, is was held not to exist when the cargo was to be delivered before the arrival of the periods of payment. It was so held also in Alsager v. The St. Katherine's Dock Co. 14 M. & W. 794, where freight was to be paid two months after delivery. This subject has recently undergone an elaborate investigation by the Supreme Court of the United States in the case of Raymond v. Tyson, 17 How. 83. The suit was brought by a libel in admixtly in the District Court of the United States for the Northern District of California. The case was then taken to the circuit, and thence to the supreme court. The vessel was chartered for a voyage from London to Cardiff, to load for a port on the Pacific, where she was to be employed between such ports as the charterces might elect; thence to be returned back, either to New York or Great Britain, at their option. The vessel was to be employed for fifteen months, with a privilege to the charterret to extend it to twenty-four months. Two thousand dollars per month was to be paid for the use of the vessel. This payment was to be made semismanally in New York. The court held, that, under these circumstances, the ship-opvers had no lien on the cargo for the freight, or for the sum agreed to be paid for the use of the ship. The court said : " The next rule for the construction of charter-parties, deduced by us from an examination of all the leading cases in the English and American reports, including those cited in the argument of the counsel of the appelle, is this; that though the owner of a ship, of which the charter is not the loose, best freighter only, has a lien upon the cargo for freight, properly so called, and also for a sum agreed to be paid for the use and hire of the ship, his lien may be considered as
**GL. VII.** \] BILL OF LADING.

common law on the privilege of the ship-owner against the cargo, for his freight, has essentially modified, and not improved, the principles of the law-merchant in this respect. These principles would not bold such a bargain as necessarily inconsistent with this lie, or rather this security; for the substantial meaning of the lien is, that the ship-owner looks to the goods as security for the freight earned by carrying them; and if the goods are held to secure the payment of the freight at a certain time, and are delivered to the consignee with that understanding, we do not see why it should be inconsistent with the law of lien, that the ship-owner has still a security on the goods 'for his freight, until a _bond fide_ sale is made of them. We think the question should always be, whether the ship-owner intended to give up that security for his freight, which be had by his contract upon the goods; if he did, the court will not revive his lien; if he did not, the court should in some way, if in its power, give.him that security without violating the terms of the agreement; that is, without requiring immediate payment of freight, if a delay of payment has been agreed upon.1

**What is the meaning of the contract in this respect should always be determined by the words and circumstances of each case.1 An admiralty court would have full equity powers,**

U. S. D. C. Mass., 1858. An appeal was taken, and the case argued before Mr. Jaston _Clifford_, in June, 1858, but it is not yet decided. This case suggests to us what may be the true way of reconciling the decisions with thequestioned principle that the Iben of the ship on the goods should be reciprocal with that of the goods on the ship. The Iben on the goods may be a maritime line and yet be lost by delivery. Even the most favored lie, that of a seam for his wages, is lost by a delay to enforce it; and a line may be waived as we have seen in the preceding note; and it may well be a presumption of law that the act of the master in delivering up the goods is to be considered as a waiver of his Iben. But if it be a maritime line, which it certainly is in our judgement, we should say that if the circumstances attending the delivery were such as to show no intent on the part of the master to relinquish his Iben, he should still have it, though the burden would be on him to show this fact.

The Supreme Court of the United States have, in an indirect manner, considered the Iben on the goods as maritime. In Cutler _v._**Ree, 7** How. 729, they held that they had no jurisdiction _in persona_ in general average, on the ground that the Iben of the ship on the goods was a common law Iben, and that they had no jurisdiction _in persona_ except where they had a maritime line. In New Jersey Stean Nav. Co. _v._ Merchants Bank, 6 How. 344, they held that they had jurisdiction in contracts of artegrightment as well _in persona_ as _in res._ It would therefore follow that the Iben is maritime, although the decision did not proceed on the ground.

The true nature of a maritime line was ably set forth in Harmer v. Bell, 7 Moore, P. C. 267, 22 Eng. L. & Eq. 62, and although the language used by the court is not altogether applicable to the case where the party claiming the Iben has relinquished the possession of the _ren,_ still we will state the case and cite a portion of the decision of the court as it sets forth the general doctrine of maritime lines in an admiralty and lucid manner. The suit was _is_ ren for damages done by a collision. The court said: "A maritime line does not include or require possession. The word is used in maritime law, not in the strict legal sense in which we understand it in courts of common law, in which case there could be no Iben, where there was no possession, actual or constructive; but to express, as if by analogy, the nature of claims which neither pre-suppose nor originate in possession. A maritime line is the foundation of the proceeding _in resn_, a process to make perfect a right inchoucn from the moment the Iben ataches; and whilst it must be admitted that where such a Iben exists, a proceeding _in resn_ may be had, it will be found to be equally true, that in all cases where the proceeding _in resn_ is the proper course, there a maritime line exists, which gives a privilege or claim upon the thing, to be carried into effect by legal process." See also, The Betsory & Rhoda, Davies, 112, and articles on the "Peculiarities of Maritime Lines," 15 Law Reporter, 555, London Law Magazine, Nov. 1852; 16 Law Reporter, 1, London Law Magazine, Feb. 1858, Vol. XVIII. X. x. 143.

1 In Buggles v. Bucknor, 1 Paine, C. C. 358, Mr. Justice Thompson says: "Each case must depend in a great measure upon its own circumstances. Parties are not bound to any fixed and precise stipulations to be embraced in a charter-party. They can insert any overscants they please, to answer the end and effect the object they have in view." See also, Gracie v. Palmer, 8 Wheat. 605, 634; Raymond v. Tyson, 17 How. 53. And in a doubtful case the law will lean towards that construction which6. **The** **BILL OF LADING.** 147\*\*

and its own process _in rem,_ in a case involving questions of this kind ; and would doubtless pay some regard to the principles of maritime law. We shall recur to this question again in our chapter on the law of admiralty. It has been held that the parties may agree that the 'lien shall continue, notwithstanding delivery. And the lien is not lost if the master is induced to surrender the possession of the goods by fraud or trick, and replenvin may be maintained.1 And if the goods are in the possession of the master, and are replevied, the lien is not waived by suing the owners of the goods and attaching other property.2

Footnote 1: In Walls v. Cook, 10 Mass. 510, it was agreed in the bill of lading that the net proceeds of the goods shipped, after deducting commissions and freight, should be paid to the shipper ninety days after the arrival of the vessel at her port of discharge in the United States. On the return voyage the ship, bound to New York, was stranded in Long Island Sound, and the cargo damaged and abandoned to the underwriters, but the ship was afterwards got off and repaired. The adventure of the plaintiff was insured for the round voyage. No effects were shipped on board the vessel on her return voyage on account of the plaintiffs, but the defendant had invested the proceeds of the 143 ON THE LAW OF SHIPPING. \[BOOK L.

It is often said that the contract for freight is an entire contract. tract.1 It is so in many respects; but the rule is not without some exceptions and modifications. This rule of entirety operates, first, on the quantity of the goods, no freight being payable unless all are delivered;2 next, upon the completion of the voyage, the general rule being that no freight is payable unless the whole voyage is performed.3

outward adventure in the cargo on his own account. The court held that the contract was in effect a loan on the personal responsibility of the defendant and his principals, to be reugial if the ship arrived at her port of discharge, and that, as she might, after being repaired, have gone there, the defendant was liable. See also, Winchester r. Patterson, 17 Mass. 62.

In Steamboat John Owen v. Johnson, 2 Ohio State, 149, where there was a stipulation in the bill of lading to deliver the goods to the consignee on payment of a certain sum to the clerk of the boat; for the consignor, and the goods were delivered without payment, it was held that the boat was liable.

In Jones v. Hoyt, 38 Conn. 157, the bill of lading contained a stipulation that the lumber on board should be measured on the deck of the vessel on arrival at the port of destination, by the consignee and master, and freight should be paid according to such measurement. On arrival, the consignee having died, no person appeared to assist the captain in measuring the lumber, and it was accordingly put on the whart and measured. Held, that the measuring on deck was not a condition precedent, and that the owner of the vessel, having substantially complied with the stipulations in the bill of lading, was entitled to freight.

1 The Nathaniel Hooper, 3 Summer, 542; Post v. Robertson, 1 Johns. 24, per Thompson, J.; Halverson v. Cole, 1 Speers, 331 ; Adams v. Haught, 14 Texas, 243.

2 See post, p. 149, n. 4.

3 In The Nathaniel Hooper, 3 Summer, 542, 554, Mr. Justice Story said: " The general principle of the maritime law certainly is that the contract for the conveyance of merchandise on a voyage is, in its nature, an entire contract, and unless it be completely performed by the delivery of the goods at the place of destination, no freight whatsoever is due; for a partial-conveyance is not within the terms or the intent of the contract, and unless it be completely performed by the delivery of the goods at the place of destination, no freight whatsoever is done, and the merchant may well say _non in face federal vexit."_ Lord Ellborough also, in Hunter r. Prinsep, 10 East, 378, 394, states the rule with great accuracy. He says: "The ship-owners undertake that they will carry the goods to the place of destination unless prevented by the dangers of the seas, or other unavoidable casualties ; and the freighter undertakes that if the goods be delivered at the place of their destination, he will pay the stipulated freight; but it was only in that event, namely, of their delivery at the place of destination, that he, the freighter, engages to pay any thing. If the ship be disabled from completing her voyage, the ship-owner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place of destination; but he has no right to any freight if they be not so forwarded; unless the forwarding them be dispensed with, or unless there be some new bargin'upon this subject. If the ship-owner will not forward them, the freighter is entitled to them without paying any thing. One party, therefore, if he forward them, or be prevented, or discharged from so doing, is entitled

## 1 Introduction

The discovery

**150** ON THE LAW OF SHHPING. \[b00K L

due only for what is _shipped_.1 If the owner delivers a part of the goods and pays for the rest, he is entitled to his freight on the whole, provided the consignee receives the part delivered.3 If the goods are accepted and freight is demanded, the shipper may have his claim against the ship-owner, by way of offset or otherwise, for the value of the goods not delivered.8 And the ship-owner must indemify the shipper for their full value, or for the injury they have sustained, unless he can show that they were lost or injured from a cause for which he is not responsible; and the burden of proof is on the ship-owner to show that the loss was occasioned by such a peril.4 But if this is clearly

**c. VI.\]** DELIVERY OF THE GOODS. 151

**shown to be the case, then the shipper is bound to show that the loss could have been prevented by the exercise of reasonable care and skill on the part of the carrier.1 And if he pays to the shipper the full value of the goods, he may deduct from it the freight which would have been payable to him, as otherwise the shipper would be more than indemnified.2** But the question of the entirety of the contract arises far more frequently when the goods are not delivered at the end of the voyage, or, in other words, when the whole of the voyage is not completed.3 We have already seen that the ship-owner has a lien on the goods for his freight; that is, he may retain them until the freight be paid; but if he retain them he can bring no action for payment of the freight. For the rule is this: there can be no action for freight unless delivery is either made, or prevented from being made, by the act or fault of the shipper or consignee.4 It has been held, however, that if the goods are lading in relation to breakage, would, if valid in other repects, throw the burden of proof on th,shipper.\*\* 1 It was said in Clark _v._ Barwell, 12 How. 272, 280, that if the ship-owner can prove that the loss was occasioned by a peril excepted against, the shipper may still show that the loss might have been avoided by the exercise of reasonable skill and attention on the part of the carrier, but in such a case the burden of proving this would be on the shipper. And this was so decided in Hunt _v._ Propeller Cleveland, 1 Newb. Adm. 281, 6 McLean, C. C. 76. 12 Bocross, note 81, cited by L.A.M.M. in Luke _v._ Lyde, 2 Burr. 882, 889 ; Knox v. The Ninetta, Crabbe, 534, 544 ; Arthur v. Schooner Cassius, 9 Story, 81. It was held in the case of ship Panama, Cloott, Adm. 343, 363, that where freight was paid in advance, and the goods were not delivered, the owner had a lien on the ship for the freight, and the value of the goods. But this is certainly inconsistent with the cases above cited, and with the subsequent case, decided by the same learned judge, of Thatcher _v._ McCullolo, Cloott, Adm. 365. See also, The Joshua Barker, Abbott, Adm. 215 ; Basin _v._ Richardson, U. S. C. C. Penn. Dist. 1857, 20 Law Reporter, 129, 5 Am. Law Reg. 459. 18 See ante, p. 148, note 3. 4 In Bradstreet v. Baldwin, 11 Mass. 229, the cargo was seated by the government for the default of the shipper. The court held, that " if there was evidence of a readiness on the part of the plaintiffs to deliver the cargo to the defendant, and the actual delivery and discharge of it had been prevented by the neglect of the defendant to receive it; or if the delivery was interepted by an attachment, or seizure for a default of the defendant, the plaintiffs would be as well entitled upon this evidence, as they would be on proving an actual discharge and delivery of the cargo." In Clendaniel v. Tackerman, 17 Barb. 184, the vessel arrived at her port of destination, and offered to deliver her cargo. The consignee was not ready to receive it. ' The vessel waited several days, and during the delay was cappained without any fault on the part of thetendered to the consignee at the proper end of the voyage, and the consignee is unable to receive them by reason of the action or prohibition of government, the whole freight is still earned and due; for here, the ship-owner has done all that he was bound to do.1 Not so, however, if the ship is prevented from arriving at the port by a blockade, or any similar cause, for then the voyage is not finished in fact, nor can it be certain that it would have been finished and delivery made had there been no obstruction of this kind.2 A usage to receive goods at the quarantine ground is admissible as showing a compliance with the engagement to deliver at the port.3 When a cargo is shipped to a foreign country and no particular port of delivery is mentioned, the presumption is that the general port of delivery of such cargoes in that country is the one meant.4

Footnote 1: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 2: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 3: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 4: The author is grateful to the anonymous referee for his comments on the manuscript.

The general rule applicable to carriers and other persons contracting to deliver goods, is that a personal delivery is necessary.5 But this rule does not apply to the case of ships, the usages of GL VII.\] DELIVERY OF THE GOODS. **153**

**trade having constituted a delivery on the wharf with notice to the consignee sufficient.1 The delivery must be on a wharf which is suitable for the cargo which is to be placed upon it; if then the goods are injured in consequence of the insufficiency of the waharf, the vessel is liable as if no,delivery had taken place.2 And although the liability of the carrier may cease by the goods being put on the wharf, yet if they are taken on board again his liability revives.3**

Footnote 1: In Hyde v. Trent & Mersey Nav. Co. 5 T. R. 389, which was a case of carriage by land, _Buller_, J., said : " When goods are brought here from foreign countries, they are brought under a bill of lading, which is merely an undertaking to carry from port to port. A ship trading from one port to another has not the means of carrying the goods on land, and according to the established course of trade, a delivery on the usual wharf is such a delivery as will discharge the carrier." The former part of this reason does not appear to be perfectly satisfactory, because a bill of lading is not merely " an undertaking to carry from port to port," but it is also a contract to deliver the goods to a specified person. The general question of delivery was much discussed in the case of Cope v. Cordova, 1 Rawle, 203, and the usages and customs of several foreign ports in relation thereto set forth at length. In this case the plaintiff was the consignee of ten crates of merchandise. As soon as the vessel was ready to unload, he sent a porter to receive them, with a permit and a list of the articles, and with authority to receive them, etc. On the twenty-second of the month one or more crates were de-Ihered to the porter, and one or more on the two following days. The porter did not attend during the whole of these days, but called repeatedly every day, and took away such as were delivered. One of the crates was landed on the twenty-third, but was not received by the porter, and it was not known what had become of it. It was held that the defendant was not liable. * The Bark Majestic, U. S. Dist. Ct., New York, 10 Legal Observer, 100. In this case a cargo of iron was unloaded on a spile dock, the master having notice that it was not strong enough to sustain it, and the vessel was held liable for the injury sustained * by the wharf breaking through. * The Huntes, Daveis, 82. * The Ship Middlexes, U. S. C. C. Mass. Dist., May T. 1857, 91 Law Reporter, 14. * This doctrine is laid down in the early case of Golden v. Manning, 3 Wilson, 429, 2 Wm. Bl. 916, as follows : " There can be no doubt but carriers are obliged to send notice to persons to whom goods are directed, of the arrival of those goods within a reasonable time, and must take special care that the goods be delivered to the right person." See also, The Peytona, Ware, 3d ed. 541, 2 Curtis, C. C. 21 ; Salmon Falls edge, therefore, casually acquired that the vessel has arrived and will discharge her cargo at a particular wharf, is not enough.1 Generally, if a notice in the newspaper is relied on, it must be shown that the consignee read the notice.3 If, however, the consignee is absent or cannot be found after diligent search, the want of notice is excused.3 If the master has wrongfully omitted to sign a bill of lading, and has sailed without learning the names of the consignees, he cannot avail himself of his ignorance as an excuse for not giving notice of the landing of the goods.4 But if it is the fault of the shipper that there is no bill of lading, notice published in a paper taken by the consignees is sufficient.5 And it is the duty of the master, if no Manufeturing Co. v. Bark Tanger, U. S. C. C. Mass. Dist., May T. 1857, 21 Law Report, 6; The Ship Middlesex, 21 Law Reporter, 14; Ostrander o. Brown, 15 Johns. 39; Pico v. Powell, 8 Comast. 329; House v. Schoomer Lexington, 2 N. Y. Leg. Obs. 4; Gatilfe v. Bourne, 4 Bing. N. C. 314, 5 Scott, 667, Arnold, 120, affirmed in the Exchequer Chamber, 3 Man. & G. 643, 3 Scott, N. R. 1, and in the House of Lords, 7 Man. & G. 850. In Barclay v. Clyde, 2 E. D. Smith, 95, goods were shipped from New York to Philadelphia. On arrival the carrier sent them by a cartman to the store of the consignee. When they reached the store they were found to be damaged, but it did not appear whether it was caused by the cartman or whether it happened on board the ship. It was held that the carrier's liability continued till the goods were delivered, and that the delivery on the wharf was not sufficient, as no notice had been given to the consignee. 1 The Ship Middlesex, 21 Law Reporter, 14. 2 Kohn v. Packard, 3 La. 224. In Northern v. Williams, 6 La. Ann. 578, no direct notice was given, but the answer did not set ap want of it, and the court were of opinion that the consignee received the bills of lading, and saw the notice of the arrival in the papers, though there does not appear to have been any proof of this last fact. 3 Fisk v. Newton, 1 Denio, 45. The consignee was a clerk in New York, having no place of business of his own, and his name was not in the directory. The agent of the carriers made diligent inquiry for him, but could not find him. He then placed the goods in the hands of storehouse keepers, who were then in good credit, and they gave a receipt for the same.' After some months the consignee appeared, demanded the goods, and paid the freight on the receipt being given up to him. But as the storohouse keepers had failed, he sought to recover from the carriers. Held, that they were not liable. Mr. Justice _Jewart_ said : " When goods are safely conveyed to the _place_ of destination, and the consignee is dead, absent, or refuses to receive, or is not known, and cannot, after due efforts are made, be found, the carrier may discharge himself from further responsibility by placing the goods in store with some responsible third person in that business at the place of delivery, for and on account of the owner. When so delivered, the storohouse keeper becomes the bailee and agent of the owner in respect to such goods." See also, Mayell v. Potter, 2 Johns. Cas. 371. 4 The Peytona, Ware, 2d ed. 541, 2 Curtis, C. C. 21. 4 Medley v. Hughes, 11 La. Ann. 211. And probably notice in any paper would, in such a case, discharge the vessel.

**GR. VII.\]** DELIVERY OF THE GOODS.

\*\*consignee is named in the bill of lading, to store the goods for the benefit of the owner.1 And this is his duty generally, when the consignee refuses to receive the goods; and after the goods are on the wharf the consignee has a reasonable time, in which to inspect them, and determine whether or not he will accept the consignment. Till he does accept, he is not liable for height. If he refuses to accept he incurs no liability, and the master cannot leave the goods to perish, but is bound to store them for the owner.2 The delivery must be on a proper day as regards the weather, and must also be on a business day,3 and at a proper hour of such day; and a clerk or truckman in the employment of the consignees has no authority to bind the latter to receive the goods at an unusual time;4 and the liability of the vessel continues till the consignee has had that reasonable time to examine the goods to determine whether he will accept them or not as spoken of above. In general, the delivery must be _reasonable_, in time, place, and circumstance.5

Footnote 1: Galloway _v._ Hughes, 1 Bailey, 553.

Footnote 2: Arhar _v._ Schooner Cassia, 3 Story, 81 ; Ostrander _v._ Brown, 15 Johns. 39 ; Chickering _v._ Fowler, 4 Pick. 371. In this last case the action was brought on the bill of lading by the consignor. The consignee refused to accept the goods, and the master took no further care of them, and they accordingly perished. The court held, that if the consignee ordered the goods unconditionally, he was bound to accept them, and then the master would not be liable; but if not, the master should have stored them for the owner.

Footnote 3: Frice v. Powell, 3 Comst. 322, which was an action brought by the consignor, it was held, that the liability of the carrier continued till the consignee had had a reasonable time, in which to take away the goods. Notice was given late in the evening, and it was held that the consignee was not obliged to take away the goods before the next day, and that if they were injured in the night while on the wharf, the carrier was liable. So, in Segura _v._ Reed, 3 La. Ann. 695, which was also an action by the consignor. After the delivery on the lveve, and notice to the consignees, some of the goods were stolen. The court said: " The contract of the vessel is to deliver the goods to the consignee, and the responsibility continues until there is an actual delivery, or some act which is equivalent to, or a substitute for it. Even assuming the general rule to be, that putting the goods on the wharf discharges the vessel, where there has been a notice to the consignees of the time and place of the delivery, it seems to us that this rule is not to be applied with such rigor against the consignee as to put the goods unqualifeldly at his risk from the very instant of landing them, when he has
**156** ON THE LAV OF SHIPPING. \[BOOK L \]

It has been held, that a usage to deliver goods without notice may be shown.1 But a usage for a wharfinger. to accept goods on behalf of the consignees, is not one which will be considered binding.2 And, whatever the law may be in regard to a usage, it is clear that the parties may make a special contract in regard to the manner of delivery.3 The goods should be plainly marked, so that the consignee may be known ; and if, without any fault on the part of the carrier, the owner sustains a lose in made repeated calls for them during the day, and the discharge is not made until an advanced hour of the day." The consignee in this case received notice between twelve and one 'clock on Saturday, and went himself, and sent his clerk at three to receive the cotton. It was not then delivered, and nothing was said in regard to the time when it would be delivered. It was put on the lexree at four 'clock on that day. On Monday ten holes were missing. The carrier was held liable. See also, Northern v. Williams, 6 La. Ann. 578.

1 Gibson v. Culver, 17 Wend. 305 ; Farmers and Mechanics Bank v. Champlain Transp. Co. 16 Vt. 52, 18 id. 131, 23 id. 186. But see Price v. Powell, 3 Comat. 332. In Steamboat Alhotras v. Wayne, 16 Ohio, 513, a local usage regulating the mode of delivering goods at Memphis, was held not to be binding on shippers of goods from Cincinnati to that place, unless it was known to the merchants and shippers there generally. This was so held, on the ground that a practice which is unknown to those generally engaged in the trade, cannot be sustained as a usage, and cannot control the terms of a contract, because the parties to it cannot be presumed to have contracted with reference to the usage.

**3** The Ship Middlesex, 21 Law Reporter, 14. So in darkness v. Church, 10 La. Ann. 64, it was held that a delivery by a carrier to a wharf-boost at the port of destination, without notice to the consignee, was not sufficient. But that, if the consignee paid the freight to the owner of the wharf-boat, which he had advanced, this would amount to a recognition of the authority of the wharf-boatman to receive the goods as the agent of the consignee. See also, Wayne v. Steamboat General Pike, 16 Ohio, 421 ; Steamboat Alhotras v. Wayne, id. 513.

**4** In the case of The Grafton, Olcott, Adm. 43, 1 Blatchf. C. C. 173, two hundred and sixty-seven bales of them were shipped from New Orleans to New York. Notice of the arrival was given, but the consignees, who were also the owners of the goods, refused to receive them on account of the weather, which they alleged was not suitable for the discharge of the cargo. The evidence showed that the day was one of good working weather after nine, a.k.; that there were clear indications of rain about soon, and that the storm, which damaged the goods in the afternoon, came on abruptly, with but few minutes previous warning. Notwithstanding the refusal of the consignees to receive the goods, the ship began to unload them ; but at a little before noon, an agreement was entered into between the consignees and the agents of the vessel, that the latter should cease to unload, if the consignees would take away what was already unloaded. The consignees took away a number of bales, but the ship continued to unload, and in the afternoon the bales on the wharf, and some of those which were taken away, but not stored, were damaged by rain. There was evidence that the number taken away, was greater than that on the wharf at twelve, though the number stored was less. The court held, that though generally a delivery on the wharf with notice

**(EL VII\] DELIVERY.** . **157**

**consequence of the illegible direction, the carrier is not liable. But if the goods have been delivered to the owner and the freight paid, and the carrier afterwards takes them back without the knowledge of the owner, and delivers them to a third person who claims them, it is no defence to an action for the goods that they were not distinctly marked, although the carrier acted in good faith.1**

**In Pennsylvania it seems to be supposed that a delivery of goods at a foreign port differs from a delivery in the internal or coasting trade.2 But this distinction does not appear to us to be warranted by law to the extent contended for. If the goods are to be transported over different parts of their route by carriers having no connection with each other, a notice by one carrier to another that the goods have arrived, and that he is ready to deliver them, is sufficient to exonerate him.3**

Footnote 2: See Coop v. Ordova, 1 Rawle, 208. The case of Hemphill v. Chenie, 6 W. & S. 62, was decided on this ground. It was there held, that the responsibility of a carrier on the Ohio does not cease upon the delivery of the goods on a wharf, and notice to the consigree. But when we look at the facts of this case we shall see that it differs in no respect from the well-settled rule of law applicable to contracts of affiebment generally. See ante, p. 15, n. 2. The action was brought by the congror, and not by the consigree. The carrier put the goods on the wharf, gave notice to the consigree, and took no farther care of them. The goods were probably stolen, and the carrier was held liable.

Footnote 3: See Coop v. Ordova, 1 Rawle, 208. The case of Hemphill v. Chenie, 6 W. & S. 62, was decided on this ground. It was there held, that the responsibility of a carrier on the Ohio does not cease upon the delivery of the goods on a wharf, and notice to the consigree. But when we look at the facts of this case we shall see that it differs in no respect from the well-settled rule of law applicable to contracts of affiebment generally. See ante, p. 15, n. 2. The action was brought by the congror, and not by the consigree. The carrier put the goods on the wharf, gave notice to the consigree, and took no farther care of them. The goods were probably stolen, and the carrier was held liable.

**VOL L** . **14**

**(EL VII\] DELIVERY.** . **157**

**consequence of the illegible direction, the carrier is not liable. But if the goods have been delivered to the owner and the freight paid, and the carrier afterwards takes them back without the knowledge of the owner, and delivers them to a third person who claims them, it is no defence to an action for the goods that they were not distinctly marked, although the carrier acted in good faith.1**

**In Pennsylvania it seems to be supposed that a delivery of goods at a foreign port differs from a delivery in the internal or coasting trade.2 But this distinction does not appear to us to be warranted by law to the extent contended for. If the goods are to be transported over different parts of their route by carriers having no connection with each other, a notice by one carrier to another that the goods have arrived, and that he is ready to deliver them, is sufficient to exonerate him.3**

Footnote 2: The question came before Mr. Justice _Sprogue_, in a late case, Paine v. Bowker, U. S. D. C., Mass. 1856. Three hundred and forty-nine barrels of flour were consigned to a firm in Boston. On the twenty-sixth of the month the consigrees were notified that the ship would unload that day, and the greater portion of the flour was landed on the
The goods must be delivered at the port of destination, and therefore the vessel is not discharged by showing that the goods were delivered at an intermediate port, and were to be shipped from thence to the port of destination under a contract made by the defendant with another boat.1

By the custom of the river Thames the master of a vessel is bound to guard goods loaded into a lighter, sent for them by the consignee, until the loading is complete, and he cannot discharge himself from that obligation by telling the lighterman he has not sufficient hands on board to take care of them.2

SECTION IV.

OF THE FORWARDING OF THE GOODS IN OTHER VESSELS.

As the ship-owner has thus no claim for freight until the whole voyage is completed, he has no lien on the cargo for _payment_ of freight until then; but in the mean time he has a lien on the cargo for the _earning_ of freight. That is, he has a right to hold a cargo once shipped on board his vessel, and to carry it to its destination, although circumstances may occur which will cause whatf. The next morning twelve more barrels were landed. In the afternoon every thing on the wharf was destroyed by fire. All the flour, with the exception of three barrels, which were afterwards tendered to the consignee, but not accepted, was on the wharf at the time of the fire. It was contended that the consignee was not bound to take away any of the barrels till the whole was delivered, but the court decided otherwise, and held, that the ship had earned her freight. See also, Vol. II. In regard to the liability of insurers where part of the cargo is on the wharf and destroyed before the whole is landed.

1 Watts V. Steamboat Saxon, 11 La. Ann. 43.

& Cately v. Wintingham, Peake, I50 ; see p. 177, n. 1. In Abbott on Shipping, 379, it is stated that it has been much contested whether the master is, by the usage, bound to take care of the lighter, after it is fully laden, until the time when it can properly be removed from the ship to the wharf. And that, at a trial of this question, it was held, that the master was not obliged to, citing Robinson v. Turpin, before Lord _Ellenborough_, C. J. But the action in this case was against the lighterman, and the plaintiff recovered. At a former trial the plaintiff had been nonsuited. Whether this former trial was against the master, is not stated, though it is to be inferred that it was.

\[\]

choosees to do this, the ship-owner need not deliver them, although he is in port, damaged, and the cargo damaged and needing repair, which, with the necessary care of the cargo, will cost much time and money. Still the master or owner may say that he shall perform and finish the passage as soon as possible, and thereby earn all his freight.1

the voyage, the shipper must wait, or pay the entire freight." It will thus be seen that by the early maritime laws, the consent of the master was requisite to a disolation of the contract. The contract of affreightment is like any other contract, and cannot be dissolved at the will of one of the parties to it. It is that the goods shall be carried on the particular voyage for the agreed sum to be paid. If then, the master, for any reason, wishes to carry the goods on to the end of the voyage, it is difficult to see upon what principle of law he can be compelled to give them up. In Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210 (previously cited on p. 128, n. 1), the question arose, whether a shipper had a right to demand his goods after they were laden on board, but before the vessel failed from her original port. The court held that, by the usage of trade, the merchant, if he demanded the goods in a reasonable time before the ship salied, was entitled to have them delivered back to him on paying the freight that might become due for the carriage of them, and on indemifying the master against the consequences of any bills of lading signed for them, but that these were conditions precedent, and if not performed, the original contract remained in force. The language of the court, however, shows that if this usage had not been proved, the shipper could not have demanded his goods, without the consent of the master, for they said : " The general rule is that a contract, once made, cannot be dissolved except with the consent of the contracting parties." And in Clark v. Mass. F. & M. Ins. Co. 3 Pick. 104, Mr. Justice Putman said : "Neither party is at liberty to abandon the contract without the consent of the other, or without legal cause, which was not procured or occasioned by the fault of the party who relies upon it." And in The Nechanical Hooper, 3 Sumner, 542, 559, Mr. Justice Storey said : " Suppose a ship meets with a calamity in the course of a voyage, and is compelled to put into a port to repair, and there the cargo is required to be univered, in order to make the repairs, or to insure its safety, or ascertain and repair the damage done to it; would such an arbitrary dissolve the contract for the voyage ! Certainly not." The Spanish Commercial Code of 1829 provides that the shipper may unload his goods on paying half freight, the expense of loading and unloading, and all damage to the other shippers. The latter to be at liberty to oppose the unloading, taking the goods upon themselves, and paying the invoic price. Cdigdig de Commerce, art. 765.

1 In Jordan v. Warren Ins. Co. 1 Story, 342, insurance was effected on freight from New Orleans to Havre. Soon after sailing, the vessel met with a disaster, and was obliged to put back to New Orleans. The cargo was found to be so much damaged that it would have taken several months to have put it in a condition for reshipment, and it was sold by consent. Mr. Justice Storey held, that the master had a right to wait till the goods were prepared for reshipment, and then to take them on their port of destination, if they would arrive there in specie, and that not having done so, the underwriters were not liable. See also, Herbert v. Hallet, 8 Johns. Cas. 93 ; Griswold v. N. Y. Ins. Co. 1 Johns. 204 ; Salatus v. Ocean Ins. Co. 14 Johns. 138 ; Ellis v. Willard, 5 Seld. 539 ; Clark v. Mass. F. & M. Ins. Co. 2 Pick. 104 ; M'Gaw CH. VII.\] FORWARDING OF GOODS IN OTHER VESSELS. **161**

Nor is this all; for he may send the cargo forward in another ship, or even by land conveyance to its destination, and then claim his whole freight.1 And he not only may do so, but, according to strong authorities, is bound thus to transship the cargo, if there be a vessel or other means of transport, to the place whither the cargo should go, within reasonable reach.2 He is not bound to transship at all events;3 but this obligation

r. Ocean Ins. Co. 28 Pick. 405; The Nathaniel Hooper, 3 Sunner, 542; Lord v. Neptune Ins. Co. Sup. Jud. C. Mass. Nov. T. 1857; Morty v. Jones, 4 B. & C. 394; Hunter v. Prinney, 10 East, 378, 394; Tromson v. Dent, 8 Moore, P. C. 419, 36 Eng. L & Eq. 41; Tio v. Vance, 11 La. 199; Adams v. Haugh, 14 Texas, 243.

1 Lake v. Lyde, 2 Burr. 882, 889. See also cases in note infra. It is evident from the language of the court in the case of Rosetto v. Gurney, 11 C. B. 176, 183, 7 Eng. L. & Eq. 461, that if the master sends the goods on, he does it on the original contract, and is entitled to the freight stipulated for, although the expense of sending it on be less than by the original ship. And it was so determined in Shipton v. Thornton, 9 A. & E. 314.

- All the authorities agree that the master has the power to send the goods on in any other ship, if his own be lost, but it has been doubted whether it is his duty so to do. The question turns upon the nature of the contract made by the parties. It is admitted that the master is bound to take the goods on, if he can, in his own ship ; but, it has been argued that this is all, and that if his own ship is destroyed by the _via major_, the contract is thereby put an end to. The Rhodian Law (Dig. 14. 2. 10. 1.), the laws of Oleron, art. 4, and the laws of Wisbury, art. 16, gave the master _power_ to transship in such a case. Faber (Com. ad Pand.) and Vinius (note ad Com. Peckii, 4 Ben Nauitem, 294, 295) were of opinion that the master was not bound to transship. The Ordinance of the Marine, on the other hand, held it to be the _duty_ of the master to send the goods on if he could. Tit. du Fret. art. 11. Valin (tit. du Fret. art. 11) and Pohler (Charte Parrie, n. 68) hold, that the master is not obliged, and that he loses only his freight for the entire voyage by his omission to procure another vessel.

Enregion maintains the opposite, in support of the old code, tom. 1, 428, 429. By the new code, the master is obliged, if the vessel becomes disabled, to repair her, and during the time of such repairing the shipper is bound to wait, or pay the full freight, and if the vessel cannot be repaired he must live another, but if he cannot, _pro vata_ freight is due. Code de Commerce, art. 296. The subject is also elaborately discussed by Boulay-Paty, Cours de Droit Commercial Maritime, tom. ii. 398-405; and the views taken by Emerion are adopted by him. Pardessas also is of the opinion that is the duty of the master in such a case to procure another vessel. Cours de Droit Com. time ii. 644. In England the point has not as yet been decided. See Shipton v. Thornton, 9 A. & E. 314; Rosetto v. Gurney, 11 C. B. 176, 188, 7 Eng. L. & Eq. 461. In this country the rule seems to be well settled in accordance with the doctrine of the text. Salus v. Ocean Ins. Co. 12 Johns. 107; Schieffelin v. N. Y. Ins. Co. 9 Johns. 21; Soricle o. Sovovell, 4 Johns. Ch. 21, 222; Treadwell e. Union Ins. Co. 6 Cov. 270; Bryant v. Commonwealth Ins. Co. 6 Pick. 130; Hogg v. Augusta Ins. & Banking Co. 7 Hour. 595, 609; Adams v. Haugh, 14 Texas, 2943. .

- Whitney v. N. Y. Firem. Ins. Co. 18 Johns. 208. In Hogg v. Augusta Ins. & Banking Co. 7 Hour. 595, 609, the court said: " It is obvious, therefore, that the perishable con
  162 ON THE LAW OF SHIPPING. \[B00K I.

does not cease although there be no ship lying by him suitable for the purpose; for he must use reasonable efforts to obtain one.1 If he sends the goods on, he should take a bill of lading making 1 them deliverable to the original consignees;2 and he may pay the expense of sending them on, and charge his whole freight to the shipper or consignee; or he may, as we conceive, charge the consignee up to the port whence he transships the goods, and charge him also with the expense of transshipment. The rule, as usually expressed, is, that the master must transship if he can, and may then charge the _excess_ of the cost of transshipment over his

dition of the article must be taken into consideration in deciding upon the obligation of the master, in the emergency, to repair his vessel, or to procure another for the purpose of sending it on to the port of delivery. If it should be made to appear that the repairs or procurement of another vessel would necessarily produce such a retardation of the voyage as would, in all probability, occasion a destruction of the article in specie before it could arrive at the port of destination, or from its damaged condition, could not be reshiped in time consistently with the health of the crew, or safety of the vessel, or would not be in a fit condition from pestitential effluvia, or otherwise, to be carried on, it then was the duty of the master to sell the goods for the benefit of whom it might concern." See also, Williams v. Kennebec Ins. Co. 31 Maine, 455; Ogden v. Gen. Mat. Ins. Co. 3 Duer, 204, 319; Smith v. Martin, 6 Binn. 262; Pope v. Nickerson, 3 Story, 465; Jordan v. Warren Ins. Co. 1 Story, 482; Roux v. Salvador, 3 Bing. N. C. 266; Viterboom v. Chapman, 13 M. & W. 330.

1 In Salus v. Ocean Ins. Co. 12 Johns. 107, a vessel could have been procured at Cork, sixteen miles distant from the port of disaster, but the court held that the master was not bound to obtain one from there, but was only bound to seek for one in the port of distress, or in a port immediately contiguous. In Treadwell v. Union Ins. Co. 6 Cow. 270, the court said: " Some certain rule, to govern the discretion of the master, is desirable, wherever practicable. Although no general rule will govern every case, the approach to certainty will be considered beneficial to all parties. I think, then, the rule laid down in the last case is at once safe and reasonable. If there be a vessel in the same port, or a contiguous port, which is substantially the same thing, his duty is clear. The rule is imperative. But where resort must be had to distant places, and, independent-of proouring a vessel, there are further serious impediments in the way of putting the cargo on board, the rule is not obligatory." See also, Hugg v. Augusta Ins. & Banking Co. 7 How. 595, 610; Whitney p. N. T. Firemen Ins. Co. 18 Johns. 208. In Bryant v. Commonwealth Ins. Co. 6 Frel. 131, the vessel was stranded at the Washwoods, on the coast of Virginia. The goods might have been taken to Norfolk, which was distant forty miles, by land, and there reshipped, and the court held that if it were reasonable to require the master to procure a vessel from there, taking into view the nature of the voyage, and the time, expense, and risk of the transportation to the port of destination, he would be bound to do so. They said: " It may happen that a vessel might be procured at a port in another state, and not geographically contiguous to the port of distress, in convenient time and upon more reasonable terms, than could be had in the port of distress."

2 Everett v. Salus, 15 Wend. 474; ; s. c. nom. Salus v. Everett, 20 Wend. 267.

**GL VII.** FORWARDING OF GOODS IN OTHER YESSELS. 163

**height to the owner-of the goods.1** The reason of this is, that as soon as such an exigency arises the master is clothed, from

**necessity, with authority to act as agent of all interested. For the ship-owner, he must do what can be done to save his freight; for the shipper, he must do what can be done to save his goods and send them to their port of destination.**

**He is the agent of both parties. And while he thus preserves his owner's right to freight, he lays upon the owner of the goods an obligation which is the same thing in fact, whether we say that the consignee must pay the whole freight** _and_ **the excess of the cost of transshipment over what would have been the proportion of the freight earned by carriage on the original ship from the intermediate port,** _or_ **the freight to that port, and the whole cost of transshipment.2** And on a river a usage may be\*\* $\\bullet$\*\*\*\*

Footnote 1: In Rosetto v. Gurney, 11 C. B. 176, 188, 7 Eng. L. & Eq. 461, _Jervis_, C. J., referring to a case where the cargo was retained by perils of the sea at an intermediate port, said: "If the voyage is completed in the original ship, it is completed upon the original contract, and no additional freight is incurred. If the master transships, because the original ship is irreparably damaged, without considering whether he is bound to transship, or merely at liberty to do so, it is clear that he transships to earn his full freight, and so the delivery takes place upon the original contract. It may happen that a new bottom can only be obtained at a freight higher than the original rate of freight. It does not seem to have been settled, whether, in that case, the ship-owner may charge the cargo with the additional freight. By the French law he may do so, and as a consequence of that rule, the increased freight would be an average loss to be added to the other items. See Shipton v. Thornton, 9 A. & S. 314." In Hagg v. Augusta Ins. & Banking Co. 7 Horv. 596, 609, the court said: "The owner of the cargo is liable for any increased freight arising from the hire of another vessel, and unless it can be procured at an expense not exceeding the amount of the freight to be earned by completing the voyage, the underwriter on freight has no right to insist upon this duty of the master. Beyond this it becomes a question between him and the owner or underwriter of the cargo." See also, Searle v. Scovell, 4 Johns. Ch. 218; Am. Ins. Co. v. Center, 4 Wend. 45; Mumford v. Comm. Ins. Co. 5 Johns. 262. A question has been made how far an insurer on the cargo is liable for this advance freight. Shultz v. Ohio Ins. Co. 1 B. Mon. 389. We shall consider this question in our chapters on Insurance.\*\*

\*\*In Shipton v. Thornton, 9 A. & E. 314, Lord _Demnan_, C. J., said: "No case of the sort that we are aware of has occurred in this country; nor is it necessary for us to express any opinion further than as it bears on the present question. It may well be that the master's right to transship may be limited to those cases in which the voyage may be completed on its original terms as to freight, so as to occasion no further charge to the freightor; and that where the freight cannot be procured at that rate, another but familiar principle will be introduced, that of agency for the merchant. For it must never be forgotten that the master acti164 ON THE LAW OF SHIPPING. \[B00K L shown to charge lighterage in addition to freight, when the water is so low that the boat cannot proceed.1 If he can transship and will not, then the shipper is entitled to his goods without making any payment of freight; for the master or ship-owner has no interest in, or lien on the goods whatever, except he has earned his freight, or is about to earn it. And if neither of these things is true, the shipper is entitled to his goods without any burden or charge upon them.3

Footnote 164: On the other hand, the water is not a water, but it is not a water, but it is not a water, but
CI. VII.\] FORWARDING OF GOODS IN OTHER VESSELS. **165**

Instead of transshipping, he may tender the goods at the intermediate port to the shipper, and the shipper may refuse to accept, and then the master must transship if he can; or the shipper may accept the goods at that place, and then he must pay freight _pro rata itineris;_ that is, must pay such part or proportion of the whole freight as the part of the voyage performed is of the whole voyage.1

Many questions have been raised respecting this _pro rata_- payment of freight, and some of them are not yet finally settled.

The principal question is, what acceptance on the part of the shipper lays upon him the obligation of this payment. Formerly, it was held, that any acceptance was sufficient to have this effect; now it seems to be the law that the acceptance must be voluntary. Questions of this kind are often complicated with the particular facts of the case, and it is therefore difficult to lay down any abstract rule which will serve to decide and determine all cases. If the earliest leading case be law,2 then if a ship is captured and recaptured and brought into any port nearer to her destination than the port from which she sailed, and there the shipper takes his goods, he must pay freight _pro rata_, whatever may have been the motive from which, or the compulsion under which, he took them. But this rule, which has been much qualified in England, has been, if not positively set aside, modified in a yet greater degree in this country. Here, it now seems to be held, that the acceptance must be voluntary

plete the voyage, and whether the acceptance of the goods was voluntary on the part of the defudant, the shipper. For, if not, the court held that the ship-owner would not be entitled to any freight. See Armroyd v. Union Ins. Co. 3 Binn. 437.

1 The contract of affiliationment, as we have seen, being entire, the ship-owner will not be entitled to recover on the contract unless it be completely performed. Sturges r. Gaidner, 2 Brev. 333. But like any other contract this may be terminated by the consen of the parties to it. And if the contract is put an end to, and the shipper volumarily receives his goods, the shipper has, from the earliest times, been held liable to pay a rable freight. Roecas, note 81 ; Laws of Oleron, art. 10 ; Ordinance of Wisby, art. 16, 37 ; Consolato del Mare, and The Rhodian Laws as cited by Lord _Manjakl_, in Lake v. Lyde, 2 Burr. 882, 889 ; Mayline, Lex Mercatoris, p. 98; Latridge a. Grey, cited in Lake v. Lyde, and at length in Abbott on Shipping, 438 ; Lake v. Lyde, 2 Burr. 882. See also, Parsons v. Hardy, 14 Wendl. 215 ; Rossiter v. Chester, 1 Doug. Mich. 154 ; Hunt u. Haskell, 24 Maine, 339 ; Forbes v. Rice, 2 Brev. 363.

2 Loke v. Lyde, 2 Burr. 882.

166 ON THE LAW OF SHIPPING. \[B00K L

in substance and fact, or no -claim for freight arises from it.1 According to the earlier view, if the goods arrived at the intermediate port, the owner of them must either take and pay freight, or refuse to take at all. Now, if the possession of the goods is in fact forced upon him, if there seems to be no alternative and he takes under what may be regarded as a strict compulsion, or if the goods or their proceeds are thrown upon him without his action, be thereby incurs no obligation to pay any freight3

Footnote 1: The difficulty in regard to the law on this point has arisen from losing sight of the nature of the contract. The master is entitled to take the goods on to the port of destination, and thus earn his freight, and the shipper has a right to say that this shall be done. If, therefore, the goods are given up to the shipper at the intermediate port, it must be by virtue of a new contract made by the parties. And as the shipper has a right to have the goods taken on, the cannot, against his consent, be compelled to receive them at the intermediate port. The case of Luke v. Lydre has been generally considered as warranting the broad proposition that the shipper is bound to pay a _pro rata_ freight if he receives the goods at any place short of the port of destination, whether such reception be voluntary or not. And in some early cases in this country it seems to have been thus understood. United Ins. Co. v. Lenox, 1 Johns. Cas. 377; Williams v. Smith, 2 Caines, 13; Robinson v. Mar. Ins. Co. 3 Johns. 333. See also, Post v. Robertson, 1 Johns. 34; Beillie v. Moudigliani, Park on Ins. 70. Whether the case of Luke v. Lydre justified such a construction is, at least, doubtful; but, however this may be, the law is now well settled that the acceptance must be voluntary. See Lidard r. Lopes, 10 East, 526; Cook v. Jennings, 7 T. R. 381; Malloy v. Backer, 5 East, 514; Vilerborn v. Chapman, 13 M. & W. 230; Mar. Ins. Co. v. United Ins. Co. 9 Johns. 186; Welch v. Hicks, 6 Cow. 504; Center v. Am. Ins. Co. 7 Cow. 564, 582; Armroyd v. Union Ins. Co. 3 Binn. 437; Hurtu v. Union Ins. Co. 1 Wash. C. 530; Callender v. Ins. Co. of N. A. 5 Binn. 525; Gray v. Wlan, 2 S. & R. 229; Case v. Bail. Ins. Co. V. 7ranch, 385; Sampyo e. Balter, 1 Mason, 43; I. Ins. Co. V., Catlet, 12 Wash. 383; Hoo e. Mason, 1 Wash. 807; Rossiter v. Chester, 1 Doug. Mich. 154; Adams v. Haught, 14 Texas, 483; The Ma-thaniel Hooper, 9 Sunner, 542. See also, Pinto v. Atwater, 1 Day, 198; Dorr v. N. E. Mar. Ins. Co. 4 Mass. 221; Coffin v. Storer, 5 Mass. 252.

${}^{\\rm, \[GHVL\] FORWARDING OF GOODS IN OTHER VESSELS. 167

However reasonable this rule may be in theory, it must very often be of difficult application: The equity, in all these cases, would seem to be this : if the owner of the goods receives them at any intermediate port, with their value increased by the carriage of them to that port, he should pay the ship-owner for this increase of value. But if he sends them to one place, and receives them at another because he cannot well help himself, and they are worth to him no more at this port than at the port from which they said, then nothing is due from him to the ship-owner. This we say is the equity of the case, and it is, we think, the tendency of the modern adjudications of this question to apply to each case a rule which will work out this equity.1

Footnote 1: The author is grateful to the anonymous referee for his help.

The master is not authorized to accept the cargo at an intermediate port, so as to charge the owner with a _pro rata_ freight.2 And if he sells the cargo and the shipper lays claim to the proceeds, this does not amount to a voluntary acceptance on his part.3 If the shipper abandons the goods to the underwriter after the voyage is broken up, it has been held that a _pro rata_ freight is due.4

Footnote 1: The author is grateful to the anonymous referee for his help.

Footnote 2: The author is grateful to the anonymous referee for his help.

Footnote 3: The author is grateful to the anonymous referee for his help.

Footnote 4: The author is grateful to the anonymous referee for his help.

Footnote 5: The author is grateful to the anonymous referee for his help.

Footnote 6: The author is grateful to the anonymous referee for his help.

Footnote 7: The author is grateful to the anonymous referee for his help.

Footnote 8: See p. 166, n. 2, and cases in note supra.

Footnote 9: Van Norden v. Littlejohn, 2 Taylor, 16.

Footnote 10: The author is grateful to the anonymous referee for his help.

Footnote 11: The author is grateful to the anonymous referee for his help.

Footnote 12: The author is grateful to the anonymous referee for his help.

Footnote 13: The author is grateful to the anonymous referee for his help.

Footnote 14: The author is grateful to the anonymous referee for his help.

Footnote 15: The author is grateful to the anonymous referee for his help.

Footnote 16: The author is grateful to the anonymous referee for his help.

Footnote 17: The author is grateful to the anonymous referee for his help.

Footnote 18: See p. 166, n. 2, and cases in note supra.

Footnote 19: Van Norden v. Littlejohn, 2 Taylor, 16.

However reasonable this rule may be in theory, it must very often be of difficult application: The equity, in all these cases, would seem to be this : if the owner of the goods receives them at any intermediate port, with their value increased by the carriage of them to that port, he should pay the ship-owner for this increase of value. But if he sends them to one place, and receives them at another because he cannot well help himself, and they are worth to him no more at this port than at the port from which they said, then nothing is due from him to the ship-owner. This we say is the equity of the case, and it is, we think, the tendency of the modern adjudications of this question to apply to each case a rule which will work out this equity.1

Footnote 19: The author is grateful to the anonymous referee for his help.

The master is not authorized to accept the cargo at an intermediate port, so as to charge the owner with a _pro rata_ freight.2 And if he sells the cargo and the shipper lays claim to the proceeds, this does not amount to a voluntary acceptance on his part.3 If the shipper abandons the goods to the underwriter after the voyage is broken up, it has been held that a _pro rata_ freight is due.4

Footnote 20: The author is grateful to the anonymous referee for his help.

Footnote 21: The author is grateful to the anonymous referee for his help.

Footnote 22: The author is grateful to the anonymous referee for his help.

Footnote 23: The author is grateful to the anonymous referee for his help.

Footnote 24: The author is grateful to the anonymous referee for his help.

Footnote 25: The author is grateful to the anonymous referee for his help.

Footnote 26: The author is grateful to the anonymous referee for his help.

Footnote 27: The author is grateful to the anonymous referee for his help.

Footnote 28: See p. 166, n. 2, and cases in note supra.

Footnote 29: Van Norden v. Littlejohn, 2 Taylor, 16.

Footnote 30: The author is grateful to the anonymous referee for his help.

Footnote 31: The author is grateful to the anonymous referee for his help.

Footnote 32: The author is grateful to the anonymous referee for his help.

Footnote 33: The author is grateful to the anonymous referee for his help.

Footnote 34: The author is grateful to the anonymous referee for his help.

Footnote 35: The author is grateful to the anonymous referee for his help.

Footnote 36: The author is grateful to the anonymous referee for his help.

Footnote 37: The author is grateful to the anonymous referee for his help.

Footnote 38: See p. 166, n. 2, and cases in note supra.

Footnote 40: Van Norden v. Littlejohn, 2 Taylor, 16.

Footnote 39: The author is grateful to the anonymous referee for his help.

Footnote 41: The author is grateful to the anonymous referee for his help.

Footnote 42: The author is grateful to the anonymous referee for his help.

Footnote 43: The author is grateful to the anonymous referee for his help.

Footnote 44: The author is grateful to the anonymous referee for his help.

Footnote 45: The author is grateful to the anonymous referee for his help.

It is obvious that no freight _pro rata_ can be recovered on the original contract. A claim for it can be sustained only on the ground of an implied assumpsit;1 and this again, would seem to have no other foundation than the general rule, that one who accepts and holds a benefit rendered, must acknowledge himself indebted for it. In like manner, if a ship is chartered to carry a cargo on a certain voyage, and a part of the cargo is lost by the perils of the sea, and a part is carried and delivered and accepted, although there may be no recovery of any part of the charter-money in an action on the charter-party itself, yet an action may be maintained on the implied assumpsit for freight for the goods carried and received.3

It is not quite certain how the proportion shall be calculated, when _pro rata_ freight is due. There are in fact but two ways of doing this. The part of the voyage for which freight is to be paid may be a geographical part, or a commercial (or a _pecunitary_) part. That is, the shipper may be held to pay, as in the earlier cases, so much per mile or league, for what has been done out of the whole voyage, or so much as it would cost to bring them to the port at which the goods are accepted. Every
rule must be a modification of one of these. The latter rule is that which we think is favored, and will generally be adopted in this country; and the simplest method of applying it would be, for the shipper to pay the whole freight, deducting what would be the ordinary or usual cost of carrying the cargo from the port at which he received them to that of their original destination.1

Footnote 1: In Luke v. Lyde, 2 Burr. 882, 888, Lord _Manfield_ said: " Here the master had come seventeen days of his voyage, and was within four days of the destined port when the accident happened. Therefore he ought to be paid his freight for 17-21st parts of the full voyage." In Robinson v. Mar. Ins. Co. 2 Johns. 323, owing to the circumstances of the case, the rule of Luke v. Lyde was adopted. _Kent_, C. J., however, in delivering the opinion of the court, considered the rule laid down in Marine Ins. Co. v. Lenox, decided by the court for the correction of errors in New York, to be more equitable when it could be applied. That rule was to ascertain how much of the voyage had been performed, not when the ship first encountered the peril, and was interrupted in her course, but when the goods had arrived at the intermediate port, because that was the extent of the voyage performed as far as regarded the interest of the shipper. In Coffin v. Storer, 5 Mass. 523, it was held that freight was not to be calculated according to the portion of the voyage performed, compared with that of the whole voyage, but the actual benefit which the shipper received by the transportation.

- Excopiniche v. Stewart, 2 Conn. 391. In this case rice was shipped to Bermuda.. On the way the vessel was captured, and taken to Antigua, but the captain of the pivincter, on finding that it belonged to the defendant, delivered it up to a passenger on board the vessel, who sold it, and sent the proceeds to the defendant. It was held that this 'did not amount to an acceptance so as to render the defendant liable for freight. See also, case cited ante, pp. 166, 167.

VOL L

**170 ON THE LAW OF SHIPPING.** \[BOOK L

added, that if the parties, in the original contract, whether by bill of lading or otherwise, choose to stipulate -- as they sometimes do -- that no claim shall arise under any circumstances for _pro rata_ freight, no such claim will be given by any implication of law. If a vessel, after her arrival in port, is ordered to perform quarantine, and the cargo is landed and stored in the quarantine ground, the shipper or consignee is bound to pay the expense of landing and storage.1 And if it is the custom for the consignee, when the vessel is at quarantine, to send down persons at his own expense to pack and take care of the goods, a neglect on his part to do this will .exonerate the master for damage to the goods occasioned by their coming on shore loose.2

\*\*We have seen that no claim for freight exists until delivery; but the goods must be delivered also in good condition, or if damaged, then from causes for which the ship-owner is not responsible.3 And it has been recently determined, that the owners of a general ship are liable to a shipper for damage done to the goods from other goods stowed in the hold, without allegation or proof of any wilful or negligent default on the part of the ship-owner.4 And it would seem that they are so liable, even if the goods doing the injury were put on board in a condition to do mischief, by the shippers of the damaged goods, the proximate cause of the injury being the stowage of them by the captain too near the other goods.6 And the legal pre

**EL VII\] FORWARDING OF GOODS IN OTHER YESSELS.** **171**

sumption arising from the statement in the bill of lading, that the goods doing the damage were in good order when shipped, cannot affect a third party.1

Footnote 1: The author is grateful to the anonymous referee for the support of this paper.

The question has arisen whether shippers are not answerable to the owners of the vessel, for putting on board dangerous goods, or goods insufficiently packed, the dangerous character of which cannot be discovered by easy inspection, and is not made known to the owners by the shippers, and it would seem that they are so liable.2 So if a shipper puts on board, without certain cases of sulphuric acid for freight to be paid to the plaintiffs, and that it was the duty of the plaintiffs as the shippers to give notice to the owners of the ship of the article being sulphuric acid, in order that it might be stowed in some place where, if it failed, it would not come in contact with other parts of the cargo, that no notice was given, that they caused the cases to be stowed near the goods mentioned in the declaration, and that some of the acid leaked and damaged the goods, and so prevented the defendant from performing the agreement, and that the damage was occasioned by the plaintiff' neglect. The court held this plea to be bad ; _Alderson_, B., said: " It is true the plea alleges that but for the shipment of the acid without notice, the damage would not have happened. But the shipment alone would not be enough. A further act would be necessary, namely, the placing of the acid where it was placed in the ship, and that was the defendant's act, and be was the immediate cancer of the dam-age." In answer to the objection that the suit could not be maintained, because in a cross action the defendants would have to refund the sum demanded, the court said: "In such an action might not the plaintiffs well contend that though the defendant would not have put the case where he did had he known the contents, yet as he was content to run the risk of their containing some fluid which might have caused the damage, it would be unreasonable to make the plaintiff-liable for the whole damage, because it turned out that the cases contained sulphuric acid ! We think so. It is true the plea states the cases were placed where they were without any neglect, default, or wrongful act of the defendant. That means no more than that the so placing them was neither neglect nor intrinsically wrong. Be it so. But it is certain had the contents of the cases been some fluid, and not sulphuric acid, which had escaped and dam-aged the cambre, the plaintiffs would have been entitled to recover, whether the defendant had been negligant or not. We think, therefore, a jury might take that into their consideration, is estimating the damages which the now defendant would sue the plaintiff for, on the supposed contract not to ship sulphuric acid without notice, and consequently the damages in such an action might be different from those recoverable in this action, and that the rule for preventing circuity of action does not apply."

1 Brussesen v. Shift Hudson, 11 La. Ann. 497.

2 Brass v. Maitland, 6 Ellis & B. 470, 36 Eng. L. & Eq. 291. The fourth plea of the defendants was held to be good. It was that the master knew, or had the means of knowing, and reasonably might, could, and ought to have known that the goods shipped, namely, bleaching powder, contained chloride of lime, and that the master and persons employed about the ship knew and had the means of judging, and knowing the state and condition and sufficiency of the casks. But the court were not unanimous in respect to a plea, setting forth that the master knew or had the means of knowing and ought to have known the nature of bleaching powder. One of the judges was inclinedthe knowledge of the captain, goods which are forbidden to be exported, he is liable if the ship is seized.1 Where a cargo of goods was delivered in a damaged condition, and it was sold by the consignees with the consent of the master, and the evidence showed that it would have sold better had the damaged part been separated from the rest, but that it would have been tedious and troublesome to have done so, it was held that it was the duty of the master, and not of the consignees, to have made such separation.2

Footnote 1: The author is grateful to the anonymous referee for his comments on the manuscript.

A literal and precise application of the provisions of the bill of lading would deprive the ship-owner of all freight, if the goods were not delivered in as good condition as received. In practice, however, if the goods are delivered, but damaged by causes for which the ship-owner is responsible, the freight is payable, but the shipper may claim compensation for the damage, whether it be greater or less in amount than the freight; and may claim it by way of set-off, or by an independent action.3

Footnote 2: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 3: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 4: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 5: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 6: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 7: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 8: In England the rule is well settled that the shipper cannot, in an action brought against him for freight, set up, in defence, that the goods were damaged by the negligence of the carrier, but is obliged to resort to a cross action. Bellamy v. Russell, 2 Show. 167 ; Bornmann v. Tooke, 1 Camp. 377 ; Shields v. Davis, 6 Taut. 65, 4 Camp. 119. In Gibson v. Sturge, 10 Exch. 622, 29 Eng. L. & Eq. 460, 466, the court said: "It is clear, according to the general law on the subject, that the circumstance of the wheat being damaged, does not at all affect the right of the plainitis to freight." The reason that the shipper is obliged to resort to a cross action, is owing to the English statutes of set-off, (2 Geo. IL. c. 22, 15, and 8 Geo. IL. c. 24, 4,) which do not allow a claim of this nature to be obffected. In this country, however, the statutes of set-off in the various States are generally of a more liberal nature, and the shipper has therefore been allowed to set up in defence, in the nature of a set-off, the damage done to the goods by the carrier. And Lord _Campbell_, C. J., in Thompson v. Gillespry, 5 Ellis & B. 209, 82 Eng. L. & Eq. 153, says it is a reproach to the legislature that parties have not the means of settling cross claims, except by distinct actions. In those states where the question has not yet arisen, it must be decided, when it is presented by the provisions of the statutes of set-off of the respective states. An examination of these statutes is, however, foreign to the purposes of this work. We shall therefore merely cite the cases where the question has arisen and been decided. Schuerman v. Withers, Anthony, 166 ; Ogden v. Coddington, 2 E. D. Smith, 817 ; Hinsdell v. Wood, 5 Denic, 172 ; Bartram v. McKee, 1 Watts, 39 ; Leech v. Baldwin, 5 Watts, 446 ; Humphreys v. Reed, 6 Whitt. 435 ; Exart v. Kerr, 1 Rice, 903 ; Exart v. Kerr, 2 M'Mullan, 141 ; Edwards v. Todd, 1 Se

**CH. VII.\]**

OF SHIPS AS COMMON CARRIERS. **173**

The great difficulty lies in determining whether the ship-owner is liable for the damage or not.

SECTION V.

OF SHIPS AS COMMON CARRIERS.

Ships are often called common carriers; and that they may be so is certain; but that all ships which carry goods are to be treated as common carriers, cannot be true; and the language used in relation to this subject is either inaccurate and loose, or is misunderstood because it is not interpreted by a reference to the facts of the case in which it is used. Thus in a leading case on the law of carriers,1 it is intimated that there is no case which makes any distinction between a land and a water carrier. But that case related to regular inland navigation. And in an American case,3 the court say, that "a carrier by water, whether by inland navigation or coastwise from port to port, or to and from foreign countries, is a common carrier." But the court cannot mean that every carrier by water is a common carrier, for then there would be a very great difference between land and water carriers. The vessel in that case was a coasting vessel playing between Boston and Philadelphia; and the court must have meant, _such_ a carrier by water as they were then considering. The true rule undoubtedly is, that one who carries by water, in the same way and on the same terms as a common carrier by land, is also a common carrier; or, in other words, it is not the_land\_ or the _water_ which determines whether a carrier of goods is a common carrier, but other considerations, which are the same in both cases.

What, then, are these considerations ? We take a common carrier to be one who offers to carry goods for any person, between certain termini or on a certain route; and he is bound to carry for all who tender to him goods and the price of carriage, and insures those goods against all loss but that arising from the act of God or the public enemy; and has a lion on the goods for the price of carriage. These are essentials; and though any or all of them may certainly be modified, and as we think may be controlled, by express agreement, yet if either of these elements is wanting from the relation of the parties, without any such agreement, then we say the carrier is not a common carrier, either by land or by water.

If we are right in this, no vessel would be a common carrier, that did not ply regularly, alone or in connection with others, on some definite route, or between two certain termini. No vessel is therefore a common carrier unless she be what is commonly called a packet, or sail in a packet line. All general ships would be excluded; and all vessels under steam or canvas, on lakes or rivers, which are like general ships; for they would be as a private or casual carrier by land, and would be no more a common carrier because on the water. Then, if we allowed another essential element, -- the obligation to carry for all who offer, -- to exist in the case of regular packets, which might be doubted, it can hardly be supposed that every owner of a vessel put up as a general ship, loses all right of refusal or choice of goods or shippers, unless the commodities offered are either dangerous or unusual. And on the whole, while we admit that our lake and river vessels which run in regular lines may be common carriers, and extend the same rule to our coasting packets, and, also, but with somewhat less certainty, to ocean packets, we should be disposed to stop there, and say that other vessels are private or casual carriers, and not common carriers.1

Footnote 1: It seems to be taken for granted by all the authorities that a general ship is a common carrier, and liable as such, whether a bill of lading is given or not. The precise question, however, has never been decided in any reported case, and we cannot but believe that, when it does arise, the data of the judges and text writers will be dispro garded, and the subject receive that investigation which, from its importance, it deserves. It has been held, from the earliest times, that a common carrier by water has imposed on him the same liabilities as a common carrier by land, and that the master of a vessel can be used as well as the owners. Morse v. Slue, T. Raym. 290, Ventris, 338, 2 Lev. 69 ; Rich v. Knceland, Croke Jac. 330, Hob. 17 ; Boson v. Sandford, 3 Salk. 440, 1 Show. 29, 101, 8 Lev. 258, and Carth. 58 ; Goff v. Clinkard, cited in 1 Wilson, 282. Mr. Justice Story, in his treatise on Ballments, ! 501, speaks of vessels employed in the coasting trade, or in foreign trade, for all persons offering goods for: the port of destination, as general ships. The language of the court in Allen v. Sewall, 2 Wend. 327, and 6 Wend. 335, is even more loose than this. On p. 843, Smoge, C. J., calls a steambotan typing regularly between New York and Albany, a general ship. Now, if such a vessel is a general ship, then a general ship is a common carrier ; but a general ship is something very different from this, and from confounding the two the difficulty in a great measure has arisen. It cannot however be denied that there are _dicate_ to be found which cannot thus be explained. Thus in Lavroni v. Drury, 8 Exch. 166, 170, 16 Eng. L. & Eq. 510, Pollock, C. B., said : "By the law of England the master and owner of a general ship are common carriers for hire, and reponsible as such. This, according to the well-known rule, renders them liable for every damage which occurs during the voyage, except that caused by the act of God, or the Queen's enemies." He then says they may limit their liability by the bill of lading, which is then the evidence of the contract made between the parties. In Clark v. Barnwell, 12 How. 372, the vessel was a general ship ; but a bill of lading was given. On p. 280, the court speak of the master and owners as common carriers. See also the remarks of Mr. Justice Story in King v. Shepherd, 3 Story, 349 ; also Kemp v. Coughtry, 11 Johns. 107. In the following chises packets were held to be common carriers. Hyde v. Trent & Mersey Nav. Co. 5 T. R. 389 ; Treat Nav. Co. v. Wood, 3 Esp. 127 ; Hastings v. Pepper, 11 Pick. 41 ; Elliott v. Rosell, 10 Johns. 1 ; Kemp v. Coughtry, 11 Johns. 107 ; Cott v. McMechen, 6 Johns. 160 ; The Schooner Reseide, 2 Summer, 567 ; Crosby v. Fitch, 12 Conn. 410 ;M'Clures v. Hammond, 1 Bay, 99 ; Williams v. Grant, 1 Conn. 487 ; Mershon v. Hobensack, 2 Zabris. 372. In Oakey v. Russell, 18 Mar. La. 58, goods were shipped from New York to New Orleans. It does not appear whether the vessel was a packet or not, or whether a bill of lading was given. The defendants were held liable as common carriers. Parker v. Flagg, 26 Maine, 181, is a similar case. It was admitted that the defendants were common carriers. The facts are not fully given in the report of the case. In the following cases it does not appear whether the vessel was a packet or not, but a bill of lading was given. King v. Shepherd, 3 Story, 349 ; Parkinson v. Langton, 8 Johns. 213 ; Ferguson v. Cappeau, 6 Harris & J. 394. It is well settled that steamboats which ply regularly from place to place are liable as common carriers. The Huntress, Darels, 82 ; Citizens Bank v. Nant. Steamboat Co. 2 Story, 16 ; Jencks v. Coleman, 2 Sumner, 221 ; Gilmore v. Carman, 1 Sm. & M. 279 ; M'Gregor v. Kilger, 6 Ohio, 358 ; McArthur v. Sears, 21 Wend. 190 ; Dunneh v. Wade, 2 Scam. 285 ; Hart v. Allen, 2 Watts, 114 ; Parde v. Drew, 25 Wend. 459 ; Allen v. Sevall, 3 Wend. 395 ; Rawall v. Allen, 6 Wend. 335 ; Harrington v. M'Shea, 4 Watts, 443 ; Porterfield v. Humphreys, 8 Humph. 497 ; Hale v. N. J. Steam Nav. Co. 15 Conn. 539 ; Singleton v. Hilliard, 1 Strob. 203 ; Orange Bank v. Brown, 3 Wend. 158 ; New Jersey Steam Nav. Co. v. Marchants Bank, 6 How. 344 ; Bennett v. Filyaw, 1 176 ON THE LAW OF SHIPPING. \[B00K L liability by bills of lading is undoubtedly valid, and nearly all

Flore. 403; Charleston & Col. Steamboat Co., Eason, Harper, 262; Jones _v._ Pitcher, 3 Stew. & P. T. 135; Swindler _v._ Hilliard, 2 Rich. 286; Bennett _v._ The Peninsula & Oriental Steamboat Co. 6 C. B. 775. Steam tow-boats are not however generally considered common carriers in respect to the boats which they have in tow. Caton _v._ Rumney, 13 Wend, 387; Alexander _v._ Greene, 3 Hill, 1. This case was reversed on appeal, 7 Hill, 533. In a subsequent case in the same State, the court of appeals pronounced the decision in 7 Hill, 533, not to be law. Mr. Justice _Bronson_ said: " It is true that the judgment in Alexander _v._ Greene was reversed by the court of errors. But what particular point or principle of law was decided by the court, or what a majority of the members thought upon any particular question of law no one can tell." Wells _v._ Steam Nav. Co. 2 Comst. 204. See also, Penn., Del., & Md. Nav. Co. _v._ Dandridge, 8 Gill & J. 248; Leonard _v._ Hendrickson, 18 Penn. State, 40; Abbey _v._ The R. L. Stevens, U. S. D. C., N. Y., 21 Law Reporter, 41. In Louisiana it is held that tow-boats are common carriers. Smith _v._ Pierce, 1 La. 349; Adams _v._ New Orleans Steamboat Co. 11 La. 46. See also the opinion of Mr. Justice _Kane_, in Vanderslice _v._ The Steam Tow-boat Superior, 13 Law Reporter, 399. The reasoning of the learned judge in this case is worthy of a careful examination, as it furnishes a very strong argument in favor of the doctrine of holding tow-boats liable as common carriers. When the case came before the circuit court, _Grier, J._, said, that he could not ascent to the doctrine that tow-boats were common carriers. Where the tug and boats belonged to the same persons, and goods were shipped under a bill of lading, the owners of the tug were held liable as common carriers. _Sprowl_ v.\_ Kellar, 4 Stew. & P. 382. Canal boatmen, and those on rivers, are held to be common carriers. Edelter _w._ Bradley, 25 Penn. State, 120; Spencer _v._ Daggett, 2 VT 99; Arnold _v._ Halen-bake, 5 Wend. 33; De Mott _v._ Laraway, 14 Wend. 225; Parsons _v._ Hardy, 14 Wend. 2154 Humphreys _v._ Reed, 6 Whart. 435; Bowman _v._ Teall, 23 Wend. 306. In Eveleigh _v._ Sylvester, 2 Brev. 178, it was said that the doctrine of common carriers did not apply with full force to boats on the rivers, but this doctrine does not seem to have been followed. In Lengsfield _v._ Jones, 11 La. Ann. 624, it was held that, under a bill of lading in the ordinary form, a flat-boat was liable as a common carrier. See, also, Harrington _v._ Lyles, 2 Nott & McC. 88; Gordon _v._ Buchanan, 5 Yerg. 71 ; Turney _v._ Wilson, 7 Id. 340. In regard to ferrymen it was held in Walker _v._ Jackson, 10 M. & W. 161, that they were not generally common carriers, though a usage might be shown to that effect. In this country, however, a ferryman is generally considered a common carrier. Cook _v._ Gourdin, 2 Not & McC. 19; Babcock _v._ Herbert, 3 Ala. 392; Smith _v._ Seward, 3 Barr, 342; Pomeroy _v._ Donaldson, 5 Mo. 36 ; Cohen _v._ Hume, 1 McCord, 439; Littlejohn _v._ Jones, 2 M'Mullan, 365; Rutherford _v._ M'Gowen, 1 Not & McC. 17; Wilson _v._ Hamilton, 4 Ohio State, 729; Albright _v._ Penn, 14 Texas, 290; Fisher _v._ Cishevo, 12 Hill. 344. In all the cases cited, where the owner or master has been held liable as a common carrier, his occupation has been to carry for every one who should offer him goods for carriage, and where this has been his usual employment. And it is a well-setted principle that if a person on land makes a contract to carry goods, when it is not his usual custom so to do, he cannot be held as a common carrier. Fish _v._ Chapman, 2 Kelly, 349 ; Samms _v._ Stewart, 20 Ohio, 69. See also, Fuller _v._ Bradley, 25 Penn. State, 120. Now if we apply the rule that there is no difference between carriers on land and carriers by water, a general ship cannot be considered as a common carrier, for " the contract for the conveyance of merchandise in a general ship," as defined by Lord _Tentraden_ (Abbott on Ship. 319), " is that
**EL. VII.\]** OF SHIPS AS COMMON CARRIERS. 177\*\*

the carriage of goods by water is now regulated by bills of lading.1

by which the master and owners of a ship destined on a particular voyage, engago separately with various merchants unconnected with each other, to convey their respective goods to the place of the ship's destination." In Lane e. Cotton, 12 Mod. 472, 484, it was said that many actions have been maintained against carriers for refusing to take goods, though the cases were not reported. See also, Jackson v. Rogers, 2 Show.327; Riley v. Horne, 5 Bing. 217; Harris v. Packwood, 3 Taunt. 264, **372**, _per Laurence_, J.; Hollister v. Nowlen, 19 Wend. 234, 239; Edwards v. Sherratt, 1 East, 604; Baton v. Donovan, 4 B. & Aid. 31, 32; Elseo, 6 Gataverd, 5 T. B. 143; Fish, & Chapman, 3 Kelly, 49; Jencks v. Coleman, 8 Summer, 291; Dwight v. Brewtr, 1 Pick. 50; Bennett v. Dutton, 10 N. H. 481. And, as it is by no means unusual for the master or owner of a general ship to refuse to take the goods of all who offer, the question will probably come up in this way. Suppose, for instance, a merchant has a quantity of merchandise which he wishes to send to a foreign port, he therefore charters a vessel, but having room to spare, puts up part of the vessel as a general ship. It would be for his interest that no goods of the same description as his should be taken in his vessel. If any were offered we think he clearly would not be bound to take them, and if not, he should not be considered a common carrier.

1 Thus in Pope v. Nickerson, 3 Story, 465, 473, Mr. Justice Story said: " Whether the choomer was a common carrier, that is, a general carrier vessel, whose mere employment was to take goods on board for his for any persons whatever, or whether the was simply a carrier vessel employed on the present voyage _pro kac vice_, has been much discussed at the bar. But in my judgment nothing does, in this case, turn upon any distinction between the cases; "for under the bills of lading, precisely the same obligations attach to the owners and the master in regard to the shippers, whether she was a general, or common carrier, or simply a carrier _pro kac vice_. The bills of lading ascertain, and fix, and control the liability, and the exceptions therein contained cover the usual risks, not taken by the owners." The power of a carrier to limit or increase his liability by a special contract was early recognized in England. But that he could make such a contract by a general notice, brought home to the knowledge of the party, is a doctrine of much later origin. Mention is first made of it by Mr. Justice Burrough, in Smith v. Horne, 8 Taunt. 144. He says: " The doctrine of notice was never known until the case of Forward v. Pitard, 1 T. R. 27, which I argued many years ago." The case referred to was decided in 1785, and as reported does not mention the subject of notice. It was first held that the might thus limit his responsibility in Nicholson v. Willan, 5 East, 507. See also, Maving v. Todd, 1 Stark. 72; Leeson v. Holt, 1 Stark. 186; Evans v. Soule, 2 M. & S. 1; Ellis v. Turner, 8 T. R. 531. This question has been put to rest in England by the Carrier's Act of 2 Geo. IV., and 1 Will. IV. e. 68. In this country the subject has been the theme of fruitful investigation and research. It has generally been held that such a notice is of no avail even though brought home to the knowledge of the party. Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, id. 251; Camden & Amboy Railroad Co. v. Belkasp, 21 Wend. 354; Clark v. Faxion, id. 153; Dorr v. N. J. Steam. Nav. Co. 1 Kerr. 485; Farmers & Mechanics Bank v. Chaplain Transp. Co. 23 V. 186; Kimball v. Rattanol & Burlington Railroad Co. 28 Vt. 147; Moses v. Boston & Maine Railroad, 4 Foster, 71; Jones v. Voorhees, 10 Ohio, 145; Hale v. N. J. Steam Nav. Co. 15 Conn. 539; Logan v. The Ponchartrain Railroad Co. 11 Rob. La. 24 ; Slocum v. Fairchild, 7 Hill, 292; N. J. Steam Nav. Co. v. Merch. Bank, 6 How. 344, 382. See also, Thomas v. Boston & Providence Railroad Co. 10 Met. 472. In some cases, however,

### 178 On the law of SHIPPING.

\[B00K L\]

The "dangers of the seas " are usually excepted in these bills; if the words are, " perils, or dangers of the river, or of it has been held, that if the notice is brought home to the knowledge of the party, he will be presumed to have contracted with reference to it, as in England, and the notice therefore will be binding. Bean _v._ Green, 12 Me. 422 ; Sager _v._ Portamouth, S. & P. Railroad Co. 31 Me. 228 ; Camden & Amboy Railroad Co. _v._ Baldauf, 16 Penn. State, 57; Atwood _v._ The Reliance Transp. Co. 9 Watts, 87 ; Laing _r._ Colder, 8 Barr, 479; Barry _v._ Prentis, 4 Harris & J. 317. But, however the law may be as to the effect of a notice, it is well settled that a carrier may enlarge or diminish his liability by a special contract, and if he is not a common carrier may assume the riks, and be liable as one. Thus, in Fish _r._ Chapman, 2 Kelly, 349, a person who undertook to carry goods and deliver them in good order and condition, unavoidable accidents only excepted, was held liable as a common carrier. In Gather _v._ Barnet, 2 Brev. 488, common carriers, who undertook to carry goods _aq/dy_, were not exonerated by loss from _unavoidable accidents_. See also, Harmony _v._ Bingham, 2 Kern. 99. But see The Casco, Davies, 184. The general proposition, that a carrier can make a special contract, was assumed as law in England in Kenya _r._ Eggleston, Alcyn, 93; Southcoe's case, 4 Coke, 84 ; Gibbon _v._ Payton, 4 Burr. 2298, 2301, per _Yates, J._; Catley _v._ Wintingham, Peake, 150. See also, Nicholson _v._ Willan, 5 East, 507 ; Harris _v._ Packwood, 2 Tannt. 264 ; Riley _v._ Horne, 5 Bing. 217. The American authorities generally support the proposition. Atwood _v._ Beliance Transp. Co. 9 Watts, 87 ; Hollister _v._ Nowien, 29 V Rend. 234, 246 ; Beckman _v._ Shouse, 5 Rawle, 179 ; N. J. Steam Nav. Co. _v._ Merch. Bank, 6 How. 344, 382 ; Swindler _v._ Hillard, 2 Rich. 286, 302 ; Gordon _v._ Little, 8 S. & R. 533 ; Farmers and Mech. Bank _v._ Champlain Transp. Co. 23 Vt. 186 ; Kimball _v._ Rutland & Burlington Railroad Co. 26 Vt. 247 ; Davidson _v._ Graham, 2 Ohio State, 131 ; Graham _v._ Davis, 4 Ohio State, 362 ; Bentley _v._ Bustor, 16 B. Mon. 453 ; Baker _v._ Brinson, 9 Rich. 201. In Gould _v._ Hill, 2 Hill, 623, a memorandum was given by the carrier stating the receipt of the goods, and adding, " which we promise to forward, dangers of fire, etc. excepted." The court held the carrier liable, although the goods were destroyed by fire, on the ground that such a special contract was against the policy of the law and could not be made. In the following cases it was also doubted whether such a contract would be of any effect. Fish _v._ Chapman, 2 Kelly, 349 ; Hale _v._ N. J. Steam Nav. Co. 15 Conn. 539. And in Wells _v._ Steam Nav. Co. 2 Comst. 204, 209, _Bronson, J._, speaks of 'the question as being still, perhaps, a debatable one. Such a position, however, cannot be supported on any principle of law whatsoever; and Gould _v._ Hill has been overreuled by several recent cases in New York. Parsons _v._ Monnett, 13 Barth. 353 ; Moore _v._ Evans, 14 Barb. 524 ; Mercantile Mutual Ins. Co. _v._ Chase, 1 E. D. Smith, 115 ; Dorr _v._ N. J. Steam Nav. Co. 4 Sandf. 136, 1 Kern. 485. See also, Stoddard _v._ Long Island Railroad Co. 5 Sandf. 180. In three of these cases bills of lading were given, which contained exceptions against fire. As the goods were destroyed by fire, the courts held the carriers not responsible. It was however held by the supreme court of the state of Michigan, in the recent case of Michigan Central Railroad Co. _v._ Ward, 2 Mich. 538, that as the plaintiffs were common carriers by their charter, which was in the nature of a contract between them and the state, permanently binding upon each, and the principal engagement on their part being to become and remain common carriers, their liability as common carriers became irrevocably fixed; and therefore they could not alter or modify this liability by any stipulation or contract. In Schieflin _v._ Harvey, 6 Johns. 170, 180, _Van Ness,_, speaking of a special contract, said: "
CH. VTL\] OF SHIPS AS COMMON CARRIERS. 179

the lakes, or of water, or of navigation," all which are used in different parts of this country, the meaning and effect is the same as of "dangers of the seas."1 In one case the words "dangers of the roads" in a bill of lading were held to mean, either dangers peculiar to marine roads in which vessels lie at anchor, or those which are caused immediately by roads on land, as the overturning of cargoes in rough and precipitous places.2

Footnote 1: In the sense of the _exotic_ of the sea, the sea is not a good choice for the sea, and the sea is not a good choice for the sea.

**Abstract**

The thesis is concerned with the following chapters:

**Chapter 16**: \_The thesis isGL VII\]

OP SHIPS AS COMMON CARRIERS. 181

hold him responsible if there were any possibility of his having any agency in the loss. And therefore the phrase " the king's enemies," was ruled not to include the violence of a mob, or riot, or civil commotion of any nature; but only the act of an enemy in public war;1 which there was obviously no actual possibility of the carrier having caused; or, in case of a carrier by water, robbery by pirates, who are the universal enemies of mankind.2 But for embezzlements on board by the crew,8 or by other persons not pirates, the owners are liable, although there is no negligence on their part.4 And their liability does not cease on the vessel being wrecked unless the property perishes in the wreck.8 So the act of God is limited, as we conceive, to causes in which no man has any agency whatever; because it was intended never to raise, in the case of the common carrier, the dangerous and difficult question whether he actually had any agency in causing the loss; for, if this were _possible_, he should be held.9

Footnote 1: Forvard v. Pittard, 1 T. R. 27, 84, per Lord _Manfield,_ C. J.; Story on Ballments, 45.

Footnote 2: Pickering v. Barkley, 2 Roll. Ab. 248, Style, 139.

Footnote 3: Schieflelin v. Harrey, 6 Johns. 170; Watkinson v. Langthon, & Johns. 218.'

Footnote 4: In Morse v. Slae, 1 ' vent. 190, 238, and in Barclay v. Cnculls y Gans, 3 Dong. 309, the master was held liable for the loss of goods occasioned by a forcible robbery while the ship was lying in the river. In Schieflelin v. Harrey, 6 Johns. 170, which was an action against the owner of a vessel, on a bill of lading, it appeared that the vessel arrived at the port of destination with the goods on board, but they not being admissible, it was agreed between the master and the conginges that the goods should remain on board, and be returned to the owner when the vessel went back. On the goods being returned is was found that a portion had been taken, and the court held the defendant liable, whether the loss had been caused by the embezzlement of the crew or by the custom-house officers at the port of destination. In King v. Shepherd, 3 Story, 349, a robbery from the ship by salvors was held to be a loss for which the own-in were liable.

Footnote 4: King v. Shepherd, 3 Story, 549. But the rule would probably be different now under the Act of 1851, 9 U. S. Stats at Large, 635. See Watson v. Marks, 2 Am. Law Register, 157.

Footnote 5: The Zenolua, Abbott, Adm. 80. Fish v. Chapman, 2 Kelly, 349, 356, 357 ; Robertson v. Kennedy, 2 Dana, 430 ; Williams v. Grant, 1 Conn. 487 ; Bell v. Reed, 4 Rim. 137 ; Gordon v. Buchanan, 5 Yerg. 71 ; Jones v. Pitcher, 3 Stew. & P. 135; Sprwell v. Kellar, 4 Stew. & P. 388 ; Trent & Mersey Nav. Co. v. Wood, 4 Doug. 287 ; 290; Forward v. Pitard, 1 T. R. 27. The act of God must be the proximate cause of the loss. Therefore where a severe storm caused an unusually low tide, and in consequence thereof the carrier's bargo struck against a timber which projected from the wraff, which in ordinary tides was too low to do any injury, the carrier was held liable. New Brunswick B. B. Co. v. Tiers, 4 Zabris. 697. See also, Oakley v. Steam-Packet Co. 11 Exch. 618, 84 Eng. L. & Eq. 580 ; Smith v. Shepherd, Abbott on Ship-V0L L The cases are frequent in practice, and not unfrequent in the books, in which "dangers of the seas" has a very different meaning from "the act of God." Thus, a common carrier would be responsible for goods burned in his waggon, if they were destroyed in a conflagration which began at a distance by the act of an incemidary, and extended to the shed or barn in which he had put them, although he could prove that he had nothing to do with the fire, and did all that the most careful and skilful man could do to save his goods.1 And if such a conflagration reaches a ship moored at a wharf and destroys her, the shipper of goods destroyed in the vessel would now look to the ship-owner. If the ship-owner were a common carrier, then the shipper would look to him under the general law of common carriers. If he were not a, common carrier, and was bound only by a bill of lading, then he would be liable, provided fire be not "a peril of the seas." Usually there is now in most bills of lading an express exception against fire.

Footnote 11: The case of a _non_ vessel is not a person, but it is not a person, On the "Sensitivity of the " 184 ON THE LAW OF SHIPPING. \[B00K I\]

suspect any obstruction, struck upon it, this we should hold as certainly not an act of God, but quite as certainly a " danger of the seas."1 For we think that this phrase includes all the perils of every kind actually connected with navigation, whether man did or did not cause them, wholly or partially, provided it is certain that neither the ship-owner nor the shipmaster was in any fault, and that neither want of care, skill, or endeavor could be imputed to them.3

Footnote 1: But the sudden shifting of the channel, and the recent introduction of a hidden savyer or snac are considered, when unknown, as acts of God. Patton _v._ Magrath, Dudley, S. C. 159. Nevertheless, the carrier must show, in such a case, that he used due diligence and proper skill to avoid the accident, and that it was unavoidable. Whisesides _v._ Russell, & Watts & S. 44. In Friend _v._ Woods, & Grat. 189, the vessel was injured by running on a bar which had recently been formed, and the goods damaged. No bill of lading was given. The court held that, though the defendants were ignorant of its formation, yet, if by human foresight and, diligence, it might have been ascertained and avoided, they could be liable. The court said : " The cases in which the carriers have been exonerated from losses occasioned by such obstructions, will, I think, upon examination, be found to be cases in which either the bills of lading contained the exception of the persils of the river, or in which that exception has been confounded with the exception of the act of God." See also, Johnson _e._ Friar, 4 Yerg. 48 ; Gordon _e._ Buchanan, 5 Yerg. 71 ; Turney _v._ Wilson, 7 Yerg. 340 ; Everleigh _e._ Sylvester, 2 Brev. 178; Smyrl _v._ Nionion, 3 Bailey, 421; Fankner _v._ Wright, Rice, 107; Williams _v._ Grant, 1 Conn. 487. In Collier _v._ Valentine, 11 Mo. 299, it was held that negligence was not necessarily imputable, where a boat struck on a known rock or shoal. But this is against the current of authority, as shown by the cases cited above. See Bentley _v._ Bustard, 16 B. Mon. 643. If a boat attempts to pass, in the night, a point known to be dangerous, it is a question for the jury on all the circumstances of the case whether such an act was negligence. Ready _v._ Steamboat Highland Mary, 17 Mo. 461, 20 id. 264.

Footnote 2: Mr. Justice _Sory_, in the case of the Schooner Reside, 2 Summer, 567, seems to have considered the meaning of the expression doubtful. He says : " The phrase danger of the seas, whether understood in its most limited sense, as importing only a loss by the natural accidents peculiar to that element; or whether understood in its more extended sense, as including inevitable accidents upon that element, must still, in either case, be clearly understood to include only such losses as are of an extraordinary nature, or arise from irresistible force, or some overwhelming power, which cannot be guarded against by the ordinary exertions of human skill and prudence"

3 See post, p. 185, n. 3.

\[1\]

OF SHIPS AS COMMON CARRIFERS.

\[1\]

yet human default has cooperated, and the ship is responsible; \[1\] but if the ship founders in the tempest and goes down, she is no more responsible for the goods on deck than for those in the hold. So the master is bound to stow the goods aright, with proper dunnage, etc., and in such arrangement and position as the character of the goods, their liability to break, etc., requires. But though he fail in these respects, and damage happens to the goods thus badly stowed, he is not answerable if he can show that the damage did not happen _because_ they were badly stowed.3 If the loss _might_ have happened without the master's fault, this does not excuse him; but if it _must_ have happened, although he had not been in fault, he is exonerated.4

Footnote 3: In Lawrence v. Minturn, 17 How. 100, it was held that where iron boilers had been 16.

Goods on deck, when jettisoned from necessity, cannot claim contribution in general average by the general law merchant.4 And if they are so carried by agreement with the shipper, he can have no claim against any party for the loss.5 But if car- \[1\]

\[FOOTNO and c.m. VII.\] COLLISION. **187**

**Section VI.**

**of COLLISION.**

Collision is a very common accident in harbors, and not very rare at sea. The role in this country is, that the party in fault must suffer his own loss and compensate the other party for what loss he may sustain.1 But if neither be in fault, the loss rests where it falls.2 If both are substantially in fault, the loss case, and the shipper must pay freight. Gardner v. Smallwood, 2 Hayw. N. C. 349 ; Vernard v. Hudson, 3 Sumner, 405. 1 The Scioto, Daves, 359 ; The Woodrop-Sims, 2 Dods. 83 ; Reeves v. Ship Constitution, Glipin, 579 ; The Sappho, 9 Jur. 560. See also, cases in/rug generally. 3 When a collision takes place by inevitable accident, without blame being imputable to either party, as where it is occasioned by a storm, or any other _vis major_, the uniforme must be borne by the party on whom it happens to light. In this, the civil law, the common law, and the maritime law of Europe, of England, and of this country, agree. Dig. 9. 2. 9; Consultat de la Mer, par Boucher, 200-209 ; Pardessus, Droit Com. tone fit, 652 ; The French Code de Commerce, art: 407 ; Yalin, Ord. de la Marine, iv, 3, 4, 7, art. 10, vol. 2, p. 177 ; Emerigon, e. 12, 14 ; (see, however, the Laws of Oleron, art. 15, and The Ordinance of Wisbuy, arts. 29, 49, 50, and 65 ; Bonlay Puty, Coms de Droit Com. Mar. tit. 12, a. 6, vol. 4, p. 493 ;) The Woodrop-Sims, 2 Dods. 83 ; The Celt, 3 Haggs. Adm. 328, note ; Jameson v. Drinkald, 12 Moore, 148 ; The Catherine of Dover, 2 Haggs. Adm. 145, 154 ; The Shannon and The Eladdia, 7 Jur. 380 ; a. 88. The Shannon, 1 W. Rob. 463 ; The Thornley, 7 Jur. 565 ; The Ebencer, 2 W. Rob. 306 ; The Itinerant, 2 W. Rob. 236 ; The Beloto, Daveis, 359 ; Reeves. Ship Constitution, Glipin, 579 ; Steinback v. Rao, 14 How. 539 ; The Elisa and Abby, 1 Blackf. & H. 435 ; The Moxey, Abbott, Adm. 73. See also, The Ligo, 2 Hagg. Adm. 356 ; Steamboat Co. v. Whillith, 4 Haring. Del. 228 ; Cumnins v. Sprunac, 4 Haring. Del. 815 ; The Brig Verma v. Clark, 1 Texas, 30 ; Myers v. Perry, 1 La. Ann. 372 ; Duggins v. Watson, 15 Ark. 115 ; Fashion v. Wards, 6 McLean, C. C. 152. Dr. Lausington, in The Vrg1, 7 Jur. 1174 ; 2 W. Rob. 201, defines an inevitable accident to be " that which the party charged with the offence could not possibly prevent by the exercise of ordinary, care, caution, and maritime skill." See also, The Loch-libo, 8 W. Rob. 310, 318, 1 Eng. L. & Eg. 651 ; The Europe, 2 Eng. L. & Eg. 557 ; The England, 5 Notes of Cases, 170 ; The John Baddle, 5 Notes of Cases, 387 ; The Juliet Erskine, 6 Notes of Cases, 633. In The Boiling, 3 Notes of Cases, 208, it was held, that where there is no _primal facte_ case of negligence, and want of semanching, and the party proceeded against alleges inevitable accident, the burden is not on him to prove it, but the party seeking indemnification must prove-that the other party was to blame. If a vessel, performing a salvage service, injuryes another, the injury will generally be considered as unavoidable. Stevens v. Steamboat S. W. Downs, 1 Newb. Adm. 458.

also rests where it falls, by the rules of the common law.1 If it cannot be ascertained where the fault lies, the rule may not be quite certain; but there is reason for saying that at common law the loss will not rest where it falls, but be divided between the two vessels. In admiralty this is more positively asserted, and it seems to us the proper rule.2 In admiralty the rule was
CH. VIL.\]COLLISION.189

once said to be, in the case where both are in fault, that the loss should be apportioned between the parties; meaning according to the degree or measure of the fault of each, if either decidedly preponderates; but if they are equal, or nearly so, the whole damage is divided between both, without reference to their respective values. But, it seems now to be determined by adjudication, that the loss shall be divided equally.1 Still, the equity power of the Court of Admiralty might qualify this rule, where the fault was vastly greater on one side than the other.2 This rule has been held not to apply when both parties are wilfully in fault.3 And even at common law, it is said the jury must take "an equitable view" of the facts and circumstances.4 If a vessel has, by no voluntary action on her part, contributed to the collision, as where she is thrown against another vessel by the swell caused by a passing steamer, she is not liable.1 We shall consider, hereafter, the question how far the owners are liable when the vessel is in charge of a pilot. It has been decided in England that if a vessel is employed by government, no action can be maintained against the owners for damages caused by a collision which took place in consequence of the positive orders of a commander in the royal navy under whose command she was.2

And where propriators of docks are empowered to direct where a vessel shall be moored in a dock, and a penalty is imposed on all persons refusing to obey the orders of the dock-master, the vessel is not liable for damages caused by a collision, while being moved according to the dock-master's directions.8 In England no ship is answerable beyond the value of herself and her freight;4 and in this country similar statutes have been passed in some of the States, and there is a United States statute to the same effect.5 If the cargo is injured by collision through any fault of the master, the shipper has an undoubted claim. If the collision occurred from the irresistible force of tide or storm, the ship is accused, because the loss was occasioned by a peril of the sea.6 But if the collision occurred wholly * \[GE. VII\] COLLISION. 191 through the fault of another vessel and most unnecessarily, but without any fault on the part of the ship which contains the damaged cargo, then the ship is not excused, whether there be a bill of lading or not, such collision being neither an act of God, or "a peril of the sea."1 And if neither party, be to blame, the defendant is liable if no bill of lading is given, because such collision would be neither an act of God nor of the public enemy.2 As between an underwriter and the insured owner of a ship, the former will be answerable for a loss by a collision, although caused by the negligence of the master or crew, because it is considered as a peril of the sea; but a collision so occurring will not exempt the owner of the vessel from being liable to the shipper of goods for damage caused to them thereby.2 Generally, if a collision has happened, and one vessel had been guilty of some negligence, the burden is on her to prove that this negligence was not the cause of the collision;3 and a plaintiff in a cause of collision, must prove both care on his own part and want of it in the defendant.1 Nor is it enough to show that it could not have been prevented at the moment, if it might have been by previous precautions.3 Among these precautions it seems to be a kind of rule, but not perhaps established as law, that a ship lying in a river-way, or a stream, is bound to show a light. The subject has been a good deal discussed of late, and perhaps the best conclusion is, that in each case the circumstances must decide whether a light was necessary.8 It is required by United States statutes in the case of

Lamar, U. S. C. C., Georgia, **8** Law Reporter, **275** ; Waring \*\*v. Clarke, **5** How. 441, 465 ; The Brig Emily, Oloott, Adm. 132.

1 **Carsley v. White, 21** Pick. 254 ; Drew v. Steamboat Chesapeke, **2** Doug. Mich. 33 ; Lane v. Crombie, **12** Pick. 177 ; Bulloch v. Steamboat Lanzar, **at sup.** ; Sills v. Brown, **9** Car. & P. 601 ; New Haven S. B. Co. vanderbilt, **16** Conn. 420 ; Kennard v. Burton, **25** Me. 39 ; Rathun v. Payne, **19** Wend. 399 ; Maritott v. Stanley, **1** Scott, \*\*N. R. 399; Rainsu v. Mitchell, **5** Car. & P. 618; Bridge v. Grand Junction Railway Co. 3 M. & W. \*\*944 ; Smith v. Dobson, **3** Scott, \*\*N. R. 336, **3** Man. & G. 59 ; Butterfield v. Forrester, **11** East, **60** ; Handayayde v. Wilson, **3** Car. & P. 598 ; Vanderplask v. Miller, **3** Moody & M. 169 ; Davies v. Mann, **10** M. & W. 546 ; Vennall v. Garner, **1** Cromp. & M. 31, **3** Tyrw. 85 ; Fashion v. Warde, **6** McLean, C. C. 152 ; The Bolina, **3** Notes of Cases, **208** ; The Steam Tye Wm., **7**o, Oloett, Adm. 38 ; The Steam Ferry-Boat Belief, **10** ; The Columbus, Abbott, Adm. 384.

- \*\*In the case of The Virgil, **7** Jour. 1174, **2** W. Rob. 201, 205, Dr. _Lashington_ said : " If a vessel charged with having occasioned a collision, should be sailing at the rate of eight or nine miles an hour, when she ought to have proceeded only at the speed of three or four, it will be no valid excuse for the master to aver that he could not prevent the accident at the moment it occurred, if he could have used measures of precaution, that would have rendered the accident less probable ; it may undoubtedly be important that a voyage should be completed in the most speedy manner, but such speed must be combined with safety to other vessels sailing in an opposite course." See also, The Steamboat New York. **Rea, 18** How. 293, \*\*294 ; The Clement, **2** Curtis, C. C. 368.

- \*\*Whether a vessel must have a light or not, is generally a question of fact, to be decided by all the evidence in each particular case, whether the omission of a light constituted negligence. Thus Dr. _Lashington_ in the Bose, **2** W. Rob. 4, said : " It has been discussed over and over again in former cases of this kind, and I believe there is no occasion in which it has been laid down as a general principle that merchant vessels ought constantly to carry lights. Under certain circumstances undoubtedly it may be right and expedient to do so." Similar language is used by him in the case of The Swen, **4** Notes of Cases, **97**, note ; and in that of The Sarah, **4** Notes of Cases, **98**, note. He cited and affirmed the above also in The Iron Duko, **2** W. Rob. 377. In this case a large steamer, on a dark night, in a part of the channel constantly navigated by vessels, ran into and sunk a brig. The latter had no lights. It was held that she was not bound to carry lights, and that the steamer was to blame in going at full speed on such a night in such a locality. This decision seems hardly consistent with that of The Victoria, decided by the learned judge a few years later, and reported in **3** W. Rob. 49.

- \[GE VIL\] COLLISION. 193

certain steamboats;1 and in New York it is required of boats

Footnote 1: Stat. 1838, ch. 191, { 10; 5 U. S. Stats. at Large, 306. This statute applies to stemboats generally. That of 1849, ch. 105, { 5; 9 U. S. Stats. at Large, 382, prescribes the rules for stemboats and sailing vessels on the northern and western lakes. If a vessel disregard the provisions of these statutes, the barden is on her to show, in case of a collision, that the accident was not owing to such neglect. Ballool $v$. Steam- bost Lamar, U. S. C. C., Georgia, 1844, & Law Reporter, 375 ; Foster $v$. The Sch. Miranda, 1 Newb. Adm. 227 ; 6 McLean, C. C. 221. See also, Lawson $v$. Carr, Privy Council, 19 Law Reporter, 100. But if the accident is not owing in any degree to the absence of the light, the vessel will not be considered in fault in this respect. New Haven S. B. Co., v. Vanderbilt, 16 Comm. 420 ; Griswold v. Sharpe, 2 Cal. 17 ; The Santa Clans, Olecott, Adm. 428 ; The Panther, 24 Eng. L. & Eq. 585 ; Morrison v. The Gen. Steam Nav. Co. 8 Exch. 733, 20 Eng. L. & Eq. 455 ; Mackay v. Roberts, 9 Moore, P. C. 357. The act of 1849 provides that vessels "going off large," or before the wind, or at anchor, must show a white light. It has been held that a vessel under way with the wind abaft the beam is "going off large." Hall $v$. The Buffalo, 1 Newb. Adm. 115.

In that case a vessel at anchor without a light was run into. Dr. _Lukington_, addressing the Trinity Masters, said: "If you are of opinion that the carrying and exhibiting such a light would have tended to prevent the collision, I cannot but think that it was a duty imposed upon him to have done so, and for this reason, that all persons are bound to take and proper care to avoid an accident, and no man can justify complain of an accident that happens to himself, if by reasonable care and proper precaution be could have prevented it." The Trinity Masters were of opinion that, looking to the period of the year, the state of the night, and tha,number of vessels likely to be in the neighborhood of her, it was her duty, under such a combination of circumstances, to have had a light burning. See also, The Sciotic, Daveis, 359 ; Lenox v. The Winin-simmetc C. U. S. D. C., Mass., May, 1848, 11 Law Reporter, 80. In Kelly v. Cunningham, I call. 865, it was held that if ordinary prudence required a vessel, lying in the roadsted of San Franscice, to carry a light, a general custom for vessels in the harbor to neglect to do so was no excuse. See also, Innis v. Steamer Senator, 1 Cal. 459. And in The Indiana, Abbott, Adm. 330, and Hain v. Steamboat North America, U. S. D. C., South. Dist. of N. Y., 2 N. Y. Leg. Obs. 67, it was held that a vessel at anchor in the harbor, or in a navigable river, must show a light. See also, Rogers v. Steamer St. Charles, 19 How. 108. In this case the light had been taken down just previous to the collision, in order that the water which had collected on the glass globe might be wiped off. The vessel was nevertheless held to be in fault. In Carsley v. White, 21 Pick. 254, the court instructed the jury that whether the plaintiff ought to have had a light or not, depended on all the circumstances of the case. The vessel was lying in the harbor of Provinetown. See also, The New Haven Steamboat Co. v. Vanderbilt, 16 Comm. 420, 429. It was also held in The Santa Clans, 1 Blatch. C. C. 370, that, where a vessel on a dark night, the weather being thick and cloudy, carried but one light, and thereby led those on board of another vessel to suppose that she was at anchor, and a collision consequently took place, the vessel was guilty of negligence. The necessity of having a light was strongly enforced by Mr. Justice _Grier_, in the case of The Barque Delaware v. Steamer Osprey, 2 Wallace, C. C. 268, 275. The Osprey ran into the barque Delaware; the steamer had lights but the barque had not. Mr. Justice _Grier_ said: "The court cannot establish any pile to bind vessels navigat."

I Stat. 1838, ch. 191, { 10; 5 U. S. Stats. at Large, 306. This statute applies to stemboats generally. That of 1849, ch. 105, { 5; 9 U. S. Stats. at Large, 382, prescribes the rules for stemboats and sailing vessels on the northern and western lakes. If a vessel disregard the provisions of these statutes, the barden is on her to show, in case of a collision, that the accident was not owing to such neglect. Ballool $v$. Steam- bost Lamar, U. S. C. C., Georgia, 1844, & Law Reporter, 375 ; Foster $v$. The Sch. Miranda, 1 Newb. Adm. 227 ; 6 ing the high seas, after night, to carry signal lights ; but when one party does this, and the other does not, we can and will treat (in a case _certain paribus_) the dark boat as the wrongdor." And Mr. Justice _Kane_, in the same case, said: "I should be very glad to follow in the wake of the first admiral judge, who would hold the absence of a properly placed, and well trimmed lantern, to be _primal facie_ evidence of a culpable want of caution." See also, Jacobsen's Sea Laws, 340. _Gibson_, C. J., in Simpson r. Hand, 6 What. 311, 334, said: " Indeed, the hoisting of a light is a precaution so imperiously demanded by prudence, that I know not how the omission of it could be qualified by circumstances any more than could the leaving of a crude of chino in the track of a railroad car, or how it could be considered otherwise than as negligence _or_ as." See also, The Oratava, 5 Month. Law Mag. 45; The Columbine, 2 W. Rob. 27, 33 ; Steamboat Blue Wing v. Buckner, 12 B. Mon. 246; Ward v. Armstrong, 14 III. 283. In Calbertson v. Shaw, 18 How. 584, Mr. Justice _McLan_ states the law, as follows : " Where a boat is anchored in the path of vessels, a light is indispensable; but it is not required where the boat is fastened to the shore, especially at a place set apart for such boats." See also, Ur. Coffman, 19 How. 56. In the case of Brainer v. Steamer Worcester, U. S. D. C., Conn., Boston Daily Advertiser, Sept. 12, 1856, Mr. Justice _Ingersoll_ held, " that by the maritime law, a vessel lying at anchor in a track frequented by other ships is bound to exhibit an _efficient_ light, an _effective_ light, sufficient to warn other vessels approaching, of the position in which she is anchored. That a light hung in the larboard forerigging of a vessel at anchor, with her sails up, and so as to be obscured and eclipsed by the sails, from the view of a stemer approaching on the starboard side, so far as respects such stemer so approaching, is no sufficient light within the meaning of the maritime law." In The Thomas Martin, U. S. C. C., N. Y., 19 Law Reporter, 379, Mr. Justice _Nelson_ held, that even if vessels were not bound to carry lights generally, still when approaching each other they were bound so to do. And in Pope v. Steamer R. B. Forbes, U. S. D. C., Mass., Mr. Justice _Syngrave_ used the following language: " Now there is no imperative rule that a sailing vessel must show a light. Yet if a schoomer in the night time, going where steamers may be expected to be met, fails to show a light, the ought not to recover for damages done by collision with a stemer, if the stemer keeps a good look-out and uses reasonable carements " prevent a collision." See also, the language of _Ware_, J., in The Steamer City of New York, U. S. D. C., Mass., Boston Courier, Dec. 10, 1857. But see The Pilot Boat Blosson, Oleloot, Adm. 188 ; The Steamboat Neptune, id. 483. In New York & Virginia Steamship Co. v. Calderwood, 19 How. 241, which was a case of a collision between a sailing vessel and a stemer, the sailing vessel had no light. The court were of opinion, upon the evidence in the case, that this did not indicate negligence, but said: " But that the case may not be misunderstood, we assert that the ruling principle of the court is, that an obligation rests upon all vessels found in the avenues of commerce to employ active diligence to avoid collisions, and that no inference can be drawn from the fact, that a vessel is not condemned for an omission of certain precautionary measures in one case, that another vessel will be excused, under other circumstances, for omissions of the same description." In Valentine v. Cleugh, 8 Moore, P. C. 167, 29 Eng. L. & Eq. 49, it was held that, where an admiraly regulation, made pursuant to the 14 and 15 Vict. c. 79, prescribed that all sailing vessels at anchor should exhibit a constant bright light at the mastheed, between sunset and sunrise, a light in the larboard mixen rigging was not sufficient, it being not so readily seen there as in the place prescribed. See also, The Mangerton, 2 Jur. x. s. 620, 27 Law , CH. VII.\]

collision. 195

gence.1

Sailing vessels when under way,2 as well as when at anchor,3

Footnote 1: The Brig Emily, Olcott, Adm. 132 ; The Pilot Boat Blossom, id. 188 ; The Rebecs, 1 Blatchf. & H. Adm. 347 ; The Clement, 2 Curtis, C. C. 363, 369 ; The Chester, 3 Hagg. Adm. 316. But it has been held not to be improper conduct on the part of the officer of the deck to take the helm himself and to trust the look-out to a common sailor. The Pilot Boat Blossom, supra.

Footnote 3: The Indiana, Abbott, Adm. 330. But if the collision was not owing to the absence of a watch, the vessel will not be considered in fault. Mellon $v$. Smith, 2 E. D. Smith, 462.

Footnote 4: Sills v. Brown, 9 Car. & P. 601 ; The Gazelle, 2 W. Rob. 515 ; The George, 5 Notes of Cases, 368 ; The Woodrop-Sims, 2 Dods. 68 ; The Speed, 2 W. Rob. 225 ; Jam

**196**: **ON THE LAV OF SHIPPING.** \[BOOK L.\*\*

each should go to the right; or the ship on a starboard tack keeps on, while the ship on the largboard tack changes how course.1 If both are going the same way, it is said that the ship to windward is to keep away; but this is manifestly incorrect, and there is need of further adjudication to determine the true rule.2 If sou _v. Drinkald, 14$3$ Moore, 14$4$5_6$7$8_9_

**CL. VIL.\]** **COLLISION.** **197**

**two sailing vessels are approaching each other with the wind**

**free, each goes to the right.1**

**The rule is the same of two steamboats approaching each other.2 Since steamboats can go almost equally well in one**

\*\*ack, but converging, so that if they should keep on, a collision would ensue, if the vessel to windward should keep away, that is, keep away before the wind, she would be thrown directly in the track of the other vessel. Nor is the case of Marsh $v$. Blythe an authority in point. The head note does not state the case correctly. Two vessels were bound to Charleston, one, at the time of the collision, was on the astrodrod track, and the other on the largond. It was held that the latter should have given way. It will be readily seen that this is merely an exemplification of the rule, given above, that when two vessels close-hauled are approaching, the vessel on the largond tack is to change her course. The head note of the case of Steamboat Co. $v$. Whildin, 4 Haring, Del. 228, is also incorrect. In that case two steamboats going in opposite directions came into collision. There is not even a _dicma_ in the opinion of the court in regard to the duty of vessels going in the same direction, though the rules of navigation, as given by Kent, are incorporated into the head note. The question came before the District Court of the United States for the District of Massachusetts in the case of The Clement, 17 Law Reporter, 444. A big and a pilot boat, schooner rigged, were sailing on the same tack, on converging courses. The big was to windward and had the wind two points free. The pilot boat was close-hauled. The two vessels kept their respective courses, and the pilot boat, being the faster sail, overtook the brig and struck her on the lee bow. The court applied the rule applicable to vessels approaching each other, and held that the brig, having the wind free, should have avoided the pilot boat. It was also said that if both had been close-hauled, and the convergency had been caused by the schooner's being able to lie never the wind, the brig would not have been in fault. This case was affirmed in the Circuit Court. 2 Curtis, C. C. 363. An appeal was taken to the Supreme Court, and the case argued, and that court were equally divided. We are unable to see, so clearly as we could desire, that the decisions in the district and circuit courts are altogether correct. It seems to have been taken for granted that the general rule as to vessels approaching each other applied to the case of a vessel astero, and the faster sailer overhauling and running into the other. If such a proceeding may be justified by the fact that the one aster was close-hauled, and the one ahead had the wind free, then it would seem to follow that, on the road, a carriage might run into one ahead, and justify itself by saying that it had kept to the right "as the law directs." If two steamboats are going in the same direction, the one ahead is entitled to keep her course, and the one aster, if she attempts to pass, must avoid a collision. The Rhode Island, Olecott, Adm. 505, affirmed 1 Blatcht. C. C. 363 ; The Governor, Abbott, Adm. 108. See also, Ward $v$. Sch. Dousman, 6 McLean, C. C. 381. And the same rule has been applied where the one ahead was a sailing vessel, and the one aster was used by a streamer. The Carolos, 2 Curtis, C. C. 69. 1 Lowry $v$. Steamboat Portland, 1 Law Reporter, 313, 315 ; St. John v. Paine, 10 Row. 557 ; The City of London, 4 Notes of Cases, 40. 1 The Steamboat Washington, U. S. D. C., _Biersall_, J., 12 N. T. Leg. Obs. 168 ; Wheeler $v$. The Eastern State, 2 Curtis, C., C. 141 ; The Santa Claus, Olecott, Adm. 428, 1 Blatcht. C. C. 370 ; Lockwood $v$. Lashell, 19 Penn. State, 344. In Ward $v$. The 17 \*direction as in another, they are considered as vessels with a free wind. They have great power and speed, and are always obliged to observe a great degree of caution, particularly at night. They must be very watchful as to their speed and course. In regard to the former, it is a question of fact in each particular case whether the speed was excessive or not; and in determining this, the locality and hour, the state of the weather, and all circumstances of a similar nature, are to be fully considered.1 It has been held to be no excuse for an excessive speed, that the steamer could not otherwise fulfil a contract for the carriage of the mail.2 If a steamboat, in consequence of excessive speed, raises so great a swell that a vessel is sunk thereby, the owners are liable.3 A steamer, when hailed in a fog, should reverse her engines and stop her headway as much as possible.4 The same precautions should be taken when a vessel is seen, but her course is doubtful.5 In respect to a look-out, it is not enough that a person is stationed in the pilot-house for that purpose, but a vigilant watch should be stationed in the forward part of the steamer, so situated as to.be able to discern

Ogdensburgh, 1 Newb. Adm. 139, it was held, that the rule did not apply where, if each should keep its course, there would be no possibility of a collision. But in Wheeler v. The Eastern State, _supra_, it was held not to be enough for the party who departs from the rule to show that they would not have gone clear, but he must show that the other party ought to have perceived there was no probable chance of collision by so doing. See p. 202, note 2.

1 The Europa, 2 Eng. L. & Eq. 557, 564 ; The Northern Indiana, 16 Law Reporter, 483 ; The Gangle, 2 W. Rob. 515 ; The Iron Duke, 2 W. Rob. 377 ; The Virgi, 2 W. Rob. 201 ; The Bay State, Abbott, Adm. 335, a. c. nom. McCready v. Goldsmith, 18 How. 89 ; Steamboat New York v. Bea, 18 How. 223 ; Brainer v. Steamer Worcester, U. S. D. C., Conn., Boston Daily Advertiser, Sept. 12, 1856 ; Rogers v. Steamer St. Charles, 19 How. 108 . If the by-laws of a place forbid vessels going over a certain rate of speed in the adjacent waters, it is no excuse in case of collision that the colliding vessel was going at a rate within the limits of the rule, if such rate were dangerous at the time. Netherlands Steamboat Co. v. Styles, Priyv Council, 40 Eng. L. & Eq. 19, 25.

2 The Rose, 9 W. Rob. 1 ; The Northern Indians, 16 Law Reporter, 483 ; Rogers v. Steamer St. Charles, 19 How. 108, 112.

3 Netherlands Steamboat Co. v. Styles, Priy Council, 40 Eng. L. & Eq. 19. See also, Smith v. Dobson, 3 Man. & G. 59, where the damage was caused partly by the swell of a steamer which had already passed, and the defendant was held liable.

4 The Perth, 3 Hagg. Adm. 414.

5 The Birkenhead, 3 W. Rob. 75 ; The James Watt, 2 W. Rob. 270 ; The Northern Indians, 16 Law Reporter, 433, 447 ; Ward v. The Ogdensburgh, 1 Newb. Adm. 189.

CH. VII.\] COLLISION. 199

vessels at the earliest moment.1 When a steamer meets a sailing vessel close-hauled, the sailing vessel must keep on her course and the steamer must avoid her if there is danger of a collision,2 and according to the American rule the steamer may go either to the right or left of a sailing vessel with the wind free, but this rule is objectionable in some respects, and we think the English rule, requiring her to go to the right, is to be preferred.8

Footnote 1: Sh. John . Paine, 10 How. 557, 885; Newton . Stebbins, 10 How. 586 ; The Propeller Geneece Chief . Fitchugh, 12 How. 443 ; The Northern Indiana, 16 Law Reporter, 438, 447 ; Ward . The Oglensburgh, 1 Newb. Adm. 189; The Steambost New York . Ben, 18 How. 223; Goslee . Shuto, id. 465 ; Netherlands Steambost Co. . Styles, Priy Council, 40 Eng. L. & Eq. 19. In the case of The Europa, 2 Eng. L. & Eq. 557, it was held, that a stemer going at the rate of twelve and a half knots as hour in a dense fog, seven hundred miles from land, must have the most complete look-out than can be adopted. It was in evidence that the usual look-out in cases of difficulty, and of dense fog, was an officer on the foremost bridge, another at the con, a quarter-master at the wheel, and a second hand in the wheel-house, and lastly, two look-outs on the top-gallant forecasts. In the present case the look-outs being, merely, one on the bridge, a quarter-master on the top-gallant forecast, one at the wheel, and another at the con, it was held, that no sufficient look-out was kept. See also, ante, p. 195, note 1. In The Wirall, 3 W. Rob. 56, the Trinity Masters were of opinion, that the proper place for the master, or look-out man on a ferry-boat on the river Mersey, was the bridge between the paddle-boxes. See also, generally, The George, 4 Notes of Obs., 161 ; Jameson . Drinkald, 12 Moore, 148 ; The Shannon, 2 Hagg. Adm. 173 ; The Columbine, 2 W. Rob. 57.

1 The Gazelle, 2 W. Rob. 515 ; St. John . Paine, 10 How. 557 ; Newton . Stubbins, id. 586 ; Lowry . Steamboal Portland, 1 Law Reporter, 313 ; Hawkins . Ducthes & Orange S. B. Co. 3 Paul 455 ; The Genese Chief . Fitchugh, 12 Hor. 443 ; Sanderson . Columbus, 10 Phil. L. J. 368 , Leg. Int. 31 ; Jele . The Congeston, 1 Phil. L. J. 188 , 8eg. Lag. Int. 154 ; Mellon . Smith, 2 E. D. Smith, 462 ; The Steam Tag Wm. Young, Olecott, Adm. 38 ; The Steamboal Narmganest, Olcott, Adm. 246 ; The Steamboal New Jersey, id. 415 ; The Steamboal Neptune, 448 ; The Washington Irving, Abbott, ... 386 . The sailing vessel is, however, only obliged to keep her course when there is some immediate danger of collision. The Propeller Monticello . Hollison, 17 How. 155 ; Pack . Sanderson, id. 178.

4 We have seen that, when two sailing vessels going free meet, each must pass to the right; and as a steamer is considered in the light of a vessel going free, it would seem to follow that when the meet is a sailing vessel free, the same rule should apply. And it was so held by Dr. Lushing, in the case of The City of London, 4 Notes of Cases, 40. The rule, as laid down by him, has been followed by the Vice Admiralty Court of Lower Canada, in the case of The Inga, decided July 3, 1855, 18 Law Reporter, 285, and is supported by a writer in the London Law Magazine, vol. 53, p. 52. It is now by statute the settled law of England. The Mercahus Shipping Act of 17 & 18 Victoria, 1 296 ; The Mangerton, 2Yur. N. 8. 620, 27 Law T. 207. Mr. Justice _Sproque_, on the other hand, in the case of The Osprey, U. S. D. C., Mass., 17 Law Reporter, 384, decided that in such a case the sailing vessel was bound to keep on her course, and the steamer could go either to the right or to the left to avoid her. This decision proceeds on the ground that wherever an inequality exists, the vessel having the advan
Generally, a steamer going on a customary route should keep in her usual track.1 When a sailing vessel is drifting with the current, it is the duty of a steamboat to avoid her, although the latter is in the usual track for steamboats.2 If a collision ensue between two steamboats at their place of departure, both leaving the same slip at the same time, both will be considered to be in fault. But if one starts first, the other must wait till the former gets under way.3 And if the boats are running in opposition to each other, both will be presumed to be in fault, unless it is clearly shown that one is not to tage is to keep out of the way, and the other must keep on her course. He says the expression that a steamer is considered as a vessel with the wind free is only applicable to the case of steamers meeting vessels close-handed. He also cites for cases as benef on the point. St. John v. Paine, 10 How. 557 ; Newton v. Stebbins, id. 586 ; The Leopard, Daveis, 198 ; The Northern Indians, 16 Law Reporter, 433. The Leopard, perhaps, supports the position contended for, but the others are cases of steamers and vessels close-handed. There is a _dictum_ of Mr. Justice _Nelson_, in St. John v. Paine, to the effect that a steamer is always to avoid a sailing vessel, whether close-handed or with the wind free. For this several English cases are cited, but none of them support that branch of the proposition relating to vessels with the wind free. This _dictum_ is cited with approbation in the case of The Northern Indians, and is supported by an article in the Law Reporter, vol. 18, p. 181. The rule established by Dr. _Lashington_ seems to rest on the principle (which appears to be reasonable), that the inequality between a steamer and a vessel going free, provided she be not on a tack, is in reality so little, that it does not counterbalance the propriety and superior advantages of each doing its part to avoid the collision. In accordance with this view it was held, in Ward v. Armstrong, 14 Ill. 283, in a case of collision between a steamboat and a schooner, that as the latter was running large before the wind, she was nearly as much in command as the steamer, and as she saw the latter several miles off, and might have given her a wide berth, the law would not consider the steamer in fault, since there was reasonable care on her part. See also, The New Champion, Abbott, Adm. 202. But in a recent case, before the Supreme Court of the United States, the law as laid down by Mr. Justice _Sprague_ has been established. The Steamer Oregon v. Rocca, 18 How. 570. The court put their decision entirely on the ground that the general rule of law is, that a steamer, meeting a sailing vessel, must avoid her, and that when a general rule is laid down, it is practically rendered infected by admitting exceptions to it. A collision occurred on Long Island Sound during the summer of 1857, which illustrates the superiority of the English, to the American rule. Two steamers were approaching each other in the night time, and one was thought to be a sailing vessel ; consequently, the other, in the exercise of its privilege, went to the left, but as the first went to the right they came into collision. Had the English rule been observed, the misapprehension on the part of the steamer would have been productive of no ill results.

1 New York & Virginia Steenship Co. v. Calderwood, 19 How. 241.

2 Saine v. Tourne, 9 La. 428; Frets v. Bull, 11 How. 466. See also, Fashion v. Wards, 6 McLean, C. C. 152; Ward v. The Sch. Dousman, id. 231.

3 The Steamboat Boston, Oloott, Adm. 407.

MLVL\] COLLISION. 201

blame.1 Evidence that a boat was racing is admissible to show

negligence on her part.2 It has been held that if a raft is driven by the wind into the channel of a river so as to obstruct it, the master of a steamboat has no right to destroy it, as being a nuisance, if it has not remained there an unreasonable time and exertions are being made to remove it by the owners of it.3

When a vessel is entering a harbor, she is bound to exercise great care and diligence.4 The ordinary rules of navigation are binding upon vessels meeting pilot boats ;6 and also on vessels in the fishing business, on their fishing grounds.7 A fery-boat playing across a navigable river is bound to remain in her slip, notwithstanding her regular hour of leaving has arrived, if any vessel is seen, or is in a position to be seen, from on board of her, with which she will be in danger of coming into collision if she goes out; but she is not bound to lie waiting the expected arrival of another vessel.7 If a ship at anchor and one in motion come into collision, the presumption is, that it is the fault of the ship in motion, unless the anchored vessel was where she should not have been.8 The rule of law would seem to be the same where a vessel aground is run into.1 When a vessel has been sunk in a navigable river the owner is bound to use reasonable care to remove it, but if he is unable so to do, he may abandon his possession or right of possession and is not thereafter liable for injuries sustained by vessels in striking against the wreck.2

Footnote 29: https://www.

CLYL\] COLLISION. 203

not disabled is bound to render all possible assistance to the other, although that other may be alone in fault.1 It has been held, that in case of collision between two American vessels in a foreign port, the rights of the parties will depend, even in an action in this country, upon the law of the place where the collision took place.2

time. See also, Bark St. John v. Bark Mary Bannatyne, Vice Adm. Court, Lower Canada, 18 Law Reporter, 528, 831 ; The Hope, 1 W. Rob. 154, 156 ; The Niagars, Vice Adm. Court, Lower Canada, June 2, 1854, 17 Law Reporter, 386, 341 ; The Lady Anne, 1 Egg. L. & Eq. 670 ; The Shannon, 2 Hagg. Adm. 173 ; Lowry v. Stambout Portland, 17 Law Reporter, 313 ; St. John v. Paine, 10 How. 557 ; Moore v. Moss, 14 Ill. 106 ; Hawkins v. Dentes & Orange S. Root Co. 2 Wend. 452 ; Minor v. Ship Astronen, 2 Whart. Dig. 685 ; Foster v. The Sch. Miranda, 1 Newb. Adm. 227 , 6 McLean, C. C. 221 ; The Santa Claus, Oloett, Adm. 428 ; Handaysydo v. Wilson, 3 Car. & P. 529. In the case of The Blenheim, 10 Jur. 79, a stemer was run into by a vessel being launched. It was held, that as the stemer might have avoided the collision by going more to the north, she was liable. A view, somewhat different from the general one, has been recently taken by the Supreme Court of the United States. After stating the general rule relating to the case of a stemer meeting a sailing vessel, the court said : " Practically, when a rule for this purpose is laid down, it is rendered intelecrased by admitting exceptions to it. The mind begins to varer as soon as the danger arises, and the exception, rather than the rule, becomes a subject of solicitude with the masters of both boats ; and this practically annuls the rule, and causes the movements of both vessels to be uncertain. If the rule were absolute, and an insuperable difficulty should prevent one of the boats from observing it, it would be safer and better, to slow the vessel, or stop it, until the danger shall be past. This would occur so seldom as to be inapprecple, when compared to the safety it would secure." The Steamer Oregon v. Rocca, 18 How. 570, 572. And Mr. Justice Coris, in a subsequent case in the same volume. Crockett v. Newton, p. 581, 583, speaking of the general rule, said : " And though this rule should not be observed when the circumstances are such that it is apparent its observance must occasion a collision, while a departure from it will prevent one, yet it must be a strong case which puts the sailing vessel in the wrong for obeying the rule. The court must clearly see, not only that a deviation from the rule would have prevented a collision, but that the commander of the sailing vessel was guilty of negligence, or a culpable want of seas-manship in not perceiving the necessity for a departure from the rule, and acting accordingly." See also, Wheeler v. The Eastern State, 2 Curtis, C. C. 141. And, in the case of The Test, 5 Notes of Cases, 276, it was hold, that it was no defence to a vessel clearly in the wrong, that the other vessel might, by departing from the ordinary rules of navigation, have avoided the collision. 1 The Cel, 8 Hagg. Adm. 321. In this case it was held, that a vessel, which did not render assistance after the collision, should pay costs, although she was, in no respect, otherwise in fault. 2 Smith v. Condry, 1 How. 28. A different rule is, however, laid down in the case of The Vernon, 1 W. Rob. 316. It is there held, that where a party seeks a remedy, he must take it according to the law of that country in which it is to be enforced. See also, The General Steam Nav. Co., v. Guillou, 11 M. & W. 877 ; The Johann Friederich, 1 W. Rob. 35.

In measuring the damages in a case of collision, all the direct and immediate consequences are to be taken into consideration; as loss of freight, detention, expense, and the like.1 Whether damages are to be allowed for the detention of the injured vessel while undergoing repairs, may not be certain; but the later, and, we think, the better rule, allows them.2 The rule in insurance, * \[\]

**CLL VIL.\]**

**of one** \*\*third **off, new for old, does not apply to a claim for damages from collision, excepting in an action on the policy.1**

- \[\]

In regard to the very difficult question, when the cause of the loss is sufficiently near to make the responsibility of a party extend to it, and when it is too remote for that effect, the cases are very conflicting, and it is, perhaps, impossible to lay down a rule which would be satisfactory, and universal, or even general. But we shall consider this question in the chapter on Insurance; and will pass it by here, adding only, that we prefer the English and the later American adjudications on this subject to the earlier American cases.

As to the costs in a case of collision, the general rule is the same in admiralty as at common law; but in the exercise of its equitable power, admiralty may hold the party that wins to pay costs.1 And when the damage occurs by inevitable accident, no costs are given.2

Footnote 1: The statement is that the _true_ statement is true, and that the _true_ statement is true.

Of. VII.\] \[COLLISTION.\] 207

By the later and better authority, it would seem that a collision gives to the suffering ship a lien on the ship causing the damage.1 But this lien lasts only long enough to give the injured party a reasonable opportunity to enforce it.2

Footnote 1: The author is grateful to the anonymous referee for his comments on the manuscript.

See also, The George, 4 Notes of Cases, 161. If the damage done is slight, and the party has an adequate remedy therefor in a common law court, costs will not be allowed. The Steamboat Boston, Olcott, Adm. 407. When a case has been decided and sent to a referee to determine the amount of the damage, the general rule undoubtly is, that the losing party shall pay the costs of the reference. But to this rule there are exceptions. Thus, in the case of The Ninrod, 24 Eng. L. & Eq. 589, the claim was $\\approx$3,121. The report allowed $\\pm$1,736. A tender was made before the reference of $\\pm$1,885. The four principal items disallowed amount to $\\pm$1,109. The claimants were condemned in the costs of the reference as to these items, and in the costs of the motion. In The Cynthia Ann, 24 Eng. L. & Eq. 579, the sum demanded was $\\pm$275, the amount allowed was only $\\pm$291. The court held, that the sum demanded was so much larger than that granted by the reference that the claimant should pay the costs of the reference and of the motion, as the other party was thereby prevented from making a tender. In The Celt, 3 Hagg. Adm. 821, it was held, that though a vessel was not in fault in causing the collision, yet if she did not render assistance after it, she would be liable for the costs. Dr. Lushington, in the case of The Drake of Sussex, 1 W. Rob. 270, obcered, that where the government was a party, although there had been much wavering upon the subject, he approached the true principle to be that the crown neither gave nor took costs.

Footnote 1: The _Lushington_, in The Volant, 1 W. Rob. 388, 387, is reported to have said, that the damage does not create a lien. See, however, The Bold Bucci, 3 W. Rob. 290, 2 Eng. L. & Eq. 586. When this latter case came before the priy council, on appeal, the subject received an elaborate discussion, and it was held that a lien existed. The collision took place December 14, 1848. On the 19th suit was commenced in England, but the ship left the country before she could be arrested. Subsequently, the vessel being in Scotland, a suit was commenced against her and ball given. In August, 1849, the vessel having returned to England, an action was again brought against her, and she was arrested. The lien was enforced, though the vessel had been sold on the 26th of June previous. Sir John Jervis, in delivering the opinion of the court, speaking of the _dicun_ of Dr. Lushington, above referred to, said: " By reference to a contemporaneous report of the same case, 1 Notes of Cases, 506, it seems doubtful whether the learned judge did use the expression attributed to him by Dr. W. Robinson. If he did, the expression is certainly inaccurate, and being a _dicun_ merely, not necessary for the decision of the case, cannot be taken as a binding authority." Harmer _v._ Bell, 7 Moore, P. C. 267, 23 Eng. L. & Eq. 62. In this country the current of authorities is in favor of the lien. In the case of The Creole, Legal Intelligence, May 17, 1858, Mr. Justice Kane said that, though there was, properly speaking, no lien in collision, because the subject was tori, yet the vessel would be liable even in the hands of a purchaser. In the same court it has been held, that collision creates a lien. Edwards _v._ The Steamer R. F. Stockton, Crabbe, 580. Soe also, The America, U. S. D., Northern District of N. Y., 16 Law Reporter, 264.

${}^{\*}$ Where the libel was not filed till more than twenty months after the collision, during which time the vessel had been sold, the colliding vessel was held not to be responsible. The Admiral, U. S. D. C., Mass., 18 Law Reporter, 91.

The question has arisen, when a vessel or canal boat is in tow of a steam tug, and collision occurs, which is responsible, the steam tug or the vessel in tow ? It is obvious that two perfectly distinct views may be taken of the relation between them. According to one, the vessel towing is but the servant of that which is towed ; this latter is the master, and is responsible for the acts of the former as its servant. According to the other, the vessel towed is for the time under the absolute control of the vessel towing, and this latter is therefore responsible for any mis-chief done. We apprehend it to be an error to assume that either of these relations must exist in any particular case. The inquiry should always be, which party is the principal, and which the servant. And wherever the relation of principal and agent exists, the case should be decided on the principles of agency. Generally, we should say that the tug was probably the servant, and the vessel which employed her the principal, and responsible as such. But it will be seen that the cases are in irreconcilable conflict.1 of the freighting ship, in the other. If collision takes place between the side ship, thus firmly laheed, and another vessel, it is as directly attributable to the steamboat, and her officers and crew, as if the steamboat herself had come into collision with the other vessel. The towed ship is the passive instrument and means, by which the damage is done. But there is no difference, in this respect, between the condition of one of the side ships and a ship towed astern, except this; that on board the ship towed astern by means of a cable, something may and ought to be done by the master and crew, in steering, keeping watch, obeerving and obeying orders and signs, and if there be any want of care and skill in the performance of these duties, and damage ensue, then the case we have been considering does not exist; the damage is attributable to the master and crew of the towed ship, and they and their owners must sustain it." These cases are in direct variance with two decisions in the Circuit Court of the United States for the Eastern District of Pennsylvania. Smith v. The Creolo, z Wallace, C. C. 485 ; and The Stean Tug Sampson, 3 Am. Law Register, 387. In both these cases the actions were _in_ ream against the tugs, but the court held, that tags were but servants of large vessels, and therefore were not responsible to third parties. In England the law is the same. In The Duke of Sussex, 1 W. Rob. 270, the action was _in_ ream against the tug. It was set up in defence that at the time of the collision she was towing a vessel, and under the direction of a pilot on board such vessel. Dr. _Lushing_ held, that if the orders of the pilot were obeyed, the owners of the vessel towed would not be responsible; but if not, they would be. And in The Gipsey King, 2 W. Rob. 587, where the action was brought against the vessel towed, ho said: " Now I have, upon former occasions, already expressed my opinion, that a vessel in charge of a licensed pilot, whilst in tow of a steam tug, is, under ordinary circumstances, to be considered as navigated by the pilot in charge. That if the course pursued by the stous tag is in conformity with his directions, and a collision takes place, the pilot is responsible, and not the owners of the vessel, or of the stous tag. If, on the contrary, the stemer disregarded the directions of the pilot, and the collision was occasioned by her misconduct, the owner of the ship would, in this case, be responsible, in this court, as for the acts of their serant; and they must seek their redress against the owners of the steam tug in some other form of action." See also, The Christina, 3 W. Rob. 37 ; The Kingston-By-Sea, 3 W. Rob. 159. In this case Dr. _Lushing_ said, addressing the Trinity Masters: " It is well known, that, according to your rules, a stemer is always to be considered as having the wind fro; and by the decisions in this court, a stemer voting another vessel is to be considered as in the service of the owners of the vessel she has in tow, and the owners of the vessel in tow are responsible for the acts of the stemer." It will thus be seen that by the Supreme Court of Massachusetts, and by Mr. Justice _Sprague_, the vessel is regarded as under the control of the tug, and the latter, therefore, is held liable, while, on the other hand, the tug is regarded as the servant of the vessel by the English Admiralty, and by the Circuit Court of the United States for the District of Pennsylvania.

It seems to be well settled that canal boats and barges in tow are considered as being under the control of the tug, and the latter, therefore, is liable. The John Counter, Vice Adm. Ct. Lower Canada, 18 Law Reporter, 553 ; The Express, 1 Blatchf. C. C. 385, overruling the same case in the District Court, Olcott, Adm. 258. See also, Stamboat New York v. Rea, 18 How. 223.

**210**: . ON THE LAW OF SHIPPING. \[BOOK Lowner.1 And the admissions of the master are competent evidence- against his owners; but admissions of the mate and crew are not, unless made at the time of the collision, so as to form part of the _res geste_.2

Footnote 2: The Catherine of Dover, 2 Hagg. Adm. 145, and cases cited in note, p. 149.

It has been held that an action at common law for damages caused by a collision, will not affect the jurisdiction of the admiralty, and that the verdict of the jury upon the facts of the case will not be conclusive upon the judgment of the admiralty court.3 When a collision occurs on a river which serves as the boundary of two States, in order to determine in which State it took place, the middle of the river is considered as the boundary line.4

Footnote 3: The Matholin, 5 Eng. L. & Eq. 556. See also, The Enterprise, 3 Curtis, C. C. 317, 320. But such declarations or admissions will have but little weight in opposition to their deliberate testimony as to the facts. The Steamboat New Jersey, Olcott, Adm. 415.

Footnote 4: The Ann & Mary, 2 W. Rob. 189, 190. See also, Souter _v._ Baymore, 7 Barr, 415, s. o. Knox _v._ The Ninetta, Crabbe, 534.

Footnote 5: Myers v. Perry, 1 La. Ann. 372.

Footnote 6: In The Columbus, 8 W. Rob. 186, the vessel was raised but not repaired, and notice given to the agent of the owner of the fact, with an intimation that the owner of the Columbus was ready to deliver up the same, and that he would not be responsible for any further damage or expense that might be incurred by her remaining unrepaired. Dr. _Lashington_ said, that the principle of abandonment as applied to insurance cases, did not apply to cases of collision ; that if a vessel is run into and partially damaged, the owner is bound to bring her into port if possible, but if she is sunk, it is not incumbent on the owner to go to any expense whatever for the purpose of raising her, and that if, when she was raised, he was obliged to receive her back, he was not bound to repair her, but might leave her lying in port. Under all the circumstances of the case, it was held that the libellant was entitled to recover the whole value of his vessel, and that the respondent was entitled to have the vessel. The court said the proper course for the parties to have pursued would have been " to have applied to the court, stating the circumstances in which the vessel was, and to have called upon the court to decree a sale of the vessel, and that the proceeds might be brought in to abide the result of the suit." Whether the owner of the colliding vessel could have repaired her and tendered her back, after she was raised, was not decided.

**When a vessel is sunk by a collision, and subsequently raised by the owner of the colliding vessel and towed into port, the question has arisen whether the former owner is bound to take her, or whether he may recover damages as for a total loss. It has been held that the former owner is not obliged to take her back, after being raised, in an unrepaired state, but the point is still an open one whether she may be repaired and tendered back.5**
\[\] 212 ON THE LAV OF SHIPPING. \[BOOK L

Section VII

OF THE CLAIM FOR DAMAGES FOR NON-DELivered OF THE GOODS OF INJURY TO THEM.

If there be a refusal to deliver the goods, or a delivery to a wrong person, or damage to, or loss of the cargo, for which the ship is responsible, the next question is, Who may make the claim for the goods, or their value, or for compensation for damage, and sustain an action grounded upon it? The consignor has shipped the goods, but has shipped them to the consignee; and which of these parties should make the claim ? There has been some conflict, and may yet be some uncertainty in respect to this question; but we think the general principles applicable to this question ought to be sufficient to decide it.

Thus, if goods are shipped by the order of A, and an unindexed bill of lading is sent to him, and he nevertheless gets possession of the goods by stating to the captain that he is the owner, the ship-owner is responsible to one to whom an indorsed bill of lading is sent.1 But it has been held that if the first party, who gets possession of the goods in this way, does not know that an indorsed bill is sent to anybody else, the holder of the indorsed bill has no remedy against him.2 In this case the holder of the goods had an equitable title to them, but if a party has received the goods who has no title to them, both he, and the master who delivered them, should be responsible to him who has the title. But if an indorsed bill be sent, and the goods obtained under it, the master is not bound to respond for the goods to one to whom another indorsed bill was subsequently sent; but, on the contrary, if this other gets possession of the goods, the first consignee may bring trover against him for them.3

Footnote 1: Brandt v. Bowlby, 2 B. & Ad. 832.

Footnote 2: Coxe v. Harden, 4 East, 211.

Footnote 3: Walley v. Montgomery, 3 East, 585.

\[FIGURE

**214**: **ON THE LAW OF SHIPING.** \[BOOK L\*\*

**One remark may be added ; it is that the master of a ship will very seldom do wrong, or incur any responsibility, by adhering rigorously to the letter of his contract, and complying exactly with the obligations he assumes by the bill of lading.**

**We have seen that the ship-owner cannot require of the ship-per to accept the goods at any other place than that of their**

**Salas, 15 Wend. 474 ; Jones v. Sims, 6 Port. 188 ; Iliey v. Stubbs, 9 Mass. 65 ; The Venus, 8 Cranch, 253 ; The Merrimac, 8 Cranch, 317 ; The Frances, 9 Cranch, 183 ; The Frances, 8 Cranch, 354 ; Swain v. Shepherd, 1 Moody & R. 223 ; Brandt v. Bowly, 2 B. & Ad. 932 ; Michel v. Ede, 11 A. & E. 888 ; Downs v. Cobb, 12 Barb. 810. In Moore v. Sheridine, 2 Har. & McH. 458, the goods were to be delivered by the bill of lading to Mr. Hollingsworth, or at the head of Elk. The consiapor brought an action for the non-delivery. The court held that the goods being deliverable to H, or other persons at the head of Elk, the action was well brought by the consiapor, but did not determine whether the action could have been supported if the goods had been deliverable to one person only. In Griffith v. Ingleodow, 6 S. & R. 429, goods were shipped by the consiapor on his own account and risk, but they were deliverable by the bill of lading to the consiapee or his assigns. It was held that the consiape might maintain an action in his own name for damage done to the goods. The decision was put on the ground that the legal property in the goods passed, by the bill of lading, to the consiapee, although he held it in trust for the consiapor. Chief Justice _Gileon, however,_ disaented. The earlier cases are commented on at great length, and the case is worthy of a careful perusal. Whether the rights of the consiapee to such an extent are supported by the weight of authority, it is well settled that _primal facic_ the property in the goods will be considered to be in him, and he will be entitled to sue, in the absence of proof to the contrary. Lawrence v. Mintura, 17 How. 100 ; The Ship Middlesex, U. S. C. C., Mass., 91 Law Reporter, 14 ; Webb v. Winter, 1 Cal: 417 ; Ogden v. Coddington, 2 E. D. Smith, 317 ; Tronson v. Dent, 8 Moore, 7. C. 419, 36 Eng. L. & Eq. 41 ; Coleman v. Lambert, 5 M. & W. 502. See also, Snow v. Carruh, U. S. D. C., Mass., 19 Law Reporter, 198. In a late case decided by the Supreme Court of Massachusetts, Blanchard v. Page, Boston Daily Advertiser, Nov. 25, 1856, the action was brought for damages done to goods carried in the defendant's ship from Boston to New Orleans. The bill of lading was in the usual form, stating that the merchandise was " to be delivered in like good order, dangerous of the son accepted, to Gaines & Co., he or they paying freight." Gaines & Co. were agents to receive the goods at New Orleans and transmit the same to various parties and places. The goods arrived in a damaged condition, and this action was brought by the shippers to recover damages. Part of the merchandise was purchased of the plaintiff by a party in Arkansas, who requested them to act as his agents in shipping the goods, procuring insurance, etc. The merchandise so purchased was paid for by a note which included insurance, and this note was afterwards taken up. The consiapors were not owners of the goods, and the court did not consider that the defendants had made any contract with them, but that the promise to deliver was to the consiapees. It was held therefore that they could not recover. Subsequently, however, the court were of opinion, that the consiapors might maintain an action in their own names for the benefit of the consiapees. Blanchard v. Page, June 20, 1857. See also, Cooke v. Wilson, 19 C. B. 153, 37 Eng. L. & Eq. 361.**
GL VII\] DAMAGB FOR NON-DELIVERY OF GOODS. 815

original destination; and that if the shipper chooses not to accept the goods there, he is not liable to pay any freight.1 We should say, too, that his refusal to accept the goods at such intermediate port, was _not_ an abandonment of them to the ship-owner, for the freight; for no freight has been earned, and there would be no consideration for such transfer. But we should hold the owner and the master still liable to account to the shippers for the goods.2 Undoubtedly this responsibility would be measured and applied on equitable principles. If the shipper, or his agent, might as well have received them there, and transmitted them or taken them home, or to some other place, although not bound to do this, a refusal to do it might justify the master, at least if other circumstances concurred, in selling the goods at once, and accounting for the proceeds.

Footnote 1: See ante, p. 164.

It has, however, been made a question whether, at the port of ultimate destination, if the goods arrive so injured as to have lost their mercantile value, the shipper may not there abandon them to the master, and pay no freight.3 We consider it however quite settled as the law of this country, that if the goods arrive in specie, the shipper must pay freight for them, whatever be their condition or value.4 If that value has been lost or dimin $\\bullet$

216 ON THE LAW OF SHIPPING.

\[poor L\]

ished by the fault of the master, or without his fault, but from a cause for which he is responsible, then, as we have repeatedly said, the shipper may claim compensation; but he must pay height.1

Footnote 1: The actual value of the $\\alpha$-value is $\\alpha=0.001$.

A more difficult question arises where the barrels or boxes in which the goods _were_, arrive, but there are no goods in them; as where wine or oil or molasses leaks out, or sugar or salt melts and washes out; but the barrels or boxes arrive in as good condition as when put on board. Is freight now to be paid?1

$\\bullet$

on the freight of the barque Dana, from New York to Havre. On the third day out, the ship met with a peril and was obliged to pat back to New York, where the cargo was discharged, in order to repair the vessel, and sok. It would have taken several months to have prepared the cargo by drying for reshipment, and it was conceded that the master acted for the benefit of all concerned in selling it. The court held that, under these circumstances, the insured could not recover. Slane, C. J., in delivering the opinion of the court, said: " The question, therefore, is not, whether the flour and grain, and other articles composing the cargo, would have been of any or what raise at Havre; but whether on such resilient and arrival, day could _have remained_ in _specie_, as floor, wheat, beacon, palm leaf; etc. If so, then it is clear that they were not so totally lost that the plaintiff was prevented, by the peril insured against, from carrying them and earning his freight." See also, Ogden v. Gen. Mut. ins. Co. 2 Due, 304; Hage v. Augusta Ins. Co. 7 How. 595. In Sioselman v. Taylor, U. S. D. C, Mass, 19 Law Reporter, 36, an action was brought to recover the freight of one hundred and nineteen tons of coal. This amount was laden on board at Philadelphia, but only one hundred and ten and a fraction were delivered. The court being of opinion that this difference was owing to causes over which the master had no control, and for which he was not liable, decored freight for the whole.

$\\bullet$

1 See, note, p. 151, n. 2; p. 172, n. 8.

$\\bullet$

The twenty-sixth article of the Ordinance of the Marina, book 3, tit. 3, declares, that, " If goods put into casks, as wine, oil, honey, or other liquons, have leaked out to such an extent that the casks are empty, or nearly empty, the merchant may abandon them for the freight." This article is repeated in the Code de Com. art. 310, and was taken from Le Guiden, ch. 7, art. 11. Considerable discussion has ensured among the continental writers as to the meaning of this article. Valin and Delvinourt contend, that if the casks arrive empty the merchant may abandon, though the loss by leakage be occasioned by reason of the insufficiency of the casks. On the other hand, Fother (Charte-partie, 59), Bouilay Pity (tom. 4, 488), and Bernard are of opinion that the merchant cannot abandon if the loss is attributable to the insufficiency of the casks. Boucher, Inst. du droit Maritime, 289 (Paris, 1808), states the law as follows: " The captain cannot at all prevent an article from perishing or being injured. by its inherent defect. He is, therefore, paid his freight' in such a case. But he is to be treated as able to prevent loss by leakage, especially if he has declared that he received it in good order by his bill of lading." WW ought, therefore, to attribute a leakage to bad stowage, which he is bound to guard against, and over which he has not exercised all the vigilance possible. For why does one hogshed leak more than another! It is from one of two causes -- either from its worse condition, or from worse stowage.

CH. VII. DAMAGES FOR NON-DLivery OF GOODS. 217

Our answer would be that goods could scarcely perish in this way, except either by a cause for which the ship is answerable, and then the goods should be paid for, deducting freight; or by a peril of the sea, in which case it is clear that no freight is payable;1 or by intrinsic defect or quality, as by decay, evaporation, or leakage, in which case the freight is due.2

Footnote 1: For a discussion of the problem of interest, see \[11\].

Footnote 2: For a discussion of the problem of interest, see \[11\].

In regard to the freight of animals, this distinction seems to be taken. If the money is to be paid for the lading of the animals, then it is due for those which die on the voyage, as well as for those which are delivered alive. But if it is to be paid only for their transportation, then it is not due for those which are not delivered alive.3 But the carriage of passengers or of animals hardly comes under the name of freight,1 although the rules of law are the same in most respects.

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CH. VII_\] LIABILITY FOR FRIGHT. 219

if it occur from a peril of the seas and without any default of the master, as by capture and recapture, embargo, or any thing of the kind, if the vessel finally arrives, without avoidable delay, with the cargo, at the port of final destination, the whole freight is payable.1

Footnote 1: Davidson v. Grynne, 12 East, 381; Beale v. Thompson, 3 B. & P. 405, 420; Moronon v. Greaves, 2 Camp. 637 ; The Racchorse, 3 Rob. Adm. 101 ; The Hoffung, 6 Bob. Adm. 231 ; Havelock v. Geddes, 10 East, 555 ; Ripley v. Seaife, 5 B. & C. 167 ; Bergstrom v. Mills, 3 Esp. 36 ; Hadley v. Clarke, 6 T. R. 259 ; Baylies v. Feitylpac, 7 Mass. 395 ; M'Bride v. Mar. Ins. Co. 5 Johns. 299, 308. See also, case ante, p. 159, note 2.

220 ON THE LAW OF SHIPPING. \[BOOK I.

And if a consignee assigns and indorses over the bill of lading, and the indorsee takes the goods, the original consignee is not bound to pay the freight.1 But the assignee has been held liable in a case where the bill of lading had not the word "assigns" in it.2 The mere receipt of the goods by one actually the owner of them, might lay him under an obligation to pay for bringing them; but not the receipt by one who is not owner, unless he receives them under an authority _conditioned_ to pay the freight.

And one who is only an agent of the consignee and is known to the master to be no more, does not become personally liable by receiving the goods, and entering them at the custom-house in his own name.3 But if goods are consigned to A, care of B, or to B, for A, " he or they paying freight," etc., B is not personally liable for freight on receiving them.4 And if one who is actually indorsee of the bill of lading, obtain the goods, not under the bill of lading, but by some other means, as by an order of the consignee, the consignee himself may be liable, but his indorsee would not be liable for freight; unless a custom on his part to take goods in this way and pay freight for them, suffices to raise the implied assumpsit.5 But if he obtain the goods under the who received the goods under a bill of lading which stated the cargo to have been received " against payment of the agreed freight, and other conditions as per charter-party," and the charter-party contained a provision for damurrage. See also, Smith s. Sieveking, 4 Ellis & B. 945, 30 Eng. L. & Eq. 382 ; s. c. affirmed in the Exchequer Chamber, 5 Ellis & B. 589, 34 Eng. L. & Eq. 97. It was held, in this case, that a bill of lading, by which goods were deliverable to the consignees, " they paying for the said goods as per charter-party, imposed no liability on the consignees to pay demurrage, according to the charter-party, for a detention of the ship at the port of loading, which occurred before the bill of lading was signed.

1 Cock v. Taylor, 13 East, 399 ; Tobin v. Crawford, 5 M. & W. 335, s. c. affirmed in the Exchequer Chamber, 9 M. & W. 716 ; Dougal v. Kemble, 3 Bing. 383 ; Trask v. Davall, 4 Wash. C. 181 ; Marian v. Funck, 4 Denio, 110 ; s. c. affirmed on appeal; 1 How. Ct. App. Cas. 656.

2 Renteria v. Rading, Moody & M. 511.

3 Wur w. Felton, 1 East, 507.

4 Amos v. Temperley, 8 M. & W. 798. See also, Grove v. Brien, $ How. 429. But a contrary decision was given in Canfield v. Northern Railroad Co. 48 Barb. 586. And see Hindsdell v. Weed, 5 Denio, 172.

4 Wilson v. Kymer, 1 M. & S. 157. And in Coleman v. Lambert, 5 M. & W. 509, it was held that, although generally a consignee is not liable for freight when there is no bill of lading, yet if the plaintiff can show prior d loadings with him, and that he paid freight on those occasions, this will be evidence that be contracted to pay freight, and ho will be held liable.

## 1. Introduction

The
222 ON THE LAW OF SHIPPING. \[BOOK L\]

Sometimes the freight-money is paid in advance, in whole or in part, or other advances are made to the owner of the ship. Then, if the goods are not delivered, or the voyage not performed, under circumstances which would give the ship-owner no right to claim freight if it had not been paid, the question arises whether he is bound to pay it back. But this question, although not unfrequently attended with some difficulty, is a question of fact rather than of law; and the difficulty is not so much one of knowing what the true principles are, as in what manner they shall be applied.

It is now quite certain, that if the payment be merely a payment of freight in advance, it must be repaid if freight is not earned.1 And if the sums paid to the master or ship-owner are were delivered without payment of freight, unless there were some additional circumstances to show a contract between him and the ship-owner. This case was declared not to be law, by _Parke_, B., in Sanders _v._ Vanzeller, 4 Q. B. 260, 288. The true rule, which has been universally followed, is laid down in Dometv. Beckford, 5 B. & Ad. 521, where it was said, that the only difference between a case where there was a charter-party, and one where there was not, consisted in this alone, that, in the former case, by the charter-party there was an express contract on the part of the shipper, and in the latter, an implied one. In Blanchard _v._ Page, S. J. C., Mass., Boston Daily Advertiser, Nov. 25, 1856, a case in which the consiope was the mere agent for shipping the goods, _Shao_, C.J., said: "As to the consiope's liability for freight, the consiope refusing to pay the same, and the merchandable being worth less than the freight, it is a difficult question, and it will be sufficient to decide that when it comes directly before us." The law, however, seems to be well settled. If the consiope is not the owner of the goods, he is not liable, but if he is the owner, the clause, relative to the delivery on payment of freight by the consiope, is inserted for the benefit of the master, and the consiope is liable. Barker _v._ Havens, 17 Johns. 234 ; Spencer _v._ White, I. Red. 236 ; Grant _v._ Wood, 1 Zabris. 292 ; Hayward _v._ Middleton, 3 McCord, 121. The same rule applies to a case of demurrage. Harrison _v._ Spaeth, 23 Law T. 155, 28 Eng. \_L. & Eq. 132. In Collins _v._ Union Transp. Co. 10 Watts, 884, it is said that the condition was introduced for the benefit of the consiope. The word not was omitted before _introduced_ by a mistake of the printer. See Layng _v._ Stewart, 1 Watts & S. 292.

1 In an anonymous case, 2 Show. 283, _Sounders_, C. J., is reported to have said : "Advance money paid before, if in part of freight, and named so in the charter-party, although the ship be lost before it comes to a delivering port, yet wages are due according to the proportion of the freight paid before, for the freightest cannot have their money." This doctrine is, however, neither sanctioned by the early maritime writers, nor by modern adjudications. See Claire, Us et Coastumes de la Mer, p. 43; Ord. de la Marine, da Fret, art. 18; Yalin, Com. sur Ord. p. 661 ; Fothier, Charte-Partie, n. 63; Roccus, n. 80. Some writers are of the opinion that if there is no fault in the master a pro rata freight will be due. Stuaccha, De Nav. 3, n. 24 ; Loceenius, De Jure Marituno, lib. 3, ch. 6, 11 ; Boceux, n. 81. In Fiman _v._ * \[\]

CH. VII.\] LIABILITY FOR FERIGHT. 223

but loaned to the ship-owner, then they must be accredited for as loans; that is repaid, with deduction of freight that may become due, and no deduction, if no freight becomes due.1 But it is quite as certain that the parties may make a different agreement. The shipper may say, if you will take my goods, I will pay you now, so much money, and you may keep it whether you carry the goods to their destined port or not.

Footnote 1: In the case of the Pacific, 1 Blatchf. C. C. 569, the owner of the ship contracted to take the libellant as a cabin passenger from New York to California. Not more than fifty other passengers were to be taken, in order that there might be room for ventilation and exercise. After the passage- money was paid the libellant went on board, and found that seventy-two cabin passengers were engaged, and that the vessel was thereby overcrowded, and dangerous to health. He therefore refused to go. Held, that the might recover back his passage- money, and also damages for the breach of the contract. But if the passenger or shipper cause the non-performance of the contract, the passage-money or freight cannot be recovered back. Detonches v. Peck, 9 Johns. 210; Giles v. The Brig Cynthia, 1 Pet. Adm. 207, note; Griggs v. Austin, 3 Pick. 20.

Footnote 1: Manfield v. Maitland, & B. & Alt. 582, 586, per _Bayley_, J.

Footnote 2: In Andrew v. Moorhouse, 5 Taunt. 435, the bill of lading stated that the freight was paid. The voyage was from London to the Cape. The broker who made the contract with the shipper, told him that the rate of freight was $\\tt N.$ paid in London, or $7l.$ at the Cape, per ton. The court left it for the jury to say what was the intention of the parties, and they having found that the payment was not conditional on arrival, the court refused to set aside the verdict. The agreement in Watson $\\tt v.$ Duykinck, 3 Johns. 335, was that the master should suffer the plaintiff to proceed in his vessel as a passenger, and to load on board for transportation goods to the value of six hundred dollars. _Kent_, C. J., held that this meant that the plaintiff should be received on board as a passenger, that he should load the goods on board, and that the master should make all due and _bond fide_ efforts to transport them. But that he did not contract to deliver them; and that therefore the voyage being broken up, he was entitled to retain the freight. In De Silvale $\\tt v.$ Kendall, 4 M. & S. 37, the character-party stipulated that $\\tt\\xi 120$ should be paid to the defendant as freight for the outward cargo to Maranham, and as much cash as might be necessary for the ship's disburements, to be advanced by the plaintiff when required, free from interest or commission, and the residue of the freight should be paid on delivery of the goods at Liverpool. Lord _Ellenborough_ held that the advancing of the freight free from interest, showed that it was not intended as a loan, and that the word $\\tt\\ast$ residue $\\tt\\ast$ imported that a part of the freight was to be advanced, and the remainder only was to abide the usual course of events. See also, Saunders $\\tt v.$ Drew, 3 B. & Ad. 445 ; Blakeye $\\tt v.$ Dixon, 2 B. & P. 311 ; The John, 3 W. Rob. 170, 177. In Gillan $\\tt v.$ Simplkin, 4 Camp. 341, it was held, that a custom thing proved that in West India voyages the passage-money was retained whether the voyage was broken up or not, the master might retain it at all events. See also, Watson $\\tt v.$ Duykinck, 3 Johns. 335. But the custom cannot be proved by particular instances. Cope $\\tt v.$ Dodd, 13 Penn. State, 33. 1 Mashiter $\\tt v.$ Buller, 1 Camp. 84. 2 Wirgman $\\tt v.$ Mactier, 1 Gill & J. 150. 3 Drummond $\\tt v.$ Winslow, 38 Maine, 208.

CH. VII.\] LIABILITY FOR FRIBERT. 225 session of them, he may recover it back; unless prevented by the rule that money paid in mistake or ignorance of the law cannot be recovered back.1

Footnote 1: Gerides v. Donison, Holt, N. P. 346; Brown v. North, 8 Exch. 1, 16 Eng. L. & Eq. 486; Chamberlain v. Reed, 13 Maine, 857.

It is usual to agree what shall be paid for freight, and to express this in the bill of lading; but if it is not agreed, or expressed, the amount may be determined in the common way, by showing what the service is worth; and usage would have controlling influence upon this question.

The universal law of illegal contracts, which declares them void, and permits no valid claim to grow out of them, or rest upon them, applies also to the contract of freight. It follows, therefore, that no freight can be earned by an illegal voyage; and this applies to voyages for smuggling or contraband against the laws of the country to which the ship belongs,2 and to sailing under a license from the enemy.8 But the illegality must spring from a violation, intended or actual, not of the laws of a foreign country, but of those of the country to which the vessel belongs, and in which the question is raised. For, generally at least, the tribunals of no country take notice of the revenue laws, or other merely municipal laws of any foreign country.4

Footnote 1: In Maler v. Geron, 8 Tann. 894, the court said that freight was the reward which the law entitled the plaintiff to recover for bringing goods lawfully into the country upon a legal voyage. See also, Blanck v. Solly, 8 Tann. 89.

Footnote 2: See The Julia, 1 Gallis. 594, 8 Cranch, 181 ; The Aurora, 8 Cranch, 203 ; The Hiran, 8 Cranch, 444 ; Craig v. United States Ins. Co., Pet. C. C. 410 ; The Ariade, 2 Wheat. 143 ; The Langdon Cherve, 4 Wheat. 103.

Footnote 3: Gerfier v. Smith, 1 Johns. Cas. 141 ; La Jeune Eugenie, 2 Mason, 409 ; Richterson v. Maine F. & M. Ins. Co. 6 Mass. 102 ; Kohn v. Sch. Renaissance, 5 La. Ann. 25. See also, Holman v. Johnson, 1 Cowp. 341 ; Biggs v. Lawrence, 3 T. R. 454 ; Ladlow v. Van Renaissance, 1 John

**But if the shipper knows this bargain and has consented to it, he becomes, as it were, a party to it, and then the buyer may claim the freight directly of him.1** And a mortgagee who does not take possession, is not entitled to the freight, unless some special bargain makes him so.2\*\*

Footnote 1: We have seen (ante, p. 138, n. 3) that the indorsee of a bill of lading cannot see, in his own name, on the bill of lading, for a breach of the contract, and the same principle is applicable in the present case. The respective parties to the contract can alone use for breach of it. If, therefore, the vessel is sold before the voyage begins, and the contract of affreighment is made by the rendee and shipper, of course the vendee can see for a breach ; but if the vendor should appear by the bill of lading to be the contracting party, it would follow that the action must be brought in his name. Thus in Morrison _v._ Parsons, 2 Taint. 407, the plaintiff, the owner of a vessel, contracted with the defendants, by a charter-party, that the vessel should go to Stockholm and there load a cargo for Plymouth. Subsequently, but before she sailed, he assigned the ship to the master, but no mention was made of the charter-party or of the freight. After she sailed the plaintiff made an assignment to one Hamilton of the freight, as security for a debt. Hamilton gave notice to the defendants not to pay freight to any one but himself; they however paid it to the master. The plaintiff brought this action in his own name for the benefit of Hamilton. It was held that by the assignment to the master the freight to become due passed, though he could not have brought an action on the charter-party in his own name. See also, Lindsay _v._ Gibbs, 29 Beav. 529. In Pelayo _v._ Fox, 9 Barr, 489, it was held that where the transfer was made after the arrival of the vessel at her port of destination, but before the delivery of the cargo, the transverse would be entitled to freight, as against the assignees of the former owner, by a subsequent assignment. But a covenant to pay freight in a charter-party does not pass by a bill of sale of the ship. Spildt _v._ Bowles, 10 East, 279.

- Chinnery _v._ Blackburne, 1 H. Bl. 117, n. ; Brancker _v._ Molyneux, 8 Scott, N. R. 382, 3 Man. & G. 84. See also, Alexander _v._ Simms, 5 De G., McN., & G. 57, 37 Eng. L. & Eq. 388. In Gardner _v._ Casenore, 1 H. & N. 493, 38 Eng. L. & Eq. 330, the plaintiff, the owner of the vessel, sold her, payment to be made by a draft payable twelve months after date. Shortly before it became due, the plaintiff agreed to renew it on condition that the vessel should be transferred to him as security. This was accordingly done, and the plaintiff was registered at the custom-house as sole owner. The vessel was at that time on a voyage, and after the transfer performed a separate voyage in which the freight in dispute was earned. The bill was never paid, and the plaintiff subsequently took possession. Heid that the transfer was in effect a mortgage, and as the plaintiff had never taken possession, he was not entitled to freight. But he is entitled to the freight accerning after he has taken possession. Kerswill _v._ Bishop, 2 Cromp. & J. 529, 2 Tyrw. 602 ; Dean _v._ M'Ghio, 12 Moore, 185, 2 Car. & P. 387, 4 Bing. 45 ; Langton _v._ Horton, & Beav. 9, 19, per Ld. _Langdale,_ M. R.; even though he does not take possession till after the vessel arrives in port, provided the goods have not been delivered. Cato _v._ Irving, 5 De G. & Smale, 210, 10 Eng. L. & Eq. 17. In this case it was also held that the mortgagee was obliged to account for his share of the expenses of the voyage.

CL. VII.\] LIABILITY FOR FRIGHT. 227

of the owner, and among them the right to freight; but on the same conditions, that is, of completing the voyage, safe delivery, etc.1 If the captor injure the property, he is liable to a counter claim by way of set-off.2 And if the shipper has advanced money to the master to be accounted for in settlement of freight, he may claim allowance for this advance in settlement with the captor.8

Footnote 1: The law was stated with great accuracy by Sir _William Scott_, in the case of The Diana, 5 Rob. Adm. 67, 71. He said : "There are two rules on this subject equally general. The first is, that if goods are not carried to their original destination, within the intention of the contacting parties, freight shall not be due; and on this ground, that the contract not being completed, either in substance or form, the speculation of the party has not been productive. The benefit of the contract is lost, and the party has to provide another vehicle, to carry on the goods to the port of their destination. In some cases, indeed, it may happen that the port to which the goods are brought may prove more beneficial, and afford a better market. But the court does not enter into the minata of such calculations, which would be attended with great trouble in the inquiry, and much uncertainty in the result. It takes the presumption arising from destination only, and founds upon it the general rule, that, in such a case, the claimant shall receive restitution of his goods without the burden of freight. The other rule, equally general, is, that when the contract is executed, by bringing the cargo to the place of destination, the captor, to whom the vessel is condemned, shall be entitled to the freight which has been earned. He stands in the place of the owner of the ship, and is held entitled to the price of the services which have been performed in the exception of the contract." See also, The Yvour Anna Catharina, 6 Rob. Adm. 289 ; The Fortuna, 4 Rob. Adm. 278; The Fortuna, Edw. Adm. 56. Where a cargo has been brought to the country, but not to the port of destination, it has been held, that the captors are entitled to freight. The Yvour Henrietta, 5 Rob. Adm. 75, note; The Rachemo, 3 id. 101. See, however, The Willemina Eleonora, id. 234.

Footnote 2: The Fortuna, 4 Rob. Adm. 278, 289.

Footnote 3: The Constantia Harleesen, Edw. Adm. 239.

Footnote 4: The Zenobis, Abbott, Adm. 80 ; Brown v. Harris, 2 Gray, 359 ; Griggs v. Austin, 3 Pick. 20 ; Howland v. The Ship Lavinia, 1 Pet. Adm. 123, 125 ; Watson v. Duy-inck, 3 Johns. 335 ; Mulloy v. Backer, 5 East, 316, 321 ; Uttried States v. The Owers of the Thomas Swan, U. S. D. C., South Carolina, 19 Law Boroter, 201, 306.

228 ON THE LAW OF SHIPPING. \[BOOK I

made by himself.1 And it is said, that if the passenger, in compliance with an established usage, pays his passage-money in advance, it is returnable to him if the voyage never begins, but not if it begins and is interrupted and never finished.3

1 Siordet v. Brodie, 3 Camp. 255. But if his successor expend money in purchasing stores for such passengers, he will be considered the agent of the representative for that purpose, and they must repay him. Id.

2 Gillan v. Simplkin, 4 Camp. 241. See ante, p. 229, note 1; p. 224, note 1.

CH. VIII.\] WEAT CONSTITUTES A CHARTER-PARTY. 229

CHAPTER VIII

OF CHARTER-PARTY.

SECTION I.

WHAT CONSTITUTES A CHARTER-PARTY.

Wz have considered the use of the ship by the owner, in carrying his own goods, or those of others, under bills of lading only. He may, however, prefer to let his ship out to others, for their use. This is commonly done by _a charter-party;_ an instrument of frequent use and great importance among merchants. We give the usual form of it in the Appendix;1 but no especial form is necessary, and it is quite common to introduce into it any stipulations or provisions which the peculiar character of the voyage, or the purposes of the parties may require. Indeed, we say of this contract, as of the sale of a ship and the contract of insurance, that while it is undoubtedly the proper and usual way to reduce the contract to writing, and have it evidenced and defined by a written document, yet we do not know of any rule of law in this country making this indispensable.2 But, after 280 ON THE LAW OF SHIPPING. \[BOOK L\] the charter-party is signed, any material alteration or addition to it by a party or his agent, will make it null and void, though the alteration was made without any fraudulent design. And it would seem that the rule is the same where the alteration is made by a stranger.1 And when the charter-party is in writing, parol is not admissible to vary its terms.2

Footnote 1: In Crookewit v. Fletcher, Exch. 1857, 40 Eng. L. & Eq. 415, which was an action, by an owner of a vessel against the charterrers for refusing to take the vessel, the defendants pleaded that whilst the agreement was in the possession of the plaintiff, it was, without the knowledge or consent of the defendants, altered in material particulars (setting them forth), that the alteration was not made in correction of any mistake or to further the intention of the parties, by reason whereof the agreement became void. It appeared in evidence that after the charter-party was signed, the agent of the plaintiff made the alterations complained of, and stated the fact to the defendants when be handed the instrument to them; and on their saying that they did not know whether they would accept it with the alterations, he said that he had made the alterations on his own responsibility, and would strike them out at once. The defendants afterwards refused to accept the instrument. The court said: " We also think that the addition to or alteration of the charter is a fatal objection to the plaintiff's right to maintain the action. It is no doubt apparently a hardship that where what was the original charter-party is perfectly clear and indisputable, and where the alteration or addition was made without any fraudulent intention, and by a person not a party to the contract, a perfectly innocent man should thereby be deprived of a beneficial contract; but, on the other hand, it must be borne in mind that to permit any tampering with written documents would strike at the root of all property; and that it is of the most essential importance to the public interest that no alteration whatever should be made in written contracts, but that they should continue to be and remain in exactly the same state and condition as when signed and executed, without addition, alteration, erasure, or obliteration." Pigot's case, 11 Rep. 26, and Davidson v. Cooper, 11 M. & W. 778, were cited. The replication of the plaintiff stated that the alteration was made by a stranger, but the court said that if this had been proved to be true the defendants would have been entitled to a judgment son _obstate verdicts_.

- The Eli Whitney, 1 Blackintch. C. C. 360 ; Pitkin v. Brainerd, 5 Conn. 451. Any stipulation not inserted in the contract will be considered as waived. Renard v. Sampson, 2 Kern. 561, 2 Duer, 285. But in Almgren v. Dutilh, 1 Seid. 28, where a vessel was let, reserving what was necessary for the accommodation of the officers and crew, evidence of a conversation made pending negotiations for a charter-party, in regard to the part necessary, was admitted.
- Swanton v. Reed, 35 Maine, 176. The defendant in this case verbally chartered his part of the vessel on the first of the month, and on the tenth a charter-party was signed and sealed. The plaintiff furnished supplies on the third, and it was held, that the defendant was not liable.

GL VILL\]WHAT CONSTITUTS A CHARTER-PARTY. 231

It has been contended that a charter-party is a conveyance within the meaning of the act of 1850,1 and therefore, unless recorded, is void except as to persons having notice of it. But the courts are inclined to take a different view, and to consider the act as not applying to a charter-party.2

Formerly, charter-parties, being a kind of maritime indenture, were sealed; but we infer from the books that the omission of the seal is general now in England, as well as in this country, where, indeed, it is quite universal. No advantage whatever is obtained by putting a seal to the instrument; and, although we have some doubts whether all the technical rules in regard to specialties would be now applied to a sealed charter-party, it is certain that such instruments have received a narrow and merely technical construction within a few years, and the contract would probably be embarrassed by the use of a seal at present. For particulars of the difference, we refer to our note.3

Footnote 1: Chap. 27, + 1, 9 U. S. Stats. at Large, 440.

Footnote 2: Ruckman v. Mott, U. S. C. C., N. Y., 16 Law Reporter, 397; Hill v. The Golden Gate, 1 Newb. Adm. 308.

Footnote 3: The chief differences, which exist between a charter-party under seal, and one not under seal, are these. If the owner of a ship has no agent in a foreign country, the master, _virtate official_, being an agent of the owner, can let the ship by charter-party, within the usual course of her employment. Hurry v. Hurry, 2 Wash. C. C. 145; Ward v. Green, 6 Cow. 173. And if he is shown to have been master, he will be deemed to continue to hold that character until some overt act or declaration of the owners displaced him from that situation. The Sch. Tribune, 3 Sumner, 144, 149. But he cannot make a charter-party under seal, because a dead under seal must be made by the party himself, or by another for him in his presence ; or in his absence, by an agent authorized by a dead under seal. Horsley v. Rush, reported in Harrison v. Jackson, 7 T. R. 209; Pickering v. Holt, 6 Greenl. 160. Again, in contracts not under seal, if the agent intends to bind his principal, it will be sufficient if it appear from the contract that he acts as agent, but in those under seal, if he does not use the name of his principal, he alone will be liable. Andrews v. Este, 2 Fairf. 267; New England Mar. Ins. Co. v. De Wolf, 8 Pick. 56. As to what is the proper way for an agent to align in order to hold his principal liable, see 1 Parsons on Contracts, p. 47.

An agreement that the parties will hereafter make a charter-party, is not, in law or in fact, the same thing as a charter-party. But an agreement for a future charter-party which contains all the terms and provisions of the instrument, and which appears to be treated as a charter-party by the parties, will be so regarded by the court; or, what would be the same thing, this agreement, together with the facts, would be evidence of a contract made 232 ON THE LAW OF SHIPPING. \[Book L\] but not written.1 So a promise to accept a bill of exchange is sometimes treated as an acceptance;2 and an agreement to lease, as a lease.8

Footnote 1: The Schooner Tribune, 3 Summer, 144. The instrument in this case was as follows: : "I hereby agree, within three days, to be ready at Hampton, with a new suit of salts on the Tribune, to load for T. W. Letson (the libellant), and proceed without delay to Labce, to take in what may be wanted to constitute her cargo, and proceed to Havana, and back to any port of the United States ; also, that the charter-party shall not commence until she is loaded at Labce, provided I am not detained over seven days in loading said vessel." Signed by the master. On the same paper, immediately below this, was the following memoratum, signed by the libellant: "I agree to allow said vessel on said charter-party, five hundred Spanish dollars per month. The charter to be _made_ at Labce." Mr. Justice _Stoy_ held, that though the meaning of this instrument was, that the charter-party should be made at Labce, yet that it might be treated as a charter-party, which, though loose and informal, still contained the substantial provision of such an instrument ; and that the making of a more formal instrument under such circumstances might be treated rather as a further assurance than as the inception of a maritime charter-party. See also, Liggett , Williams, 4 Hare, 456, 463.

Footnote 2: Clarke _v._ Cock, 4 East, 57, 69 ; Wynne , Raikes, 5 East, 514 ; Ex parte Dryer, 6 Ves. 9; Pillans , Van Mierop, 3 Burr. 1668; Payson _v._ Coolidge, 3 Gallis. 353, 2 Wheat. 66; Russell _v._ Wiggin, 2 Story, 213 ; Ulster County Bank _v._ McFarlane, 3 Den. 553.

Footnote 3: Warman , Faithfull, 5 B. & Ad. 1043.

Footnote 4: In Almgren _v._ Dutilth, 1 Seld. 28, the charter-party contained such a stipulation, and it was also agreed that should the captain take freight in his cabin, the charterors should furnish it at the current rates. It was held, that the officers and crew were entitled to be accommodated in the mode suitable to their station, the character of the vessel, and the nature of the voyage being taken into consideration, and that if the captain and crew gave up their usual quarters and occupied more confined ones, they were entitled to freight for the part given up.

**GL. VIII.\] GENERALL PROVISIONS OF A CHARTER-PARTY.** 233

entire surrender of the vessel to the charterer, who then hires her as one hires a house, takes her empty, and provides the officers, crew, provisions, etc. Of these two modes of chartering, the first is much the more frequent in practice. The distinction between them is sometimes important in its bearing upon the question, whether the owner or the hirer is in possession of the vessel, in such wise as to have the rights, and incur the liabilities, which grow out of possession. As a general rule, words of demise in the charter-party do not pass the possession, if there are other provisions in the instrument which qualify and restrain them;1 the whole contract must be construed together, and due effect given to every clause.3 It therefore becomes a matter of some difficulty to state with precision any general rules on the subject, for the same expression will sometimes require a different interpretation in different instruments according to the context. It seems, however; to be generally the rule, that the party that mans the vessel is to be considered as in possession.3

Footnote 1: It was held in Hutton v. Bragg, 7 Taunt. 14, that if the charter-party contained words of demise, the possession passed to the charterer, notwithstanding other provisions in the instrument which were inconsistent with this supposition. But this case is clearly not the law. It is overruled in Christie v. Lewis, 2 Brod. & B. 410. See also, Desn e. Hogg, 10 Bing. 345; Palmer v. Gracie, 4 Wash. C. C. 110; Hooe v. Groverman, 1 Cranch, 214; Clarkson v. Eds, 4 Cowr. 470.

Footnote 2: Many, , Banner, & Ellis & B. 233, 346-Eglo. Lark Eq. 136; Belcher v. Capper, 4 Man. & G. 502, 541 ; Clarkson v. Eds, 4 Cowr. 470.

Footnote 3: Palmer v. Gracie, 4 Wash. C. C. 110; Marcardier v. Chesapeake Ins. Co. 8 Cranch, 35; The Sch. Volunteer, 1 Sumner, 551 ; McIntyre v. Bowne, 1 Johns. 299; Holmes v. Parvendt, 5 Sandt. 97; Raggle v. Buckton, 1 Paing, C. C. 355 ; Tuckerman v. Brown, 17 Barb. 191. In Certain Logs of Mahonyony, 2 Sumner, 589, Mr. Justice Sony said, that the clause relative to the owner's appointing the master and crew, victalling and equipping the ship, was strong _prind Jocie_ evidence that the general owner was to remain in possession, and that he would be entitled to it if it was uncertain in whom possession was to vest.

Dean v. Hogg, 6 Car. & P. 54, 10 Bing. 345, a promo hired a steambox for the day for a pleasure excursion, the owner hiring the master and crew. It was held that the hirer had not such exclusive possession as would justify him in turning off a stranger who had come aboard, but that his proper remedy was against the owner for a breach of contract. We do not question the general principles laid down in this case, that the owner had the general possession of the vessel, but a contract similar to that made is essentially one for the free, exclusive, and undisturbed use and enjoyment of a part of the boat for a certain time and for certain purposes, and, for the protection and preservation of this use, a power of excluding tremessors is necessary, and therefore such a right of possession as is requisite to its existence should be implied by law. This right of possession is not necessarily excel
But this may be rebutted by clear evidence to the contrary.1 If one party appoints the captain and the other pays him, he is generally considered as holding the possession of the vessel for the party appointing him.2 But the mere fact of there being a person on board, appointed by the owner who was to have the sole charge of the vessel, with power to displace the charterer for the breach of any covenant in the charter-party, would not render the sieve of the possession of another for a different purpose, and may perfectly well consist with a simultaneous possession in the master and crew for the purpose of navigation or any other similar object. It was not the mere entry of the plaintiff on board the boat which made him a trespager against the defendants, but his entry for a purpose inconsistent with their exclusive enjoyment of their part of the boat, and we presume that if he had withdrawn to those parts of the boat to which their privilege did not extend, as to the machine room, or the quarters of the crew, the defendants would then have had no right to expel him from the boat.

It was held in Parish v. Crawford, 2 Stra. 1251, Abbott on Ship. 42, that, where the charter was to have the freight of goods, and the owner the freight of passengers, and he appointed the master, and covenanted with the charterer for his good behavior and the condition of the ship, the owner was liable for a breach of a contract of affeighment entered into by the master with a third person. Abbott doubts the correctness of this decision, and cites James v. Jones, 3 Exp. 27, and Mackenzie v. Rowe, 2 Camp. 482. This case, however, appears to us to be correctly decided, and the cases cited by Abbott are not necessarily of authority against it, for the forms of the charter-parties are not set forth in the respective decisions.

In Campbell v. Perkins, 4 Seld. 430, the defendants owned a line of boats and chartered one of them to another company for a single trip, they, however, retaining the command of it and navigating it. **E**led that they were liable for the loss of a passenger's baggage.

1 Per _Sloy_, J., in Certain Logs of Mahogany, 2 Sumner, 589 ; Drinkwater v. Brig Spartan, Wrae, 149, 160, per _Ware_, J. And in Lyman v. Rodman, 23 Maine, 289, it was held that the captain did not become the owner _pro_ _lac_ _vic_ _or, merely by victimalling and manning the vessel, and by receiving a share of the profits, but that he must have the entire control and direction of the vessel, and the owner must surrender all control over it._

1 In Lander v. Clark, 1 Hall, 855, the owners were to keep the vessel tight, and pay the charges of victimalling and manning her, the charter was to appoint the master, and put such goods on board as he thought proper, and was to pay port charges, pilotage, etc., and to deliver up the vessel on his return. **E**led that the owners had parted with their possession. \*\*In Fenton v. Dublin Steam-Packet Co. 1 Ter. & D. 103, 8 A. & E. 835, an action was brought against the owners of a steam-packet for injuries done to the plaintiff's vessel by the negligence of the crew of the steam-packet. The vessel was under a charter-party at the time of the alleged wrong, the charterer paying the captain and crew, and all disbursements, harbor dues, piloage, etc. The owners appointed the captain, crew, and engineers. The captain obeyed the orders of the charterer as to where the vessel was to go, but not as to the mode of navigation. The court held that the crew were the servants of the owners, and that they were therefore liable.

CH. VIII. GENERAL PROVISIONS OF A OHARTER-PARTY. 235

general owners liable for a'breach of a contract of a firefightment.1

If the general owners held out any false colors, which might induce a belief that the ship would sail under their control, they would be liable as owners, but the circumstance that one of the owners was on board, and was introduced to the injured party as such, and made inquiries as to the probability of obtaining freight, and that the custom-house documents remained unchanged, is not such a holding out as makes them liable.2

The master may hire the vessel as well as a stranger, and this may be done either for a stipulated sum, or on shares. The owner may contract to pay the master half the profits in lieu of wages, and the master may in such a case be considered as holding the vessel as agent for the owners.3 But generally there is no distinction between the rights- and liabilities of the parties whether the vessel is let to the captain or to a stranger.4 And one owner may hire the vessel from the others in the same way and with the same responsibilities.1 ' The more frequent practice at the present day, when the master hires a vessel, is for him to take it on shares, in which case he is considered as having the entire control and possession of the vessel.2 And there is no difference between a fishing voyage and any other in this respect.3

Footnote 1: McLellan _v._ Reed, 35 Maine, 172. In this case a stipulated price was to be paid, and the owner was held not to be liable for repairs, supplies, or outfits.

When the earnings of a vessel let on shares are collected, they are equally the money of the owner and master, and the latter becomes a trustee of the owner's share. And if a third person, knowing all the facts, is authorized by the master to receive the freight already earned, and promises to pay the owner his share, and afterwards receives the money, he holds it for the use of the owner, and the latter may sue him for it.4 It has been said that if goods are furnished to a vessel, and the defendants are proved to have been owners at the time, the presumption is that the goods were furnished for their benefit, and the burden of proof is on them to show that the vessel was not then in their possession.5 The general principles above laid down, apply also to the case where a vessel is chartered by government, and the rule seems to be that the owners are generally liable, if they pay and maintain the officers and crew, although there be a superior officer on board, appointed by the government, unless the loss occur by reason of an order of such officer.6

Footnote 1: McLellan _v._ Reed, 35 Maine, 172. In this case a stipulated price was to be paid, and the owner was held not to be liable for repairs, supplies, or outfits.

Footnote 2: Webb _v._ Perice, 1 Curtis, C. C. 104; Thompson _v._ Snow, 4 Greenl. 264; Thomas v. Osborn, 19 How. 22; Perry v. Osborne, 5 Pick. 429; Cutler _v._ Winsor, 6 Pick. 335; Winsor v. Cuts, 7 Greenl. 261; Houston v. Darling, 16 Maine, 413; Williams v. Williams, 23 Maine, 17; Sproat v. Donnell, 26 Maine, 185; Taggard v. Loring, 16 Mass. 336; Thompson v. Hamilton, 12 Pick. 425; Ruckman _v._ Mott, U. S. C. C., N. Y., 16 Law Reporter, 397.

Footnote 3: Mayo _v._ Snow, 2 Curtis, C. C. 102.

Footnote 4: Williams v. Williams, 33 Maine, 17.

Footnote 5: Blackstock v. Leidy, 19 Penn. State, 335.

Footnote 6: Fletcher v. Braddick, 5 B. & D. 182; Hodgkinson v. Fernie, 2 C. B. x. s. 415, 40 Eng. L. & Eq. 306. In Trinity House v. Clark, 4 M. & S. 288, an action was brought against an owner of a vessel for tolls in respect of certain lights, etc., on the coast. The vessel was chartered to the transport Board. The general owner furnished the master and crew, but it was held that he was not liable. The decision proceeded partly on the ground that the construction which enabled the government to enforce a prompt obedience to its terms should be adopted, and that it was more for the benefit of the government to consider it in possession, than to compel it to resort to an action for a breach of the contract if any took place.

## 6. VII.1 GENERAL PROVIRIONS OF A CHARTTER-PARTY.

The charter may be for one or more voyages; or for any time certain.1 It may also be -- like a tenancy at will -- without any definite term expressed in the contract; and then the law implies a reasonable term, requiring the parties to regard the contract as remaining _in_ force during the whole of any voyage which is undertaken by the charterrer before reasonable notice of the intention to terminate the lease is given him by the owner. But, with this exception, such charter-party is determinable at the pleasure of either party.3

Footnote 1: In McGillery _v._ Capan, S. J. C., Mass., March T. 1857, 30 Law Reporter, 296, the defendant hired a vessel and agreed to pay freight at a certain rate per ton for each calendar month the vessel might be employed by them, and at the same rate for any port of a month. The payments were to be made as follows : at the end of every six months the defendant was to pay three months' charter at Boston, " and the balance to the master as it should become done, on discharge of the vessel at the several ports the may discharge at." The vessel was lost in the course of one of the voyages, and the court held that freight was due to the time of the loss.

Footnote 2: Culler _v._ Winsor, 6 Pick. 835.

The charter-party usually expresses the burden of the ship, and ought always to do so correctly. And if there is an error in this respect, made wilfally and knowingly by the owner, he cannot make it the ground of any claim for the charter money. As if he stated the burden too high, in order to cheat the charterr into giving him, in a gross sum, more than would have been given for the actual tonnage; or if he puts it in a charter by the ton too low, and thereby induces the charterer to engage to fill her, which otherwise he would not do; in neither case can he profit by his falsehood. And the fraud in such a case would probably render the contract entirely void.3 But it seems to be settled that, if the owner makes a false representation in Ignorance and in good faith, respecting the burden, whether he makes it too high or too low, the charterer is bound by the terms of the bargain.4

**So, if the charter states the national character of the vessel erroneously, it is said to be no defence to an action against the charterter for not lading a cargo on board of her. But if it was in fact unsafe or illegal to send that cargo in that vessel, and there could have been no contract had her true nationality been known, it would seem that the charterter should be discharged.1**

**If a vessel is described in a charter-party as "A 1," this only warrants that she was "A 1," at the time of making the charter-party, and not that she should continue to be so.2**

\*\*It is common to provide for the state of the ship and for her repairs in the bargain; the usual way being for the owner to stipulate that she is sound, stand, and altogether sea-worthy; and also that he will keep her in repair, the perils of the seas excepted. If, however, the contract expressed no such stipulations, it is probable that the law would make them.**8**

**Generally, charter-party as being of the burden of two hundred and sixty-one tons or thereabouts. The ship could carry four hundred tons. The shipper put on board two hundred and sixty. The court held that as the impregnation did not appear to be fraudulatively made, the shipper was bound to load a full cargo, as much as the ship could safely carry, and hot having done so, they decreed that the plaintiff should recover as damages the freight which he would have earned, had a full cargo been shipped. See also, Barker _v._ Windle, 6 Ellis & B. 675, 36 Eng. L. & Eq. 132, 37 Eng. L. & Eq. 96. In Asburner _v._ Balchen, 3 Seild. 263, the charter-party described the vessel as of the burden of one hundred tons or thereabouts. The vessel was of one hundred and forty-two tons burden. As no fraud was shown, the contract was held valid. See also, Thomas _v._ Clarke, 2 Stark. 450. Molloy, in his treatise, " De Jare Maritino," book 2, ch. ir. 1 8, states the law as follows: " If a ship shall be freighted and named to be of such a burden, and being freighted by the tun shall be found less, there shall no more be paid than only by the tun for all such goods as were ladd aboard. If a ship be freighted for two hundred tons or thereabouts, the addition of thereabouts is commonly reduced to be within five tun, more or less, as the moiety of the number ten, whereof the whole number is compounded."**

\*\*From two recent decisions in regard to the sale of goods, these principle may be deduced. First, that if the owner, in mentioning the burden of the ship in the charter-party, should insert the clause, " say not less than five hundred tans," this would be a warranty that she should be, at least, of five hundred tans burden. Leeming _v._ Sasith, 16 Q. B. 275, 3 Eng. L. & Eq. 865. Second, that it was merely, " say from six hundred to seven hundred," and there was no fraud, the vessel need not be even of six hundred tans burden. Gwillin _v._ Daniell, 3 Cromp. M. & R. 61, 1 Gale, 143, 5 Tyr. 44. An action will not lie in _in rem_ for a misrepresentation in regard to the ton-nage of the vessel. The Eli Whitney, 1 Blatchl. C. C. 360. 1 Reusee _v._ Meyers, 3 Camp. 475. 1 Hurst _v._ Osborne, 18 C. B. 144, 36 Eng. L. & Eq. 299. 1 Putnam _v._ Wood, 3 Mass. 481 ; Ripley _v._ Scaife, 5 B. & C. 167, per _Baylag,_ J. See also, Kimball _v._ Tucker, 10 Mass. 192.

GL VIII.\] GENERALAL PROVISIONS OF A CHARTER-PARTY. 339

the charterer is bound to victual and man the vessel in the absence of any agreement to the contrary.1 If the parties choose to make different or further stipulations on this subject, they may do so. But the stipulation of sea-worthiness, whether expressed or implied, is not so far a condition precedent, that no charter money is due if the ship be not sea-worthy ; for whatever her condition, if the charterer takes possession of her, and makes use of her, he must pay for that use.2 But for any detriment which he sustains by reason of her unseaworthiness, he would have a valid claim for indemnity, to be enforced by way of set-off or otherwise. And if by reason of her unseaworthiness the charterer cannot send her to sea, or send his goods in her, or make the use of her he intended, or if he is prevented from doing so in any way by the fault of the owner, he is then subject to no ,valid claim for the charter-money or any part of it.3

Footnote 1: _Goodridge v. Lord, 10 Mass. 488, 486, per curism. It was held in this case that, where the charterer's overcounted to itenal and man the vessel, and had paid over to the captain appointed by them the money for the wages of the crew, and he allowed the vessel to be libelled for the wages, and the owners, to prevent the sale, paid the amount due, they could maintain an action against the master for money laid out and emended, although the charterers were indebted to the master to the amount which he had retained._

Footnote 2: footnotetext: _So post, SS 6._

Footnote 3: \_The liability of the ship-owner, so far at least as it refers to the commencement of the vorge, bears a considerable resemblance to the implied warranty of sea-worthiness in a policy of insurance, to which indeed it appears to be entirely assimilated in some cases by the courts. See Ponnam v. Wood, 3 Mass. 481, 485, per Parker, J. In insurance, if the vessel is not sea-worthy when she leaves port, the policy never attaches, and this is a perfect defence to an action against the insurer, though the vessel be lost from an entirely independent cause. But this could not be set up by a charterter whose goods were not damaged in any way by such unseaworthiness. In other words, sea-worthiness is not a condition precedent. See post, SS 6. As in insurance, the owner is liable for a latent defect. Thus in Bachouse v. Sneed, 1 Morph. 173, the trader of the ship was internally defective, although outwardly sound, and breaking in a storm, the ship was wrecked, and some corn, which was on board, was lost. The ship-owner was held liable. See also, Dupont de Nomours v. Vance, 19 How. 162, 167. And if the shipper inspect the boat before putting his.goods on board, the owner of the vessel will not be therefore exempt from liability for a loss occasioned by the unseaworthiness. Langsfield v. Jones, 11 La. Ann. 642. In the recent English case of Christie v. Trott, 29 Law T. 101, 25 Eng. L. & Eq. 262, the plainf shipped a cargo of haricot beans on board the defendants' vessel, which was then lying in lock, for carriage and delivery at another port. Before sailing it came on to blow a gule; the vessel started a plank, the water entered, and the beans were damaged.

It is usual for the master to sign and give bills of lading in like manner as if there were no charter-party ; but nevertheless

There was no direct evidence how the strain on the vessel was occasioned, whether by pressure of the adjoining vessels in dock, or by coming into contact with a mooring chain. The only damage done to the vessel was the starting of a plank which was sound. The repairs cost only five shillings. The jury found the vessel to be unseworthy. On motion for a new trial, it was held that a vessel which starts a plank in dock is not a sea-worthy vessel, as she ought to be equal to all the strain to which, with other ships, she might be subjected there. See also, Putman e. Wood, 3 Mass. 481 ; The Bark Gentleman, Olecott, Adm. 11, 1 Bianchf. C. C. 196 ; Whitall v. Brig Wm. Henry, 4 La. 293 ; Harrington v. Lyles, 3 Not & M'C. 88 ; Pohier, Charte-Parti, 30; Ord. de la Mar. liv, 3, 9t. 3, Du Fret. art. 12 ; Vain Comm. id. In Sherwood v. Ruggles, 9 Sandf. 8, the court were requested to change that from the vessel's leaking two hours after she called, she was presumed to be unseworthy, unless an adequate cause of the leak should be shown. This instruction was given, and the jury were also told that they might find whether such a cause had been shown. It is sufficient if the vessel be sea-worthy as respects the particular voyage. Bell v. Reed, 4 Binn. 127 ; MCClures v. Hammond, 1 Bay, 99. In Towse v. Henderson, 4 Exch. 890, to a declaration, which averred that the ship was ready to load a cargo, of which the defendant had notice, but that the defendants refused to load the cargo, which consisted of tea, on board said vessel, the defendants pleaded that the ship-owner had antimony on board as ballast, which would have injured the teas. 'It was proved that cargoes of tea had arrived uninjured, though antimony was on board, though such tea was viewed with suspicion. Held that there was no undertaking on the part of a ship-owner, that his vessel, if really fit, should be free from suspicion of unfairness to receive a cargo on board. If the chartered vessel is disabled while taking in her cargo, she must be repaired within a reasonable time, for, if not, the charterter will be at liberty to put an end to the contract. Purvis v. Tanno, 1 Brov. 260. In Putman e. Wood, 3 Mass. 481, _Parker_, _J._, decided that the owner of a ship carrying goods on freight on a circuitous voyage is bound to put her in repair at every port where she may be, and must answer to the freighter: for any damage arising to his goods for want of such repairs. So held also in a recent case in England. Worms v. Storey, 11 Exch. 427, 33 Eng. L. & Eq. 400. The declaration averred that at the commencement of the voyage the vessel was unseworthy, and also after the voyage commenced the ship was greatly damaged, and the owner had notice, but did not repair, though the vessel was in a place where repairs could have been had, and that the vessel proceeded on her voyage, but was unable to meet the perils of the seas, as she would otherwise have done, in consequence of which the goods of the plaintiff, the charter, were thrown overboard. Plea that at the commencement of the voyage the vessel was tight, stanch, and strong, and every way fitted for the same, and sea-worthy. On demurrer it was held that the plea was insufficient. _Parker_, B., said: "It is contended that the owner is discharged of all liability at to unseworthiness if the vessel was sea-worthy at the time of the commencement of the voyage; but the plaintiff says no, the defendant is bound to repair if he has the opportunity, or at all events that the vessel is not to sail in an unseworthy state; and I think that is the correct view of his duty, and that in such a case the captain mast either repair or stop." That a character in this country will be allowed, in an action brought against him for the stipulated price, to offset any damages, which he may have received through the fault of the ship-owner or his agent, see p. 172, note 3.

CH. VIII. GENERAL PROVISIONS OF A CHARTTER-PARTY.

they are little more than evidence of the delivery and receipt and shipping of the merchandise, for the charter-party is the controlling contract as to all the terms or provisions which it expresses.1

Footnote 1: https://www.math.wisc.edu/~chARTTER/PARTY.

The master could not be required to sign bills promising to carry and deliver the goods for less freight than had been stipulated ; and if he signed such bills, and the goods were shipped by the charterer, they would not give the charterer, or any person shipping goods with a knowledge of the charter-party, any defence against the owner's claims under the charter-party.2

Footnote 19: https://www.

243 ON THE LAW OF SHIPPING. \[BOOK L\]

It may be said in general, that the rules in respect to the carriage of cargo, -- as that freight is payable only for goods carried and delivered, that the ship has a lien on the cargo for freight earned, and that freight is due _pro rata_ when the goods are accepted at an intermediate port, are all of them equally applicable to carriage by charter-party as by bill of lading.1

Footnote 1: See http://www.sdss.org/

Whether the charterre hires only the burden, or the carrying capacity of the ship, or hires the whole ship and takes her into his hands, the amount which he is to pay does not depend altogether upon the quantity of goods which he sends. For if he hires the whole burden or the whole ship by any words which express or imply that he is to fill her and pay for all she carries, then if he fails to provide a full cargo, he is liable as if a whole cargo had been provided.2 And it is no answer to such an action that the government refused a permit to load a full cargo if the charterer agreed to obtain it.8

having been settled here. In Gledstanes v. Allen, 12 C. B. 202, 22 Eng. L. & Eq. 882, the charter-party stipulated that the goods should be delivered on payment of freight, "a lump sum of $\\varepsilon$3,000 in full of all charges." At the end of it was the following clause : " The captain to sign bills of lading at any rate of freight, without prejudice to this charter. In the event of a less freight the bills of lading of part of the cargo to be filled up for loss, if any." The charters shipped goods as their own, for which the captain signed bills of lading at a specified rate of freight. The goods so shipped were consigned for sale to the plaintiff, the correspondents of the charters in London, who were under a general engagement to honor bills drawn on them by the charters upon the faith of consignments to be made to meet them, and who were largely in advance at the time of the shipment in question. The court held, that if the agreement relative to the power of the captain to sign bills of lading, had any meaning, it was intended to apply solely to the case of goods belonging to third parties, and that the master had no power to sign bills for the charters' goods at less rates than stipulated in the charter-party. But see Gilkion v. Middleton, 2 C. B. x. a. 134, 40 Eng. L. & Eq. 895.

1 See ante, p. 149; p. 125, note 1; p. 166, note 1; Sturges v. Gairdner, 3 Brev. 233, in which case it was held, that freight _pro rata_ could not be recovered in an action of covenan on a charter-party, but that assumpits was the proper remedy.

- **Bewes, Lex Mercatorus, 118; Thomas v. Clarke, 3 Stark. 450; Thompson v. Inglis, 3 Camp. 428; Duffie v. Hayes, 15 Johns, 327; Kleine v. Catara, 3 Gallis. 61, 66 ; The Brig Cynthia, 1 Pet. Admy, 203, 207.**
- \*\*Kirk v. Gibbs, Exch. 1857, 40 Eng. L. & Eq. 438. The charter-party in this case did not contain any clause relative to the restraint of princes. In Hillis v. Sughree, 15 M. & W. 253, where the ship-owner agreed to load a fall cargo of guano, it was held to be no excuse for a breach of the agreement that no guano could be obtained, although the charter-party contained a clause that the charters were to ship bag and other materials requisite for loading the ship, and to supply the stores for the vessel, at cash prices for the voyage, and to deduct the amount from the balance of freight, but in CH. VIII.\] GENERAL PROVISIONS OF A CHARTER-PARTY. 243

Where a charterer stipulates to ship a full cargo, consisting of heavy and light goods, he is not obliged to load enough of the heavy goods to keep the ship in proper trim, but the ship-owner is bound to provide sufficient ballast.1 If the charterer stipulates to furnish a sufficient quantity of goods to fill the vessel, and to load her to a fair and reasonable draft, with enough of a certain kind, or its equivalent, for ballast, the charterer is not bound to provide such goods as the master demands, but if the latter can, with the goods furnished, stow the vessel in such a way as to fill and trim her properly, the obligation of the charterer is performed.2 But if the charterer stipulates to furnish sufficient funds to fill a certain proportion of the vessel with any or all of certain kinds of merchandise, the master is not bound to apportion the funds among the articles more or less bulky so as to fill the ship with the funds furnished.3 If the shipper has the option to load the vessel entirely with goods at a higher rate, or partly with such goods, and partly with those of a lesser rate; but the latter, if laden at all, should be laden first; it has been held, that if he begins to load with the goods at a higher rate he cannot use the others.4 If the charter-party requires the hirer to fill the ship, or load her with a full cargo, or to her utmost capacity, or if any such language is used, he will not be obliged to put in, and if he offers, the owner or master will not be obliged to receive more cargo than she can safely carry, although all the space is not filled.5 And the opinion of the master on this point is entitled to great weight, and is controllable only by decisive evidence of a mistake on his part.6
A vessel must be loaded according to the usages of the trade. Where, therefore, a usage was proved to compress bales of cotton wool by machinery, it was held that a stipulation to load a full cargo was not complied with by filling the ship with uncompressed bales.1

Footnote 1: Benson v. Schneider, 7 Taut. 273. So where a shipper agreed to load a full and complete cargo of sugar, molasses, and other lawful produc, it was held, by the Court of Exchequer, that evidence was admissible to prove that by the custom of mechanics at the port of lading, a full and complete cargo of sugar and molasses in puncheons and hogheads, was a compliance with the contract, though the same quantity of sugar, if packed in icreves, would not constitute a full cargo. Cuthbert v. Cumming, 10 Exch. 809, 29 Eng. L. & Eq. 456; s. c. affirmed in the Exchequer Chamber, 11 Exch. 405, 30 Eng. L. & Eq. 604.

In one case where, among other goods mentioned, freight was to be paid at a certain rate per quarter of four hundred and eighty pounds for Indian corn _or other grain_, it was held that this latter phrase included only such grain as averaged four hundred and eighty pounds to the quarter.2 If various articles are specified in the charter-party, which may be taken, at different rates of freight, and the contract also provides that "other legal merchandise " may be taken, but no rate of freight is specified, such goods are not to be taken gratuitously, nor upon a _quantum meruit_, but an average freight of the articles specified is to be taken.3

Footnote 2: Thomas v. Clarke, 2 Sturl. 450; Capper v. Forster, 3 Bing. N. C. 938, per Tindl, C. J.; Cockburn v. Alexander, 6 C. B. 791 ; Warren v. Peabody, 8 C. B. 800.

Footnote 3: By the French Ordinance it is provided that the charter shall not underlet at an advance price. Liv. 5, th. Fret. art. 27. In England it has been held that it may be done; and that where the captain signed bills of lading to sub-characters whereby they promised to pay six shillings a quarter freight, and the owner, by his contract with the original charter, was only entitled to four shillings and six pence, this was all he could recover in an action against the sub-characters, on the bills of lading. Michenson v. Begbie, 6 Bing. 190.

The charterer has a right, unless there be an express stipulation to the contrary, to carry the goods of other people, for whatever he can get; for more than he pays, and so make his profit, or for less, and so save in part what he must pay.4 But he must pay for all the space and burden which he hires; and that part of the freight-money which is paid for the space or burden that is unoccupied, is called dead freight. There is, however, no lien for dead freight.5

Footnote 4: See anto, p. 128, note.

Footnote 5: See anto, p. 128, note.

\[FOOTNO
GL VIII\] GENERAL PROVISIONS OF A CHARTER-PARTY. 245

The agreement to pay may be so much for the whole ship in a gross sum, or so much for her at such a rate per ton (in which case it has been held that nothing is payable for any thing less than a ton without an express provision),1 or so much by the bale, box, barrel, or parcel; in which 'latter case it is usual to agree that not less than so many shall be sent.2 If the agreement be so much a ton, it should be stated whether by this is meant so much for each ton of legal custom-house measurement, or so much for each ton of her actual capacity. These sometimes differ very widely; and where there is no express provision on this point, and the intention of the parties could not be gathered from any words used by them in connection with the _res gestae_, or such facts as entered into and were a part of the negotiation, and were admissible as evidence, we should say that the presumption of law would be in favor of the legal measurement. But commercial usage, well established and clearly proved, would undoubtedly have a controlling influence in the-decision of this question.

Footnote 1: See **v. Burnis, 2 Lev. 194**.

Footnote 2: If a ship is chartered by the barrel or bale, freight is payable for the quantity only that is actually conveyed. **Boccus, not. 73, 75**.

If the charterer pays so much by the ton, and a part of his cargo is lost by a peril of the sea, and therefore never carried, for this part he should pay no freight.3 But if he pays a gross sum for the whole vessel, or if the language used implies this distinctly, then it would seem that the payment is no more affected by the quantity actually carried, than the hire of a house would be by the use or non-use made of it. It may be difficult to determine the intention of the parties, or the purport of the contract, in this respect. But while there would seem to be no authority for apportioning the freight in the case last supposed above, yet if all the cargo was lost, and none delivered, it would be difficult to maintain any claim for freight-money, unless the contract was distinctly a hiring of the ship by the charterer to use or not use as he pleased while he had possession of her, and not a contract by which the owner engaged to carry goods.4

Footnote 3: See **e.**, **p. 149**, and **Boccus, not. 73, 75**.

Footnote 4: We have seen, **e.**, **p. 149**, that, in the case of a general ship, freight is some-21 * 246 ON THE LAV OF SHIPPING. \[DOOK L\]

The charterer may take in the goods of others; but as he is bound to pay for the whole burden, he has the control of the whole, and the master has no right, under any circumstances, to take in the goods of other parties against the charterer's will. But, as the policy of the law-merchant makes the master the agent from necessity of all who are interested in the ship or her cargo, so far as any emergency may create this necessity, and as this policy also favors the full use and employment of a ship as a public good, when a master finds that the charterer has not goods enough to fill the vessel, he not only may, but, as we think, should (in the absence of prohibition), take in the goods of others, and thereby relieve the charterer of so much of his obligation, or rather provide him with the means of discharging it. But high authorities have stated that he should not do this without the consent of the charterer.1 And even if the charterer or his agent should prohibit the master from filling the dead freight, if he had reasonable cause to doubt the charterer's solvency, we apprehend that he would be safe in receiving other goods, after it became certain that the charterer would not fill the ship. Indeed, it would be difficult to see what damage the charterer could sustain, or could recover, if the master filled a space he certainly could not occupy himself, but must pay for, even if he did prohibit this. If, however, the charterer was not insolvent, it might be said that he would be injured by having other goods carried to compete with his own, and that he would prefer paying those for the goods delivered. But, when a ship is chartered for a specific sum for the voyage, and only a part of the cargo is delivered, the rest being lost by a peril of the sea, it has been held, both in England and in this country, that in an action of covenant on the charterer-party, there can be no apportionment of freight. Bright e., Cowper, 1 Brown. 21, cited also by Gree, J., in Cook Jr. Jennings, 7 T. R. 385; Malynes, Lex Mercatoria, 100. In Post v. Robertson, 1 Johns. 24, the question came before the Supreme Court of New York, and it was held that, in an action of covenant, freight could not be recovered unless all the goods had been delivered. A majority of the court were also of the opinion that if a portion of the goods had been received, an action of assumption would lie, to recover freight _pro rata_ on the implied promise. See also, Sturges v. Gaidner, 2 Brev. 233. The question was raised, and discussed in Weston v. Minot, 3 Wood. & M. 436, but not decided. Mr. Justice Woollaw suggested that, to avoid difficulty, the proviso, that freight should be paid _pre rata_, though a full cargo should not, by accident, or other unblankable cause, be delivered, should be inserted in the contract of affheightment. See also, as to contracts generally, Roberts v. Havelock, 3 B. & Ad. 406 ; Sinclair v. Bowles, 9 B. & C. 93. 1 Pothier, Charte-Partie, n. 30 ; L'Ord. de la Mar. liv. 3, tit. 8, Fret. art. 3.

ing his dead freight. There is, in fact, little authority on this subject, and no controlling usage that we are aware of.1 But, however this may be, it is the duty of the master, and the charterer has the right to require it of him, to obtain another cargo, if the charterer wholly refuses to employ the ship, and the freight thus earned is to be deducted from the sum claimed for the breach of the contract.2 But the burden of proof is on the charterer to show that another cargo could have been obtained.3 And the refusal of the captain to take other goods before the contract was broken by the charterer, will not make the captain responsible for the freight which might thus have been earned, if the contract was subsequently broken.4 But the captain, after 248 ON THE LAW OF SHIPPING. \[B00K L.

the charterer has refused to load a cargo, should proceed at once to obtain another one, and not wait till the time expires during which the charterer had a right by the charter-party to put on board goods.1 The cargo obtained by the captain after a refusal of the charterer to load, will not be the property of the latter.3

Footnote 1: Bright e. Page, cited 3 B. & P. 295, note; Hecksher v. McCres, 24 Wed. 304, 309. But in Avery v. Bowden, 5 Ellis & B. 714, 33 Eng. L. & Eq. 133, affirmed 6 Ellis & B. 953, 38 Eng. L. & Eq. 130, where the charter told the master he had no cargo and he had better go away, it was held that this was not such a refusal to load as would entitle the ship-over to use for breach of the contract. And in Barrick v. Babus, 2 C. B. x. 653, the same rule was applied to a case where the agent of the charterter said he had coded the charter-party with all its rights and obligations to a third party, and the master was requested to look to him for a cargo. In both of these cases the contract was put an end to by war before the lay days had expired. In Mathews v. Lowther, 5 Exch. 574, an action was brought by a charterer against the owner of a vessel for breach of the charter-party. By this instrument it was stipated that the ship should proceed to two ports in Sicily, or usual place of loading, and after delivery of her outward cargo, load from the factors of the plaintiff there a full cargo, and thence proceed to Bristol, and that the vessel should receive her orders before lasting Messina. The declaration, after arcerments, that the ship arrived at Messina, and a general allegation of performance by the plaintiff, assigned as a breach, that the defendant, within a reasonable time after the delivery of her outward cargo, and before the plaintiff could have given orders for the ship to proceed to the said ports, made a contract with a third party for the conveyance of goods from Messina, and therewith and within such reasonable time as aforesaid, and before such reasonable time had elapsed, loaded his ship, and afterwards proceeded to London without taking on board the cargo agreed to be taken from the plaintiff, and thereby deprived him of the power of fulfilling the charter-party, although within such reasonable time he had provided merchandise, and was ready to load it, and although he was ready and willing to have given orders to proceed to two ports, and to have there loaded a full cargo. On denumurer the declaration was held bad, as it did not show that the vessel had said before the lapse of a reasonable time for the performances by the plaintiff of their part of the contract, and so did not show that the defendant had incapacitated himself from performing his part of the contract; and that it ought to have contained an averment that the plaintiff had performed his part by giving orders, etc., and by tendering a cargo within such reasonable time. _Alderson_, B., said : " The defendant did not, by loading his vessel with a third party's goods, incapacitated himself from performing the original charter-party, for he might have unloaded the vessel, and have been ready within a reasonable time to perform his engagement with the plaintiff."

Footnote 2: Lidgett v. Williams, 4 Hare, 456.

Footnote 3:

**CH. VIII.** GENERALL PROVISIONS OF A CHARTTER-PARTT.\*\* 249

agent, and that the profit thence arising should be his. If, however, he had as it were abandoned the empty space to the owner, then it might be held that the master acted as the owner's agent, and filled it on his account, releasing the charterer from his obligation to pay, and giving the freight earned to the owner.1 And if there is a special agreement made that in case of failure to load the return cargo, the freighters will pay a gross sum less than the amount of freight per ton; the master, on the failure to load, will be entitled to the gross sum and also to the freight which the ship may earn by taking on board another cargo.2 If the ship-owner takes goods on board with the consent of the charterer in that part of the vessel reserved for the use of the officers and crew, he can maintain an action against a shipper, for the freight thereof.3 And it seems that he may250 ON THE LAW OF SHIPPING. \[BOOK L\] take on board any goods, unless forbidden by the charter-party, which will not enter into competition with the goods of the charterer.1

Footnote 1: This is a very important example of the work of the author, who is based on the work of the author,
EL VIII\] LIEN OF SHIP ON CARGO FOR FEIGHT. 251

paid after delivery.1 We consider that in this country this question in relation to charter-parties is, for all practical purposes, settled, and settled in conformity with reason and justice.

Footnote 1: See ante, p. 125, n. 1.

The rule we take to be this. If the charterer takes possession of the ship, puts on board a master and crew and pays them and provisions the vessel, he does not bargain for the carriage of his goods, but hires the ship and takes her to himself, and becomes the quasi owner of her, as long as he thus holds her.2 The general owner now carries no goods for any one; and it is nothing to him whether his ship carries goods or not; and if she carries them it is not as his ship, and he has no lion on the goods for his, freight,3 and, as we have seen,4 incurs no liability if they are lost, and this although the charterer is an infant, because the contract between the owner and charterer is in such a case voidable only and not void.5 Nor are the owners of a chartered vessel liable for wharfage.6

Footnote 2: This is not the case for the case of a single person, but it is not the case for the case of a single person.

Footnote 3: In fact, the case of a single person is not the case for the case of a single person.

Footnote 4: In fact, the case of a single person is not the case for the case of a single person.

Footnote 5: In fact, the case of a single person is not the case for the case of a single person.

If a charterer chooses to 'carry goods for others, he, as owner for the time, has a lion on these goods for the heights payable to him.7 But if the original owner is in possession, his bargain is to carry the goods of the charterer for the money to be paid him; he has, by his servant the master, perpetual possession of the ship, and so of the cargo laden on board of her; and he may retain this possession by his lion on the cargo for his freight, and payment to the charterer by a shipper who puts goods on board will be no defence to an action by the owner.8 But payment to the owner will, in such a case, be a good defence to an action against that shipper by the charterer.9

If, however, the charterer is in possession of the ship, then payment of freight by the shipper to the charterer would discharge the lion of the owner, certainly if it were paid without notice of the claim and lien of the owner ; and we incline to think it would have this effect even with notice, because the owner has authorized by such a charter-party other persons to contract in this way with the charterer.1 And it is quite clear and well settled, that the owner's lien extends only to the amount actually due from the shipper to the charterer by their contract, although this be less than the amount due from the charterer to the owner.3

Footnote 1: If the charterer is in possession, and freight is paid to the master, who delivers it to the owner, the master will be liable in an action, brought against him by the charterer, for money had and received. Lander v. Clark, 1 Hall, 355. See also, Shaw v. Thompson, Olcott, Adm. 144. The facts of this case were somewhat peculiar. The action was in person against the respondents to recover three hundred and fifty dollars, claimed to be due for freight on goods considered to them. The vessel was chartered to one Steems, the owner retaining the command, on a voyage from New York to Cuba and back. On the return voyage, goods were shipped conigned to the respondents, for which the freight alleged to be due was payable. The bill of lading contained the clause that freight was payable to the consigenes. On arrival, notice was given to the respondents that freight was to be paid to the master or owner. The charterer was indebted on the charter-party more than the amount of freight payable on that shipmen. The respondents were willing to pay over #258.10 to whomsoever it belonged, but claimed a right to retain #91.90, which they alleged was due to them from the charterer. The sum of #258.10 was subsequently, but before this action was brought, paid over to the charter by the consent of the libellant. \*Held, that as to this, the owner of the vessel had no claim against the respondents, but that he could recover the #91.90.

- We have seen, ante, p. 241, n. 2, that where a vessel is chartered and the master appointed by the owner, the master cannot sign bills of lading for a less amount than the freight stipulated for in the charter-party, in behalf of the charterer, or one having knowledge of the charter-party. But where the shipper acts in good faith, and has no knowledge of the charter, we apprehend it is well settled that the general owner has no lion except for the amount stated in the bill of lading. Paul v. Birch, 2 At. 621 ; Faith v. East India Co. 4 B. & Ald. 630 ; The Sch, Volunte, 1 Sumner, 551, 573, per _Sory_, J. In Christie v. Lewis, 2 Brod. & B. 410, the general owner claimed only the freight due on the bills of lading, and the only question was whether the ship was so let to the hirer that he had no lion. In Mitchell v. Scaife, 4 Camp. 298, it was held that a _bond jide_ indoresce of a bill of a lading, who took it without knowledge of the charter-party, was obliged to pay only the freight due as per bill of lading. So in Howard v. Tucker, 1 B. & Ad. 712, the same principle was applied in the case of an indoresce of a bill of a lading which stated that the freight had been paid. See also, Gilikson v. Middleton, 2 C. B. N. 184, 40 Eng. L. & Eq. 295; Gledatanes v. Allen, 12 C. B. 209, 29 Eng. L. & Eq. 382, ante, p. 942, note. In Small v. Moates, 9 Bing. 574, it was held that where the charter-party expressly reserved a lien on all goods laden on board, and goods were once shipped on board by the charterer, CH VIII.\] LIEN OF SHIP ON CAB60 FOR FRIGHT. 253

And if a vessel is let on shares to the master, the owners cannot maintain an. action for the freight;1 and they are not, on the weight of authority, liable for the wages of the crew.2

Footnote 1: The name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of name of the name of the name of the name of the name of name of the name of the name of the name of the name of name of the name of the name of the name of name of the name of the name of name of the name of the name of name of the name of the name of name of the name of the name of name of the name of the name of name of the name of name of the name of the name of
**wise; as, that there shall be no lien; or, that the lien shall be other than it usually is, they may do so.**

**We have already given some consideration to the question, whether a master, who delivers the goods without insisting upon and obtaining the payment of freight, to which he is entitled, from the consignee, can fall back on the shipper. The cases, as we have seen, are in some conflict; but, on the reason of the question, and perhaps on the weight of authority, we should come to this conclusion: That the master should collect his freight from the consignee if possible, and should insist upon his lien if necessary for that purpose; but that this obligation is not so peremptory that he loses all right to his freight if he fails in it; because the clause, requiring the consignee to pay on delivery, which asserts the lien of the general clause, which is usually inserted in the charter-party, amounts to such a special contract, has been disputed. The better opinion seems to be, that it does. Lord Testerdern, in his Treatise on the Law of Shipping, p. 286, speaking of this clause, said: " The clause whereby the merchant binds the cargo, does not give to the owner a lien on the cargo by way of general security for the performance of the covenants in the charter-party, nor for any payment for which he might not detain it in the absence of such a clause, so that with us the clause is inoperative. In the cases where a lien is allowed it is not derived from this clause, but either from some general principle of law, or some special contract." In The Schoomer Volunteer and Cargo, 1 Summer, 551, 572, the question as to what effect was to be given to the clause, came up before Mr. Justice Story. And that learned judge, after referring to Lord Testerdern's remarks above cited, expressed a very strong opinion in favor of considering the above clause as constituting a special contract giving or reserving the lien. There is also a strong dictum of Parker, C. J., to the same point, in Pickman v. Woods, 6 Tick. 248, 252. " And it is also most usual to stipulate that the goods are bound for the freight, or that freight shall be paid or secured on delivery; and in all such cases the lien is considered perfect, notwithstanding there are covenants in the charter-party for the payment of freight." The charter-party, in the case of Howard v. Macondary, S. J. C., Mass., Nov. T. 1856, contained this clause. In delivering the opinion of the court, Dewey, J., spoke of it as follows: " Although it may have no efficacy in securing a lien on the merchadiue at the port of delivery, where, by the terms of the contract, the freight is to be paid elsewhere, and at a time different from the delivery of the cargo, yet it may have its full effect in reference to freight to be paid at the place of delivery of the goods, and may operate and have full effect under the new stipulations entered into by these parties, as to the time and place of making the second payment for freight. It furnishes evidence at least, that the parties to the charter-party intended to secure the usual maritime lien, which exists where not displaced by the existence of inconsistent stipulations, and should lead us very carefully to consider whether the usual maritime lien for freight did not exist upon this cargo at the port of delivery. It is to be borne in mind that such lien will exist unless clearly displaced by the terms of the contract between the parties as to the payment of freight."** \[OLYILL\] LIEN OF SHIP ON CARGO FOR FRIGHT. 255

the master, is intended primarily for his protection and benefit, but not altogether so; and if he gives up the goods in good faith, and afterwards is unable to collect the freight of the consiagee, he cannot call on the consignor if the goods belonged only to the consignee, and the consignor was but his agent or factor in the transaction, but may call on the consignor if the goods were his property.1

Footnote 1: See **ante, p. 221**, note 3.

We should apply this rule equally to the case of a character-party, and of freight under bill of lading only. For if the consignor own the goods, he is not harmed by being obliged to pay the freight, because he would have been obliged to repay it to the consignee had the master obtained it from the consignee. And this reason may perhaps suggest the only exception; and that is, where the consignor, in good faith and without notice from the master or owner, has, by reason of the laches of the master, paid the consignee for the freight, or so changed the state of his accounts with him, that he would lose the freight if obliged to pay it to the master.2

Footnote 2: In Tapley _v. Martens, 8 T. R. 451_, the consignor requested the consignee to pay the freight as he was indebted to him in more than the amount. The consignee, instead of doing this, drew a bill of exchange on the consignor for the freight, and delivered it to the captain. The consignor was held liable for the freight. So in Collins _v._ The Union Transp. Co. 10 Watts, 884, the plaintiffs in error purchased goods in Philadelphia. They were carried by the line of the defendants in error to Pittsburgh, conjugated to H. & L., merchants there, to be forwarded by them to the plaintiff. The bills of lading given by the defendants stated that freight was to be paid on delivery to H. & L. They were delivered, however, without payment. H. & L. never paid the freight, but drew upon the plaintiffs for the amount, and the draft was paid at maturity. The plaintiffs were nevertheless held liable. The cases above cited show that the more fact of the consignor having advanced the money to the consignee to enable him to pay the freight, or a subsequent settlement with him, will not relieve the consignor, if he would be otherwise liable, from his responsibility to the party, who has contracted to carry his goods. But if the master, or the owner of the vessel, neglected to see the consignor, and in consequence of such delay, the consignor, supposing the consignee had paid the freight, should settle with him on that basis, we should strongly incline to the view that the consignor would not be liable.

\[FOOTNO

**256** ON THE LAW OF SHIPPING. \[B00K L

**SECTION IV.**

**OF. THE PAYMENT BY A CHARERERE.**

**If the master receives the freight, not in cash, but in a bill or note which turns out to be valueless, he cannot then, perhaps, call on the consignor or consignee, in those States (as Massachusetts and Maine)1 where negotiable paper is** _primal facie_ **payment of the debt for which it is given, and not anywhere, if he voluntarily elects to receive payment of the freight in this way. But if he receives bills or notes for his freight because he can get nothing else, and whether it be so or not seems to be a question for the jury, then, if they are dishonored, his claims against the consignee or consignor, revive.2**

Footnote 1: See SS Parsons on Contracts, p. 186; and ante, p. 93, note 1.

**As the current of authority in this country gives the master a line on the freight, not only for his disbursements for the ship, but for his own wages also,--on both points differing from the English law,3--it should follow that payment of freight by the shipper to the owner, would not be available as a defence against a demand of freight from the shipper by the master,' provided the master had notified the shipper of his claim, and requested him not to pay over the freight, or at least to reserve as much as would satisfy the master's claim.4**

Footnote 2: In Tawley v. Martens, 8 T. R. 451, the consignor was held liable. But the court said: "If the fact had been, as supposed in argument by the defendant's counsel, that the consignee had been ready to pay in money and the plaintiff had taken this bill for his own accommodation, there would have been some weight in the argument, but the fact was otherwise." So if the plaintiff had been guilty of any negligence, after he had taken the bill, in not endeaving to enforce payment of it. See also, Marsh v. Pedder, 4 Camp. 257, 262; Grant v. Wood, 1 Zabris. 292. In Strong v. Hart, 6 B. & C. 180, it was held, that an instruction that the jury should find for the defendants if they thought that the captain took the bill voluntarily and for his own convenience, was correct; and that the defendants were not bound to prove that an offer was made to pay in cash. See also, Anderson v. Hillies, 13 C. B. 499, 10 Eng. L. & Eq. 495.

Footnote 3: See post, ch.1, 1, 1, 2

- White v. Baring, 4 Exp. 92. But see Atkinson v. Cotesworth, 3 B. & C. 647, 5 Dow. & Bry. 552. In this country the law is, as stated in White v. Baring. See Lewis v. Hancock, 11 Mass. 72. In Ingersoll v. Van Bokkelin, 7 Cow. 670, 5 Wend.

CL VIII.\] PAYMENT BY A CHARTERER. \[267\] The master can retain the goods against a purchaser ; and if part be delivered, he can retain the residue ; and he may retain any part of the goods belonging to one person, for all the freight due from that person. But if the consigee sells the goods to different purchasers, and the part sold to one is delivered to him, the master can retain the residue, which belongs to other purchasers, only for the freight due on that residue, and not for the freight due on the part delivered. Such at least is the doctrine laid down by all who have treated of this subject, confirmed as we suppose by practice, and resting upon one adjudicated authority at least ; but in a recent case the English courts cast some doubt upon it.1

Footnote 1: In Sodergreen _v._ Flight, cited in Hanson _v._ Meyer, 6 East, 629, the action was brought by the captain of a ship to recover freight on 850 barrels of tar, which had been shipped by one Hippins. He sold the barrels to the defendants before the ship arrived. After arrival 721 barrels were delivered, when, Hippins having stopped payment, the captain refused to deliver the rest, unless they would pay the freight, not only of what remained, but of what had been before delivered, which they refused to do. Subsequently it was agreed that the whole cargo should be delivered up, and an action brought for the freight. Lord _Kenyon_ held that the plaintiff was entitled to recover freight for the whole amount. The Reporter then adds : " His lordish being of opinion that the captain had a lien on the tar remaining on board for the whole freight, as well the freight of the barrels delivered as of those remaining on board, belonging all to the same person and under one consignment. But he thought that if Hippins had sold the tar to different persons, the captain could not have made one pay for the freight of what had been delivered to another." On the authority of this case, it has been laid down in all the works on the law of shipping, that a captain, if he delivers part of a cargo, has a lien on the rest, for the freight of the whole, provided it belong to one person. By the bills of lading in this case, the tar was deliverable unto order, "he or they _paying freight for the said goods."_ The question of the lien 8f the captain did not arise, the only point in dispute being whether the captain, having delivered the tar could recover freight from the purchaser, which seems under the circumstances not to admit of doubt. The precise question of the lion of the captain was decided in a late case in England. Moller _v._ Young, 5 Ellis & B. 7, 30 Eng. L. & Eq. 845. The plaintiff, being the owner and master of a ship, send the defendants for not accepting goods transported in his vessel inja reasonable time. The defendants were indorces of a bill of lading, by which the goods were deliverable to them, on payment of freight, as per charter-party. This latter instrument provided that the cargo should be delivered on payment of freight, and that freight should be paid on delivery of the cargo. On the arrival of the vessel, a portion of the cargo was delivered. The plaintiff refused to deliver the rest till freight for the part already delivered had been paid, and the defendants refused to pay any freight till the whole had been delivered. Ten 22 * 258 on THE LAW OF SHIPPING. \[B00K I.

If the voyage for which the vessel is chartered, be, as it often is, a double voyage ; that is, a voyage out and home ; the question occurs whether any freight is due if the vessel safely performs the outward voyage and delivers her cargo, but is lost before her return home. It is perhaps impossible to give any general rule which shall always answer this question, because each case must be judged of by itself ; and these cases, as they are presented in the books, often involve questions of min-gled fact and law which are sometimes of great difficulty. There is nothing to prevent the parties from making such a bar-gain, on this point, as they choose to make. They may say distinctly, that so much freight shall be paid if she performs one passage in safety, so much if another, and so on for the rest ; or they may agree that nothing shall be payable by way of freight, unless she performs all of them, and brings the last cargo home in safety. And the question always is, which of these two things did they mean to express by the words which they used.

There is perhaps some tendency in the courts to look upon such voyages as distinct, especially if the shipper or charterer derives a distinct benefit from each voyage, and receives his goods at the end of each with their value enhanced by the carriage ; and in such a case, nothing but plain language, providing that no freight shall be earned unless the whole voyage, or all days, beyond the running days mentioned in the charter-party, elapsed before the plain-iff would consent to deliver the rest of the cargo. As soon as this was done, the defendant paid the freight for the whole. The Court of Queen's Bench held that the plaintiff was entitled to recover on the ground that the master was not bound to deliver the whole till he was paid for that already delivered, and that a delivery of a part did not waive the line as to the residue. This decision was reversed by the Court of Exchequer Chamber, 5 Ellis & B. 755, 34 Eng. L. & Eq. 92. It was there held that the master might assert his right of lien, and refuse to deliver the goods until he was paid his freight, but that if he waived this right he was bound to deliver the whole cargo, and when this was done there was evidence of a contract on the part of the consiguge to pay freight for the whole. It will be observed that in this case the consiguge was not owner of the goods. In a case where he is, they may be otherwise. In Bernal _v._ Pim, 1 Gale, 17, it seems to have been considered that a delivery of part does not defeat the line as to the residue, but that if there are two contracts to carry for the same person, with different terminal in each contract, no line attaches for freight under the one upon goods shipped under the other. Sodergreen v. Flight was also fully sustained in Boggs v. Martin, 13 B. Mon. 239. And see Fuller v. Bradley, 25 Penn. State, 120; Barnard v. Wheeler, 24 Maine, 412.

CH. VIII.\] PAYMENT BY A CHARTTERR. 259

the passages be duly performed, would suffice to destroy the owner's claim for freight _pro radt.1_

Footnote 1: The law is stated by Lord _Manifold_ as follows: : "If there be one entire voyage out and in, and the ship be cast away on the homeward voyage, no freight is due, no wages are due, because the whole profit is lost; and by express agreement the parties may make the outward and homeward voyages one. Nothing is more common than two voyages; whenever there are two voyages, and one is performed, and the ship is lost on the homeward voyage, freight is due for the first." Mackrell et. Simond, 2 Chitry, 666. See also, Molloy, de Jure Mar. Book 2, ch. iv. ! 9 ; Malynes, p. 98. In the following cases it was held that the voyages were distinct, and freight was payable for those performed. Mackrell et. Simond, _at sup.;_ Brown . Ehart, 11 Mass. 45 ; Locke v. Swan, 13 Mass. 76. In the late case of Towle v. Kettell, 5 Cash. 18, the chartenparty described the voyage from Boston to Wilmington, N. C., and from thence to Cape Hayticin in the island of Hayt, and from thence back to Boston. The clause, relative to the payment of freight, was as follows: : " for the charter or freight of the said vessel during the voyage aforesaid, in manner following, that is to say, fifteen hundred dollars, say so much in Hayt, as the master may want for the disubmement of the vessel, and the balance on the discharge of the cargo in Boston, together with all port charges, lighterage, and pilotage in Hayt." The master was to have what freight could be got from Boston to Wilmington. The vessel was lost on her return voyage from Hayt to Boston. The court held that the voyage was an entire one, and that no freight was due, that the provision for paying the master at Hayt what be might want for the disubmements of the vessel could not affect the construction of the instrument. In the following cases also, the voyages were held to be entire : Byrne v. Patinson, in K. B. Trinity Term, 37 Geo, Aobut on Ship, 466; Smith v. Wilson, 8 East, 437; Coffin v. Storer, 5 Mass. 252; Liddard v. Lopes, 10 East, 526; Scott v. Libby, 9 Johns. 336 ; Barker v. Cheriot, 2 Johns. 352 ; Papoyer v. Hallett, 15 Johns. 382 ; Burrill v. Cleeman, 17 Johns. 72 ; Blanchard v. Bucknam, 3 Greenl. 1; Hamilton v. Warfield, 2 Gill & J. 482. See also, Gibbon v. Mendez, 2 B. & Aild. 17 ; Crozier e. Smith, 1 Scott, N. R. 388 ; Sweeting v. Darthez, 14 C. B. 538, 25 Eng. L. & E. 256.

- Harelock v. Geddes, 10 East, 555 ; Ripley v. Scaife, 5 B. & C. 167.
- Kimball v. Tucker, 10 Mass. 192. In this case it was held that where the vessel
  260 ON THE LAW OF SHIPPING. \[B00K L.

SECTION V.

OF DEMURAGE AND LAY DAYS.

In all commercial and maritime affairs, time is an element of great value and importance. It should follow, therefore, that both parties should be punctual. If the ship is not ready when she should be, but a material delay seems to be probable, the charterer may seek another ship; if the cargo be not ready, the owner may seek another cargo.1 If a vessel is chartered to load became unseworthy during the voyage, the hirer could not stand still calling for repairs, but must provide whatever was necessary, at the expense of the owner, to enable the vessel to complete her voyage. _Secull_, J., on page 196, said: " If the vessel, sufficient at the commencement of the voyage, be entirely lost in the course of it, the one must betake himself to another vessel, and the other looses his freight-money, but nothing more, upon the contract of charter-party. The hirer must not abandon the vessel, while he can keep her af float, and suitably provided for the employment and destination for which she was hired : and the owner must be ready to my all expenses and damages, necessarily incurred for the purpose." In The Agricultural Bank v. Barque Jane, 19 La. 1, it was held, that where a vessel was chartered, and put up as a general ship by the charteres, the shippers of goods could not maintain an action against the owners for damage done to their goods through the unseaworthiness of the ship, but that their action was against the charteres, though they in turn might recover from the owners whatever they might have to pay.

1 Thus, in Weisser v. Maitland, 3 Sandf. 818, the charter-party provided that the charterer should be allowed for the loading and discharging of the vessel as follows: " Lay days, to load, twenty days from the twelfth." The owner guaranteed to have the vessel ready by that time. The charter-party was to commence when the vessel was ready to receive her cargo, and notice thereof given to the charterter. It was held, that the vessel's being ready on the day named, was a condition precedent to the charterer's liability to put on board the cargo. The court said: " Time was of the essence of the contract, and it is often so in commercial transactions. The success of the enterprise often depends upon dispatch. It was plainly the intent of these parties to be ready by the twelfth of April at all events. The cases show that the great principle to be considered is the intent of the parties, and where the time is essential, and the words of the charter-party are plain, as in the case here, we cannot doubt that the agreement, in reference to the day when the vessel was to be ready, is to be regarded as a condition precedent." See also, Shadforth v. Higgin, 3 Camp, 385; Glaholm v. Hays, 2 Scott, N. R. 471 ; Shubrick v. Salmond, 3 Burr. 1637 ; Soames v. Lonergan, 2 B. & C. 564 ; 3 Parsons on Contracts, 172. It was held, in Pope v. Bavidge, 10 Exch. 73, 28 Eng. L. & Eq. 569, that, where it was agreed that the ship should make six successive voyages, and that they should not be made later than the last day of February, 1853, a plea that during three voyages the ship sustained great damage from the dan \*

GL VIII.\] DENUPRAGE AND LAY DAYS. 261

at a foreign port and to proceed thence with the cargo to one of several other ports, it has been held that the master need not communicate with the charterrer, and if orders are not sent within a reasonable time, he may proceed to either of the ports mentioned.1 The ship-owner must perform the voyage in as short a time as is consistent with safety, and for any loss sustained by the charterer in consequence of the voyage being protracted by any culpable act of commission or omission, the owner is liable.2 The charterer must load and unload with all reasonable despatch; and the owner must give him all reasonable facilities; and for non-performance of these obligations, on either side, the injured party may have his remedy, without any express stipulations.3

Footnote 1: Sieveking v. Maass, & Ellis & B. 670, 36 Eng. L. & Eq. 185. Affirmed in the Exchequer Chamber, 6 Ellis & B. 674, 36 Eng. L. & Eq. 187.

Footnote 2: The Bark Gentleman, Oleott, Adm. 110, 1 Blatch.C. C. 196.

Footnote 3: See Sweting , Darthes, 14 C. B. 588, 25 Eng. L. & Eq. 336 ; Harris v. Drossman, Exch. 1854, 95 Eng. L. & Eq. 536 ; Clendiendi v. Tuckerman, 17 Barb. 184.

It is usual, however, to provide for all obligations of this kind, under the name of Demurrage. Sometimes it is provided that the ship shall be ready on a certain day, and if not, the charterer shall be allowed so much for every day that he is delayed. More often, and, indeed, almost always, it is provided that the charterer may have so many days for loading and for unloading the ship, and that he may detail her more, if he will pay so much for each additional day, or that if he detail her longer, he shall pay so much. If the whole charter be on time, there is no need of these provisions. If it be for a voyage or voyages, then these days, for which he pays nothing, are a part of the voyage. They are called lay days, and all belong to the charterer; he is under no obligation to receive the cargo until it suits his convenience, provided he do not exceed the specified number of the lay days for unloading; and if he does not receive it, and in the meanwhile it is lost by a peril of the sea, there is no delivery of the goods, no completion of the voyage, and no freight earned.4

**Nor is the charterer bound to furnish a cargo as soon as requested by the captain, but he can load it any time within the lay days.1**

Footnote 1: See also, from \[10\], \[11\], \[12\], \[13\], \[14\], \[15\], \[16\], \[17\], \[18\], \[19\], \[20\], \[21\], \[22\], \[23\], \[24\], \[25\], \[26\], \[27\], \[28\], \[29\], \[30\], \[31\], \[32\], \[33\], \[34\], \[35\], \[36\], \[37\], \[38\], \[39\], \[40\], \[41\], \[42\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[50\], \[51\], \[52\], \[53\], \[54\], \[55\], \[56\], \[57\], \[58\], \[59\], \[60\], \[61\], \[62\], \[63\], \[64\], \[65\], \[66\], \[67\], \[68\], \[69\], \[70\], \[71\], \[72\], \[73\], \[74\], \[75\], \[76\], \[77\], \[78\], \[79\], \[80\], \[81\], \[82\], \[83\], \[84\], \[85\], \[86\], \[87\], \[88\], \[89\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[93\], \[95\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[92\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[99\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[
CH. VIII.\] DEMURAGE AND LAY DAYS. 263

please about the time when they shall commence.1 And it sometimes depends on the usage of the port.2

Footnote 1: The term _"_" 264 ON THE LAW OF SHIPPING. \[BOOK L\]

And if principles assumed to be law in the modern cases are to be adopted, we should say that delay from the elements, as frost,1 or tempest, or tide,2 or from any act of government,8 or from any

the London docks, yet the freighter was held liable for the delay. Lord _Ellenborough_ said : "The question is, whether the detection of the ship, arising from the inability of the London Dock Co. to discharge her, is, in point of law, imputable to the freighter; and I am of opinion that the person who hires a vessel detains her, if at the end of the stipulated time he does not restore her to the owner. He is responsible for all the various vicensitudes which may prevent him from doing so." But in Rogers _v._ Hunter, 2 Car. & P. 601, Moody & M. 63, Lord _Tentreden_ was of the opinion that a defendant could not be said to retain a vessel, before he could get at his goods. So in Dobson _v._ Droop, 4 Car. & P. 112, Moody & M. 441, he said : "I am of opinion that, if a party cannot get his goods, he being prevented by a delay on the part of the owner of other goods on board the same vessel, he is not liable for demurrage. The question here is, whether the removal of the defendant's goods was obstructed by the misconduct of another in not removing his goods ; for, if so, the defendant is not liable for demurrage." The weight of authority is certainly in favor of the cases first cited, and we are inclined to believe that they are the more correct in principle. The parties are at liberty to make any contract they please, and if they choose to stipulate that demurrage shall be paid at all events, there seems to be no reason why the consignees should not pay it, even though the delay is not occasioned by their fault, if the owner be not jo blame, but if he is in fault then it is clear that the consignees will not be liable. Benson _v._ Blunt, 1 Q. B. 870; Taylor _v._ Clay, 9 Q. B. 713. So, generally, if an owner do not procure the necessary papers for the discharge of the ship, he cannot claim demurrage, but if the defendant request him not to procure them, the defendant cannot set up their not being procured in an action brought against him for demurrage. Furnell _v._ Thomas, 8 Bing. 188. 1 Barret _v._ Dutton, 4 Camp. 333. But if the detention occur after the vessel is loaded, the charter will not be liable. Pringle _v._ Mollett, 6 M. & W. 80. In Jamie-son _v._ Laurie, 6 Bro. P. C. 474, where a British vessel was detained in St. Petersburg, to take on board her cargo, nearly two months beyond the stipulated time, and then setting sail, was driven back and frozen in for the winter, which began somewhat earlier than usual, demurrage was awarded only to the sailing of the vessel. And so, where, by the delay, the vessel lost the opportunity of sailing with convoy, and was obliged to wait nearly two months for another, the owner having covenanted that she should sail with convoy. Conner _v._ Smythe, 5 Taintr. 654. A similar rule was adopted where demurrage was stipulated to be paid whilst the ship was waiting for convoy. See Lannoy _v._ Werry, 4 Bro. P. C. 630. 2 In Clendani _v._ Tackerman, 17 Barb. 184, the vessel had arrived, and notice was given that the captain was ready to deliver the cargo. She was, however, detained by the consignee, and while waiting was capsized by a freshet, and the greater part of her cargo lost. Held, that the consignee was liable for demurrage. See also, Brown _v._ Ralston, 9 Leigh, 532. 8 Bessey _v._ Evans, 4 Camp. 131 ; Hill _v._ Idle, id. 327. See also, Bright _v._ Page, 3 B. & P. 295, note. In Brooks _v._ Mintur, 1 Cal. 481, where a vessel was seihed by the revenue officers, it was held that if the seizure was illegal no demurrage was due, so, if the seizure was legal, but occasioned by the fault of the ship-owner or his agent ; but the court did not decide how it would be if the seizure had been occasioned by the \[GE VIII\] DENURAAGE AND LAT DATS. 265 positive and certain disability of the consignee, although it could not be in any way imputed to his own fault, that is, neither to his own act, nor to his own neglect, should give claim to demurrage. But the parties may stipulate that the charterer shall be liable for no delay which is not caused by his own default.1 As a general rule the consignee takes the risks of roads and means of transportation from the dock, and is bound to take the cargo as fast as it is delivered to him from the vessel, but the owner of the vessel takes the risk of working weather, during the time required for the unloading.2 The original purpose of the provision in regard to demurrage was first, to hold the charterer to a proper endeavor to save time, and next, to make him pay a proper compensation for all the time of the owner which he might have saved but did not. For a similar reason, if any delay, for which he is not answerable, occurs after the lay days should have begun, these days do not always begin to count from the first day when he can work. Suppose he has forty days to unload the cargo and put on board a new one; and there is a compulsory delay of ten days after these lay days should have begun. If he can now, without extraordinary and unreasonable effort and cost, unlade and lade in thirty days, he must do it; for he has forty days still from the actual beginning of his work, only if the whole of the forty are necessary for the work.3 It is usual to call lay days "working days,"4 or to define them by some similar epithet; but in the absence of such language, and of any language of an analogous meaning, the law-merchant would, we think, define the mere word "days," as 266 ON THE LAW OF SHIPPING. \[poor L "running days," and not as " working days,"1 unless there was some special usage to the contrary.2

Footnote 1: Brown v. Johnson, 10 M. & W. 331 ; Brooks v. Minturn, 1 Cal. 481 ; Cochran v. Retberg, 3 Esp. 121, per Ld. Eldon, C. J.

If, besides the stipulated lay days, the charter-party provides that the charterer or consignee may detail the vessel, at so much a day for a certain period, the master is bound to wait during that whole period if the consignee requests him to do so. But when it expires he may go at once; and if he still delays, and then receives a cargo from the consignee, the consignee would certainly be bound to pay for these additional days, if he had requested the master to remain;3 and also, we think, if he had made no special request, but had profited by them to put his cargo on board, because the law would imply that the master waited by reason of an understanding with the consignee, and at his request.

If days are to be paid for after and beyond all those provided for, compensation is to be made on the principle of indemnity to the owner of the ship; and the rate for the days agreed on, would not be conclusive as the measure of damages, although it might be evidence.4

If the charter be on time, it would seem that the charterer is liable for all the time lost by detention, or embargo, or capture, unless and until the vessel is condemned as prize, for this latter fact dissolves the contract. There must, however, be some limit to this in every case of hostile or public seizure or arrest, although no adjudged cases enable us to lay down the limitation with much distinctness. In the absence of any more definite rule, CCL VIII.\] CONSTRUCTION OF CHARACTER-PARITIES. **267**

we should say that, whatever circumstances would suffice to break up the voyage, would suffice to terminate the charter-party, and the liability of the charterer.1

Footnote 1: Minot v. Durant, 7 Mass. 436. A ship was chartered for a voyage from Portland to St. Croix, and back to the United States twice. The defendant covenanted to pay at a certain rate per ton, per month, during the time the vessel should be employed. The vessel sailed from St. Croix where she arrived, and discharged her cargo, and from thence sailed for Willington in South Carolina. Here she was detained by an embargo thirteen months and twelve days. After being released she performed another voyage to the West Indies, and back to Portland, where she was returned to the owner. The defendant claimed to be entitled to deduct the hire during the time of the detention, but the court held that he was bound to pay for the whole time the vessel was in his employ. See also, Brown v. Hunt, 11 Mass. 45; Spafford v. Dodg, 14 Mass. 66, 71 ; Odlin v. Ins. Co. of Penn. 2 Wash. C. C. 312; The Nathaniel Hooper, 3 Surner, 542; Patron v. Silva, 1 L.4 275 ; Bork v. Norton, 2 McLean, C. C. 422; M'Bride v. Mar. Ins. Co. 5 Johns. 299; Palmer v. Lorillard, 16 id. 348; Baylies v. Fetylpace, 7 Mass. 325 ; Hadley v. Clarke, 8 T. R. 359; and post, p. 373. If the charterer agrees to pay a certain price in case of capture and condemnation, the declaration must show when, and by whom the vessel was captured, and that the court, which condemned her, had jurisdiction. Stone v. Patterson, 6 Call, 71. * 2 Parsons on Contracts, 4, 5. * 2 Parsons on Contracts, 6.

quently, in contracts relating to shipping, is whether a covenant be a condition precedent, or an independent covenant. That is, whether a promise made by one party be such, that if he breaks it, this breach is a sufficient excuse for the entire disregard of all his promises by the other party; or is it such, that if he breaks it, the other party is still bound to his promises, but may claim indemnity from him who has broken his promise.1

Footnote 1: 2 Parsons on Contracts, 40, 41.

Thus, if an owner contracts that his ship shall go to Liverpool, and there take and bring to Boston a full cargo for the shipper, who agrees to pay him thirty dollars a ton, and the ship, when three fourths laden, sails without sufficient reason, although the shipper has the remaining fourth ready to be put on board, if the promise to take and bring a full cargo is a condition precedent to recovery of freight, the condition having failed, the owner can recover nothing. If it is an independent promise, and the promise to pay thirty dollars a ton another promise, then the owner can claim this freight for all that he brought, and the shipper must pay it; but may still have his reaction, or his offset, for any damage he sustains by reason of the ship sailing with only part of his cargo.2

If the covenant or promise be a condition precedent, the consequence of a breach is that the whole obligation fails on the other side. Hence the first, and indeed the only rule, which is of much utility in questions of this kind is, that if the covenant or promise is inseparably connected with the whole of the consideration on which it rests, then it is a condition precedent; but if that consideration can be divided into parts, and the promise which is broken can be made to attach to some part, and the promise that is kept to another part, then the bargain becomes in fact two or more bargalns, one of which is fulfilled and the others not; and then the covenants or agreements are independent or separable, and do not constitute a condition precedent.3

Footnote 1: 2 Parsons on Contracts, 40, 41.

Footnote 2: Ritchie v. Atkinson, 10 East, 295. See ante, p. 245, n. 4.

Footnote 3: Per Ld. _Manifold_, C. J., in Boone v. Eyre, 1 H. Bl. 273, note a. See also, Duke of St. Albans v. Shore, 1 H. Bl. 270; Campbell v. Jones, 6 T. R. 570 ; Fothergill v. Walton, 8 Tannt. 576; Glaholm v. Hays, 9 Man. & G. 257; Barruso v. Madan, 2 Johns. 145 ; Fuller v. Staniforth, 11 East, 292; Storer v. Gordon, 3 M. & S. 308.

\[\]

CONSTRUCTION OF CHARACTER-PARTIES. 269

In the case supposed, the consideration for carrying the cargo, is the agreement to pay thirty dollars a ton; now this considera; tion is divisible by its very terms into thirty dollars per each ton; the promise to carry a full cargo, and the breach of it, may then be divided correspondingly; and the owner has broken all that part of his promise which relates to that part of the cargo which he did not carry, and has thereby released the shipper from paying him for that part of the cargo. But he has kept that part of his promise which relates to that part of the cargo which he has brought, and for so much, therefore, the shipper must keep his promise. So, if the owner promises that his ship shall be stanch and tight; and he carries the cargo, but the ship is neither stanch nor tight, this is not a separable promise in the sense in which a promise to carry a full cargo is; for a ship must be sea-worthy, or not sea-worthy, as a whole. But it is so far separable, that the effect of the breach of it does not necessarily extend to the whole cargo, and therefore may not to the compensation for carrying it. Therefore the owner would recover his freight, but be liable in damages for any consequences of the bad condition of his vessel, if goods were laden on board, but the freighter might refuse to put the goods on board.1

In regard to dependent and independent covenants, see Pordage v. Cole, 1 Saund. Win's. Ed. 319; Roberts v. Brett, 18 C. B. 561, 36 Eng. L. & Eq. 358. 1 Haveleck v. Geddes, 10 East, 555. In this case the owner of a vessel covenanted that he would forth with make her tight and strong, etc., for a voyage of twelve months, and keep her so. To an action of covenant on the charter-party for freight, the defendants pleaded the non-performance of this covenant in bar of the whole demand, and the plaintiff demurred. In giving the opinion of the court, Lord _Ellenborough_ said: " The question upon the plea is, Whether the defendants are entitled to insist that the _forthforth making the ship tight, stanch_, etc., was a condition precedent. The defendants did not repudiate the ship, because she was not immediately made tight, stench, etc., but took her into their service and employed her; and after having navigated her for several months, they say that, because this was a condition precedent, and was not performed, they are not liable to pay any thing. They do not pretend that the non-performance has damnified them to the extent of the payment they wish to evade; and, to be sure, if this were a condition precedent, the neglect of putting in a single nail for a single moment after the ship ought to have been made tight, stanch, etc., would be a breach of the condition, and a defence to the whole of the plaintiff's demand. We are clear, however, that the defendants, who took the ship into their service and employed her in an unimpaired state, have no right to insist that the _forthforth making her tight_, etc., was a condition precedent. Whether a particular covenant is to constitute a condition precedent depends upon the intention of the parties, as it is 23 * to be collected from the instrument in which the covenant is contained. And it would be an outrage to common sense to say, that it could have been the intention of these parties, that if the defendants took to this ship as a ship in their employ under the charter-party, they should be at liberty afterwards to insist that the making her complete in every particular, and that forthwith, without any delay, was a strict condition precedent on the part of the plaintiff. The cases cited are also decisive upon the point. Boone _v._ Eyre, 1 H. Bl. 273, in the notes, lays down a very sensible general rule, that where mutual covenants go to the whole consideration on both sides, they are manual conditions, the one precedent to the other ; but where they go only to a part, and a breach may be paid for in damages : there, the defendants has a remedy on the covenant, and shall not plead it as a condition precedent. Had the plaintiff's neglect here precluded the defendants from making any use of the vessel, it would have gone to the whole consideration, and might have been insisted upon as an entire bar ; because the consideration for the defendants' covenant to pay the freight would then have failed _in toto_ ; but as the defendants have had some use of the vessel, notwithstanding the plaintiff's neglect, the plaintiff's covenant is to be considered as going to a part only : the consideration has not _achroly_ failed ; and the covenant cannot be looked upon as having raised a condition precedent, but merely gives the defendants a right, under a counter action, to each damages as they can prove they have sustained from this neglect. For these reasons we are of opinion that this ple cannot be supported, and that the demurter to it must be allowed." See also, Tarrabochis _v._ Hickie, 1 H. & N. 183, 38 Eng. L. & Bq. 389; Clipsham v. Verteus, 5 Q. B. 265, 272, per Ld. _Demana, C. J._; : Olive W. Booker, 1 Exch. 416, 423, per Parke, B.\_; and Elliot e. Von Glenn, 13 Q. B. 632, 641, per _Erle, J._, to the point that a loading or use by the charter would be considered as a waiter of the breach of the condition. In Dunbar _v._ Smegthwaite, Q. B. 1854, 24 Law T. 92, 29 Eng. L. & Bq. 189, in an action by a shipper of goods against a ship-owner for a breach of covenant that the ship should be sea-worthy at the commencement of the voyage, whereby he was prevented from insuring his goods, the defendant pleaded that before any loss, damage, or prejudice had arisen to the plaintiff the ship was made sea-worthy. Held, no plea. A contrary doctrine to Havelock _v._ Geddes has been asserted by the court of appeals in Maryland, that in an action by the shipper against the captain and consignee to recover money retained as freight, the plaintiff might resist the defendant's claim there by showing that the vessel was not sea-worthy at the commencement of the voyage, and recover accordingly. In this case the ship proceeded upon the voyage, but was compelled by adverse weather to put into a port, not that of destination, where she was condemned. Dickinson _v._ Haslet, 3 Har. & J. 345. But in Reed r. Dick, 8 Watts, 479, where the ship was lost by parting her cable, _Gilson, C. J._, decided that evidence that the basis were insufficient, would not make the carrier answerable for the injury to the goods on board. See also, Hart _v._ Allen, 2 Watts, 114; Collier _v._ Valentine, 11 Mo. 299 ; Forbes _v._ Rice, 2 Brev. 363.

1 Davidson v. Gwynne, 12 East, 381. But when it is covenanted to load the vessel in time to sail with a. convoy on a particular day, and the vessel arrives out in time to receive her cargo, but only a small portion of it is laden on the appointed day, the captain is not bound to wait, but may sail with the convoy, although the charter offer to
CH. VIII.\] CONSTRUCTION OF CHARTTER-PARTIES.

271

is not a condition precedent.1 Nor is a stipulation to load certain goods.2 But if it is a part of the agreement that the ship shall be at, or sail from a certain place on or before a certain day there to receive a cargo, and she is not there on that day, this is a condition precedent; so far, at least, as to discharge the freighter from all obligation to load her, as the condition is not fulfilled; but if he loads her and she carries the cargo, then she earns her freight, subject as before, to damages for the breach of the provision as to time.3

provide a full cargo in a few days. Thompson v. Inglis, 3 Camp. 428. See also, Shadforth v. Higgin, 3 Camp. 885.

1 Constable v. Cloberie, Palmer, 397 ; Bornmann v. Tooke, 1 Camp. 377.

2 Fothergill v. Walton, 8 Taunt. 576. See also, Stavers v. Curling, 3 Bing. N. C. 385 ; Deffell v. Brocklebank, 4 Price, 36 ; Galloway v. Jackson, 3 Scott, N. R. 753.

3 In Glaholm v. Hays, 2 Man. & G. 257, by the memorandum of charter it was agreed that the vessel should proceed to Trieste, and there load a full cargo, and, being to loaded, should proceed to a port in the United Kingdom, upon payment of freight at a certain rate; that forty running days should be allowed the merchants for loading at Trieste, and for unloading at the port of discharge; and twelve days on denurrage, the _send to sail from England on or before the fourth of February next._ The vessel did not sail till the twenty-second of that month, being detained by contrary winds. The charter refused to load any goods on board. Held, that the sailing on or before the fourth of February was a condition precedent. In Shadforth v. Higgin, 3 Camp. 385, the ship was to go to Jamaia, and the freighter undertook to provide a full cargo in time for the July convroy, provided she arrived out, and was ready by the twenty-fifth of June. Held, that her arrival was a condition precedent. In Croockewit v. Fletcher, 1 H. & N. 893, 40 Eng. L. & Eq. 415, the defendant pleaded to an action for breach of a charter-party by refusing to take the vessel, that the charter-party contained a stipulation that the vessel was to sail from Amsterdam to Liverpool on or before the fifteenth of March, and that she did not sail on or before that day. Replication, that the ship was prevented from sailing by dangers and accidents of the seas and by the act of God. On demurrer the replication was held bad. The charter-party contained this clause : " Restrictions of princes and rulers, the damages and accidents of the seas and navigation, the act of God, fire, pirates, and enemies, throughout the charter-party, always accepted." The court held, that; though this might exonerate the plaintiff in the event of the ship being prevented from sailing on the day named by any of the matters except, yet it did not affect the condition precedent upon the performance of which the defendant contracted to take and load the ship. And a replication that the defendants had repudiated the charter-party before the time of the sailing of the ship, was also held to be bad. See also, Bright v. Cowper, Brownl. 21 ; Tarrabochia v. Hickie, 1 H. & N. 183, 38 Eng. L. & Eq. 339. So, where it was agreed that a vessel should be launched and ready to receive cargo in all May, guaranteed to sail in all June, and that she should proceed to a certain port and load a full cargo, it was held, that the readiness to receive a cargo in all May, was a condition precedent to the plaintiff's right to recover for not loading a full cargo; and that a plea stating that the ship was not ready to receive a cargo in all May was good on general demurrer. Oliver v. Fielden, 4 Exch. 185. See also, cases ante, p. 130, note 2. In Dilivo e. Booker, 1

**Abstract**

The _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_ _same_same_ _same_ _same_ _same_\_ _same_ _same_ _same_same_ _same_ _same_\_ _same_ _same_\_ _same_ _same_same_ _same_ _same_\_ _same_ _same_same_ _same_ _same_\_ _same_same_ _same_ _same_\_ _same_same_ _same_ _same_\_ _same_same_ _same_ _same_\_ _same_same_ \_sameCH. VIII.\] DISSOLUTION OF A CHARTER-PARTY. 273

incompatible with this usage. And if their express provisions are one with the usage, then there is no need of calling on that, either to interpret or enforce the written agreement.1

Footnote 1: See 2 Parsons on Contracts, 48-59 ; Phillips v. Briard, 1 H. & N. 21, 87 Eng. L. & Eq. 480 ; and ante, p. 156. But usage is only admitted in the case of contracts, and is, therefore, not admissible in cases of general average, for the right to contribution does not arise from contract, but depends upon a principle of natural justice, that they who have received a common benefit from a sacrifice voluntarily made by one engaged in a common adventure should unite to make good the loss which that sacrifice occasioned. Per Curtis, J., Sturgis v. Cary, 2 Curtis, C. C. 883.

**274**: **ON THE LAW OF SHIPPING.** \[B00K L\*\*

**And for the same reason, namely, that the law cannot be called on to enforce a violation of itself.1 Thus, if a war be declared by the country to which a ship belongs against one to which it was about to carry a cargo, this war makes all commercial intercourse illegal, and thereby annuls all obligation of carrying that cargo.3 Or if the proper authority of the same country lays an embargo, or passes an act of non-intercourse, or of especial prohibition which extends to that ship and cargo; here the contract becomes illegal. But war annuls such a contract, while an embargo,3 or**

Footnote 1: See 2 Parsons on Contracts, 186.

Footnote 2: Ord. de la Marine, liv. 3, tit. 1, Charto-Partie, art. 7; Code de Com. art. 276; Barker v. Hodgson, 3 M. & S. 267, per Lord Ellborough, C. J.; Brown v. Delano, 12 Mass. 370; Palmer v. Lorillard, 16 Johns. 348; Avery v. Bowden, 5 Ellis & B. 714, 33 Eng. L. & Eq. 133, 187, per Lord Campbell, C. J.; s. c. 6 Ellis & B. 953, 38 Eng. L. & Eq. 130; Barrick v. Babu, 2 C. B. v. 563. See also, Esposito, S. Bowden, 4 Ellis & B. 963, 30 Eng. L. & Eq. 336; Reid v. Hoskins, 4 Ellis & B. 979, 30 Eng. L. & Eq. 406. See also, same case, Ellis & B. 729, 34 Eng. L. & Eq. 51, affirmed 6 Ellis & B. 953, 38 Eng. L. & Eq. 130. In Clemonston v. Blessig, 11 Exch. 135, 32 Eng. L. & Eq. 544, war had been declared by England against Russia, but there was an order of council passed that Russian merchant vessels, in any ports or places in her majeaty's dominations should be allowed six weeks for loading their cargoes and departing, and that such Russian merchant vessels, if met at sea by any of her majeaty's ships, should be permitted to continue their voyage, if, upon examination of their papers, it should appear that their cargoes were taken on board before the expiration of the above period. An order had been sent to the plaintiff in England to ship goods to the defendant in Russia, and the defendant promised in payment of the goods to accept the plaintiff's draft for the price. In an action for not accepting, the defendant pleaded, that, before the goods were shipped, war was declared, which rendered the contract illegal. The plaintiff filed a replication setting forth the order of council, and averred that the goods were shipped before the expiration of the six weeks. On dommurrer the court held, that the contract was not dissolved by the war.

Footnote 3: In Odlin v. Ins. Co. of Penn. 2 Wash. C. C. 812, 317, Washington, J., laid down the law as follows: " It is stated, on the part of the underwriters, as a general rule, that where a contract is lawful at the time it is made, and a law afterwards renders a performance unlawful, neither party shall be prejudated, but the contract shall be considered at an end. This, as a general rule, will not be controverted. But there is an obvious distinction between a law which renders the performance _unlawful altogether_, and one which merely _supends the performance_, without condemning the subject of the contract. If the trade between this country and any other be wholly interdicted, or partially so, in relation to particular articles; or if, after the contract to carry goods from this to that other country, war should break out between them, _the subject-matter_ of the contract becomes unlawful; the prohibition acts directly upon it, and forbids the performance. It is no answer, that the prohibition may, upon a change of circumstances, be removed; the prohibition defeats the contract, and releases the parties from all its obligations. But, in the case of a temporary restraint upon the performance of the contract, the subject-matter of it is not declared to be unlawful, the trade itself is not condemned,--the legality of it is rather admitted, but it is not permitted to beCH. VIII.\] DISSOLUTION OF A CHARTER-PARTY. 275

prohibition,1 may only suspend it. If the measure is one which may be regarded as intended for a brief period only, and if the voyage may be delayed without material damage, and then resumed and completed with no other effect than that of temporary interruption, then we should say that the contract was not dissolved; that the ship, on the one hand, was bound to wait with her cargo on board for the opportunity of carrying it to her port of destination; and on the other, that the ship had the right of insisting upon retaining the cargo for the purpose of thus earning the freight.2

Footnote 1: See R.C. SS 102, for a discussion of the 276 ON THE LAW OF SHIPPING. \[BOOK L\]

If the continuance of this restraint and prohibition be not only uncertain, but, as far as can be judged, likely to continue for a long period, so that it would be unreasonable to detail the ship or the cargo in her to wait this distant opportunity; or if the goods are perishable, and cannot probably survive even a short delay without destruction or great diminution of their values,--we should say the contract was now, not suspended, but an-nulled.1

Footnote 1: See the Isabella Jacobina, 4 Rob. Adm. 77.

So, if there be a blockade of the port in which the vessel is lying, and from which she is to proceed on the proposed voyage, this would generally only suspend the obligations of the contract,2 but might annul them, if the facts gave rise to reasons

Derry, 4 Ellis & B. 878, 30 Eng. L. & Eq. 312. This was an action by the chatters of a vessel against the owners for a breach of contract. By the chatter-party the defendants agreed that the ship should proceed to Galats, or as near thereto as she could safely get, and there load a cargo, perils of the seas, rivers, and navigation excepted. Galats is a port of Moldavia, on the River Danube, ninety-five miles from the Salins mouth. On the 5th of November the ship arrived off the month of the Danube. At that time, and until the 7th of January following, the water was so low on the bar at the mouth of the river that the ship was unable to cross. On the 11th of December she was obliged, by stress of weather, to go to Odessa, as the nearest safe port; where she afterwards took in a cargo and said for England. On and after January 7th there was sufficient water on the bar for the ship to have crossed and to have gone to Galats, and there shipped a cargo. Held, that under these circumstances the defendants were not justified in putting an end to the contract. The reasons upon which this case was decided are fully set forth in the opinion of Lord _Campbell_, C. J. He said: " With regard to the terms of the charter-party, 'so near the port of loading as the ship could safely get,' the meaning must be that she should get within the ambit of the port, though she may not be able to enter it. It might as well be said, that if the ship had been stopped in the Dardanelles she had got as near Galats as she safely could. On this issue, therefore, the plaintiffs must have judgment. Then, the next issue is founded on the exception of the dangers of the sons, rivers, and navigation. But this case clearly does not fall within that exception, for although we must reasonably support that up to the 7th of January the ship could not have crossed the bar, yet this was only a temporary impediment, and after that date she might well have crossed and reached the port of destination. If so, how or when was the contract dissolved 1 ... It was, no doubt, not safe for the ship to keep on and off at the mouth of the Danube, but she might have gone to Odessa or Constantinople, and there have waited until the bar was passable."

Footnote 2: See the Isabella Jacobina, 4 Rob. Adm. 77.

Footnote 3: Stoughton v. Rappalo, 3 & R. 559. In this case certain barrels of four had been shipped on a voyage from Philadelphia to Havana. The same day that the bills of lading were signed and the clearness at the location-house obtained, a blockade of the Delaware was instituted by the British. The master of the vessel refused to deliver up the flour unless the owner would pay one half freight. It was in proof that the cargo would be very much deteriorated in value, if deta
CL VIII\] DISSOOLUTION OF A CHARTER-PARTY. \[277\]

such as applied in the case above supposed of embargo or prohibition. But the contract is not determined by the unlawful seizure of the vessel by a stranger.1

Footnote 1: The Neptman, 2 Rob. Adm. 110; The Dark Coons, 1 Newb. Adm. 393. This rule has been relaxed to some extent in cases of insurance, and it has been held to be a question of fact for the jury to dedible whether the parties knew of the blockade. Hart Hart. Wise, 9 B. & C. 712. See also, Naylor v. Taylor, id. 718; Medeiros v. Hill, 8 Eng. 231. There are two kinds of blockade known to the law, a blockade _de facto_, and a blockade by notification. In either casegwhere must be an actual blockade, and notice brought home to the party, or facts shown, from which knowledge of the blockade may be presumed. In the case of a blockade by notification, it will be presumed to continue till public notification of its discontinuance is shown, and the burden of proof is on the captured vessel to overcome this presumption. The Neptman, 1 Rob. Adm. 170. Though public notification of the existence of a blockade is customary, still private notification is sufficient. The Mercurius, 1 Rob. Adm. 80. It is enough if merely knowledge of the blockade be shown. The Columbia, 1 Rob. Adm. 154, 156. Where an enemy's port was declared to be blockaded, and notification thereof was duly made, but, about the same time news was received that the blockade squadron had been driven off by a superior force, it was held that the act of sailing for the port under such circumstances would not amount to a breach of the blockade, but that notice of in being resumed should have been given. The Triheten, 6 Rob. Adm. 65. " Thus Sir _Williian Scott_, in the case of The Columbia, 1 Rob. Adm. 154, said : "It is unnecessary for me to observe, that there is no rule of the law of nations more established than this ; that the breach of a blockade subjects the property so employed to confiscation. Among all the contradictory opinions that have been advanced on the law of nations, this principle has never been disputed : it is to be found in all books of law, and in all treaties; every man knows it ; the subjects of all States know it, as it is universally acknowledged by all governments who possess any degree of civil knowledge."

YOL L only in intention, or by decree, it is only what is called a paper blockade; and it is now settled that it is no breach of the law of nations to enter the port; and a ship might insist upon its right to go there, and a shipper might insist that the ship should carry his cargo thither.1 But as a ship is bound not to break an actual blockade, and if it does so, is forfeited by the law of nations, so it is not bound to incur any actual and substathtial danger, in attempting to do so, if the port be imperfectly blockaded.2 Nor has it any right to incur such danger, and jeopardize the cargo, for the purpose of earning its freight. If a vessel is warned off and afterwards returns, this is _primal facie_ evidence of a criminal intention to enter, but this may be rebutted by showing that a stringent necessity was the cause of the return.3

Footnote 42
**CL VIII.\] DISOLUTION OF A CHARTTER-PARTY. 279**

And it is no breach of law for a vessel to sail for a port which is known to be blockaded, with the hope of finding the blockade terminated, or with the purpose of waiting, at sea or in a neighboring port, until the blockade shall terminate.1 A ship, there-

**Adm. 27.** But this rule was held not to apply where there were no open ports near that blockaded. The Brig Nayade, _supra_.

1 The Shepherdes, 5 Rob. Adm. 262; The Betsey, 1 Rob. Adm. 332; The Dispatch, 1 Act. 163; The Little William, 1 Act. 141; Naylor v. Taylor, 9 B. & C. 718; Medeiros v. Hill, 8 Bing. 331. The vessel must not, however, proceed immediately to the blockaded port, but the proper coarse is to stop at some port of the blockading power, for information. See cases cited above. In the case of The Betsey, however, as the property was not disputed, and nothing appeared to affect the owners with a fraudulent intention, the vessel was restored, though information was to have been obtained at the blockading port. Where the blockading force had received orders not to capture a vessel, unless previously warned off, it was held that the master might sail direct for the port, and need not make inquiries elsewhere. Maryland Ins. Co. v. Woods, 6 Cranch, 29. See, however, The Columbia, 1 Rob. Adm. 154. The four cases first above cited are those of American ships seeking a blockaded port in Europe, and for this reason the established rule, that sailing to a blockaded port constituted a breach of the blockade, was relaxed in their favor. Thus Sir _William Scott_, in the case of The Betsey, said: "I certainly cannot admit that Americans are to be exempted from the common effect of a notification of a blockade existing in Europe. But I think it is not unfair to say, that lying at such a distance where they cannot have constant information of the state of the blockade whether it continues or is relaxed, it is not unnatural that they should send their ships conjecturally, upon the expectation of finding the blockade broken up, after it had existed for a considerable time. A very great disadvantage indeed would be imposed upon them if they were bound rigidly by the rule, which justly obtains in Europe, that the blockade must be conceived to exist, till the revocation of it is actually notified. For, if this rule is rigidly applied, the effect of the blockade would last two months longer upon them than on the trading nations of Europe, by whom intelligence is received almost as soon as it is issued." It may, however, be doubled whether, in case of another war, American vessels would be treated with less severity than vessels of other countries, on account of the facilities of communication afforded by steam navigation, which in those days was unknown. And the ocean telegraph, if it continues to exist, will entirely do away with the distinction existing between American vessels and those of any other country; except so far as the same is regulated by treatics.

When a European port is blockaded, European vessels are not allowed to sail to that port with the intention of not entering if it is not blockaded. The Spes, and The Irene, 5 Rob. Adm. 76; The Posten, 1 Rob. Adm. 335, note. By the treaty of 1794, between Great Britain and the United States, provision was made for the inconveniences resulting from the distance between the two countries. Thus the eighteenth article declares that, "Whereas it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is either beiseged, blockaded, or invested; it is agreed that every vessel so circumstances, may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper." See Fitzsimmons v. Newport Ins. Co. 4 Cranch, 185.

forc, _may_ do this. But we should doubt whether a ship would have a right to insist upon carrying a cargo to a blockaded port for such a purpose, or whether a shipper could insist that his cargo should be carried, unless the facts were such as showed clearly that the blockade would continue only for a short time, and that the sailing on such a voyage for such a purpose was clearly reasonable and prudent.

These remarks apply to the case where the blockade becomes known after the contract of affepithment is made. If the parties, knowing the blockade, choose to agree that the ship shall go to the port, or near it, and wait for the opportunity of going in, they may hold each other to the contract, for it is not illegal in itself.1 And although no ship is bound to enter a port actually blockaded, but is indeed bound not to enter it, yet if war breaks out between other countries, which renders the prosecution of the voyage more or less dangerous, this danger, in general, neither dissolves nor suspends the contract.2 Perhaps it would have that effect if it became imminent and extreme, so as to make the execution of the contract involve the certain, or even the probable, loss of ship and cargo.

Footnote 1: Thus _Tindal_, C. J., in Medeiros v. Hill, & Bing. 231, said: " The contracting parties must be taken to have entered into the charter-party with an equal knowledge of its existence; no difficulty, therefore, attending the performance of the contract can be set up as an excuse for its non-performance. In that case the rule of law laid down in Paradine v. Jane, Aleyn, 26, applies, namely, 'That when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." See also, Naylor v. Taylor, 9 B. & C. 718.

- Avery v. Bowden, 5 Ellis & B. 714, 38 Eng. L. & Eq. 133. In this case a charter-party was entered into between two British subjects, by which the ship was to proceed to Constantinople, and thence to Odessa, where she was to take in a cargo at a stipulated rate of freight, and bring the same home. "In case of war having commenced previous to and continuing on the ship's arrival at Constantinople," the charter was to load the ship at that port a reduced rate of freight. It was held that this clause meant such a war as would render the voyage of an English ship from Constantinople to Odessa unlawful, and which, without the clause, would have dissolved the contract; and that the plaintiff was not entitled therefore to a cargo at Constantinople, though a war between Turkey and Russia had broken out previous to, and continued after the arrival of the vessel at that port. Affirmed, 6 Ellis & B. 953, 48 Eng. L. & Eq. 130.

If a ship and cargo be captured, and afterwards restored to the master and owner, such capture merely suspends the contract; unless the length of the detention, or other circumstances
GL. VIII.\] DISSOLUTION OF A CHARTTER-PARTT. 281

connected with it, caused the voyage to be broken up without the fault of either party; for this would be considered an actual dissolution of the contract.1 The charter-party generally provides that the owners will not be responsible for a loss arising from the perils of the seas, and it has been held that they would not be liable for such a loss, were the clause omitted.3 And the plaintiff is not obliged to negative the exception in his declaration, but the defendant, if he wishes to avail himself of it, must plead it.3 It is sometimes provided that the 282 ON THE LAW OF SHIPPING. \[BOOK I\]

voyage shall terminate on the vessel's entering a certain port, and what constitutes such entry depends in a great measure on the intention of the parties, and is a question for the jury in every case.1

Footnote 1: In Goddard _v._ Bulow, 1 Not & McC. 45, the charter-party stipulated that the captain was to proceed directly on his voyage to the port of Lisbon, but if Lisbon was in possession of the French, then the vessel was to proceed to Fayal and there discharge her cargo, and no additional freight was to be paid, but if the freighters ordered the vessel to Fayal when she could discharge her cargo at Lisbon, then additional freight was to be paid. At the bottom of the charter-party was the following note : " I if clearly understood and agreed to by the parties that if the said ship _enters_ the port of Lisbon, she shall there discharge her cargo and the voyage end and determine."

Held that the superexorg was justified in going to Lisbon to obtain the information necessary to enable him to exercise his discretion, and that it was a question for the jury whether he entered for the purpose of terminating the voyage or discharging the cargo, or whether it was for the purpose of information.

- In Crow _v._ Falk, 8 Q. B. 467, it was agreed by charter-party that a ship then at Liverpool should be got ready, and should receive and load from the charterter's agents a full cargo, and being so loaded should proceed to Stettin, and deliver the same and so end the voyage, restraints of princes, etc., during the said voyage always mutually excepted. Held, that the exception as to restraints of princes, etc., was applicable only after the ship quitted Liverpool. But in the subsequent case of Bruce _v._ Nicola-opulo, 11 Exch. 129, 32 Eng. L. & Eq. 609, the charter-party provided that the vessel after discharging her outward cargo for the owner's benefit, was to proceed to Galats, or Ibraila, as ordered at Constantinople, or Sulina, by the charterter's agents, and there load a cargo of corn, and therewith proceed homewards and discharge at a port in the United Kingdom, and so end the voyage, restraints of princes and rulers, the danger of the seas, etc., during the said voyage excepted. Held that the voyage commenced from the period of the discharge of the outward cargo, and a plea that the vessel while at Ibraila was prevented from loading by the ruler of the country wherein Ibraila is situated was held good. _Pollock_, C. B., said : " If the facts in Crow _v._ Falk be correctly stated in the report, I cannot subscribe to that case." _Martin_, B., " Assuming the case of Crow _v._ Falk to be good law, I am of opinion that this case is distinguishable from it. Here the vessel, after discharging her outward cargo, was to proceed to Galatz or Ibraila, as ordered by the charterter's agents, and I am of opinion that the particular voyage commenced at that time, and, consequently, that the exception as to the restraint of princes and rulers existed from the time of the discharge of the outward-bound cargo, until the completion of the voyage at a port in the United Kingdom." But see Hurst _v._ Usborne, 18 C. B. 144, 36 Eng. L. &. Eq. 99, 303.

Many questions have arisen in respect to stipulations in charter-parties concerning the "sailing " of the vessel, or her " departure " from a certain place. We shall treat of the meaning of these phrases in the second volume, as they most frequently occur in contracts of insurance. Where a risk is excepted " during the voyage," it would seem that the exception is effective only while the ship is out of port, and is not in force during the loading.2 If it is stipulated that a vessel shall proceed to a GL. VIII.\] DISOLUTION OF A CHARTER-PARTY. 283

place " with all convenient speed," this means that she shall proceed there in a reasonable time, and evidence that she did not arrive till after the expiration of the season for exporting the articles she was to have carried, is inadmissible to show whether she arrived in a reasonable time.1 Where goods were shipped to any port or ports on the continent with permission to take them to England in case all the ports on the continent should be _shut_, it was held that the word _shut_ meant an occlusion by the municipal authorities of the country, and that the jury could not determine whether or not it was expedient to land the goods on the continent.2

If the charter-party contains a clause whereby the goods and vessel are respectively bound in a penal sum, it has been held that such penalty is merely in addition to any other remedy provided for in the covenants, and not a limitation of the liability of the parties.3

Footnote 1: Harst _v._ Usporne, 18 C. B. 144, 36 Eng. L. & Eq. 299, 303.

Footnote 2: Macier _v._ Wirgman, 4 Harris & J. 568.

Footnote 3: Knight _v._ Cargo of Bark Salem, U. S. D. C., Mass., 20 Law Reporter, 669, in accordance with the common law doctrine as laid down in Harrison _v._ Wright, 13 East, 343. But this point was decided the other way in an early case. Campbell v. Ship Alknomac, Bee, Adm. 124, 127.

284 ON THE LAW OF SHIPPING. \[BOOK L\]

CHAPTER IX.

ON GENERAL AVERAGE.

SECTION L

OF THE ORIGIN AND FOUNDATION OF THE LAW OF GENERAL AVERAGE

GENERAL average, particular average, and partial loss, are all of them phrases in common use, and their meanings should be carefully discriminated. A general average loss is one which is made to fall upon all the interests at risk and saved by being averaged upon all. Partial loss, is a loss of a part which does not give rise to any claim for contribution, but rests where it falls. Particular average is used generally, as synonymous with partial loss, and instead of that phrase. But this, we think, is not quite accurate. First, because a partial loss is precisely a loss which gives rise to no average at all, and the phrase should not be used, because there is no element of an average in a partial loss.1 And secondly, because there may be such a thing as a CHIX.\] ORIGIN AND FOUNDATION OF GENERAL AVERAGE. 285

particular average. For this would occur, when there is a peril involving certain interests or property, but not all, and a part of the property is sacrificed to save the rest that is in peril, and all of what is saved of the imperilled part of the property, should contribute by way of average. Such a case as this is certainly not improbable, and although it might be called a case of general average limited to the things in peril, the term particular average might be applied to it far more correctly than to a partial loss.1

de Jure Maritimo, lib. IL. ch. viil. { 1 ; Molloy, Book II. ch. vi. { 4 ; Millar on Ins. 334; President on Ins. 25 ; Marshall on Ins. 334; Stevens & Benecke on Average, by Phillips, pp. 56, 96. But, admitting that _average_ means _damage_, we are unable to see why particular average and partial loss should be synonymous terms, any more than _general average_ and _total loss_. 16

Footnote 16: See Whitteridge v. Norris & Mass. 125. In this case a vessel, while proceeding up the river Hoogly, struck the ground, and being expected to blige, the boats were hoisted out and some keggs of dollars were put into the long boat, together with some provisions and clothing. The boat being overladen it was necessary to throw six of the keggs overboard, among which was one belonging to the plaintiff. The boat and the rest of the keggs reached the shore in safety. The vessel was also saved with the remaining cargo. The plaintiff sought to charge the ship and cargo generally for a general average contribution, or, if this should not be allowed, then the articles saved in the long boat. The court held that the ship and cargo were not liable, because the goods were not put in the boats with the intention of saving the ship or the remaining cargo. In regard to the other point the court said : "As to the few articles of the cargo which were brought to the shore in the long boat, these were preserved at the expense of the plaintiff in some measure. But it is to be considered, that the goods aired in the long boat, and the goods lost in the jetlison from it, were thus exposed together, in consequence of a previous peril, and for the purpose of saving what could be saved, without any concern or mutual design of the parties interested. There was no engagement, or common benefit intended, from which the rights and duties of the respective owners can be inferred. The passengers, as the people in the long boat may be called, were justified in lightening the boat, upon which they depended for the safety of their lives. (Mouse's case, 15 Cole, 63.) The goods thrown out, for every purpose of this inquiry, and as to the rights and duties of the particular owners or freighters, were in no other situation than that of the goods left in the ship. If the ship had perished, the event had been precisely the same. If the goods lost in the jetlison from the long boat had been left in the ship, the danger from overloading the boat would not have been incurred ; and the eventful safety of the ship, and the loss of the plaintiff's leg of dollars, in attempting to save them, without any regard to the safety of the ship, or of the other effects taken together into the long boat, afford no case of contribution or average." This reasoning does not seem to us to be altogether satisfactory. If the suggestion, thrown out on the authority of Mouse's case, be followed, there can be no such thing as general average. In regard to the other branch of the argument that the boat would not have been overloaded if the goods, which were jetlisoned, had not been put on board, we have only to say, that it was not shown which goods were put in the boat first, and consequently the goods saved might have 286 ON THE LAW OF SHIPPING. \[BOOK L\]

The law of general average rests upon reasons which are so obvious, and so certainly just, that it is not surprising to find that it is older than any other law or rule now in force. We have already seen that it was found in the code of Rhodes; and is, indeed, probably, the only part of that code which has been certainly preserved.1 And it owes this distinction to the fact that it was incorporated into the Roman civil law.2 We have seen that by this provision, property jettisoned to save other property, was contributed for by the property saved. This is the foundation of the law of general average; and all beside this consists only of the rules which have been devised to carry this principle into its proper effect, in the great variety of cases, and through the many consequences, which belong to its application.

Footnote 1: See an, p. 6.

Footnote 2: Dig. 14, 2. Probably the earliest English case on the subject is Hicks v. Dalington, 32 Eliz., F. Moore, 297. It must have been introduced into English jurisprudence at a very early date, for in 1985, Edward L sent to the Cinque Ports letters patent declaring what goods were liable to contribution. See 1 Rymer Federa, 3d ed. p. 340.

The justice of the rule is perfectly obvious at first sight. Indeed, any attempt to illustrate the j Office of requiring that property which has been saved by the sacrifice of other property for that purpose, should compensate the holder of the property sacrificed, would only obscure what must be perfectly manifest at the first intuition. But all the reasons for the rule are not so obvious. There are many and of much weight, drawn from expediency, in addition to those whfch may be said to have a moral origin and aspect.

Let us suppose a ship laboring in a tempest and threatened with wreck. It is necessary to lighten her, and if that be done there is a probability that she will escape with the remainder of her cargo. The question would arise at once, whose property shall be sacrificed ? Most probably, in such an emergency, the \[GL IX.\] ORIGIN AND FOUNDATION OF GENERAL AVERAGE. 287 goods which could be most easily reached, would be thrown over; or those which, having the most weight in the least bulk, would most effectually and speedily relieve the ship. This might always be expected, and might perhaps become the rule. And the inconvenience and embarrassment which would ensue are obvious. At the lading of the ship, the different shippers would be contending each to place his goods as far as possible from this mischance. And it might be that the master or officers would be paid by one or another to save his property in case of peril; or the master, whether innocent or not, might often be suspected of unfair selection. To prevent every thing of this kind effectually, the rule of general average contribution is always applied ; and also to equalize the loss and spread it over a wide surface, which is another result that the law-merchant desires. The effect of this rule is, that whatever is sacrificed, becomes by being sacrificed, the property, and the loss, equally, of all who are benefited by it. And in order that this rule should have this effect, it is obvious that it must be so applied, that if A's goods are jettisoned and B's saved, A shall lose as much and save as much, and B'shall lose as much and save as much, as if B's goods had been jettisoned and A's saved. It follows from this that the owner of the goods sacrificed is not repaid their full value, for then he would be in a better position than they who pay him. But he must be paid so much only as will leave his proportion of loss the same as theirs.1 Thus if a ship be worth $20,000, the freight, $10,000, the cargo, $70,000, of which A owns $30,000, B $20,000, and C $20,000. There is a jettison of A's goods to the amount of $10,000, which saves all the rest. To ascertain the amount due to him from the other parties, first, the whole property at risk and saved by the jettison is added together, and in the above case it amounts to $100,000. The amount lost is ten per cent. of this. Therefore everybody must lose ten per cent. The ship pays A $2,000, the freight pays him $1,000, B' pays him $2,000, C pays him $2,000; and these payments amount to $7,000, and he thus remains a loser of $3,000, which is ten per cent. on his property, or the same percentage which the others lose by their contributions to him. A case so simple as this seldom occurs in practice; but all cases are settled upon this principle, for the obvious reason that no other would divide the whole loss notably among all those who should sustain it.

From what we have already said, it may be seen that there are three essentials, without all of which there can be no claim for general average. First, the sacrifice must be voluntary; second, it must be necessary; third, it must be successful. Or, as it is sometimes put, there must be a common danger, a voluntary loss, and a saving of the imperilled property by that loss.1

Footnote 1: Barnard v. Adams, 10 How. 270, 303; Nunick v. Holmes, 25 Penn. State, 366. In Barnard v. Adams, Mr. Justice Grier said: "In order to, constitute a case for general average, three things must concur: 1st, A common danger; a danger in which ship, cargo, and crew all participate; a danger imminent and apparently 'ineviable,' except by voluntarily incurring the loss of a portion of the whole to save the remainder. 2d. There must be a voluntary jettison, _jacus_, or casting away, of some portion of the joint concern for the purpose of avoiding this imminent peril, _porculi imminentis eviandi causa_, or, in other words, a transfer of the peril from the whole to a particular portion of the whole. 3d. This attempt to avoid the imminent common peril must be successful." See also, Sturgess v. Cary, 2 Cartis, C. C. 59, 66.

## Section II

That there must be a Voluntary SACRIFIC OF PROPERTT FOR THE BENNET OF THE PROPERTT.

If the sacrifice or loss be not voluntary, the very foundation of the claim is taken away, as that is the right which he, who inflicts upon himself a loss for the benefit of another, has to compensation. It must be necessary, or justified by reasonable cause, for, if it be not, it is only the wanton destruction of property by those who are in charge of it, and they or their employers must respond to the full value of what is lost. It must be successful, for if it does not save other property or interests, there is, in the first place, no sacrifice, as it may be presumed that the property jettisoned would have been lost with the rest; and, in the next place, if no one is benefited by the sacrifice, no CH. IX.\] VOLUNTARY SACRIFIC OF PROPERTT. 289

one can be called on to contribute a portion of what was saved for him, in order to make the loss equal. These three essentials we shall now consider separately.

In the first place there must be a voluntary sacrifice.

The most usual form of this is a jettison of cargo to lighten the ship. There are, however, many others. If the masts are cut away to relieve the ship, and with the sails and rigging are lost, this is a kind of jettison of them.1 So, if a boat is cut away from the davits; but if it was its position on the stern or side davits which incumbered the ship, and made it necessary to cut it adrift, and it should not have been in this position, this loss gives no claim, for although voluntary in one sense, yet it arose from the fault of the ship-owner or master. This has been a somewhat disputed question; but a ship must have its boats, and they must be somewhere, and if they are where they ought to be and are then cast off to relieve the ship, the case is precisely the same on principle as if the masts were cut away.2 So, too, the loss of the anchor and cable, or either, by cutting the cable to avoid impending peril, gives a claim for contribution.3

Footnote 1: \*\*Walker $v$. United States Ins. Co. 11 S. & R. 61; Sims $v$. Gurney, 4 Binn. 513, 525; Potter $v$. Providence Washington Ins. Co. 4 Mason, 298; Greely $v$. Tremont Ins. Co. 9 Cash. 415. See also, Scudder $v$. Bradford, 14 Pick. 13. If the masts are on fire and are cut away to save the ship and cargo, assuming that they are of value at the time they are cut, and the vessel is thereby saved, is this a case of contribution ? This question was raised but not decided in the case of Leo $v$. Grinnell, 5 Duer, 400, 411. The reasons why they should not be contributed for are thus stated by Mr. Justice _Dur: "_ The cutting away, so far from being a sacrifice of the masts and spars, was a measure for their preservation. So far from destroying any value which they then had, it was the only means by which any part of their original value could be restored and, asted."

Footnote 2: **Benedce $&$ Stevens on Ar. (Phillips' ed.), p. 67, 369; Lenox $v$. United Ins. Co. 3 Johns. Cas. 178; Hall $v$. Ocean Ins. Co. 21 Pick. 472.**

Footnote 3: **Walker $v$. United States Ins. Co. 11 S. & R. 61. In Birkley $v$. Presgrave, 1 East, 220, the vessel, while entering Sanderland harbor, was struck by a squall, which prevented her from proceeding further ; and the small bowel anchor was let go to bring her up. The vessel was then allowed to run along-side of a pier, and was fastened to it by the proper ropes, which were usually employed for that service. The master, seeing another ship drifting towards his own, and being apprehensive, that, if she struck, the ropes already used would not be sufficient to hold his vessel, cut the cable from the best bower anchor, and, while fastening his vessel to the wharf, with the cable so cut off, the other ship struck his, the ropes broke, and if there had been a moment's delay in thus using the cable the ship would have gone adrift, and probably struck on a bar, and have foundered. As it was, the cable saved her. It was held, that the damage VOL. L.** 290 ON THE LAW OF SHIPPING. \[BOOK L\]

If the vessel was obliged to anchor in an unusually dangerous place, to avoid a worse danger, or upon a rocky bottom which threatened to chafe or cut the cable, or catch and break the anchor, and in this way either or both were lost, it might be a difficult question -- of fact, however, rather than law -- whether this was an average loss. The question would be, was it a voluntary sacrifice, or only an exposure to one of those sea perils which the ship must encounter whenever they occur, and which would bring this loss rather within the description of loss by wear and tear, than of voluntary sacrifice. It is obvious that this must depend on the circumstances of the case. We should say, however, that a loss of this kind should not be considered as voluntary, and, therefore, should not be regarded as an average loss, unless the anchoring in that place or way was unusual and unnecessary, except for the purpose of saving the cargo from some peculiar peril, and, but for this purpose, would not have been done.1

So, if the bulwarks or stanchions or bulkheads or decks of the ship are cut away for the purpose of saving the goods, this would be an average loss,2 unless, the ship being ultimately lost, nothing additional was lost by the previous injury, or unless this injury was made necessary by the fault of the ship or. of the lading.

Footnote 1: A case of this kind is mentioned by Mr. Phillips, in his Treatise on Insurance (vol. 2, 1 285), as having been decided by referees in Boston, be being one of them. "A vessel lying in Funchal Bonds was driven in a gale, and dragged her anchor nearly a mile, until she brought up, at a short distance from a rocky shore. After the gale had abated in some degree, but while it still continued with very considerable violence, the sea, at the same time, setting towards the shore, the master attempted to raise the anchor for the purpose of removing to a more safe anchoring ground. It was, however, found to be impracticable to raise it, and to avoid the danger of the situation, -- since, in case of the anchor's dragging, or the cable's parting, the vessel would have gone upon the rocks, -- be cut his cable. The loss of the cable and anchor was considered to be the subject of contribution, and the whole value allowed, because it was thought that in favorable weather, when the vessel could, without any immediate danger, have remained in her situation, the anchor might have been recovered."

${}^{$}$ Dig. 14, 2, 3, 3; Nelson $v$. Belmont, 5 Duer, 310.

CL IX.\] VOLUNTAY SACRIFIC OF PROPERTY. 291

standing of a ship. But we cannot see why the law on this subject is not entirely plain and certain, although it may be difficult to apply it accurately in many cases.

We should state the rule of law thus : If a ship must inevitably be cast upon a shore, and all that the master does is to select a place, a time, and a mode of stranding, this is not a voluntary sacrifice, and, therefore, not an average loss. But if the master has a substantial and valuable chance of saving his ship, although this chance may not amount to a probability, and voluntarily throws this chance away in order to make sure of saving his cargo, the cargo must contribute to repay the loss. We cannot doubt that this must be the rule, although, as we have said, it may often be difficult to know on which side of the rule a case falls.1

Footnote 1: The two questions, which have given rise to the most discussion, when a claim for average has been made, for the benefit of a ship, which has been voluntarily stranded, are, list. What is to be considered as a voluntary stranding ! and, 2d. Do the ship-owners have a claim for average, if, by the voluntary stranding, the vessel is totally lost ! The earliest case on the first point is Sims v. Gurney, 4 Binn. 513. The vessel would have gone ashor at any rate, and probably on a certain part of the coast. The master directed her course to another place, which was in no degree better calculated either for the safety of the ship, or of the cargo. Yet this was held to be a case for a general average contribution. The correctness of the doctrine laid down in this case we feel compelled to doubt. We are unable to see, if no advantage is to be derived from an act, how it can be said to be done for the benefit of any of the parties interested. It is true, that Mr. Justice _Grier_, in Barnard v. Adams, 10 How. 270, 302, speaks of this case, among others, as having received the "unqualified ascent," and the "unanimous approval," of the Supreme Court of the United States, yet it is evident that it is to be considered as confirmed only for as the _facts_ of the case in the Supreme Court rendered is an authority. And we shall see that it goes far beyond even Barnard v. Adams. In Col. Ins. Co. v. Ashby, 13 Pet. 381, the jury found that the stranding was voluntary, and the point in question was not discussed by the court. Yet this case is often cited as one in which the court held, on the facts, that there was a voluntary stranding. In Mech e. Robinson, 4 Vhart, 360, the vessel must have gone ashor at any rate, and would inevitably have been lost, together with the crew and cargo. She was run ashore in a less dangerous place, and was totally lost, but the lives of the crew, together with a portion of the cargo, were saved. It was held, that this was not a case for a general average contribution. Walker v. United States Ins. Co. 11 S. & R. 61, has been supposed to confirm this case, but the distinction between them is very obvious. In this latter case the court held, as a matter of fact, that when the captain slipped his cables, it did not appear that it was his intention to run his vessel adhere, but rather to get her out to sea, and, failing in this, he was driven on shore against his will. Mech e. Robinson has, however, been overruled by Barnard v. Adams. In this case the vessel was drifting, in a gale, towards a rocky and dangerous part of the coast, on which, if she had struck, she must inevitably have perished, together with the crew and cargo. To avoid this peil, she was steered along the coast and finally run on a beach, and all the cargo saved. This was held to be a case of general average contribution. The vessel was not destroyed, but she was so high on the beach that it would have cost more to have got her off than she would have been worth when off. A somewhat similar case came before the Circuit Court for the First Circuit in 1854. Sturges $v$. Cary, 2 Cartis, C. C. 59. The vessel was at anchor, but in imminent danger of going to pieces by being driven on a rocky shore, by the violence of the wind and sea. To save the cargo and the lives of the crew, she was run on a beach. Contrary to expectation the vessel was not lost, but was subsequently got off and repaired. For the expenses thereby incurred, the owners of the cargo were held liable to contribute. See also, Reynolds $v$. Ocean Ins. Co. 22 Pick. 191, 197. Let us now pass to the consideration of the second question, whether there is to be contribution if the vessel is, by the stranding, totally lost. On this point there is a slight conflict of authorities, but the law may now be considered as well settled. Emergion, ch. xil. 4 xil. (Meredith's ed. 475), states the law as follows : "Damages occasioned by stranding are particular averages for account of the owners. But it would be general average if the stranding had been voluntarily effected for the common safety, as we have seen above, provided always, that the vessel has been set atfloat again ; _for if the stranding is followed by a shipw it is cause gui pent._" The question first arose in this country in an early Virginia case, Eppes $v$. Tucker, 4 Call, 346, decided in 1790, in which it was held, that if the ship was lost by the stranding, there could be no contribution. And in the case of Bradhurst $v$. Col. Ins. Co. 9 Johns. 9, it was held, under similar circumstances, that no contribution was due. A contrary decision was given by Mr. Justice Washington, in Case $v$. Reilly, 3 Wash. C. C. 298. In this case a vessel was voluntarily run ashoro to escape capture from a British frigit. It was held, that the goods saved should contribute. In Col. Ins. Co. $v$. Ashby, 13 Pet. 331, the whole subject was elaborately investigated by Mr. Justice Story, and the authorities critically reviewed. He held, in accordance with what may now be considered as the settled doctrine, that the ultimate loss of the ship made no difference in regard to the liability of the owners of the cargo to contribute. See also, Gray $v$. Waln, 2 S. & R. 229; Mut. Safety Ins. Co. $v$. Cargo of the Brig George, Oleot, Adm. 89; Barnard $v$. Adams, 10 How. 270. Bradhurst $v$. Col. Ins. Co., spro, is, however, supported to some extent by a recent case in New York. Marshall $v$. Garner, 6 Barb. 394. The case of Culler $v$. Rao, Ms., which was an action for contribution brought by the owners of the vessel against the owners of the cargo, was decided in favor of the libellant in the District and Circuit Courts for the District of Massachusetts. The case was then taken on appeal to the Supreme Court of the United States, and dismissed for want of jurisdiction. 7 How. 729. A suit was then commenced in the Supreme Court of Massachusetts, which was decided in favor of the defendants. No opinion was given in court, and the case is not yet reported, but we understand that it was decided on the ground that the stranding was not voluntary. The facts of the case were substantially as follows : The barouq Zamora was at anchor in Massachusetts by near Plymouth, in a violent gale of wind, with a high rocky coast under her loe. The anchors would not hold, and the vessel was being forced, stern foremost, towards a projecting rocky points, where the vessel and all on board must have perished. The captain made sail, slipped the cables, and endeavored to run along shore till he could find a safe place on which he might beach the vessel. While

\*\*But beside the direct expense of repairs, there is the expense of paying and maintaining the crew while they are being made, and while the ship is seeking the port where they may be made. In France the authorities are conflicting,1 and there is some difference between the law of England and of this country, upon this subject. In England, the tendency of authority would seem to be against bringing the wages and provisions into general average, unless the repairs were made necessary by a loss which was itself an average loss. Thus, if a mast were cut away to save ship and cargo, and the ship thereupon changed her course and sought a port of repair, the wages and provisions from the time she changed her course, would be considered as a part of the sacrifice made by cutting the mast away. But if the same mast were blown away, and under the same necessity, and for the same purpose, the ship sought the same port for repair, the wages and provisions during the voyage to the port, and while the repair was going on, would be classed with the loss of the mast, and the whole of it be considered as falling on the ship alone.2 But if the crew are discharged, and are then to perform the voyage, and she was afterwards completely repaired at the end of the voyage. The expenses of repairs which were made abroad, which were strictly necessary to enable the ship to perform her voyage, were placed to the account of general average. _Boylay_, J., doubted whether the repair of any particular damage could be placed to the account of general average, inasmuch as it is a benefit done to the ship. The court considered those repairs only under the account of general average, which were absolutely necessary for the enabling of the ship to pursue her voyage; and all beyond were to be set down to the account of the ship. Therefore, deducing the benefit, if there be any, which still results to the ship from the repair, the rest may be placed to the account of general average." In Hassan v. St. Louis Perpet. Ins. Co. 7 La. Ann. 11, the vessel was injured by a storm, and put into a port for repairs. It was agreed that the voyage could not have been completed without the repairs, that the cargo could only have been sold at a great sacrifice, and that no means of transshipping and sending it on presented themselves, yet the court held that the expenses thus necessarily incurred were not the subject of general average. See also, Sparks r. Kittedge, U. S. D. C., Mass., 9 Lev Reporter, 518, and post, 5, 1.

1 \*\*Emerigon, c. xil., s. xil. 4 5, Mercedith's ed. 480, and Pardessas, art. 741, vol. 3, p. 228, contend that expenses attending the delay, such as wages and provisions, are subjects of general average contribution. On the other hand, Lemonnier, who has critically examined the subject, is of the opinion that these expenses are not to be contributed for. Lemonnier, Ass. Maritime, vol. 2, p. 107, 113, Paris, 1843. In this he is supported by Boulay Paty. These authorities, however, admit that if the going into port was caused by a general average loss, the expenses there incurred are to be contributed for. * The two leading cases on this subject in England are Plummer v. Widman, 3 M.

CH. IX.\]VOLNTARY SACRIPICE OF PROERTY. 295

hired as common laborers, their wages are the subject of a general average contribution.1

Footnote 1: Da Costa v. Newnham, 2 T. R. 407.

In this country, however, it seems to be settled that whether the loss itself which makes the repair necessary, be an average loss or a partial loss, that is, in the case just supposed, whether the mast were cut away or blown away, it is equally for the benefit of all the interests, that is, of the ship, the cargo, and the & S. 489, and Power v. Whitmore, 4 M. & S. 141. In the first case, the ship while on a voyage was run into by a big, which was unavoidably driven against her by the violence of the wind and weather. By the collision her false stem and knees were broken, and the master was obliged to cut away part of the rigging of the bowsprit, and to return to port for repairs. A claim for contribution in general average was made and allowed for the expenses incurred for pilotage into port; for surveying and ascertaining the damage, and repairing the same; for the materials used; for the smith's and carpenter's work; for wharfage and cooperage, on landing and stowing the goods during the repairs, and for reloading them, but a claim for the master's expenses during the time of the repairs, and for crimago to replace descorting during the same time, was not allowed. The question in regard to the wages of the crew was not raised. In Power v. Whitmore, 4 M. & S. 141, the court held that where a ship sustained damage in a tempest, and put into a port to repair, neither the expense of the repairs, nor the wages and provisions of the crew, during the delay consequent thereon, were a subject for general average. These two cases appear to be diametrically opposed to each other. The language of Lord _Ellenborough_ in the first case is as follows: " If the return to port was necessary for the general safety of the whole concern, it seems that the expenses unavoidably incurred by such necessity, may be considered as the subject of general average. It is not so much a question whether the first cause of the damage was owing to this or that accident, to the violence of the elements, or the collision of another ship, as whether the effect produced was such as to incapacitate the ship without endangering the whole concern, from further prosecuting her vorage, unless the returned to port and removed the impediment." In Power v. Whitmore, Lord _Ellenborough_ distinguished the two cases, on the ground that in the former the master was compelled to cut away the rigging in order to preserve the ship, and afterwards put into port to repair that which he sacrificed. And in a recent case in England, Halletu v. Wigram, 9 C. B. 880, there is a dictum to the effect that if the injury which led the vessel to seek a port of refuge was itself a subject for general average, then, the wages and provisions of the crew, and other expenses during the detention, are to be contributed for in general average, but otherwise, not. It is however questionable whether this distinction really exists between the two cases, notwithstanding the language of Lord _Ellenborough_ as reported in Power v. Whitmore. In the first place, though the master cut away the rigging, it does not appear that he did it for the safety of the ship. It was not made a charge upon the cargo, and _Hiroyd_, _argened_, expressly says that there was no proof that the cutting away of the rigging was necessary for the preservation of the ship. And, in the second place, admitting that it was necessary, still the other damage was caused by the collision, and the repairs, made necessary by this peril, should not, if the distinction be correct, have been contributed for: See also De Vaux v. Salvador, 4 A. & E. 420.

296 ON THE LAW OF SHIPPING. \[B00K L\]

freight, that the ship should go where she can be repaired and enabled to prosecute her voyage. And therefore the wages and provisions are regarded as an average loss, from the time the ship leaves her proper course, until the repairs are made, and she is again pursuing that course; although the direct cost of the repairs themselves may rest on the ship alone as a partial loss.1

1 Walden v. Le Roy, 2 Caines, 263; Thornton v. U. S. Ins. Co. 3 Fairf. 130; Henshaw v. Mar. Ins. Co. 2 Caines, 274; Padelford v. Boardman, 4 Mass. 548; Banker v. Phenix Ins. Co. 8 Johns. 307, 318; Potter v. Ocean Ins. Co. 3 Sumner, 37; Shelton v. Brig Mary, U. S. D. C, Mass., 5 Law Reporter, 75; Hanse v. N. O. Mar. & Jr. Ins. Co. 10 La. 1. See also, Ross v. The Ship Active, 2 Wash. C. C. 204; Bixby v. Franklin Ins. Co. 8 Pick, 80 more fallfy reported, 8 Sumner, 46, note. In Giles v. Eagle Ins. Co. 2 Met. 140, it was held that if a ship went ashore in a storm, and was got off and repaired, the wages and provisions of the crow during the time of the repairs were not a subject of general average contribution. The case was decided on the authority of the English decisions, and Mr. Philips says it seems to be in direct conflict with our settled doctrine and practice. 2 Phil. Ins. 4 1829. We think, however, that the decision is correct, though it does not seem to proceed on what may be called the American doctrine. It is to be observed that the repairs were furnished at the port where the disaster happened. There was therefore no deliberate and voluntary resort to the port for the purpose of retiting, and the case therefore comes within the exception pointed out by Mr. Justice _Scaulli_ in Padelford, p. Boardman, 4 Mass. 548, 552. See also, Spofford v. Dodge, 14 Mass. 66, 74. The answer to this will probably be that since the court allowed the wages of the other persons hired to get the vessel off, this showed that the expense was considered as a general average one. This is owing to a confusion of the phrase "general average." Such an exposure was not strictly speaking a general average expense, there being no voluntary action, but the expense having been incurred in consequence of a direct pell of the sea, a liability was thereby imposed upon the interests benefited, somewhat similar in its nature to a general average. Although this distinction may appear somewhat hypercritical, yet it seems to us to be the only one by which the authorities can be reconciled, and, moreover, it is fully justified by the language of the court in Greek, p. The mont Ins. Co. 9 Cash. 415, 441. In Garam v. Ginn. Ins. Co. 6 Ohio, 71, it was held that where a vessel, insured on a time policy, was stranded on a rock, the wages of the crew during the detection were not the subject of a general average contribution, the crew being retained under their original agreement. But where a vessel was purposely ran ashore, in order to save the cargo, it was held that the wages of the crew while employed in harboring for the joint benefit of the adventure, were a proper charge in general average. Barnard v. Adams, 10 How. 270.

In South Carolina the English rule is adopted. Union Bank of South Carolina v. Union Ins. Co. Dudley, S. C. 171. It is true that the policy referred to the wages of London as the standard by which the liabilities of the company were to be ascertained; but it was stated that the custom as to wages was the same in the city of Charleston. In Wightman v. Macadam, 2 Brev, 230, the vessel, while on a voyage from Havana to Charleston, put into Savannah. The goods were delivered to the owner on payment of _pro rata_ freight. Held that he was not obliged to pay for the wages and provisions while there, but only for attendance on the vessel while coming into port, for pliotags, CR. IX.\] VOLUNARY SACHIFIC OF PROPERTT. 297

And the other expenses of getting a ship into port after meeting with a peril, are to be contributed for in general average.1

Footnote 1: 2 Phillips on Ins. $\\sharp$ 1288; Benecke & Stevens on Average (Phillips' ed.), 183; Marshall'on Ins. 538.

So, if it be necessary to take out the goods in lighters, to relieve the ship, and save ship and cargo from peril, this expense must be averaged.2 In one case, where a ship was stranded near her port of delivery, and lighters were sent which took out her cargo and carried it into port, the vessel never being got off, it was held that the expense of lightrage was an average loss, to which the cargo should contribute.3 We can understand this case, however, only on the supposition (which a part of the statement indicates) that the lighters were considered as sent by all the parties, by agreement, for the common benefit, and therefore that the expense was incurred by all. On general grounds, we should have said that the ship had earned her whole freight by conveying the cargo to its destination, and must herself pay, or deduct from the freight the expense of the lighters in which it was earned.4

Footnote 1: In Lewis $v$. Williams, 1 Hall, 430, 444, the court said that this was strictly a case of salvage, and not _co_ _nonline_ an average loss.

Footnote 2: Lewis $v$. Williams, 1 Hall, 430. See also, 1 Mag. 160, Case ix. Goods were taken out of a vessel which had sprung a leak at sea, and put on board other vessels that the leak might be discovered, and stopped. In consequence of this she was enabled to prosecute and complete her voyage. The goods taken out were captured; and were contributed for in general average.

If the goods, which are taken out into lighters for the common benefit, are thereby, or while in the lighters, lost or injured, this generally constitutes an average loss;3 but if, after the cargo is partly taken out, the ship and the cargo in her are lost, and the goods in the lighters saved, they do not contribute for the property lost, for it was not lost for their benefit, nor as a consequence of any measures taken for their advantage.1

Footnote 1: In fact, cited by the learned author, and we are inclined to doubt whether it be correct on principle or on authority. Every writer on international law speaks of ransom .between bellegements as undoubtedly lawful, except when it is prohibited by statute. Mr. Justice _Sory_, in Maisonnaire v. Keating, 2 Gallis. 325, 338, said : "The very law of war prohibitis all commercial intercourse, and suspends all existing contracts between enemies ; _and the case of ransoms is almost the only exception, wiki has been admitted, from the general rule."_ See also, Chitty's Law of Nations, 90 ; 2 Azuni's Maritime Law of Europe, 313; 2 Molloy, c. vi. s. xili.; Polson and Horne, Law of Nations, 46 ; Wheaton's Elements of Inter. Law, 478 ; The Hoop, 1 Rob. Adm. 196, 201 ; Ricord _v._ Bettenham, 3 Barr. 1734. In this last case an action was sustained in England on a ransom bill given by the captain of an English vessel which had been captured by a French private. See also, Girard v. Ware, Pet. C. C. 142. This was a suit brought by the respondents, the libellants in the court below, for wages. The ship of the appellant, to which they belonged, was captured by the British within the capes of Delaware. She was afterwards ransomed by the owner and brought to Philadelphia. Hold, that the appellences were entitled to full wages, subject to a contribution on account of the ransom. In Maisonnaire v. Keating, 2 Gallis. 325, it was argued that a contract for a ransom made between a bellegement and a neutral, immediately after capture, was illegal, because every ransom supposed a vested right in the captors, and that this did not exist in respect to neutrals, on the ground that the captors had only a right to bring in for adjudication, and that neutral property was only liable to condemnion in case of delinquency, but it was held, by Mr. Justice _Sory_, that the right to take a ransom was not founded in a vested title, nor was it, strictly speaking, a repurchase of the captured property, but a relinquishment of all the interest and benefit, which the captors might acquire or consummate in the property by the regular adjudications of a prize tribunal, and that, therefore, the right to take a ransom existed from the moment of capture. See also, Welles v. Gray, 10 Mass. 42 ; Clarkson v. Bronix Ins. Co. 9 Johns. 1. If, therefore, a ransom is made for the benefit of all concerned, it is clearly a case of general average. Douglas v. Moody, 9 Mass. 548 ; Sansom v. Ball, 4 459. 1 45 Geo. III. c. 72, s. 16. See also, 2 Azuni on Maritime Law, Part II. ch. iv. art. vi. i 12. 2 Parsons v. Scott, 2 Taunt. 363. 3 Web v. Brooke, 3 Taunt. 6. 4 Dig. 14, 3, 2, 3; Hicks v. Palington, F. Moore, 297 ; 1 Mag. 64 ; Bewes, Lex Mercatoris, p. 149, til. Gen. Average; Nesbit v. Lushington, 4 T. R. 783.

**300** **ON THE LAV OF SHIPPING.** **\[B00E I**

Besides the delay or detention of a ship for the purpose of repair, there are other causes which detail a ship on her voyage; and sometimes for a long time. These may give rise to difficult questions. It is a general rule, that no expenses of delay or detention are averaged, unless the voyage had been begun previous to the detention, and was suspended by it. For otherwise it would be only a hinderance or prevention of the voyage, and this cannot be a ground for contribution.

If a ship be detained, on her voyage, by an embargo, it may be regarded, as a general rule, that the wages and provisions of the crew are not an average expense; for this is no voluntary sacrifice.1 So, too, with delay by quarantine;2 or while wait
GL IX.\] VOLUNTARY SAGRIFIC OF PROPERTT. 301

ing for convoy;1 or by being frozen up while pursuing the voyage.2

Footnote 1: Stevens & Benecke on Average, by Phillips, p. 149; Bynkershoek, Quotiones Juris Bruzni, lib. 4, c. 25. It is obvious that all these cases depend, for their solution, upon the construction to be given to the contract, as set forth in the preceding note.

In all these, or any cases of delay or detention, even before the voyage begins, it is always possible that there may be a necessity of expending money for the common benefit. And such expenditure, especially if it be required by some extraordinary emergency, and is incurred so strictly for the common good that no necessity or advantage which belongs to any one interest alone would have caused it, becomes an average loss, to which all the interests benefited, and only those, must contribute. On this ground it is quite clear that expenses incur 302 ON THE LAW OF SHIPPING. \[B00K L red after a capture, in defending the property, preventing condemnation, or obtaining a release, or escaping, are average expenses.1 So, too, if a crew are voluntarily detained because there is a rational possibility of release, and they will then be wanted to navigate the ship, the wages and provisions should be a general charge in the nature of general average, even if there be no release..

Footnote 1: "The necessary costs and charges, incurred and paid by the defendants in retaining and procuring the restoration of the ship and cargo, are undoubtedly to be allowed as a general average." Per Jackson, J., in the case of Spafford v. Dodge, 14 Mass. 6, 74. See also, Douglas v. Moody, 9 Mass. 548. But if the expenses incurred are only for the benefit of the cargo alone, or of the ship, only the thing benefited is contribute. Peters v. Warren Ins. Co. 1 Story, 468; Vandemheavel v. United Ins. Co. 1 Johns. 406; Jumel v. Marine Ins. Co. 7 Johns. 412.

Footnote 2: "The necessary costs and charges, incurred and paid by the defendants in retaining and procuring the restoration of the ship and cargo, are undoubtedly to be allowed as a general average." Per Jackson, J., in the case of Spafford v. Dodge, 14 Mass. 6, 74. See also, Douglas v. Moody, 9 Mass. 548. But if the expenses incurred are only for the benefit of the cargo alone, or of the ship, only the thing benefited is contribute. Peters v. Warren Ins. Co. 1 Story, 468; 469; Vandemheavel v. United Ins. Co. 1 Johns. 406; Jumel v. Marine Ins. Co. 7 Johns. 412.

Footnote 3: "In the Gratitude, 3 Rob. Adm. 240, 268 (which was a case of a master hypothesis his cargo to pay for necessary repairs), Lord _Slowell_ said the books overflowed with authorities that the master might sell _part_ of his cargo, and that a sale of part was equivalent to the hypotension of the whole, and was a fit subject for general average. And Lord _Ellenborough_, in Dobson v. Wilson, 8 Camp. 480, 487, expressed his opinion that if a ship should be sealed for the non-payment of the Sound dose, and it became necessary to sell a part of the cargo, in order to obtain her release, this might be the foundation of a claim for general average. See also, Richardson v. Isourne, 9 B. & Aid. 237; The Constancia, 4 Notes of Cases, 677. Mr. Justice _Smy_, in the case of The Ship Packet, 3 Mason, 255, 260, said: " In the case of a sale of part of the cargo by the master for the necessity of the ship, the sale is in the nature of a employee loan for the benefit of all concerned, and to enable the ship to prosecute her voyage. It bears a considerable resemblance to the case of a jettoion, for the owner is deprived of his property for the common good, and to him it must be immaterial whether the loss be by a sacrifice at ses, or on shore." See also, Giles v. Eagle Ins. Co. 2 Met. 140, 144, where the loss in the sale of a quantity of salt, which had been sold to pay the expenses incurred in getting off and repairing a vessel, which had been driven on shore in a sale, was compensated for in general average. But see post, tit. Bottomy, ch. 11, near the end of the chapter. In The Schoomer Leonidas, Olcott, Adm. 12, 15, there is a _dicts_ that where the master solls part of the cargo to supply the necessitate of the ship, the owners would probably be entitled, in case the ship or owners could not satisfy their demand, to compel the other owners of the cargo to contribute according to their respective interests. In Shelton v. Brig Mary, 6 Law Be
CH. IX.\] VOLUNTARY SACRIFIC OF PROPERTT. 303

this discharges the bond, and the shipper loses nothing by it; if they are saved and applied to the payment of the bond, this gives the shipper a claim for contribution.1

Footnote 1: We have seen, ante, p. 159, n. 2, that if a master of a vessel is obliged to put into a port of distress, he may either send on the cargo in another ship, or retain it and repair his own. If he has no money to pay for the repairs, and can raise none on the personal credit of the owner of the vessel, he may hypotheace the ship and cargo for that purpose. The question then arises in what case can the owner of the goods hypotheacted call on the other shippers for a general average contribution. If another ship can be found to take the goods on, although the master has the right to obtain them till his own ship is repaired, still, in such a case, the detention would clearly not be for the benefit of the goods, and it would seem that the other shippers should not contribute; but when no other vessel can be obtained, and the ship cannot proceed and complete the voyage without repairs, and there are no means of making them except by a hypotensionation of the cargo, and this is done, we are strongly inclined to the opinion that the expense which is thus incurred should be made good by a general average contribution. This is clearly the opinion of Lord _Slowall_, in the celebrated case of The Gratiudine, 3 Rob. Adm. 240, 264, in which, after stating that all must finally contribute in the case of an actual sale of a part of a cargo, he adverts to the case of a hypotensionation of the whole, which he considers equivalent to the sale of a part, and says: " All contribute in this, as a portion of the whole value of the cargo is shaded, for the general benefit, probably with less inconvenience to the parties, than if any one person's whole adventure of goods had been sacrificed by a disadvantageous sale in the first instance." See also, The Constancia, 4 Notes of Cases, 677; The Ship Packet, 3 Mason, 255. But see post, tit. Bottomy, ch. 11, near the end of the chapter.

Footnote 1: 2 Phil. Ins. 1 1341.

for by the party who does it; and then this payment might give rise to a claim for compensation in some form, against all the interests saved by it.1 We may reverse the case, and suppose an injury inflicted upon the common property by one, either in wrong or for good reason, but such as gives to all who suffer a claim for indemnity. If this claim be enforced, the expense of doing so would be so far like that of general average, that none should be entitled to their share of the benefit, who did not advance or repay their share of the cost. But it has been held that the right to contribution, strictly so called, does not extend beyond those who voluntarily embark in a common adventure; and that if A's vessel is about to come into collision with B's, which is at anchor, and B cuts his cable and thus avoids it, he has no claim for contribution against A for the loss of the cable and anchor.2

Footnote 1: The twenty-first article of the twentieth chapter of the Ordenanzas de Bilbo provides, that when a vessel catches fire in a river or harbor, and an adjoining vessel is sunk in order to save the others, the damage must be made good by a contribution from all the other ships and cargoes. See also, Casaregis, Disc. 46, n. 45, 63.

All the immediate and direct consequences of a sacrifice, although these consequences were neither intended, nor beneficial, are to be taken as entering into and forming a part of the sacrifice; and the amount or value of them is to be added to the amount or value of the original and intended sacrifice, to ascertain the whole sum which is to be averaged as a loss for the common benefit.3 \[CH. IX.\] VOLUNARY SAGRIFIC OF PROPERTTY. 305

Let us now consider the cases which illustrate the requirement that the loss should be voluntary and intended,1 and also for the benefit of other property. Thus, where dollars were thrown over to prevent their falling into the hands of an enemy, this was a voluntary and intended loss, but was not sustained for the benefit of other property, and therefore was not even presented to the court as an average claim.2 So if sails are blown away, or masts, or rigging, or cables lost by the violence of the wind or sea, here is no average loss, because no voluntary loss.3 And even if the sails or spars are lost by an extraordinary exposure in an emergency, as by an extreme press of sail to escape capture,4 or wreck,5 this would come near to an average loss; but the better opinion is, that it should rather be considered only as a loss by a sea peril. It would be very difficult to discriminate

Footnote 1: In Sansom v. Ball, 4 Dall. 459, the ship was captured, and afterwards recaptured. The amount of salvage due the recaptors was settled by a compromise, and for the amount so paid, an action was brought against the parties benefited for a general average contribution. The question was raised whether the payment to the recaptors was a voluntary act. The court said: "General average always arises from actions produced by necessity. In the case before us, there was a capture, recapture, and decre of salvage. The master and superargo consented under these circumstances to a measure, which produced a general benefit. They surely exercised as much volition, as if they had thrown half her cargo overboard in a storm." In what cases a stranding will be considered as voluntary, so ante, p. 291, n. 1.

Footnote 2: Batter v. Wildman, 3 B. & Ald. 398.

Footnote 3: Digest, 14, 9, 2.

Footnote 4: Corrington v. Roberts, 5 B. & P. 378. In this case a vessel was "captured by a French privateer, but, on account of a heavy gale, the privateer could not take possession of her. To effect her escape, she carried an unusual press of sail, in consequence of which she was much strained, opened most of her seams, and carried away the head of her mismnant, but finally succeeded in getting away. Held that the damage to the vessel was not a subject for general average. Sir James Monfeldt, C. J., said: "This is only a common sea risk. If the weather had been rather better, or the ship stronger, nothing might have happened."

Footnote 5: Power v. Whitmore, 4 M. & S. 141.

\[FOOTNO between such a case as this, and any earnest endeavor to escape from imminent danger. If, however, a cable be cut, and an anchor lost, or goods jettisoned to escape from an enemy, this is as certainly an average loss, as if done to escape wreck.\[1\] And the expense of hiring convoy, or other protection, for the common benefit, would certainly, if the necessity arose from some unexpected and extraordinary peril, be considered as general average, although the expenses of convoy, in the common way, are not.\[2\] So, if an armed ship gives battle to a pursuing enemy, and beats her off, the loss sustained in the battle, whatever it be,' constitutes no average claim, because it is but a consequence of a discharge of the obligation of the ship to carry on the goods if possible; and the loss must rest where it is cast " by the fortune of war." \[3\] If masts are overboard, and, hanging by the ship, embarrass or endanger her, and are cut away, this might be a general average loss, but only for the value of the masts and rigging as . . 1 Benecke & Stevens on Average, Phillips' ed. 154. Emerion, in his treatise on Insurance, ch. xii. s. xli. ! 5, Meredith's ed. 480, gives a very good illustration of this. The master of a French vessel, having been pursued by two fragites, and his fight being intercepted by two others ahead, as soon as it became dark, lowered his boat into the sea, with a mast and sail, and a lantern at the mashed, and then changed his course, and salied all night without a light, and in this way escaped. The value of the boat was made good by a general average contribution. See also, Price v. Noble, 4 Tount. 129. * Benecke & Stevens on Ar${}_{\\gamma}$, Phillips' ed. 149, 151. And it has been held that where a vessel meets with an accident at sea, and is obliged to go into port and another vessel accompanies her for the common good, it is a general average expense. Nelson v. Belmont, 5 Duer, 310. It is stated by Mr. Stevens in his valuable essay on General Average, p. 16 (Benecke & Stevens on Ar${}_{\\gamma}$, Phillips' ed. p. 67), that "some of the foreign ordinances say, that if a cable be cut or slip to sail with convoy, the ralse shall be brought into a general contribution ; but this is not the practice with us." * Taylor v. Curtis, 6 Tount, 608. In this case a vessel was attacked by a privater, but the latter was finally been off. The loss suffered was claimed as general sereg, but the claim was not allowed. _Ghose_, C. J., in delivering the opinion of the court, said : " The looses, for which the plaintiffs seek to recover this contribution, are of three descriptions : first, the damage sustained by the hull and rigging of the vessel, and the cost of her repairs ; secondly, the expense of the cure of the wounds received by the crew in defending the vessel; thirdly, the expenditure of powder and shot in the engagement. The measure of resisting the privater was for the general benefit, but it was a part of the adventure. No particular part of the property was voluntarily sacrificed for the protection of the rest. The losses fell where the fortune of war cast them, and there it seems to me they ought to rest. It therefore follows that these losses were not of the nature of general average, and that the plaintiffs cannot recover."
GL IX.\] VOLUNTARY SAGRIFIC OF PROPERTTY. 307

they then were, for only that is voluntarily sacrificed ; add this value would generally be nothing.1

Gratuities to sailors, paid or promised, to increase their exertions during peril, have been held not to constitute an average loss, but to be a part of the expense of the ship. And if in a port of repair, or elsewhere, where wages and provisions constitute an average expense, extra wages to which the sailors are not entitled, are paid to them by mistake of law, these are not to be contributed for.2

We have already said, that if goods are carried on deck, the jettison of them gives no claim for contribution. We return to the subject to state more emphatically the reason of this rule. It is, that the law-merchant strongly discourages the carrying of goods .on deck, not only because of the greater danger to them, but still more, perhaps, from the increase of peril caused by it to the ship and cargo, by its embarrassing the navigation of the vessel, and rendering her top-heavy.8 For these reasons, if a or upper hold, are regarded as under hatches, and as safe as those stowed in the lower hold, or where the cargo in ordinary vessels is only considered as under cover. The master is allowed by this general custom to stow the cargo either in the hold, or on the main deck, at his convenience. No distinction is made in the price of transportation by the carrier, or in the rates of insurance by the underwriter. The cargo below and between decks is put on the same footing. This universal usage resulting from the character of the vessel must govern the rights and liabilities of the owners of the vessel and cargo. The owner of goods, which are stowed on the main deck of a propeller and necessarily cast overboard by the direction of the master, to preserve the vessel and crew, is therefore entitled to the benefit of a general average, as much as the owner of goods, that are stowed in the hold, would be under like circumstances."

1 See ante, p. 186, n. 1.

2 See ante, p. 185, n. 5.

3 In Gould $v$. Oliver, 4 Bing. N. C. 184, _Tradal_, C. J., said : "Now, where the loading on deck has taken place with the consent of the merchant, it is obvious that no remedy against the ship-owner or master for a wrongful loading of the goods on deck can exist. Unless, therefore, the owner of the timber in this case, has a claim for contribution against the owner of the ship, he is without any remedy whatever against any one, but must himself bear the whole of the loss in consequence of his timber having been thrown overboard for the benefit of all ; an inference directly at variance with the general rule above laid down, and, indeed, contrary to the authority of the foreign writers." This language is susceptible of two meanings ; either, that the owner of goods shipped on deck with.his consent, and jethioned, has a claim for an average contribution against the owner of the ship, though not against the other shippers ; or the words, _"in this case,"_ may refer to the case before the court, in which the only question involved was, whether the shipper could claim contribution in case the ship-owner loaded the goods on deck under a privilege reserved to him by the general usage and practice of the voyage. This latter view is favored by the fact, that immediately after stating that the inference, that the owner of the goods was without a remedy, was contrary to the authority of the foreign writers, he cites Yalin to the effect that the general rule relating to goods on deck does not apply to boats and other small vessels going from port to port, " where the usage is to load merchandise on the deck." If, however, the first construction be correct, it is not supported by any case in England, and is certainly opposed to numerous decisions in this country. See Law. renco $v$. Minturn, 17 How. 100, and other cases cited, p. 185, n. 5.

CH. IX.\] VOLUNTARY SACRIFIC OF PROPERTT. 309 may be more difficult, and is not, perhaps, positively settled by authority. We should say, however, even then, that a jettison gave no claim on the cargo below deck, on the ground that the law-merchant would not give this sanction to a procedure which it deems very dangerous and objectionable. But the usage would probably have the effect of giving him a claim upon the ship.1

Footnote 1: It was held in an early case in this country, Brown $v$. Cornwell, 1 Root, 60, decided in 1773, that where horses shipped on deck were thrown overboard for the safety of the ship and cargo, the owner of the horses was entitled to a general average contribution, it being the universal custom to ship horses in that way. This case has not been followed by any subsequent authority in this country. Dodge v. Bartol, 5 Greenl. 286; Cram v. Alien, 13 Maine, 299; Sproat v. Donnell, 26 Maine, 185; Barber v. Brace, 3 Conn. 9; Hampton v. Brig Thaddeus, 4 Mart. La. 582. In the case of the Tanton Copper Co. v. Morechants Ins. Co. 29 Pick. 108, the question arose whether underwriters were liable for copper stowed on deck in conformity with a usage, the policy being " on property (copper or zinc) on board any vessel or vessels," between given dates. It was proved that a usage had existed for forty years to carry goods on deck which were not liable to be injured by dampness, and that copper and zinc were of this class. Mr. Justice Putnam, in delivering the opinion of the court, said : " The general rule seems to be well established. The plaintiff must show that his case comes within the exception, or, in other words, that the defendants have assumed the risk of the goods on deck. They prove that it is usual to carry goods on deck, but fail to prove that underwriters have ever paid for them, unless there was an express undertaking, or one by necessary implication. The former is not suggested, and it seems clear, that no inference could have been drawn from the nature of the goods which were named to subject the defendants, by implication, to any other risk than is assumed upon property generally, or ordinary goods." Mr. Phillips, in his valuable work on Insurance, vol. 1, 4 460, remarks that the decision that a usage to pay for the goods when carried, as well as a usage to carry them, must be proved, " is quite a questionable form of presenting the rule." In Da Costa v. Edmunds, 4 Camp. 142, insurance was effected " on forty endysys of virtol." They were shipped on deck, and during the voyage were thrown overboard for the safety of the ship. It was proved that they were frequently carried on deck, but that it was also usual to stow them below. It was contended for the underwriters that they were not liable because no notice had been given them of the manner in which the carboys were to be carried, but Lord Ellenborough held that if there was a usage to carry virtol on deck, the underwriters were bound to take notice of it, without any communication. The jury found for the plaintiff. See also the same case in Banc. 2 Chitt. 297. The point next arose in England in a case between a shipper and ship-owner. Gould v. Oliver, 4 Bing. N. C. 134. The action was against the ship-owner to recover damages for a loss arising from improper stowage, and also a general average loss for goods belonging to the plaintiff which had been shipped on deck on a voyage from Quebec to London. The second count set forth a custom that the owners of ships trading between Quebec and London, had a right of loading on the decks of their vessel a portion of the timber which they were employed to carry. The plea admitted the usage to carry timber in the manner mentioned, but denied that any custom existed to

**310** ON THE LAW OF SHIPPING. \[B00K L

The owners of a vessel who collect the contributory shares are entitled to a commission of two and one half per cent.1

**SECTION III**

OF SOME EXPENSERS OR CHARGES SUALLY SETILED AS GENERAL AVERAGE.

There are some losses or expenses which are always settled in the same way as a general average loss, and are usually called by that name for convenience, although they do not fall precisely within any definition of it. Salvage is the principal one of these. We shall see that this word has two meanings. It is pay a general average contribution upon timber so laden and jettisoned. To this plea the plaintiff denatured and issue was joined on the demurrer. The court held that the plaintiff was entitled to recover. This case was supposed by the court in Tauton Copper Co. v. Merch. Ins. Co., _at supra_, to go only to the extent of holding that the owner of the ship was liable, in such a case, to contribute, and not the owner of the cargo; but is appears from a report of the same case at a further stage of proceedings, that all the cargo was owned by the plaintiff, and the question therefore did not arise. Gould e. Oliver, 2 Man. & G. 308, 2 Scott, N. R. 241. In Hurley v. Milward, 1 Jones & Carey, Irish Exch. 294, an action was brought against the owners of a vessel for a general average contribution for the loss of certain pigs, which were shipped on deck, on a voyage from Waterford to London, and were jettisoned for the safety of the vessel. Judgment being given for the plaintiff, the ship-owners sued their underwriters for the amount thus paid by them, and, after an elaborate argument before the court of Queen's Bench, it was held that as the carrying of the pigs on deck was justified by the usage of the trade, the underwriters were responsible. Milward v. Hibber, 3 Q. B. 120. Valin, also, in his commentary on the Ordinance of Louis XIV. liv. 3, tit. 8, art. 13, remarks, upon the rule there laid down, that " this disposition does not apply to small vessels going from port to port, where a usage exists of storing their lading as well above as under deck." See also the learned note of Sergeant Shoe, upon this subject, Abbott on Shipping, p. 481.

**1**: \_Barward v. Adams, 10 Howr. 270, 308 ; Sturgis v. Cary, 2 Curtis, C. C. 382. The language of the court, in Barnard v. Adams, would imply that the right to charge this commission rested on the custom of average brokers; but in Sturgis v. Cary, Mr. Justice _Curtia_ stated that he had obtained a copy of the record in that case and found that no evidence of any usage was offered, and that the presiding judge instructed the jury, as matter of law, that the charge was correct, which ruling, being accepted to, was sustained by the Supreme Court. He accordingly held, that a usage in the city of Boston not to allow such charge, was not admissible to contravene the general rule of the law-merchant.\_CH.IX.\] EXPENSES usually settled as general average. 311 sometimes used to indicate what is saved from a wreck ; but in this sense we do not refer to it now. The word more frequently means the amount that's paid to those who save maritime property which is endangered or abandoned; and such persons are called, in maritime law, salvors. This amount is usually decreed in admiralty in the form of a percentage on all the property saved. Sometimes, however, it is a gross sum given to the salvors. In either case it is settled in the same manner as a general average claim, and usually under that name.1 Wherever any expenses or advances are to be contributed for, we suppose that the common rules of law in regard to interest would determine whether it should be charged.2

Footnote 1: Heyliger v. N. Y. Firenen Ins. Co. 11 Johns. 85 ; Stevens & Benecke on Av. (Phil. ed.), 141, note. In Peters v. Warren Ins. Co. 1 Story, 463, 468, Mr. Justice _Sory_ stated the law as follows : " General average is commonly understood to arise from some voluntary act done, or sacrifice, or expense incurred, for the benefit of all concerned in the voyage or adventure; and then it is apportioned upon all the interests which partake of the benefit. But the mere fact, that an apportionment is made of a loss between the different parties in interest, if the loss itself does not arise from some act done, or sacrifice, or expense voluntarily incurred, for the common benefit, does not make it necessarily a case of general average by our law. Salvage is properly a charge, apportionable upon all the interests and property at risk in the voyage, which derive any benefit therefrom. But, although it is often in the nature of a general average, it is far from being universally true, that, in the sense of our law, all salvage charges are to be deemed a general average. On the contrary, these charges are sometimes a simple average, or partial loss. We must, therefore, look to the particular circumstances of the case to ascertain, whether it be the one or the other."

Footnote 2: See Shelton v. Brig Mary, 6 Law Reporter, 75, and the remarks of Mr. Justice _Sory_ in Peters v. Warren Ins. Co. 1 Story, 463, 468.

Footnote 3: Peters v. Warren Ins. Co. 8 Sumner, 389 ; Emergion, ch. 12, s. 14, note 1 (Mercdith's ed.), p. 328.

Footnote 4: See note, ch. 7, SS 6, on Collision, p. 187-211.

Footnote 5: Peters v. Warren Ins. Co. 3 Sumner, 389, 399.

Footnote 6: See note, ch. 7, SS 6, on Collision, p. 187-211.

Footnote 7: Peters v. Warren Ins. Co. 3 Sumner, 389, 399.

Footnote 8: Peters v. Warren Ins. Co. 3 Sumner, 389, 399.

Footnote 9: Peters v. Warren Ins. Co. 3 Sumner, 389, 399.

Footnote 10: 11: 12: 13:
**312** ON THE LAW OF SHIPPING. \[B00K L

sundry small charges, which were formerly assessed by way of average; such as port charges, pilotage, and the like.1 And there are still sundry small charges usually or frequently assessed as average, and of course paid for by contribution; but in regard to many of them there is probably no established usage or rule of law. The principal of these are towage,2 light money, docking, and wharfage,8 hire of anchors, cables, or boats for temporary purposes, or of persons to guard the ship, quarantine expenses, cutting a way through ice, and similar charges.

Footnote 1: See post, ch. 11, SS 1.

Footnote 2: Lyon v. Alvord, 18 Conn. 66.

Footnote 3: See Wightman v. Macadam, 2 Brov. 230.

Footnote 4: The Gratitude, 3 Rob. Adm. 240, 258. Mr. Justice Curtis, in Lawrence v. Mintura, 17 How. 100, 110, speaking of the necessity which would authorize the master to make a jetusion, said: " If he was a competent master; if an emergency actually existed calling for a decision, whether to make a jetusion of a part of the cargo; if he appears to have arrived at his decision with due deliberation, by a fair exercise of his skill and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jetusion is lawful. It will be deemed to have been necessary for the common safety, because the person, to whom the law has intrusted authority to decide upon and make it, has duly exercised that authority." On the other hand, there is a _dictum by Coulter_, 3, in Myers v. Baymore, 10 Barr, 114, 118, to the effect that if the goods are thrown overboard unnecessarily by the master, although he acts with the most honest intention to save the vessel, there is no claim for general average. Although this is the law relative to the power of the master to sell the vessel, we should doubt its applicability to the
\*\*GL. IX.\]\*\*SACERIFIC MUST BE JUSTHIED BY A NECESSITY. **313**

In former times the law-merchant guarded with much care against wanton or unnecessary loss of this kind; particularly by requiring that the master should formally consult his officers and crew and obtain their consent before making a jettison of the cargo.1 But the rule has passed away, and the practice is almost unknown.2 An inquiry into this change, so far as it is grounded upon a change in the character of sailors, or in the view which the law-merchant takes of them, might not be without its interest; but this is not the place for it. It is now universally conceded that the interests of commerce require a plan any authority on the part of the master, who would seldom think of consulting his crew in any emergency, and is not required by law to do it. Our statutes speak in some cases, as will be seen in a later chapter,3 of a joint action of the crew and the officers of a ship, but even this seldom occurs in fact.

\*\*use of a jettison.\*\*In Lawrence \_v.\_Minturn, _supra_, the vessel had met with a gale and was severely strained by the weight of the deck load. After the gale abated, and when the sea was calm and the vessel in no immediate danger, the master, officers, and crew made a protest, setting forth the above facts and asserting that the deck load was unsafe, and that it should be thrown over as soon as possible. This was accordingly done. It appeared that the goods were of such a nature that they could not be thrown overboard, without the greatest risk, when there was any considerable sea. It was held, that the jettison was justifiable. The court said : "Precation against dangers, which are certain to occur, is surely proper. That they must experience gales and hoary seas at that season, in that voyage, was so nearly certain, that it was not unreasonable to act on the assumption that they would occur, and prepare the ship to encounter them while in a smooth sea, when alone they could do so." In Bentley \_v.\_Bustard, 16 B. Mon. 643, it was held, that if a boat runs on a known obstruction, or upon the shore, without being driven on by the violence of the wind or the force of the current, and the running on could have been prevented by proper care and skill, a jettison will not be justified, although, the boat being on, it is the only way of getting her off, but the owners of the boat are liable for the value of the goods thus thrown overboard. So if the unseaworthiness of the vessel at the time of sailing on the voyage caused, or contributed to produce, the necessity for the jettison, the loss is not within the exception of the perils of the seas, and the vessel is liable for the whole value of the goods thrown overboard. Dupont de Nemours \_v.\_Vance, 19 How. 162, 166. See also, Lawrence v. Minturn, 17 How. 100, 110; Chamberlain \_v.\_Reed, 13 Maine, 357.

1 See authorities cited in Emerion, ch. xii. sect. xl. (Meredith's ed.), p. 469, 470 ; and in The Nimrod, Ware, 9.

2 Birkley \_v.\_Presgrave, 1 East, 220, 228 ; Sims v. Gurney, 4 Binn.513 ; Col. Ins. Co. v. Ashby, 13 Pet. 331, 343 ; Nimick v. Holmes, 25 Penn. State, 366, 372. It is the duty of the master to determine when it is necessary to sacrifice a portion of the cargo for the safety of the rest, and, as a general principle, the crew have no authority to make a jettison, without his orders. The Nimrod, Ware, 9, 15.

3 See post, ch. 12, 1 4.

**314** ON THE LAW OF SHIPPING. \[B00E L

Indeed, a consultation with the crew is now so wholly unusual, that if it took place it might be regarded as one of those circumstances of extra precaution, which suggest the probability of fraud.1

Footnote 1: Emerigon (eh. xii. sect. xl., Meredith's ed., p. 469), cites a remark of Targa, to the effect that during the sixty years that he had been judge of the _Consultat de la Mor_, at Genoa, he had met with only four or five instances of _regular_ jettison ; and these were suspected of fraud, for the single reason that formalities had been too much attended to. When a consultation is had, it is merely evidence that the jettison was deliberately made, but it does not prove the necessity of it. Bentley v. Bastard, 16 B. Mon. 643, 695.

**S**eadler v. Bradford, 14 Pick. 13; Bradhurst v. Col. Ins. Co., 9 Johns. 9; Gray v. Wah, 2 S. & R. 229, 855 ; Sims v. Gurney, 4 Binn. 513, 524. If the vessel is temporarily saved by the sacrifice it would seem that contribution is due, although the vessel is afterwards lost, but if the peril which rendered the sacrifice useless was the same peril which was the occasion of the sacrifice, the loss must rest where it falls, as where the masst, which were on fire at the time, were cut away with the expectation that they would fall overboard and thus save the ship and cargo, and a spar fell through the deck and set fire to the cargo, whereby both it and the ship were partially consumed. Lee v. Grinnell, 5 Duer, 400, 422.

**Williams v. Suffolk Ins. Co., 3 Sumner, 510, 513, 514.**

**Nelson v. Belmont, 5 Duer, 310, 325. It was said, in this case, that where the expense were incurred with a view to decide in regard to the resumption of the voyage, they might perhaps be a subject of contribution, and so, where the vessel had been scutlod to save the cargo from destruction by fire, if the cargo had been afterwards taken out in order that the water might be pumped out.**

**Myers v. The Harriet, U. S. D. C., Elst. Dist. Penn., 2 Wharton's Dig. p. 48, tit. Ins. 140.**
**CL. IX.\]** SACRIFIC MUST BE SUCCESSFUL. **315**

effect unless by means of the repair the ship is enabled to resume her voyage. For the whole ground on which contribution can be claimed for such expenses, is, that they were needed and effectual for enabling the ship to go herself and carry the cargo to the original destination; for on no other ground can it be said, that these expenses were intended for the common good, or resulted in the common benefit.

If, therefore, we suppose a case of capture, wrongful or otherwise, and the crew, or a part, rescue and bring off the ship, one of two results will follow. Either the voyage will be resumed at once, or after repair and refitting, and, perhaps, after a return home, and then the expense of all this may be averaged. Or else the voyage will be broken up and abandoned, and the ship, though she returns home, is under no favorable circumstances for resuming her voyage, and perhaps no possibility of doing so; and in this case no expenditure, occurring after the capture, can be averaged, for none of it was successful.1

Footnote 1: Williams v. Suffolk Ins. Co., 3 Summer, 510, 513, 514.

If any portion of the cargo is rescued with the ship, and brought home to its owners, so far as this is concerned the rescue may be successful, and the cargo saved would be bound to contribute towards that part of the expense which was incurred for its benefit in common with that of the ship and freight. In reference to what constitutes a breaking up of the voyage, rendering its resumption impossible, and thus extinguishing all claim for general contribution, it has been held, that a sale of the ship by decree of court for salvage, is such breaking up of the voyage, rendering an abandonment of the same inevitable.3 Sometimes, however, expenses are settled upon the principles of general average which more properly, perhaps, should be determined by the question of agency. In such a case contribution is made, though the voyage be afterwards broken up.8

Footnote 2: Williams v. Suffolk Ins. Co., 3 Summer, 510, 513, 514.

Footnote 3: Thus Mr. Stevens, in his work on General Average (Phillips' ed.), p. 74, says: "It will occur to every one in the habit of considering questions of this nature, that thence is an essential difference between a claim for _Restitution_ and one for _Recompense_. In the former case, e. g. in that of jettison, if at any subsequent period of the voyage the remainder of the cargo be lost, there is no claim to replace that part which was jettisoned, -- and the same if the _ship_ be lost before the articles sacrificed were replaced. But in the case of expenses incurred with a view towards the general benefit, it is clear
316 ON THE LAW OF SHIPPING. \[B00K L

Section VL

WHEN THE THING SACRIFICED COULD NOT HAVE BEEN SAVED.

There is another class of cases which should be noticed; that where the very thing which is purposely destroyed in order to save other things, could not in any way be saved, but must have perished at all events. Here there is no claim for contribution; because, properly speaking, the thing was not destroyed, but only its destruction somewhat hastened. This principle is the same with that already stated as governing in the case of a voluntary stranding; which gives a claim only when there was a substantial chance of saving the ship. A good illustration of the rule is found in the case where a vessel, laden with line, was hauled out into the stream and there scutted because the lime was on fire. Here the line was destroyed at once; but it must have perished, although much more slowly, if the ship had not been saved; and, therefore, the ship did not contribute towards the loss.1 But generally where a cargo is on fire from that they ought to be made good to the party, whether he be an agent employed by the master in a foreign port, or the ship-owner himself. The former is a case lying strictly within the adventure; for if a part be sacrificed, and the remainder be lost, the whole is lost. But in the latter case, the expenses are extraneous, and were incurred under an implied obligation of indemnity on all the parties, -- which is one of the duties each of the parties who are joined in a sea adventure takes upon himself." See also, 2 Philips on Ins. ! 1319; Spafford _v._ Dodge, 14 Mass. 66, 77.

1 Crockett _v._ Dodge, 3 Fairf. 190. This case proceeds entirely on the ground that the lime, at the time the vessel was scutted, was worthless, and, therefore, does not differ from the principle, before laid down, that goods are to be contributed for only at the value they had at the time of the sacrifice. Nickorson _v._ Tyson, 8 Mass. 467. See, however, the remarks of Mr. Justice _Sorsy_, in Col. Ins. Co. _v._ Ashby, 13 Pet. 381, 340. In Marshall _v._ Garner, 6 Barb. 394, a claim was made for contribution for mass, which had been cut away. At the time they were sacrificed, the ship was on a beach in four feet of water, while she drew fifteen. She was on her broadside, where she lay on her bilgo. If the mass had not been cut away, the ship and cargo would have been lost, and all on board would have perished. As soon as the mass were cut away the vessel righated, and the cargo was saved. It was held, that there could be no contribution, because, at the time the mass were cut, their destruction, from already existing causes, was only anticipated, and that nothing, therefore, was sacrificed. This question was discussed at great length in the recent case of Lee _v._ Grinnell, 5 Duer, 400.

CH. IX.\] THING SACRIFICED COULD NOT HAVE BEEN SAVED. 317

an accidental cause, and the vessel is scutulted, or water is poured down to extinguish the fire, and goods are thereby injured which the fire had not reached, they are to be contributed for.1

Footnote 1: Nelson $\\pi$ Belmont, 5 Duer, 310, 323 ; Leo v. Grinnell, 5 Duer, 400. In Nimick v. Holmes, 25 Penn. State, 366, the distinction between the goods already on fire and the rest of the cargo was not noticed, and it was held that all which were damaged by water were to be contributed for.

A somewhat similar question has arisen, when not that precise thing, but that or some other must be lost, which has been supposed to present some difficulty, but which,as it seems to'us, is open to a direct and certain answer. Benecke, a high authority for the most part, says: " If the master's situation were such, that but for a voluntary destruction of a part of the vessel, or her furniture, the whole would certainly and unavoidably have been lost, he could not claim a restitution, because a thing cannot be said to have been sacrificed, which had already ceased to be of any value."2 A rule like this, would exclude from average precisely those cases to which it is most frequently applied, and concerning which no doubt has ever arisen.

Footnote 2: Stovens & Benecke on Average, Phil. ed. 110.

Suppose a ship is on a reef; if not lightened, her destruction and that of the cargo, are perfectly inevitable; but if lightened she may be got off; some of her cargo is thrown over, and she is got off, and the ship and the rest of the cargo saved. We know that the law-merchant has given contribution here for some three thousand years, Or, suppose a ship anchored in a tempest off a lee shore; she drags her anchors, and must inevitably be wrecked and lost with her cargo unless the force of the wind upon her is lessened; accordingly her masts are cut away, and they with all her top-hamper are cast overboard and lost; and then she is able to ride out the gale in safety. Could any one doubt that this would be an average loss? This theory or principle of Benecke's rests upon a mere mistake or misstatement. It is true and generally admitted, that if a thing is destroyed for
CH.IX.\] PROPERTT PERILLED SAVED BY THE SACRIFIC. 319

tribute for the loss ? This question is more difficult than that we have just considered, and the authorities in relation to it are not quite uniform.

Upon the whole we think, however, that the weight of reason agrees with what seems to us the weight of authority, that if there be a voluntary sacrifice, made for good cause, and with a reasonable prospect of saving thereby other property which would otherwise be lost, and this other property is saved in fact, it must contribute to the loss, whether it was saved by that or by other means. One reason for this is, that the law-merchant avoids intricate questions if it can, and prefers to settle them by a general rule, which shall on the whole work justice; and it must be difficult, if not impossible, in most of these cases, to draw the line, and say that up to this point the agency and utility of the sacrifice continued, and here other causes of safety began to operate; or to decide that measures rationally and honestly resorted to for the purpose of safety, and followed by it, had no agency whatever in causing that safety.

Another reason is, that if a voluntary sacrifice of some property for other property is made in good faith and for good reason, an important part of the moral foundation for the claim for contribution exists, although the other part, that the property was in fact saved by that sacrifice, may not exist.1

Footnote 1: In Scudder v. Bradford, 14 Pick. 13, a vessel was dragging her anchors, and drifting towards shore. Her masats were cut away, and she was thereby brought up. An hour afterwards she went on shore. It was held that the masts were not to be contributed for because the property was not rescued from the peril by their destruction. This is in accordance with the 9th article of the 22d Tit. of the Hamburg Insurance Law. See also, Ord. de la Mar. tit. du jet. art. 15; Code de Commerce, art. 423. In Bencke & Stevens on Average, by Phillips, pp. 100, 105-107, it is strongly contended that this rule is contrary to the principles and policy of general average, on the ground that no one has the right to attempt the preservation of the whole at the risk of an individual. Mr. Phillips, in a note on page 107, says: " The doctrine of the American cases agrees with that laid down in England, namely, that to entitle the parts to contribution for a sacrifice by jetusion, the impending peril must be avoided. But the reasons given by Mr. Bencke in opposition to this doctrine, are certainly very forcible, and to my mind conclusive." 320 ON THE LAW OF SHIPPING. \[B00K L\]

## 4.2. **Introduction**

The concept of a which are necessary for the ultimate safety of the property, must first be deducted, because just so much has not been finally saved, and may be considered as lost by the loss for which contribution is made.1

Then, as to the contributory value of the cargo. If the goods lost were such, that if not sacrificed, they would certainly have arrived in a damaged state and with diminished value; this diminished value shall be taken as that for which contribution is made. But this is true only where such diminution in value is certain; where there is only a possibility, or a mere probability of it, the value at the time of the loss is to be taken.2

Goods on deck, although not to be contributed for, must themselves contribute, if saved by an average loss.3

Footnote 3: See ante, p. 320, note 1.

If goods are jettisoned, and afterwards recovered, not their whole value, but only so much thereof as is lost by the jettison and damage thence arising, added to the expense of recovering them, is to be contributed for.4 It may be added, that goods jettisoned still belong to the owner, and a finder of them acquires no title, except a lion on them for the salvage which may be decreed in admiralty.5

Footnote 4: See Rogers v. Mechanics Ins. Co., 1 Story, 603, 609; Stevens & Benecke on Ar. (Phil. ed.), 235, note (a).

Footnote 5: Stevens & Benecke on Av. (Phil. ed.), 210, 248.

Footnote 6: The Ordinance, art. 22, tit. _Du jet,_ says: * If the effects jettisoned are recovered by the owners after contribution, they shall be bound to return to the master and those interested, what they have received in the contribution, less the damage still remaining to them from the jettison and the expenses of the recovery.\* See also, Pothier on Maritime Contracts, n. 186, Cushing\*. 78; Molloy, book ii. ch. vi. 4 xvi.

Footnote 7: 1 Magens, p. 62, 63. By the Roman law all the goods on board, including the
\[CH IX\] contribution for a general average loss.

founded on principle, for excusing them. And Emerigon, who thinks they should not be excused, gives for his opinion the strong reason, that if travellers' trunks, containing just these things, are jettisoned for the common safety, they are always contributed for.1

The books raise a question which has not occurred in practice, whether goods of great value, as jewels, for example, are to be contributed for at their full value, if jettisoned in ignorance of their value. We should say that merely this ignorance can make no difference; but if they were cast over because of this ignorance, and could have been, and would have been saved had their value been known, and there was any thing in the usage of merchants, or in the nature of the goods, which made it a duty on the part of the shipper to declare what they were, and especially if the concealment were in any way fraudulent on his part, their full value should not be contributed for. In such case, that which seems to have been the ancient rule might be applied; which was, only the value which the master might well suppose the goods to have, should be contributed for.2

Footnote 1: Ch. xil. sect. xil. (Meredith's ed.), p. 495.

Jewels and bullion always contribute if saved, however small their bulk, in proportion to their value.2 So we think should bank-notes; unless it ,were plain that they could not have been lost in fact, because sufficient precaution had been taken to identify them, so as to recover their value' if lost by wreck.3

Footnote 2: See SS 3.1010, SS 3.1011, SS 3.

**But we doubt whether the mere fact that a holder might take such precautions, should, of itself, exempt them from contribution. Government property was once considered as exempt from contribution,1 but never, we think, in England, and certainly not now, either there or here.3 It would seem that provisions, unless they form a part of the cargo, are put on board for consumption, and are exempt from contribution.4**

- \['UTION FOR A GENERAL AVERAGE LOSS. 325\]

riners contribute;1 an exception in the .t the ransom from a pirate,2 has no founda-.nd as little, we think, in reason.

property endangered can be said to be saved by , only that is called on to contribute. And if the loss is only an expense incurred, so much of this exas was incurred for an especial object or interest, without.efiting the rest, is to be borne by or charged to that interest alone.3

Footnote 1: The _Ess_ is a _Ess_, which 326 ON THE LAW OF SHIPPING. \[B00K L

Some questions have been raised as to the manner in which the contributory value of the goods sold, should be estimated. There is not, perhaps, a uniformity of practice on this point. We should say, however, that a convenient and reasonable rule, which has much practice to recommend it, is, to take the net proceeds of the goods at the place of adjustment if actually sold

voyage from New Orleans to Philadelphia. The vessel became leo-bound in Delaware bay, and was in imminent danger of being wrecked. The specio was taken out and conveyed by land to Philadelphia, where it was delivered to the defendants on payment of freight. Eight weeks afterwards the vessel arrived in safety with the remainder of her cargo, which had been in whole or in part discharged into lighters, and afterwards reshipped. A number of additional charges had also been incurred in the mean time for the safety of the ship and cargo. It was held, that the defendants were bound to pay their proportion of these expenses. In Bedford Com. Ins. Co. v. Parker, 2 Pick. 1, the ship was stranded a few miles from her port of destination. The owner of the cargo saved part of it at his own expense. Subsequently the insurers on the ship entered into a contract with a certain party to pay him $2,600 if he would get the ship off. The ship was saved and brought to the what, with part of the iron on board. It was held, that only this part was liable to contribute in general average for the expense thus caused. Similar decisions in relation to stranded ships were given in Sparks v. Kittredge, U. S. D. C., Mass., 9 Law Reporter, $18; Job v. Langton, 6 Ellis & B. 779, 37 Eng. L. & Eq. 178. It is difficult to reconcile these cases. The fact in each are not materially different. Mr. Phillips (vol. 2, $ 1407) doubts the correctness of the decision first mentioned, and in this conflict of authorities, it is impossible to determine with accuracy what the law is. The question has also arisen in a recent case in New York, Nelson v. Belmont, 5 Duer, 310. A ship, loaded with cotton, was struck by lightning, and set on fire. The passengers and eight kegs of specio were transferred to a brig which was passing. The fire was confined to the hold, and was got under sufficiently to enable the ship to sail for an intermediate port, whither she was accompanied by the brig. While in the harbor, and before reaching the what, the captain of the ship took the specie, and afterwards deposited it in a bank. It was held, that the specie was liable to contribute for all general average expenses incurred subsequent to the removal of the specie, as well as for those prior. The question, perhaps, is to be determined by the fact whether the vorgae was broken up to such a degree that the owner of the cargo had a right to take the goods on. For it had been held that if while a vessel is being repaired at an intermediate port, the owner takes the cargo, he is liable for subsequent average expenses. Sherwood v. Ruggles, 2 Sandf. 55. But this distinction is not noticed in the cases above cited. In The Ann D. Richardson, Abbott, Adm. 499, it was held, that the cargo was not to be charged with any expenses incurred in respect to it after the voyage was broken up and abandoned. Mr. Justice Bets said : "The charges for preparations made to the vessel subsequently, may properly be referred to as a means of measuring the actual value of her injuries sustained for the common benefit. That allowance has no application to claims for the care and management of the cargo after it ceased to be connected with the vessel for the purposes of the voyage. Services or expenditures of that character have no connection with the ship or the injuries she incurred for the common advantage, and cannot, therefore, be subjects of general average.

there (or if sold before, their actual proceeds), or their net value for sale as estimated.1 It has happened that the goods so sold brought much more than the price they would have brought at the place of destination. If this is now taken as the value of the goods lost, the shipper makes a profit; if as the contributory value of the goods which pay, he loses; but in our judgment these consequences may be set off against each other, and the general rule should still be that an actual sale at the port of adjustment determines the value of the goods.2

Footnote 1: See Stevens & Benecke on Ar., Phillips' ed. pp. 68-74, 193, 194 ; 2 Phillips on Ins. ! 1401. In Lee v. Grinnell, 5 Duer, 400, 430, where the cargo was damaged while in port and sold, it was held that the amount is brought at the sale was to be taken as the fair value.

**We think, also, that from the value of the goods should be deducted the freight paid or payable on them. The owner pays, or loses the freight, because the goods are brought in safely. He would have saved the freight had they been lost; and he has saved the goods less the freight by their being brought into port; and it is only the saved property, or the saved value, which contributes. If the vessel arrives at the home port, or if it is wrecked and the goods are sent on, the general rule is that they shall contribute according to their value there.3 In New York, their value is taken to be the first cost at the port of departure and charges.4 In Massachusetts, the value at the time and place of the occurrence of the average expense is taken.5**

Footnote 1: See Stevens & Benecke on Ar., Phillips' ed. pp. 68-74, 193, 194 ; 2 Phillips on Ins. ! 1401. In Lee v. Grinnell, 5 Duer, 400, 430, where the cargo was damaged while in port and sold, it was held that the amount is brought at the sale was to be taken as the fair value.

Footnote 2: Richardson v. Nourse, 3 B. & Ald. 237. In this case goods were sold at an intermediate port, in order to pay for necessary repairs, at a price higher than they would have brought at the port of destination. A reference being had to settle the loss, the arbitractors allowed for the actual value of the goods when sold, and not for their value at the port of destination. The case came before the court on a motion to set aside the award. It was held that as it did not clearly appear that the award was contrary to any well-established principle of law, it must stand. Mr. Phillips says : " There is a diversity of opinion on this question among practical underwriters in the United States." Stevens & Benecke on Ar., Phillips' ed. 194.

**Barward v. Adams, 10 How. 270, 307. In this case the court said : " The place where average shall be stated is always dependent more or less on accidental circumstances, affecting not the technical termination of the voyage, but the actual and practical closing of the adventure. We see nothing in the circumstances to take this case out of the general rule that contribution should be assessed on the value at the home port." See also, Gillett v. Ellis, 11 Ill. 579 ; Gray v. Waln, 2 S. & R. 299.**

**Leavenworth v. Delafield, 1 Caines, 573. See also, Mutual Safety Ins. Co. v. Cargo of Ship George, Olcott, Adm. 157, 166.**

\*\*Donglas v. Moody, 9 Mass. 548. In Spafford v. Dodge, 14 Mass. 66, it was held

**329** ON THE LAW OF SHIPPING. \[B00K L\*\*

**If the ship returns to her port of departure, and the adjustment of average is made there, it seems to be the practice to take the invoice cost of the goods as their contributory value.1 The old rule to ascertain the value of the goods to be contributed for, was, if half the voyage had been performed, to take the price at the port of discharge, if not, at the price they cost; but this rule was long since done away with.3 If the goods are insured, their valuation in the policy would generally be conclusive, if made without fraud, in case of an adjustment at the home port.3**

Footnote 1: The author is grateful to the anonymous referee for the support of this paper.

Profits do not contribute under that name. It is obvious, however, that when the contributory value of the goods, is their value at the port of destination, it is their value as enhanced by the transportation, and therefore the profits are included in fact.4 So, too, as to the valuation of the freight, there are some points not positively settled by law or by practice. Only the freight earned, pays; 5 and if that be only a _pro\_\_ata_ freight, that only contributes,6 and from the freight all expenses necessary for earning it, should first be deducted.7

Footnote 1: The author is grateful to the anonymous referee for the support of this paper.

Footnote 2: The author is grateful to the anonymous referee for the support of this paper.

Footnote 3: The author is grateful to the anonymous referee for the support of this paper.

Footnote 4: The author is grateful to the anonymous referee for the support of this paper.

Footnote 5: The author is grateful to the anonymous referee for the support of this paper.

Footnote 6: The author is grateful to the anonymous referee for the support of this paper.

Footnote 7: Williams v. London Ass. Co., 1 M. & S. 318.

**334**GL IX.\] CONTRIBUTION FOR A GENERAL AVERAGE LOSS. 329

Whatever freight the ship loses by jettison of the goods, or by any sacrifice, is, of course, to be contributed for.1 So if she be voluntarily stranded to save the cargo, and being lost cannot carry it on and earn her freight, this is a part of the sacrifice.3 But if the voyage is broken up in any other way, and not in consequence of a voluntary sacrifice, the freight lost is not to be contributed for.3 When freight is entitled to contribution, the value is the gross freight lost by the sacrifice.4 Nor is it more doubtful, perhaps, that the net freight only on the goods saved and carried, is called upon to contribute. But the difficulty comes when we have to determine what is this net freight. It is usually reached by deducting a certain proportion from the gross freight; as one fourth, or one third, or one half; most frequently, one third.5 Practically, the question seldom causes any embarrassment; because in most commercial ports some rule prevails, which is sanctioned by general usage there; and, as we shall presently see, an adjustment made at a proper place, according to the law of that place, is binding upon all parties and interests.6

Footnote 1: The Nathaniel Hooper, 3 Summer, 542; The Ann D. Richardson, Abbott, Adm. 499; Nelson v. Belmont, 5 Duer, 310, 392.

Footnote 2: This is the first author of 330 ON THE LAW. OF SHIPPING. \[BOOK L

any event, this was not at risk, and should not therefore be required to contribute.1 By the civil law, the master of the ship was required to have the contributions settled, that is, to collect from all the paying parties their contributions, and pay them to, or hold them for, the losing parties.2 The ordonnance of Louis XIV. contains the same provision; 3 but Valin, in his commentary,4 denies that it is so done in practice, and his authority can hardly be doubted. And Abbott, though not saying so directly, implies that it is not the law or usage in England.5 We have always supposed, however, the uniform American practice to be in conformity with the provisions of the civil law. That is, the master is agent of all concerned in this matter, and he has a lien upon all the contributory goods for their contributions, and may refuse, and it is his duty to refuse to deliver these goods to their consignees, unless these contributory shares are paid for or secured by bond or otherwise.6

Footnote 1: Stevens & Benecke on Ar., Phil. ed. 210, 257; 2 Phillips on Ins. $\\dagger$ 1404.

Footnote 2: Dig. 14, 2, 2. See also, Wellwood, it. 21.

Footnote 3: Liv. 3, tit. 8, _Du Jd._, art. 21.

Footnote 4: Tom. 2, p. 211. See also, Pothier on Maritime Contracts, Cushing's ed., p. 76, n. 134.

Footnote 5: See Abbott on Shipping, 507. In the year 1811 a motion was made by the owner of goods, which had been jettisoned for the safety of the vessel and cargo, for an injunction to prevent the master from delivering over the rest of the cargo to the other shippers. The motion was refused by Lord Chancellor _Eldon_, on the ground that though the master was not bound to part with any of the cargo, until security should be given by each shipper for his proportion of the loss, yet that every owner of a part of a cargo could not compel him to do so. Hallett v. Bousfield, 18 Yes. 187. It is also incidentally remarked in two subsequent cases that the master has a lien, but the nature or extent thereof is not pointed out. Simonds v. White, 3 B. & C. 805; Seiko v. Tobin, 3 B. & Ad. 523.

Footnote 6: Cole v. Bartlett, 4 La. 130.

Footnote 7: Gillet v. Ellis, 11 Ill. 579. See also Dapont de Nemours v. Vanco, 19 How. 16 which he was entitled, he has an implied assumpsit against the person to whom he delivered the goods bound to the contribution. And the owner of the goods is also liable, although the consignee signed a general average bond.1 And if one shipper pays all the general average expenses incurred by reason of a peril, as capture for instance, he has a right of action against a joint shipper for his proportion.2

Footnote 1: **Eckford $v$. Wood, 5 Ala. 136. The court, in this case, also said, that if a party, who is bound to contribute, pays his proportion of the contribution to the master, this payment discharges him from all liability to the party entitled to contribution, though the captain should keep the money for his own use.**

**The English East India Company, when they charter a ship, stipulate that there shall be no claim for contibution for general average.3 We have never known an instance of such a provision entering into an American contract.**

Footnote 1: **Eckford $v$. Wood, 5 Ala. 136. The court, in this case, also said, that if a party, who is bound to contribute, pays his proportion of the contribution to the master, this payment discharges him from all liability to the party entitled to contribution, though the captain should keep the money for his own use.**

**Section IX.**

**OF THE ADJUSTMENT OF A GENERAL AVERAGE LOSS AND CONTRIBUTION.**

\*\*It is commonly said that the proper place of an adjustment is the port of final destination.4 This is undoubtedly correct as a general rule. But we have seen that the master has the power, and indeed it is his duty not to deliver any contributory goods to their owners until their share of contribution is paid or secured to him for the benefit of the party to whom it belongs. But this implies and requires a previous adjustment; and there can hardly be an adjustment in part of any thing of which all the elements are so closely connected and interdependent. It follows, therefore, we think, that the rule should rather be as stated by Philip, in his valuable work on insurance: " Where different parties are concerned in a general average, the jurisdiction of the 332 ON THE LAW OF SHIPPING. \[NOOK L\] adjustment is at that port of delivery, at which their interests are to be separated."1 This, indeed, is the port of destination for those goods which are to be delivered there. And the rule would be the same in substance, if it were that the adjustment should be made at the first port of delivery of any of the interests concerned. Adjustments are usually made by persons who make this their especial business. They are called, on the continent of Europe, _despacheurs_ and this word not unfrequently occurs in English and American books; but we have seldom heard it used orally. With us, averages are usually adjusted by insurance brokers. It is an ancient and universal rule, founded upon obvious reasons,"and indeed an obvious necessity, that an adjustment made at the place at which it should be made, and according to the law of that place, is binding upon all the interests embraced in it.3 So far as regards the original owners, there is scarcely any exception or qualification to this rule." Some questions have arisen where these owners are represented by insurers, which will be considered when we treat of Insurance in a subsequent volume. In our note we cite, for the convenience of the reader, the cases in which this question has been decided in either way.4

**CL. IX.\] ADVISTMENT OF GENERAL LOSS AND CONTRIBUTION. 333**

**We would add the general remark, that while the law of general average is the same whether the property lost or contributory is insured or not, much the greater number of cases in which this law has come into question are insurance cases ; and we shall be obliged to consider hereafter some, at least, of the principles above stated, as they present themselves under the law of insurance. We shall here state very briefly the remedies which a party entitled to contribution has against the subjects liable to contribute. First, as to the rights of the owner of the ship. Having possession of the goods, the master has a lien by the common law, and may retain them till an adjustment is made and settled, or till the consignees sign a general average bond.1 And there is no exception to this rule in favor of the United States.2**

Footnote 1: Strong _v._ N. Y. Firem. Ins. Co., 11 Johns. 323 ; Sherwood _v._ Ruggles, 2 Sandf, 55 ; Thornton _v._ U. S. Ins. Co., 3 Fairf. 150 ; Chamberlain _v._ Reed, 13 Maine, 357.

\*\*The practice formerly prevailed to a considerable extent for the owner of the ship to bring a suit _in rem_ against the goods bound to contribute where they had been delivered up by the master.8 But it was held, by the Supreme Court of the United States, that the lien of the master or owners, being but a common law lien, could not be enforced in admiralty.4 We think, however, this case was wrongly decided, for there seems to be no subject over which the admiralty should more properly take jurisdiction, than general average. The reasons on which the decision of Cutler _v._ Rae rests, have been much shaken by recent decisions,5 and further adjudication is necessary to settlethe question. It has been held, that a libel _in rem_ is maintainable against the vessel in admiralty, by a shipper entitled to contribution.1

The right of the master to maintain assumpsit against each shipper for the amount severally due, which is given by the common law,3 is inconvenient and expensive where there are many shippers, and the usual and most effectual way of obtaining relief, at the present day, is by a bill in equity.8

maritime law, a lien upon the goods, as security for the payment of their just contribution, this lien was lost by their voluntary delivery to the consiope; and that the implied promise to contribute could not be enforced by an action _in persona_ against the consiope, in the admiralty. This admits the existence of a lien, arising out of the admiralty law, but puts it on the same footing as a maritime lion on cargo for the price of its transportation ; which, as is well known, is waived by an authorized delivery without insisting on payment." If this is the reason for the distinction, it follows that no action will lie _in persona_ for freight, where the goods have been delivered up.

1 Dike _v._ Propeller St. Joseph, & McLean, C. C. 573 ; Dupont de Nemours v. Vance, 19 How. 162. In a case prior to this latter decision, Mr. Justice Curti held, on the authority of Catter v. Rao, that there was no lien in rem against the vessel in such a case. Beane v. The Mayurka, 2 Curtis, C. C. 72. But the decision in Dupont de Nemours v. Vance, to the contrary effect, was given by the same learned judge, and in a still more recent case the correct rule that a lien exists has been laid down. The John Perkins, U. S. C., Mas., 1857, 21 Law Borometer, 87, 69.

- Sherwood v. Ruggles, & Sandf. 55; Marshum v. Dutrey, Select Cases of Erd. 58; Birkley v. Pregrave, 1 East, 290 ; Dobson v. Wilson, 8 Camp. 480.

- Sturgess v. Cary, 2 Curtis, C. C. 59. Soe also, Sherpard v. Wright, Show. P. C. 18; Doane v. Keating, 12 Leigh, 891.

CH. X.\] ORIGIN AND HISTORY OF STOPPAGE IN TRANSITU. **335**

CHAPTER X.

OF STOPPAGE IN TRANSITU.

SECTION I.

OF THE ORIGIN AND HISTORY OF THE RIGHT OF STOPPAGE IN TRANSITU.

THE right of stoppage _in transitu_ may be defined as the right by which the seller of goods to a distant purchaser, who becomes insolvent, stops them, if he can do so, before they come into the possession of the purchaser.

It is now quite settled that this right belongs to the seller who sends his goods by land, as well as to him who sends them by sea. And the consideration of it might seem to belong, in some respects at least, to an investigation of the law of purchase and sale. But it originated with waterborne goods, and is still exercised far more frequently in those cases than in land carriage. And it therefore may properly -- as it is usually -- be regarded as a part of the law of shipping.

When, and how this law of stoppage _in transitu_ became a part of the law of England, is not quite certain. Its introduction is comparatively recent; and it is very important to ascertain, if we can do so, the foundation, and determining principles of this now well-established rule of law; and some inquiries into its origin and history will help us to do this.

There are in fact three ways, in either of which it might be supposed that the law of stoppage _in transitu_ entered into the law of England. One by adoption from the continental law, which is based upon the civil law. This law, in the case of a sale, 336 ON THE LAW OF SHIPPING. \[BOOK L\]

does not consider the right of property as passing to the buyer, until he has possession of the goods.1 It distinguishes carefully, and we think wisely, between the _jus ad rem_, which such a buyer gets by the sale to him, and the _jus in re_, into which the _jus ad rem_ ripens as soon as the buyer takes possession. It follows, therefore, that the seller continues to own the goods until they reach the buyer. He need not stop them, nor do any thing else to reveal any title in himself. If they are not in the possession of the buyer when the buyer becomes insolvent, they do not pass into his general assets, leaving the seller to take his dividend; but the insolvency leaves the goods the property of the seller. This we understand to have been the principle of the rule in Scotland, and in most other countries in which the civil law prevails. But in Scotland it seems to be otherwise now.2 In France also, the rule has been made more like our own; that is, some act equivalent to stoppage is required to give to the seller full security in the goods.3 But it is plain that this rule of the civil law could not be adopted in England, where the precisely opposite rule prevails, namely, that a sale does of itself pass the property to the buyer without delivery. By the civil law, the seller was indeed permitted to reclaim the property from the possession of the buyer, within a short period, on the ground that the speedy insolvency implied fraud, if the very goods had not been sold by the buyer, and could be distinctly separated and identified.

Footnote 1: Dig. 18, 1, 19. So also, id. 19, 1, 13, 8; and 14, 4, 5, 18.

Footnote 2: Formerly in Scotland the doctrine of restitution, grounded on presumptive fraud _intra tridium_ of the bankruptcy of the buyer, prevailed. The last case, in which this doctrine was held, was decided in 1789, but on appeal to the House of Lords, the doctrine was reproduced and has since been abandoned, and the law of England on the subject is now in force. Bell's Comm., Book ii. ch. vi. SS 1.

Footnote 3: Code de Commerce, liv. iii. tit. iii. art. 576, _et seq._; Rodman's Translation, p. 301. See also, Bell's Comm. Book ii. ch. vi. SS 1.

Another way is, by supposing that the seller had, until the goods reached the buyer, a right to rescid the sale for non-payment, provided the buyer became insolvent; and that the act of stoppage _in transitu_ was an exercise of this right. This was at one time rather a favorite view; and in some cases the courts seem to have endeavored to establish this as the true theory of
**GH. X.\] ORIGIN AND HISTORY OF STOPPAGE IN TRANSITU. 387**

stoppage _in transitu._ But they failed, as we think, entirely. We should say that in England the course of adjudication was against this doctrine, and in this country, it is so, very certainly.1

Footnote 1: See post, p. 340, n. 9.

The third way is, by supposing that the common law doctrine, of the seller's lien on the goods sold for his price as long as he has them in his possession, continues in force after ,they have left his possession, and until they have reached the possession of the buyer; or in other words, that the goods are considered as constructively in the possession of the seller until the buyer has actual possession.

In our own view, we must combine the first and the third of these three ways, in order to account for the law of stoppage _in transitu_, as a part of the English law and of our own.

We mean, that this law, in part as a direct consequence of the rules of the civil law, then even more than now, widely prevailing; and in part from its obvious reason and justice, became a part of the law-merchant as established by general usage and custom. That when it came first before the observation of the courts, they found it thus established, and saw it to be reasonable and just, and looked about to find in the English law some principle by means of which it could be received. And they found this in the law of lien, and in the continued constructive possession of the seller; and thus founded the law of stoppage _in transitu_ upon this lien, making the act of stoppage only an exercise of this lien; and therefore regulating the law of stoppage by the general principles which belong to the law of lien.

We may remark in passing, that this is by no means the only instance in which the English law of lien in the seller is used to neutralize the ill effect of the rule, that the sale without delivery passes the property to the buyer. Indeed, this rule of lien seems to have been devised to supply the want of the-civil law distinction between the _jus ad rem_ and the _jus in re;_ and if permitted to have this effect, it will aid in the solution of some of the vexed questions of the law of sales.

To return to the origin and foundation of the law of stoppage _in transitu_, we shall find that the cases sustain the views above expressed. The earlier ones certainly do; and if later authori ties have sought, as we have intimated, to change the ground from that of lien to that of rescission, the latest return, as we think, to the original doctrine.1

1. The first notice we have of this rule in the books, is in the case of Wisconsin : Vandepunt, 2 Vern. 203, in 1690. It was clearly a case of stoppage in _transit_; and the right of the seller was sustained by the court, then consisting of lords commissioners, in a very brief opinion, without giving much reason, or referring to much authority or usage. Then came Snee v. Baxter, 1 Akt. 245, in which the right is very positively asserted by Lord Hardwicke. This case is said by _Buller_, J., in Liekhornv. A Mason, as cited in the note to Newson e. Thornton, 6 East, 20, 28, to be "mismatch reported." It is not easy to get at the exact force or application of all that Lord Cancellor Hardwicke says. It seems, however, to be certain that he puts the case on equitable, rather than on legal principles. He says : "He who would have equity, must do equity," and afterwards says : "Though goods are even delivered to the principal,I could never see any substantial reason why the original propriator, who never recid a farthing, should be obliged to quit all claim to them, and come in as a creditor only for a shilling perhaps in the pound, unless the law goes upon the general credit the bankrupt has gained by having them in his custody." This would seem to be an implied approval of the rule of the civil law, and a declaration that the common law is otherwise. His lorablity immediately adds : "But while goods remain in the hands of the original propriator, I see no reason why he should not be said to have a lien upon them till he is paid, and reimbursed what he so advanced ; and _therefore_ I am of opinion the defendant had a right to retain them." This is, in the first place, an assertion of common law rule of lien in the case of sale, as well established then as it is now; and in the next place, by making this rule the ground of supporting a stoppage is _transit_ (which last two words are used in the decision), it is certain that the Chancellor considered the goods as in the possession of the seller, until they reached the buyer; and that the stoppage in _transit_ was only an exercise of the lien of the seller.

The case would be more valuable in this respect, did it not turn very much on the effect of an assignment by the bankrupt of the bills of lading for the goods. In one paragraph the Chancellor says : " This must depend upon the custom of merchants, and here indeed there is a contriory of evidence." But from what follows, we apprehend that this diversity related not to the right of stoppage _is transit_, but to the general usage in reference to the indorstment of bills of lading.

The next case is also in equity. It is that of D'Aquila v. Lambert, Am. 399, 1 Eden, 75, in 1761. The original seller, who had demanded the goods of the shipmaster, filed a bill to obtain them. The language of the Lord Chancellor, in decreting for the plaintiff, is quite remarkable. " This is a question of extent and consequence in trade. If it had been _res integros_, I should have required a more extensive argument, and taken time to consider ; but it is not a case of difficulty. Has been settled by several determinations, which have been universally approved of by merchants."

It is to be noticed that _Buller_, J., in this opinion in Liekhornv v. Mason, quoted in a note to Newson v. Thornton, 6 East, 25, considers precisely the question we have above presented, and his words are very emphatic. He says : "I will be jarev to make a few observations on the right of stopping goods in _transit_, and on the nature and principles of liens. . It is a contradiction in terms to say, that a man has a lien on his own goods, or a right to stop his own goods _in transit_." He goes on to illustrate his position at much length ; assering that, until 1690, " this right, or privilege, or GH. X.\] THIS RIGHT IS BUT AN EXTENSION OF THE LIEN. 339

We deem this question, of the origin of the law of stoppage _in transitu_, as one which should be clearly determined, for whether it is a lien, or a right of rescission, is not merely a technical question, but it involves consequences of the utmost importance.

SECTION II.

THAT.THIS RIGHT IS BUT AN EXTENSION OF THE LIEN OF THE SHELLER.

If a seller, who stops the goods which he has sold, in their transit to the buyer, thereby rescinds the sale, or annuls it, the goods, which, by the sale, became the property of the buyer, by this annulling of the sale, cease to be his property and become again the property of the seller. In other words, the rights and obligations of the parties are the same as if there had never been any sale. Of course the buyer' cannot tender the price and take the goods unless the seller chooses to resell them to him. And the seller has his goods but no further claim against the buyer' for any deficit in the price. Nor need the seller wait any time, or give any notice, or do any act to complete his title; but may sell the goods at once, to whom he will, as freely as if they had never been sold by him. And if they sell for more than their price, the profit remains with the seller, who sells them as his own.

A totally different state of things is produced by a stoppage _in transitu_, if that stoppage be only the exercise of a lien by the
**340**: **ON THE LAW OF SHIPPING.**

**341**: **AS Baller, J., in Lickbarrow v. Mason, cited in the previous note.**

**3**: **This question was discussed in Clay v. Harrison, 10 B. & C. 99, but was not decided. See Stephens v. Wilkinson, 2 B. & Ad. 320. The authorities are strongly in favor of holding the right of the vendor to stop the goods as an extension of the common law lion for the price, or, as Lord Kenyon observed, in Hodgson v. Loy, 7 T. R. 445, as**

**3**: **A kind of equitable lion adopted by the law, for the purpose of substantial justice." The history and character of this right were much discussed in Lord \_Abisser's opinion in Gibson v. Carrthers, 8 M. & W. 821. See also, Ventworth v. Outhwaite, 10 M. & W. 436. In the following cases in England this right has been considered as an equitable lion, and not a reccision of the contract. Gwynne, _Ex porte_, 12 Ve. 379; Marindale v. Smith, 1 Q. B. 889. See also, Wilmshurur v. Bowker, 5 Bing, N. C. 541, 7 Man. & G. 882; M. Sanders, 4 B. & C. 941; Edwards v. Brewer, 2 M. & W. 375; James v. Griffin, id, 632. In this country the right is universally considered as an extension of the common law lien. Hunn v. Bowne, 2 Caines, 38, 42; Rowley v. Bigelow, 12 Pick. 307, 313 ; Stanton v. Eager, 16 id. 476; Newhall v. Vargas, 13 Maine, 93, 15 id. 314; Rogers v. Thomas, 20 Conn. 53 ; Jordan v. James, 5 Ohio, 88. The vendor, or his assignees, may recover the goods, on a comment of the price, and the**

**4**: **Siffken v. Wray, 6 East, 371.**

**CH. R\]** THIS RIGHT IS BUT AN EXTENSION OF THE LINE. 341

because the lien exists only between vendor and vendee. And only a consignor who is actually, or virtually and substantially, a vendor, can exercise it.1 A principal who consigns goods to his factor may certainly stop them on hearing of his factor's insolvency; 2 but so he may generally without the insolvency of the factor, on the common principles of agency. And we should apply the same principles, or analogous ones, to the case of one remitting money for a particular purpose and stopping it on the way, rather than the technical right of stoppage _in transitu.3_

Footnote 2: The \_in
**342** ON THE LAW OF SHIPPING. \[BOOK L\]

on it will be considered only as so much paid towards the price of the goods, even though the bill is not yet mature.1 Nor will the actual receipt of part payment;2 for neither of these would destroy the lion of the seller. And if there be a part payment and the seller afterwards stops the goods _in transitu_, the buyer cannot recover back the part payment, as he might do if the stoppage _in transitu_ were a rescission of the sale.3

Footnote 1: Feise v. Wray, 3 East, 93; Jenkyns v. Ushorne, 7 Man. & G. 678; Newhall v. Vargas, 13 Maine, 93; Bell v. Moss, 5 What. 189 ; Donath v. Broomhead, 7 Bar, 301. It has been said that the congager need not tender back the bill. Edwards a. Brower, 2 M. & W. 375; Hays v. Moulinck, 14 Penn. State, 48.

Footnote 2: Hodgson v. Loy, 7 T. R. 440; Newhall v. Vargas, 13 Maine, 93.

Footnote 3: Newhall v. Vargas, 13 Maine, 93.

Footnote 4: In MEEwan v. Smith, 2 H. L. Cases, 309, Lord Gumpbell, speaking of the same where the vendor had not parted with the possession, said: "Several of the judges in the court below discussed at great length the question of stoppage in transitu. That doctrine appears to me to have no more bearing on this case than the doctrine of contingent remainders." It was held, in this case, that the vendor, not having parted with the possession, had a right to retain the goods. See also, Parks v. Hall, 2 Pick. 206, 211; Gibson v. Carruthers, 8 M. & W. 391; Miles v. Gorton, 9 Cromp. & M. 504.

Footnote 5: In MEwan v. Smith, 2 H. L. Cases, 309, Lord Gumpbell, speaking of the same where the vendor had not parted with the possession, said: "Several of the judges in the court below discussed at great length the question of stoppage in transitu. That doctrine appears to me to have no more bearing on this case than the doctrine of contingent remainders." It was held, in this case, that the vendor, not having parted with the possession, had a right to retain the goods. See also, Parks v. Hall, 2 Pick. 206, 211; Gibson v. Carruthers, 8 M. & W. 391; Miles v. Gorton, 9 Cromp. & M. 504.

Footnote 6: In MEwan v. Smith, 2 H. L. Cases, 309, Lord Gumpbell, speaking of the same where the vendor had not parted with the possession, said: "Several of the judges in the court below discussed at great length the question of stoppage in transitu. That doctrine appears to me to have no more bearing on this case than the doctrine of contingent remainders." It was held, in this case, that the vendor, not having parted with the possession, had a right to retain the goods. See also, Parks v. Hall, 2 Pick. 206, 211; Gibson v. Carruthers, 8 M. & W. 391; Miles v. Gorton, 9 Cromp. & M. 504.

Footnote 7: In MEwan v. Smith, 2 H. L. Cases, 309, Lord Gumpbell, speaking of the same where the vendor had not parted with the possession, said: "Several of the judges in the court below discussed at great length the question of stoppage in transitu. That doctrine appears to me to have no more bearing on this case than the doctrine of contingent remainders." It was held, in this case, that the vendor, not having parted with the possession, had a right to retain the goods. See also, Parks v. Hall, 2 Pick. 206, 211; Gibson v. Carruthers, 8 M. & W. 391; Miles v. Gorton, 9 Cromp. & M. 504.

Footnote 8: In MEwan v. Smith, 2 H. L. Cases, 309, Lord Gumpbell, speaking of the same where the vendor had not parted with the possession, said: "Several of the judges in the court below discussed at great length the question of stoppage in transitu. That doctrine appears to me to have no more bearing on this case than the doctrine of contingent remainders." It was held, in this case, that the vendor, not having parted with the possession, had a right to retain the goods. See also, Parks v. Hall, 2 Pick. 206, 211; Gibson v. Carruthers, 8 M. & W. 391; Miles v. Gorton, 9 Cromp. & M. 504.

Footnote 9: In MEwan v. Smith, 2 H. L. Cases, 309, Lord Gumpbell, speaking of the same where the vendor had not parted with the possession, said: "Several of the judges in the court below discussed at great length the question of stoppage in transitu. That doctrine appears to me to have no more bearing on this case than the doctrine of contingent remainders." It was held, in this case, that the vendor, not having parted with the possession, had a right to retain the goods. See also, Parks v. Hall, 2 Pick. 206, 211; Gibson v. Carruthers, 8 M. & W. 391; Miles v. Gorton, 9 Cromp. & M. 504.

Footnote 10: In MEwan v. Smith, 2 H. L. Cases, 309, Lord Gumpbell, speaking of the same where the vendor had not parted with the possession, said: "Several of the judges \*

CHL x.\] WHEN THIS RIGHT MAY BE EXERGINED. 343

goes somewhat further, and inquires, also, into the constructive possession of the goods. For they may be in the actual possession of the seller, and yet so far, constructively, in the possession of the buyer, that the seller cannot stop or retain them. Or they may be in the actual possession of the buyer, but under such circumstances that the seller's right of stoppage is not taken away. It becomes, therefore, very important to ascertain when the transit, so far as this right is concerned, ceases.

We will consider this question under the different heads of goods warehoused, goods in the hands of a carrier, goods on board of a ship, and goods transferred by a bill of lading.

## 2 _Of Goods Warehoused._

In general, every warehouse-man is the agent of any party who puts the goods in his warehouse and can take them out at his pleasure; and, therefore, his possession is the possession of such party. This is carried so far, that where a seller had a warehouse, and it was a part of the bargain of sale, that the goods might remain in his warehouse until the buyer took them out, without charge; and they remained there after the sale under this bargain, it was held that this actual possession of the seller was the constructive possession of the buyer, and that the seller could not stop or retain them for the price.1

Footnote 1: Barrett v. Goddard, SS Mason, 107. See also, Hammond v. Anderson, 4 B. & P. 69. Townley v. Crump, 4 A. & E. 58, is, however, contra. And the same rule applies a _fortiori_ if the vendec pays warehouse rent. Hurry v. Mangles, 1 Camp. 453 ; Phillimore v. Barry, id. 518. In Miles v. Gorton, 2 Cromp. & M. 504, the goods, in the warehouse of the vendor, were sold under an invocie which expressed that they were to remain at rent. A bill of exchange for the price was given and negotiated, but before maturity, the vendec became bankrupt. Held, that the vendor had not lost his lien. The court said: " Here, in point of fact, the warehouse rent was not actually paid, but only charged, and such charge amounted to a notification by the seller to the purchaser that he was not to have the goods, not only until the payment of the price, but of the rent. In this case, therefore, the vendor had originally a right to hold, both for the price and the rent; and I think that the effect is not to make, as has been argued, the warehouse of the vendor the warehouse of the vendec, but to make it a part of the contract between the parties, that the goods are not to be delivered until not only the price, but the rent, is paid."

On this point it is a material question whether any thing remains to be done by the seller; if nothing, this goes far to make the warehousing a delivery to the buyer; not so, however, if the seller must still do something to or with the goods before they are delivered.1

Footnote 1: In the case of the _bayer_, the buyer is not a buyer, but it is not a buyer, but it is not a buyer, but it is not a buyer, but it is not a buyer, but it is not a buyer, but it
\[\]

346 ON THE LAW OF SHIPPING. \[B00K L\]

If the buyer sells to a third party, to whom the warehouse-man certifies that the goods are transferred to his account, and who thereupon pays the price, the warehouse-man becomes responsible to this third party, although something material may remain for the original seller to do to the goods.1 And if the seller, by his acts or words, or, we should say, if he by his unqualified order, justified the warehouse-man in so certifying, he would be responsible to the warehouse-man; or, to prevent circity of action, he would be held as losing his right of stoppage _in transitus._ The cases which we have already cited lead to this conclusion.

Footnote 1: The name of the paper is a "good", but it is not a good, but it is not a good.

If a buyer, either because he has no warehouse of his own, or because the warehouse of a carrier is more convenient to his customers, or indeed for any reason, causes his goods to be left at that warehouse, and sells them from thence without any purpose of removing them before sale to any warehouse or place of deposit of his own, the transit is ended as soon as the carrier deposits the goods in his own warehouse subject to the order of the buyer.2

Footnote 1: The name of the paper is a "good", but it is not a good, but it is not a good.

It is, of course, while the goods are if the hands of a carrier, that they are most frequently stopped.8 Indeed, the law originally applied only to carriers by water; and for this purpose any ship which has the goods on board is deemed a carrier.4

Footnote 1: The name of the paper is a "good", but it is not a good, but it is not a good, but it is not a good.

Footnote 2: The name of the paper is a "good", but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is not a good, but it is a good, but it is not a good, but it is a good, but it is not a good, but it is a good, but it is not a good, but it is a good, but it CH. X.\] WHEN THIS RIGHT MAY BE EXERCISED. 347

### When the delivery on Ship-board terminates the Transit

A nice distinction is taken, which has been much questioned but which seems to us to be just, when the ship is owned by the buyer of the goods. For it has been held that if they are placed on board his own ship, to be carried to him, they are in transit until they reach him in the same way as if he did not own the ship.1 But if they are placed in his ship to be carried by his

### 348 on the law of shipping.

\[BOOK L\]

orders to another place, since they will never be any more in his possession than they are when on board, this terminates the

is also cited by connel in Hodgson v. Loy, T. R. 440, 449. The ship was chartered by the bankrupts for three years, and the captain was hired and paid by them, so that they had the exclusive control of the vessel. In Inglis v. Ushewood, 1 East, 515, the general principle seems to have been admitted by all the judges that a delivery of goods by the vendors on board a ship chartered by the vendor, is the same as a delivery to the vendor. But the delivery in this case was made in Russia, and by a law of that country goods may be stopped in such a case. It was therefore held that the vendors had not lost their right of stoppage. And in Boehlinck v. Schneider, 3 Exp. 58, it was held that the law of Russia not being provable by parol, the case stood on the general law, and therefore a delivery being made by the consigner on board the ship chartered by the consigner, the transmits was ended. But in the subsequent case of Bobtling v. Inglis, 3 East, 381, the question arising whether the vendors had acted in accordance with the law of Russia, the court laid that element out of the case, and held that, by the general maritime law, where a person in England chartered a vessel to go to Russia, and bring goods home from there, the delivery on board the vessel was not a final delivery, on the ground that they "were on their passage or trunk from the consigner to the consigner." Thompson v. Trail, 2 Car.- & P. 334, merely decides that a direction by the vendee to the vendor to send the goods by a particular ship, will not defeat the right of the latter to stop them. In Van Castel v. Booker, 2 Exch. 691, goods were put on board the vessel at Rio bound "for Cork or a market," consigned to the bankrupts who were merchants at Liverpool, and owners of the vessel. Mr. Baron Parke said, that if the goods were put on board to be carried for and on the account and risk of the bankrupts " the delivery on board put an end to the right of stopping _in transit_, for the delivery on the vendee's own ship, is a final delivery at the place of destination, especially where, as in this case, its final port of discharge was not then determined, and it required further orders at Cork to give the vessel its destination. On that supposition the goods were at their journey's end ; for, it was not intended necessarily that they should ever come otherwise into the possession of the buyer than by being in that of the agent for carrying, the master." Michel v. Eda, 11 A. & E. 888, was decided on the ground that the ship was a general one. Turner v. Trustes of the Liverpool Docks, 6 Exch. 548, 6 Eng. L. & Eq. 507, is an important case on this point. There A. & Co., residing in Charleston, South Carolina, consigned cotton to B. & Co., living at Liverpool, and delivered it on B. & Co.'s own vessel at Charleston, taking a bill of lading to deliver to their order, or their assigns, they paying no freight, "_being_ owners' property. The consignors induced the bill to the "Bast of Liverpool or order." The consignores became bankrupt before the cotton arrived at Liverpool. The consignors, on its arrival, claimed a right to stop the cargo in transit. The assignes in bankruptcy claimed the cotton, as having been completely vested in the bankrupts as soon as it was put on board their own vessel at Charleston, specially appointed by them to bring home such cargo. Patteon, J., said: "There is no doubt that the delivery of goods on board the purchaser's own ship is a delivery to him, unless the vendor protects himself by special terms restraining the effect of such delivery. In the present case, the vendors, by the terms of the bill of lading, made the cotton deliverable at Liverpool to their order or their assigns, and that, therefore, was not a delivery of the cotton to the purchasers as owners, although there was a delivery on board their ship. The vendors still reserved to themselves at the time of the delivery to the captain a _just disopend_ of the goods which he, by signing the billGL x.\] WHEEN THIS RIGHT MAY BE EXERCISED. 349 transit.1 We see no reason why the same rule should not apply to a ship which is chartered or hired by the buyer of the goods. If it appears, however, by the bill of lading, that the goods were put on board to be carried on account and at the risk of the consignee, this vests the property in him, and puts an end to the transit.2 If the buyer orders the goods to be sent to some other person, by any suitable conveyance, without designating any one espec 350 on THE LAW OF SHIPPING. \[B00K L \]ially, or by a designated carrier who is not specifically his agent or servant, the goods remain _in transitu_, until they reach that second person. For he is only as the buyer; or as a second buyer; and a second buyer, without possession, can no more defeat the lien of the seller than the first buyer.1

Footnote 1: Craven v. Ryder, 6 Taunt. 433 ; Dixon v. Yates, 5 B. & Ad. 313.

If the buyer orders the goods to be delivered on board a vessel named by him, to be carried to a distant consignee whom he names, it seems that if the seller takes a receipt from the shipmaster as for his own goods, he preserves his own lien on them.2 And if he demands such a receipt at the time of shipment, and it be not delivered, the seller acquires, by his mere demand, a right as against the master.3

Footnote 2: Craven v. Ryder, 6 Taunt. 433 ; Dixon v. Yates, 5 B. & Ad. 313.

Footnote 3: Ruck v. Hatfield, 5 B. & Ald. 632.

Footnote 4: Nowhall v. Vargas, 15 Maine, 314.

CH. X.\] WHEN THIS RIGHT MAY BE EXERCISED. 351

lien for the freight creates no difficulty. Whoever claims the g goods must pay him for carrying them; and it is immaterial to him whether buyer or seller does this. But a seller who seeks to stop the goods _in transitu_, is bound to pay the carrier only his freight for these very goods, and not his general demand against the buyer.1 If the carrier holds them from the buyer by his lien for freight, while he holds them they are in transit, because not yet in the possession of the buyer. And where a carrier landed a part on the wharf of the consignee, but took it back again and held that part with the rest for his's freight, it was held that this delivery did not extinguish the right of the seller.2 Payment of freight by the buyer is not, of itself, sufficient to terminate the transit or to take away the right of stoppage.3

Footnote 1: Oppenheim v. Russell, 3 B. & P. 42.

Footnote 2: Crawshay v. Eades, 1 B. & C. 181 ; Edwards v. Brewer, 2 M. & W. 375.

Footnote 3: Thus, in Donath v. Broomhead, 7 Barr, 301, the consignee paid the freight, but, having lost the invoise, was unable to enter the goods at the custom-house, in consequence of which, they were seized by the officers and removed from the vessel. Before the duties were paid the consignee became insolvent, and the court held the transinus was not ended. See also, Mottram v. Heyer, 5 Den. 629.

Footnote 4: Butler v. Woolcott, 5 B. & P. 64.

Footnote 5: This seems to be the correct rule, and in a controversy between the vendor and the assignees of the bankrupt, it has been so held; Bird v. Brown, 4 Exch. 786, 797. See also, Xaylor v. Dennie, 8 Pick. 198, 203, per _Parker_, C. J. But in Allen v. Mercier, 1 Ashn. 103, the court were of opinion that, in a case where the goods had arrived at the place where the verode lived, and were demanded by him, the tendering freight, but the carrier refused to deliver them'until an old claim- was settled, and carried them back to the place where the vendor lived, the latter was entitled to maintain replevin against the carrier on tendering freight.

It may be added, that a carrier who agrees to look for his freight to the consignor, cannot detail the goods for freight, from the consignee.4 And if he so detain them after a demand from a buyer or consignee otherwise entitled to the possession, we should say that this unlawful detention would no more continue the right of stoppage, than an unlawful delivery would defeat it.6

Footnote 4: This, in Donath v. Broomhead, 7 Barr, 301, the consignee paid the freight, but, having lost the invoise, was unable to enter the goods at the custom-house, in consequence of which, they were seized by the officers and removed from the vessel. Before the duties were paid the consignee became insolvent, and the court held the transinus was not ended. See also, Mottram v. Heyer, 5 Den. 629.

Footnote 5: This seems to be the correct rule, and in a controversy between the vendor and the assignees of the bankrupt, it has been so held; Bird v. Brown, 4 Exch. 786, 797. See also, Xaylor v. Dennie, 8 Pick. 198, 203, per _Parker_, C. J. But in Allen v. Mercier, 1 Ashn. 103, the court were of opinion that, in a case where the goods had arrived at the place where the verode lived, and were demanded by him, the tendering freight, but the carrier refused to deliver them'until an old claim- was settled, and carried them back to the place where the vendor lived, the latter was entitled to maintain replevin against the carrier on tendering freight.

## Appendix E When Goods are lodged in the Custom-house.

Whether, if goods be lodged in the custom-house, or the national warehouse, the transit is ended before the duties are
952 ON THE LAW OF SHIPPING.

\[DOOK L\] paid and every thing done which is necessary to give the consigee the right to withdraw them at pleasure, seems not to be certain on the authorities. We should say, on principle, that if the goods pass from the ship to the warehouse because the consigee has no right to them, not having paid the duties, or otherwise satisfied the requirement of law, it cannot be said that he has ever taken possession of them. And, therefore, the seller may discharge all these claims upon them and establish his lien for the price.1 If the goods were ever delivered to the consigee, no subsequent taking of them from him by the government, or delivery of them by him to the government, can restore the lien of the seller; for that ceased entirely as soon as they came into possession of the buyer.

Footnote 1: It was proved, in Northery _v._ Field, 2 Exp. 613, that twenty days were allowed after the ship's arrival to pay the duties, during which time the goods remained on board, and if not paid within that time they were taken to the king's cellars, and kept there three months and then sold, but the owner might have them at any time on payment of duties. The vendees became bankrupt after the ship's arrival, within the twenty days. The goods were removed to the cellars, and the day before the-three months expired the agent of the consigors demanded them. Held, that the _transitus_ was not ended, and the consigors were entitled to recover. Nix _v._ Olive, Abbott on Shipping 538, and Burnham _v._ Winsor, U. S. D. G., Mass., 5 Law Reporter, 507, are to 'the same effect. In Donath _v._ Broomhead, 7 Barr, 301, the goods were not entered on account of the loss of the invice. The court held, that the transit was not complete. Motman v. Heyer, 5 Den. 629, 1 Den. 483, is an important case on this point. The defendants, merchants in New York, ordered, from the plaintiffs in England, a case of hardware. It arrived April 7, when the bill of lading was delivered and the freight paid. On the 9th the goods were _extered_ at the custom-house, and carried from the ship to the public store. They were placed there by the custom-house officers, because the consigees had neglected to pay the duties and obtain a permit to land the goods, and were not there under any of the warehousing provisions of the revenue laws. While there, and before the duties were paid, the defendants became insolvent, and the plaintiffs demanded of them the goods. They refused to deliver them, and afterwards paid the duties and removed the goods to their own store. Chancellor _Wlaworth_ was of the opinion, that the entry, without payment of the duties, was not a termination of the _transitus_, although he thought that if they had been placed in a public store under the revenue warehousing system, the right of the vendor would be gone. See also, as to this last point, Stracchan _v._ Trustees of Knox, Court of Sessions, Scotland, 19 F. C. 253, Brown on Sales, 536.

**F.** _Of Constructive Delivery of the Goods._

In general, wherever a carrier enters into a new arrangement with the consigee, by which the carrier agrees to hold the goods * \[\]

**CH. X.\]** WHEN THIS RIGHT MAY BE EXERCISED.\*\* 353

as the property of the consignee and at his disposal, this is a termination of the transit.1 All acts in reference to any such question must be open to explanation by coexisting circumstances. And the general question may be stated thus. Taking all the facts together, was the carrier, the warehouse-man, or wharfinger, or any other person having the actual possession of the goods, at the time of the intended stoppage _in transitu_, acting as the agent of the seller, or of the buyer; for if of the latter, the transit was terminated.2 And a question having * \[\]

Footnote 1: This, in Whitehead v. Anderson, 9 M. & W. 518, 534, _Parke_, B., said : "A case of _constructive_ possession is, where the carrier enters expressly, or by implication, into a new agreement, distinct from the original contract for carriage, to hold the goods for the consignee as his agent, not for the purpose of expediting them to the place of original destination, pursuant to that contract, but in a new character, for the purpose of custody on his account, and subject to some new or further order to be given to him." In this case the court doubted whether the act of marking, or taking samples, or the like, without any removal of any part of the goods from the possession of the carrier, even though done with the intention of taking possession, would amount to a constructive possession, unless it was accompanied by circumstances, showing that it was intended that the carrier should keep possession of the goods as the agent of the vendoe, and that he assented to the same. See also, cases cited in next note.

- \[\]
- Thus, in Allan v. Gripper, 2 Cromp. & J. 218, 2 Tyrw. 217, the goods were conveyed by a carrier by water, and deposited in the carrier's warehouse, to be delivered theme to the purchaser or his customers, as they should be wanted, in pursuance of an agreement to this effect between the carrier and the purchaser. This was the usual course of business between them. It was held, that the carrier became the warehouse-man of the purchaser, upon the goods being deposited there, and that the vendor's right of stoppage was gone. The case was likened to Foster v. Frampton, 6 B. & C. 107, 9 Dowl. & R. 108, where the vendee desired the carrier, for his own convenience, to let the goods remain in his warehouse until he received further directions; and also, took home samples of the goods; but before the bulk was removed he became insolvent: and it was held, that the right of stoppage was gone. See also, Row v. Pickford, 1 J. B. Moore, 526. Scott v. Pettit, 3 B. & P. 469, was decided on the same principle. Goods were sent from Manchester _directed_ to the purchaser at London; but, in pursuance of a general order from the buyer to the seller, they were sent to the warehouse of the buyer's packer, and by the warehouse-man were booked to the buyer's account, and the warehouse-man unpacked them. The _transitus_ was held at an end when the goods reached the warehouse. In Wentworth v. Outhwaite, 10 M. & W. 436, goods were sold by a merchant in Hull to a Mr. Weatherall of Mickley Mills, a place about thirty miles from Leeds. They were forwarded by railway to Leeds, and there placed in the warehouse of the defendants. The custom was for the warehouse-men, when goods arrived for the vendee, to give him notice, and he then sent his teams for the goods. Held, that the warehouse-men were the agents of the vendee, and a delivery at their warehouse was a delivery to him, so as to terminate the _transitus_. See also, Dodson v. Wentworth, 4 Man. & G. 1080. But in this country, under a precisely similar state of facts, it has been decided otherwise. Covell v. Hitchcock, 23 Wend. 611, 20 Wend. 167. 30
  354 ON THE LAW OF SHIPPING. \[B00K I.

arisen in such a case, whether the intention of either party could be put in by evidence and considered, when that intention had not been communicated to the custodian, it was held, by the majority of the court, but against the important dissent of Lord Abinger, that such intention was admissible.1

Among other modes of terminating the transit by constructive delivery, may be mentioned a delivery of the key of the vendor's warehouse to the purchaser;2 or a receipt by the vendor of rent for the use of his warehouse;3 or demanding and marking the goods by an agent of the buyer, at the inn which they had reached at the end of the journey;4 or the seller's permitting the goods to be resold, and marked by the second buyer;5 and we apprehend that permitting a resale would alone be sufficient.

Any delivery of the goods to an agent of the buyer authorized to receive them, will terminate the transit or otherwise, according to the purpose for which they are received. If to be still sent forward to the buyer, the receiver is only an agent to continue the transit;6 but if they are to rest where received, and remain there subject to the final disposal of the buyer, and, therefore, could not be held as on their way to him, such a reception would terminate the transit.7

Footnote 1: James v. Griffin, **2 M. & W.** 623.

Footnote 2: Per Lord Kenyon, C. J., in Ellis v. Hunt, **3 T. R.** 464, 468.

Footnote 3: See ante, p. 343, note 1.

Footnote 4: Ellis v. Hunt, **3 T. R.** 464.

Footnote 5: Stovel v. Hughes, **14 East, 308.**

Footnote 6: Thus, in Buckley v. Furniss, 15 Wend. 187, 17 id. 504, a party ordered a quantity of merchandise, directing it to be forwarded to an intermediate place. After it arrived it was delivered to a common carrier employed by the purchaser, but before it reached its final destination to vendor stopped it. Heid, that there had been no delivery to the verode. See also, Mills e. Dahl, **2 B. & P.** 457; Coates v. Railino, **6** B. & C.\*\* 422; Edwards v. Brewer, **3 M. & W.** 375; House v. Judson, **4** Dana, **7**; Cabeen v. Campbell, Sep. Jud. Ct., Penn., 1858, **6** Am. Law Register, 561. And the law is the same where the delivery is to a packer appointed by the buyer. Hunt v. Ward, **3** T. R.\*\* 467; Loeschman v. Williams, **4** Camp. 181. But if the warehouse of the packer is used by the buyer as his own, the law is otherwise. Scott v. Pettit, **3** B. & P.\*\* 469 ; Tucker v. Humphrey, **4** Bing. 516; Leeds v. Wright, **3** B. & P.\*\* 320.\*\*

Footnote 7: Dixon v. Baldwin, **5** East, 175 ; Valpy v. Gibson, **4** C. B. 837 ; Leeds v. Wright, **3** B. & P.\*\* 320 ; Biggs v. Barry, **2** Curtis, C. C. 259.

## Appendix G Whether the Consigree may hasten his own Possession

What possession of the vendee terminates the transit, has also been considered, in reference to constructive possession. An erroneous view of this subject seems to have prevailed for a while, in consequence of certain phrases, indicating that actual and personal possession alone could have this effect, which were used inconsiderately by judges of high authority. We apprehend, however, that no court would now hold that constructive possession might not have the full effect of actual possession.1

Footnote 1: It was once said, by Lord _Mansfield_, in Hunter _v._ Beal, cited in Ellis _v._ Hunt, 8 T. R. 466, that goods must come to the _corporal touch_ of the vendees, in order to terminate the transit. This expression, as applicable to the facts of that case, was perfectly correct, but it gave rise to the idea that the vendee could not take constructive possession of the goods. Lord _Knapp_ also seems to have been of the opinion that an actual possession was necessary. In Wright _v._ Lawes, 4 Exp. 82, he used the following language : " I once said, that, to confer a property on the consigree, a corporal touch was necessary. I wish the expression had never been used, as it says too much." We have seen that a delivery to an agent of the vendee, if the goods are not to be forwarded, but to remain with the agent subject to the final disposition of the vendee, is a termination of the transit. And so is a delivery on the wahr of the vendee, though the vendor claim to stop them before the vendee takes possession of them. Sawyer _v._ Joolin, 20 Vt. 172. The goods, in this case, were shipped at Troy, N. Y., directed to the purchaser at Vergennes, Vt. They were landed upon the wahr at Vergennes, half a mile from the purchaser's place of business. The wahr was the place where his goods were usually landed, and it was not customary for the wharfinger, or the carrier, or any one of them, to have any care of the goods after they were landed; but the consigree was accustomed to transport the goods from the wahr to his place of business, as was also the custom with other persons having goods landed there. The goods, while on the wahr, were not subject to any lien for freight or charges. It was held, that a delivery on the wahr was a constructive delivery to the vendee, and that the right of stoppage was gone when the goods were landed. The casts on this point were thus classified by _Hall_, J., who delivered the opinion of the court: " The cases cited and relied upon by the plaintiff's counsel, where the transit was held not to have terminated, will, I think, all be found to fall within one or the other of the following classes : 1. Cases in which it has been held that the right of stoppage existed, where the goods were originally forwarded on board of a ship chartered by the vendee. 2. Where the delivery of the goods to the vendee has been deemed incomplete, by reason of his refusal to accept them. 3. Where goods remained in the custom-house, subject to a government bill for duties. 4. Where they were still in the hands of the carrier, or wharfinger, as his agent, subject to the carrier's lien for freights. 5. Where the goods, though arrived at their port of delivery, were still on shipboard, or in the hands of the ship's ligherman, to be conveyed to the wahr. 6. Where the goods had performed part of their transit, but were in the hands of a middleman, to be forwarded on by other carriers."356 ON THE LAW OF SHIPPING. \[B00K L\]

A question has arisen whether a consignee, by taking possession of the goods prematurely, could terminate the transit and with it the right of the seller, earlier than it would otherwise cease. And it was held, that he could not.1 But it must be difficult to lay down any rule on this subject, which must not depend greatly upon the particular facts of a case. For, on the one hand, no consignee should be permitted by a fraudulent anticipation of delivery to deprive the buyer of a right which he was preparing to exercise with all due diligence and in the usual and proper way; on the other hand, it cannot be maintained that a consignee may not fairly exert himself to the utmost to hasten the arrival of goods which he wishes to use in his business, and that the consignor, when he sends them, has a certain time allowed him for his stoppage _in transitu_, which is predicated upon the usual course of transit, and is independent of the buyer's position. It has never been supposed that a seller would lose his right at a certain time, when the goods ought to be in the hands of the buyer, whether they were so or not.2

Footnote 1: Holst _v._ Pownal, 1 Esp. 240. The ship, in this case, arrived at Liverpool on the 9th of June, but being obliged to perform quarantine she was ordered back to a place called Hoylake, for that purpose. The same day the assignee of the vendee went on board and claimed the cargo, opened some chests of oranges, and put two persons on board to maintain possession. On the 17th of June the goods were claimed by an agent of the vendor. On the 18th the quarantine was ended and the ship came into harbor, and on the 19th the cargo was delivered to the assignees. Lord Kappa held, that the voyage not being completed the right of stoppage remained, and the defendants had no right to claim possession till the end of the voyage.

- Wright _v._ Lawes, 4 Esp. 82; Mills _v._ Ball, 2 B. & P. 457, 461 ; Oppenheim _v._ Russell, 3 B. & P. 42, 54. In Holst _v._ Pownal, 1 Esp. 240, there was a bill of lading which may have influenced Lord Kenyon's decision, as in Wright _v._ Lawes, apres, where there was no bill, he decided that the vendee could take possession of the goods before they arrived. But Mr. Baron _Parke_, in James _v._ Griffin, 2 M. & W. 623, 633, speaking of these two cases, said: " It is somewhat difficult to understand how a bill of lading, which is only a contract between the vendee and shipper for the carriage, can make any difference." See also, Jones _v._ Jones, 8 M. & W. 431; Foster _v._ Frappton, 6 B. & C. 107. In Wood _v._ Tentman, 15 B. Mon. 270, one Davis, of Tennessee, went to Philadelphia and bought goods of the plaintiff with the fraudulent design of never paying for them. The goods were packed in boxes, marked with his name and address, as well as with the names of the vendors, and forwarded by the usual conveyance to Jacob Forsythe, Jr., a commission merchant at Pittsburg, on their way to Tennessee. At Pittsburg they were attached by a creditor of Davis for a debt of $1,000. Davis, who was there, induced the defendant to relieve the goods from this attachment, by accepting a draft at sixty days for the amount of the debt, which was cashed by Forsythe, and the attachment discharged. As an indenmity, Yeatman ex cH. x.\] WHEN THIS RIGHT MAY BE EXERCISED. 357

## 6 _Of the Delivery of a Part of the Goods._

Whether a delivery of a part of the goods terminates the transit as to all, has also been questioned. We should lay down the rule thus. If the purchase be made by a contract consisting of severable parts, and not in itself entire, a delivery of one of these parts would not terminate the transit as to the others. If the contract were entire, the delivery of a part would terminate the transit as a delivery of the whole, unless it could be shown that the intention was to sever that part and deliver it by itself.1

Footnote 1: The first case in which this subject was broached, was Sluber v. Heyvard, 2 H. Bl. 504. The sale was of 7,061 bausels of wheat, the whole of which was entered by the consignes at the custom-house, and 800 bausels taken away before the vendor attempted to stop the remainder. The court held, that there had been a delivery of the whole, there being no intention on the part of the consignes to separate the part taken from the rest. And in Hammond v. Anderson, 4 B. & P. 69, the delivery of part was held to be a delivery of the whole. The vendor and vendee lived in the same town, and the goods (bacon in bales), lay at the wharf of a third person. They were sold for an entire price to be paid for by a bill at two months. The vendee, having received an

1. _Of the Effect of the Bill of Lading on this Right._

The effect of the bill of lading upon the right of a seller to stop the goods _in transitu_, is very important. It was once quite uncertain; but we apprehend that the course of adjudication and the principles which the law-merchant would bring to bear upon this question, enable us to state with some certainty, the American law on the subject.

The bill of lading may be regarded as only a receipt which the carrier gives for the goods; and then it would have but little effect upon the right of stoppage. But the law-merchant regards it as much more than this; as an important maritime document; and we should say as a monument of title generally, carrying prop-order for the delivery of the property, went to the wharf, and weighed the whole, and took away part. See also, Jones v. Jones, 8 M. & W. 431. In Wentworth v. Outwite, 10 M. & W. 436, several parcels of goods were purchased under one entire contract from a party at Hull, by the consiage living at Mickley, about thirty miles from Leeds. A part -- two packages -- was forwarded by the railroad to Leeds, and arrived there. One of these was taken by the consiage to Mickley, and the other scaled by the shrift at the suit of a creditor of the vendee. Some other parcels, comprised in the same contract, which were forwarded by water carriage to Boroughbridge, went stopped _in transitu_. The shrift brought an action of trover to recover these parcels, on the ground that the right of the vendor was gone, there being a part delivery, but the court held, that the transit had not terminated. In Tanner v. Scovell, 14 M. & W. 28, goods were shipped for London, and were landed at a wharf and entered on the wharfinger's hooks in the _consiago's_ name. The vendee had obtained a delivery order, under which he had received and sold the greater part. The court held, that as to the rest the right of stoppage existed. So in Hanson v. Meyer, 6 East, 614, the vendor sold all his starch lying at the warehouse of a third party at so much per cut. The warehouse-man was directed to weigh and deliver it to the vendee. It was held, that a part having been weighed and delivered, the right of stoppage existed as to the rest: due. See also, Simmons r. Swift, 5 B. & C. S57. Miles v. Gordon, 2 Cromp, & M. 504, was an action by the assignees of a bankrupt against the vendor. The goods sold consisted of twelve pockets of Kent hops and ten pockets of Sussex. An entire price was given. The goods remained in the warehouse of the vendors. The vendee residd the ten pockets of Sussex hops, and delivered them to the sub-vendee. The other twelve remained in the warehouse of the vendors till after the vendee became bankrupt. Held, that on these the vendor had not lost his lieen. See also, Dixon v. Yates, 5 B. & Ad. 313; Bunney v. Poyntv, 4 B. & Ad. 568. In Secomb v. Nutt, 14 B. Mon. 324, a part of the goods was sold while on the journey by the order of the consiage. Held, that the original vendor had a right to stop the residue. See also, Buckley v. Furnis, 17 Wend. 504. There is a _dicum_ of Mr. Justice _Tamton_, in Betts v. Gibbons, 2 A. & E. 57, 78, 4 Ner. & M. 64, 76, to the effect that a partial delivery is _prisal fotic_: a delivery of the whole. But the correctness of this doctrine has been denied. See Tanner v. Scovell, 14 M. & W. 28, 37.

CH. X.\] WREN THIS RIGHT MAY BE EXERGINED. 359

**1**: Though bills of lading have sometimes been called negotiable instruments, as in Berkeley v. Watling, 7 A. & E. 29, Bell v. Moss, 5 **What**. 189, 205, yet the law may now be considered as settled that they are only _quasi_ negotiable. See Gurney v. Behrend, 3 **Ellis & B. 622, 25 Eng. L. & Eq. 128, 136, and cases cited ante, p. 138, n. 3.**

- 3\*\*Evans v. Marlet, 1 Ld. Raym. 271, 12 Mod. 156, 3 Salk. 290, is one of the earliest cases in which this subject is mentioned. _Holt_, C. J., there said: " The consi-signed of a bill of lading has such a property that he may assign it over." _Shouer_ also said that it had been adjudged so in the Exchequer. Lord _Manfield_, in Wright r. Campbell, 1 \*\*W. Bl. 628, 4 Burr. 2046, said: " If the goods are _bond fide_ sold by the factor at _sea_ (as they may be, where no other delivery can be given), it will be good, notwithstanding the statute of 21 Jac. 1, c. 19, the vendee shall hold them by virtue of the bill of sale, though no actual possession is delivered : and the owner can never dispute with the vendee; because the goods were sold _bond fide_ and by the owner's own authority." The court, being of opinion that there were circumstances tending to show that the assignment was fraudulent, ordered a new trial to determine that fact. See also, Caldwell v. Ball, 1 T. R. 205 ; Hilbert v. Carter, 1 T. R. 745. The leading case on the subject is Lickbarrow v. Mason. The facts of this case were as follows : Messrs. Turing & Co. merchants at Middlebourg, shipped the goods in question for Liverpool by the order and on the account of one Freeman of Rotterdam, and drew bills of exchange on him for the price. The master of the ship signed four bills of lading for the goods in the usual form into order or assigns; two of which were indored by Turing and Son in blank, and sent to Freeman together with an invice of the goods. Another bill was retained by Turing and Son, and the remaining one kept by Holmes. The two bills of lading which were sent to Freeman ho handed over, with the invice, in the same state in which he received them, to the plaintiff, that they might sell the goods on his account, and drew bills of exchange upon them for nearly the amount. Both sets of bills were accepted by Freeman and the plaintiffs respectively, but before the ship arrived Freeman became a bankrupt, and absconded, and Turing & Son sent another bill of lading to the defendants, who thereby obtained possession of the goods from the master. The Court of King's **Bench**, 2 T. R. 63, decided that the indorsement of the bills of lading being _bond fide_, and for a valuable consideration to one who had no notice that the goods had not been 960 ON THE LAW OF SHIPPING. \[B00K L

Bills of lading so generally contain the word "assigns," or the word " order," that we assume this to be a part of them.

paid for, operated as an actual transfer of the property, so as to divest the consigner of his right of stoppage in _transit_. On appeal to the Exchequer Chamber, this decision was reversed by Lord _Loughborough_, 1 H. Bl. 357. The case was then removed into the House of Lords, where the judgment of the Exchequer Chamber was itself reversed and a _entire de novo_ awarded. 2 H. Bl. 211, 5 T. R. 367. The able opinion of Mr. Justice _Buller_ before the House of Lords is reported in 6 East, 21, note. On the second trial the jury found a special verdict, on which the Court of King's Bench declined giving any opinion, as it was understood that the case was to be carried up to the House of Lords; they stated, however, that they were of the same opinion as in the former case. 5 T. R. 683. If a wrist of error was brought, it was probably abandoned, as no further report of the case appears. See also, Salomons v. Nissen, 2 T. R. 674 ; Haille v. Smith, 1 B. & P. 563 ; Jenkyns v. Ushorne, 7 Man. & G. 678, 699 ; Pennel v. Alexander, 3 Ellis & B. **283**, 24 Eng. L. & Eq. 132. In Newsom v. Thornton, 6 East, 17, 41, Lord _Ellenborough_, C. J., said: " A bill of lading indeed shall pass the property upon a _bond jide_ indoremment and delivery, where it is intended as to operate, in the same manner as a direct delivery of the goods themselves would do, if so intended. _But it cannot operate further._" And Mr. Justice _Lawrence_ in the same case added: " In Lickbarrow v. Mason, _some_ of the judges did indeed liken a bill of lading to a bill of exchange, and considered that the indoremment of the one did convey the property in the goods in the same manner as the indoremment of the other conveyed the sum for which it was drawn. But in the Exchequer Chamber there was much argument to show that, _in its!/_, the indoremment of a bill of lading was no _transfer_ of the _property_, though it might operate as other instruments as _evidence_ of the transfer." And in Gurney v. Behrend, 3 Ellis & B. 622, 25 Eng. L. & Eq. 128, 136, Lord Campbell, C. J., said: " A bill of lading is not, like a bill of exchange or promisory note, a negotiable instrument which passes by mere delivery to a _bond jide_ transfere for valuable consideration, without regard to the title of the parties who make the transfer. Although the shipper may have indorsed in blank a bill of lading deliverable to his assigns, his right is not affected by an appropriation of it without his authority. If it be stolen from him or transferred without his authority, a subsequent _bond jide_ transfere for value cannot make title under it as against the shipper of the goods. The bill of lading only represents the goods, and in this instance the transfer of the symbol does not operate more than a transfer of what is represented." In this country it is well settled that the bill of lading is _quasi_ negotiable only. Thus in Everett . Salus, 15 Wend. 474, nom. Salus v. Everett, 20 Wend. 267, the master of a vessel in which goods were shipped, fraudulently reshipped them at an intermediate port, and obtained a bill of lading for them which he transmitted to his agents, who sold the goods and indored over the bill of lading to the vendec, who acted _bond jide_. Held, that the original owner was entitled to the goods. See also, generally, Stubb v. Lund, 7 Mass. 453 ; Peters v. Ballisticv, 3 Pick. 495 ; Rowley v. Biglow, 11 Pick. 307, 314 ; Stanou v. Eager, 16 Pick. 467 ; Chandler v. Sprague, 5 Mot. 306, 308; Conard v. Atlantic Ins. Co., 1 Pet. 386, 445 ; Chandler v. Belden, 18 Johns. 157 ; Walter v. Ross, 2 Wash. C. C. 283 ; Ryberg v. Snell, 2 Wash. C. C. 294 ; Daws v. Cope, 4 Binn. 258 ; The Schooner Mary Ann Guest, Olecott, Adm. 498, 1 Blatchf. C. C. 358 ; Winslow n. Norton, 29 Maine, 419. But if the bill of lading be transferred and indored by way of pledge to secure the consigner's debt, the consigner does not lose his right to stop the goods in _transit_, but holds it subject to the rights of the pledge. That is, he may 61

**CH X.\]** **WHEN THIS RIGHT MAY BR EXERCISED.** **361**

**These words, alone, would not suffice to make them negotiable instruments. But the nature and use of the instrument, and the mercantile practice under it, and the unreasonableness of depriving a consignee and buyer of all power of effectually selling his goods " to arrive," or when they are at sea (which can only be done by transfer of the bill of lading), all these considerations lead us to regret that there has not been a fuller recognition of the negotiability of the bill of lading. In despite of Lord** _Longhorough's_ **elaborate argument,1 it seems to be very nearly as desirable that the bill of lading should be considered in all respects negotiable, as that billa and notes to order should be.**

Footnote 1: **Lickbarrow v. Mason, 1 H. Bl. 357.**

\*\*The bill of lading is made sometimes to the consignor or his order, or his assigns; sometimes to the consignee or his order or assigns. If transferred without indorsement, we should say it carried no title to the property; the mere possession of it not having any more effect than the mere possession of unindorsed promissory paper.3 And if indorsed specially, the indorsee would be bound by the limitation, and any one to whom he transferred it would be bound also.8 But if it were made to the consignee or his order or assigns, and the consignor sent it to him; or if it were made to the consignor and his order or assigns, and the consignor indorsed it either in blank or to the consignee, and sent it to him in that state, then we should say that the consignor or seller, had put into the bands of the consignee or buyer, a monument and evidence of property, transferable in itself, and justifying a third party without notice in believing that the consignee had a right to make an absolute sale of the goods to him.1 We therefore conclude that a consignee who sells the goods for value to arrive and indorses over the bill of lading, confers upon the purchaser a title and property which destroy the right of the seller of the goods to stop them _in transitu._

Footnote 1: A delivery is also necessary. Buffington v. Curtis, 15 Mass. 528; Low v. De Wolf, 8 Pick. 101; Allen v. Williams, 12 id. 297, 300; Gurney v. Behrend, 3 Ellis & B. 629, 35 Eng. L. & Eq. 128.

To this rule, however, there is this important qualification. If the party buying from the consignee knows that the sale is in fraud of the original seller, it is voidable by that seller of course. And if he knows that the consignee is, or is about to become, insolvent, this knowledge would, we think, have the same effect. That is, it would in fact be conclusive evidence of a knowledge on his part of the consignee's fraud. But if the consignee was aware of his own insolvency, and even of an intended stoppage _in transitu,_ and sold the goods to prevent this, unless the purchaser had some knowledge, or adequate means of knowledge, of this fraud, he should not, on the general principles of sale and transfer, be affected by it.2 It is not enough that the sub-vendee have notice or knowledge that the goods have not been paid for, but he must have notice or knowledge of circumstances which rendered the bill of lading not properly assignable.3

Footnote 1: A delivery is also necessary. Buffington v. Curtis, 15 Mass. 528; Low v. De Wolf, 8 Pick. 101; Allen v. Williams, 12 id. 297, 300; Gurney v. Behrend, 3 Ellis & B. 629, 35 Eng. L. & Eq. 128.

It has already been remarked that a consignee who has not this power, has in fact no practical power of sale ; and the interests of commerce would be importantly interfered with by any such deprivation. For if he could, without this power, make a contract for the sale of the goods while at sea, this contract would be subject to his ultimate power of receiving the goods; and, this being uncertain, the consignee could not get his pay. The contract to sell would be avoided, so far as the sale was
CH. X.\] When THIS RIGHT MAY BE EXERCISED. 363

concerned, by a stoppage _in transitu_, which should prevent the consignee from getting the goods into his possession and power. And no prudent merchant would pay down his money or give his negotiable paper on any such contingency. But it would be otherwise, as every day's practice shows, if the consignee could make a present and effectual sale of the goods, with actual transfer of the property in them, by his indorsement and transfer of the bill of lading. And we cannot doubt that the principles of the law-merchant would give him this power.

If the consignee be a factor only, he has the goods only to sell them for his principal; and, therefore, has no authority to pledge them.1 But if the consignor has sent to his factor the usual and unrestricted bill of lading, has he not clothed him with the _indicia_ of authority, and can he be permitted to deny the authority itself? This question has been somewhat agitated both here and in England. As the result of adjudication, there and here, it seems to be settled that a factor cannot pass the property of the goods by his indorsement and transfer of the bill of lading, by way of pledge to a party who did not know that the goods were not the factor's.2 Statutes in England,3 and similar ton, 6 East, 17. The case of Wright v. Campbell, 4 Barr. 2046, was decided on the ground that the transaction was a sale, and so within the scope of the factor's authority, and is not, therefore, contrary to the other decisions, as has been sometimes supposed.

1 These statutes enact generally that any consignee, agent, or factor, having possesion of merchandise with authority to sell the same, or having possession of any bill of lading, permit, certificate, or order for the delivery of merchandise with the like authority, shall be deemed the true owner thereof so as to give validity to the sale, disposition, or pledge of such merchandise, as security for any advances, negotiable paper, or other obligations given on faith thereof. Maine B. S. (1857), tit. iii. ch. 31; Mass. Stat. (1845), ch. 193, Stat. (1849), ch. 216; Rev. Stat. R. I. (1857), ch. 116; N. T. R. S. (1830), ch. 179, p. 203; (1852), (Denio & Tracy's ed.), part IL. ch. iv. it.; Laws of Penn. (1834), ch. 470; Ohio Rev. Stat. (1844), (Swan's ed.), 278. By the statutes of some of the States the pledge cannot retain the merchandise if he had notice that the factor was not the true owner, before he made the advances, for which the merchandise was pledged as security. But the third section of the 216th chapter of Stat. (1849), Mass., provides that the pledge shall hold good, " notwithstanding the person making such advances upon the faith of such deposit or pledge, may have had notice that the person with whom he made such contract was only an agent : _provided, however_, that this act shall give validity only to such contracts, and shall protect only such loans, advances, and exchanges, as shall be made in good faith, and with probable cause to believe that the agent making such contracts had authority so to do, and was not acting fraudently therein, against the owner of such merchandise." If the merchandise was pledged to secure _antecedent_ advances, the pledge acquires no other right, or interest in the pledge than was possessed, or could have been enforced by the agent or factor, at the time of making the pledge. Maine R. S. ch. 31, 1 ; Mass. Stat. (1839), ch. 216, 1 ; Rev. Stat. R. I. (1857), ch. 116, 1 ; 3; N. Y. R. S. (1830), ch. 179, 1 4; (1852), (Denio & Tracy's ed.), part IL. ch. iv. it. v.; Laws of Penn. (1834), ch. 470, 1 4. Very few questions which have arisen under these statutes have been decided. In New York the third section of the act of 1830 provides that the factor shall be deemed owner, etc., "so far as to give validity to any contract made by such agent with any other person, for sale or disposition of the whole or any part of such merchandise, for any money advanced, or negotiable instrument, or other _oligation in writing, given by such other person upon the faith thereof?_" In Jennings v. Merrill, 20 Wend. 9, it was held, under this section, that, where goods were in the possession of the factor, a transfer of the invocice to the defendants _for indoremants to be made on the faith of it upon the paper of the factor_ came within the statute. The statute of New York, 1830, was intended to protect advances and dealings made on the faith of ownership, and not on the faith of the possession of the paper title or the evidences of title. It was, therefore, held, in a case where this question arose, that where a person advanced money to a factor on the security of certain goods, be knowing at the time that they were the property of another person, he was not entitled to the protection of the statute. Stevens v. Wilson, 6 Hill, 512, affirmed 3 Den. 472. See also, Zachrisson v. Ahman, 2 Sandf. 68, 75. In this last case it was also held, that a general clerk of a merchant, part of whose duty it was to prepare and present bills of lading for signature on shipping property of his principal, had not such control of the CH. x.\] WHEN THISIGHT MAY BE EXERCISED. 365

marchants of continental Europe,1 and, as we think, with sound policy and the true principles of the law-merchant.

It is always to be remembered that the mere possession of the bill of lading does not give a property in the goods, unless it be a lawful possession, or unless the transferree is fully justified in believing it to be a lawful possession and has paid for the goods on that supposition.2 Hence, if a master, who usually or perhaps always has one copy of the bill of lading for his own use and guidance, which he is not expected or indeed authorized to hand to any other person, do in fact give it to the consignee or other person, even if it be so indorsed as to be transferable by delivery, it confers no right or title upon the receiver of it.3 But even such transfer, where the transferree has an equitable title to the goods otherwise, may strengthen it. And a mere deposit of the bill of lading, even if unindorsed, will create a lion on the goods for the amount paid on the security of the deposit; and this lion will prevail against the right of the seller to stop the goods _in transitu,4_ but it does not destroy that right, for the seller, by discharging this lien, may take possession of the goods.

Footnote 1: See 1 Bell, Comm. B, 5, p. 1, ch. 4, SS 4, art. 412, p. 388-394, 4th ed.

Footnote 2: See Gariery v. Behrend, 3 Ellis & B. 629, 25 Eng. L. & Eq. 128, 136; Covill r. Hill, 4 Den. 332.

Footnote 3: Walter v. Ross, 2 Wash. C. C. 288.

Footnote 4: Nathan v. Giles, 5 Tannt. 558. In Walter v. Ross, 2 Wash. C. C. 288, 289, Mr. Justice Washington states the law as follows: "The possession of a bill of lading to order, not indorsed ; a promise by the shipper to indorse it, or to send a bill of lading; or perhaps even a letter of advice, stating the shipment to be to a particular person, may, as between these parties, and where the consideration is paid, give to the consignee an equitable title, sufficient to repel the right of the consignor to countermand, 31 366 ON THE LAW OF SHIPPING. \[DOK L .

While the transfer of an indorsed bill of lading for value, by one authorized to transfer it, will thus pass the property in the goods, it does not follow that the property cannot be vested in the consignee free from all lien, without the bill. For if one orders goods, and they are sent to him, but the consignor takes a bill of lading to himself and this is never indorsed nor transferred by him, yet if the master delivers the goods to the party who ordered them, the consignor has lost his right of stoppage;1 and this even if a bill of exchange or a pote, which was given for the goods, was dishonored.

section IV.

How FAR THE EXERCISE OF THIS RIGHT MUST BE ADVERSE TO THE SELLER.

It is often said that the exercise of the right of stoppage by the seller must be adverse, or in opposition to, the buyer.2 But we doubt whether this is quite accurate.3 If a consignee who hears of goods sent to him and knows he cannot pay for them, sends word to this effect to the consignor, that he may stop them on their way, so that they may not pass into his assets, and the consignor, availing himself of the information, complies with the request, we should be unable to say, on any sound principle, that this might not be a lawful stoppage.4 The cases to and even to defeat the legal right of the holder of the bill of lading, with notice of the circumstanores."

Footnote 2: I have to thank the anonymous referee for the support of the author.

Footnote 3: See Atilin v. Barwick, 1 Stra. 165, 10 Mod. 432, Fortesc. 353 ; Salto v. Field, 5 T. R. 211 ; Richardson v. Goss, 3 B. & P. 119 ; Bartram v. Farbrother, 4 Bing. 579, 1 Dan. & LL. 42 ; Scholfield v. Bell, 14 Mass. 40. In Dixon v. Baldwin, 5 East, 175, CH. X.\] THE EXERCISE OF THIS RIGHT ADVERSE TO SELLEX. 367

which the rule, that this right of the seller must be adverse to the buyer, is usually applied, are really very different, and the goods were taken from the possession of the agents of the vendoes by the vendor on giving an indeminity, he claiming a right to stop the goods _in transits_. The court. held that the _transitive_ was at an end, but that the vendors were entitled to the'goads, there being evidence that the vendec intended to resign his claim to them before becoming insolvent. James v. Griffin, 1 M. & W. 20, 2 M. & W. 623, is an important case on this subject. The vessel with the goods on board arrived at the port of London. The captain pressed the consigence to have them landed immediately. The consigence, therefore, sent his son with directions to have the goods landed at a wharf where he was accustomed to have goods for him landed, and kept until he could take them away for his customers. At the same time he told his son that he would not meddle with the goods, that he did not intend to take them, and that the vendor ought to have them. The goods were landed at the wharf and there stopped by the vendor. The assignees of the bankrupt brought an action against the wharfinger. The court held that the goods belonged to the vendor. In the opinion of the court the case turned on the point whether the acts done amounted to a taking possession of the goods by the bankrupt as owner, and the intention of the bankrupt was to govern. To prove this intention the declarations to the son were considered most material, though they were not communicated to the defendants. In Smith v. Field, 5 T. R. 402, it was said that though a contract of sale might be rescended by the consent of vendor and vendec, yet where the vendec wished to return the goods, but the vendor commenced a suit upon the contract of sale, and attached the goods in the hands of the packer as the property of the vendec, this would be considered as an election by the vendor not to rescald. In A. A. P. Putnam, 111, 302, the right of the vendfor to take back his goods was put on the ground that the sale was rescended, and so in most cases. In James v. Griffin, 2 M. & W. 623, it seems to be considered as a right of lien, though _Parke_, B., says it is unimportant to determine the point. See also, Kaylor v. Dennie, 8 Pick. 198; Grout v. Hill, 4 Gray, 361. In Lane v. Jackson, 5 Mass. 157, the consigence, merchants in Boston, had ordered goods to be shipped them on credit by the plaintiff' merchants in London. Before the arrival of the vessel the consigences became insolvent, and while in this condition received advice of the shipment, and one of the bills of lading. This they assigned by deed to one Bourne, directing him to receive the goods on their arrival, and dispose of them for the use of the plaintiff, in consideration of the said consigences being unable to pay for them. Bounne evonnated to do the same. On the day the ship arrived, Bourne went on board, prevented the bill of lading indored to him, and demanded the goods, which the master agreed to deliver unless he was legally prevented. All these acts were done without the knowledge or direction of the plaintiff. The same day on which the ship arrived, the goods were attached by the defendants, a deputy sheiff, at the suit of a creditor of the consigences. They were subsequently replied by the plaintiffs. The court admitted that an insolvent consigence might, before he received the goods, disagree to the consigment, and the assent of the consigor would be presumed, unless, within a reasonable time after notice given, he declared his disarent, or neglected to give notice of his assent. And that if the goods arrived before notice could be given to the consignor, any person, at the request of the consigence might receive and take care of them, until the consignor had notice, and that an intermediate attachment would not defeat this right. " For the insolvent consigence having refused to receive them, the goods are _in transit_, and may be sized by the consignor while they continue _in transit_. And on 368 ON THE LAW OF SHIPPING. \[Book L

come under a different principle. If a seller sends his goods to a buyer and the buyer receives them, and then seeks to restore them to the seller, or even if they are brought to the buyer and he refuses to take them, and then the question comes whether the seller can profit by this return or refusal of the seller, it is a question of _rescission_, and not of _lien_; and we have already seen that the right of stoppage _in transitu_ belongs to lien and not to rescission. If the goods were actually received by the buyer, the seller's lien is at an end; and so we think it is if they come actually within his power and immediate reach, and he declines to take hold of them. And then comes the question whether he and the seller can agree to rescind the sale, and give back to the seller those goods, to which by the common law, the assignees of the buyer are entitled, leaving to the seller only his dividend with other creditors. This is not, we repeat, a question of lien, and therefore not strictly a question of stoppage _in transitu_. So far as it is a question of sale and rescission, it must be difficult to find a reason why goods which have come to the bankrupt lately, or very recently, should be returned to the seller, and goods received earlier only make a common fund for all the creditors.1

his giving notice of his assent, within a reasonable time, to the disagreement of the consignee, the contract is rescinded _ab initio_, and nothing ever passed by it to the consignee." But the court were of opinion that these principles did not apply. They said : " But this case is different. The consignees undertake here to assign the goods, and authorize a sale thereof for the use of the consigner. This assignment is not a disagreement, but an affmance of the contract : and we cannot presume that the consigner would consent to the appointment of a factor, with power to receive and sell. The authority of the factor is derived from the consignee, and necessarily supposes an interest in the goods. In our opinion the plaintiffs cannot support this action upon the ground that they had never parted with their property by the supposed disagreement of the consignees." -- And if the goods are not attached, in such a case, the assignees of the bankrupt are entitled to them. Sifken _w._, 6 East, 371.

1 After the goods have come into the possession of the rendee, it is clear that he cannot by sending them back give preference to one creditor over another, particularly where the intention to return them is not completed till after the bankruptcy. Harman v. Fishar, 1 Cowp. 117, Loft, 479; Barnes v. Froeland, 6 T. R. 80. See also, Alderson v. Temple, 4 Burr. 2235; Sifken v. Wray, 6 East, 371. In Glencke v. Earlo, Q. B., 20 Law Report, 702, the vendee was in embarrassed circumstances when the goods arrived, and desired that they should not be landed, but they were put into his warehouse, and he wrote to the vendors thgt he should warehouse the goods for them if his business should stop. The vendors then wrote demanding the goods, and the vendee replied that he had consulted his solieitor, who informed him that they CH. X.\] WHAT INSOLVENCY WILL GIVE THIS RIGHT. 369

section V.

WHAT INSOLVENCY WILL GIVE THIS RIGHT.

It seems to be held that if the seller knew that the buyer was

- insolvent when he sent the goods, he cannot stop them afterwards.1 This seems reasonable enough. But if the seller knew the insolvency, it is impossible to suppose that he would send them, in good faith, unless on some special ground of security, or at least of belief of payment. And if the transaction were honest, and this security failed and the belief passed away, we know not why the seller might not stop the goods. It has however been held that to give the vendor the right to stop the goods

_in transitu,_ the insolvency must take place between the time of the sale and the exercise of the right of stoppage. But we are not without much doubt whether this can be laid down as a positive and universal rule. For if there be such a rule, the mere fact of insolvency at the time of the sale, whether known or unknown to the vendor, would destroy the right of stoppage.2

could not be returned. The property of the vendee was afterwards assigned to trustes, and the keys of the warehouse delivered to them. The court held that the transit was ended when the goods were first put-in the warehouse, and that there was no valid and mutual rescission of the contract of sale. But see Grout v. Hill, 4 Gray, 361.

1 Buckley v. Furniss, 15 Wend. 137.

- This question seems to have been first raised in Rogers v. Thomas, 20 Conn. 53,

Shorrs, J., there said : " The remaining inquiry respects the time when such insolvency must occur, in order to confer this right. On this point, we are of opinion, that it is not sufficient it exists when the sale takes place, but that it must intervene between the sale and the exercise of such right. It is well settled, that after the sale, and before the vendor has taken any steps to forward the property to the vendee, the former has a line upon it, by virtue of which he may, on the occurrence of the insolvency of the latter, retain the goods in his possession, as a security for the price. This is a strictly analogous right to that of stopping them after they have been forwarded, and while they are on their way to the vendee, and depends on the same principles. 'And it may be here remarked, that the cases decided on the subject of that right of lien, confirm the views which we have expressed as to the meaning of insolvency as applied to the right of stoppage, after the _transitus_ has commenced. The same equitable principle, which authorises a retention of the possession, in the one case, and a recovery of it, in the other, would seem to authorize the latter, where the insolvency occurred after the sale and before the forwarding of the property. The right of stopping it after the
370 ON THE LAW OF SHIPPING.

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Only a vendor can stop the goods; for no one else has a line for 'the price. But a foreign merchant, who in compliance with orders from here, sends goods, the price of which abroad he has paid or is responsible for, is a seller or consignor within the requirement of the law of stoppage \_in transitu.\_1 And so is one who sends goods to be sold by the consignee on the joint account of the sender and the consignee.3 And an alien enemy who sent goods to England under a British license was there permitted to stop them.8 But one who is only a surety for the consignee to the consignor, in whatever form, whether as indorser, guarantor, or otherwise, cannot, as we have already said,4 have any lien on the goods, and therefore has no right to stop them; even if they are sent through his hands. It might be in such a case, that he might otherwise obtain indemitry or security on the goods, as by attachment, if the circumstances permitted it; but not by a stoppage _in transitu._ Even if the sender has a lien on the goods, if it be not the lien of the seller for the _transitus_ has commenced, may not, therefore, be limited to the case where insolvency occurs after it has left the possession of the vendor, but it may extend to cases where it occurred at any time after the sale. However that may be, we are clear that it must occur after the sale. In favor of this position there is the same argument, from an entire absence of authority against it, as was derived from that source on the point which we have just considered ; and it applies with equal force. We find no decided case, in which the right in question has been sanctioned, excepting where the ind-vency occurred subsequent to the sale. And although the language of the courts may sometimes seem to import, that the right exists, irrespective of the time when the insolvency took place, it is quite plain, that, applying their expressions to the cases they were considering, and which did not involve this point, they were not intended to have that construction. But in most of the decided cases on this subject, it will be seen that their language is most unequivocal, and in terms limits the right of stoppage to cases of bankruptcy or insolvency, occurring while the goods are _in transitu_, and of course after the sale." In this case the vendee was insolvent at the time of the sale, and had been so for a long time previous. Precisely the same of facts existed, in this respect, in Buckley v. Furnis, 15 Wend. 187, 17 id. 504, but the vendor there was allowed to exercise his right, though it was thought that if the vendor knew the facts it would be different. This case was cited by counsel in Rogers v. Thomas, but was not noticed by the court. See also, Convers v. Ennis, 2 Mason, 236, where no notice was taken of this distinction. It was unnecessary, however, to consider it, as there had been a delivery to the vendee. And see Biggs v. Barry, 2 Curtis, C. C. 259.

1 See ante, p. 841, n. 1.

2 Newsom v. Thornton, 6 East, 17.

3 Fenton v. Pearson, 15 East, 419.

4 See ante, p. 840, n. 8.

CH. x.\]WHAT INSOLVENCY WILL GIVE THIS RIGHT.371 price, he cannot stop them; as if the sender had worked upon them and had a lien for the wages or payment for what he has done.1 Indeed, no one can exercise the right of stoppage _in transitu_ who has not a property in the goods.

Nothing but the insolvency of the buyer gives this right to the seller; and indeed it may be called a principle of maritime law, that a consignor cannot vary or interfere with a consignment once made, except on the ground of insolvency.2 But this need not be legal or formal bankruptcy or insolvency; it is enough if the buyer cannot pay his debts.3 The seller who stops the goods

Footnote 2: The name of

**372**: **ON THE LAW OF SHIPPING. \[BOOK L**

takes this risk on himself. The buyer, if not insolvent, can pay the price, or if they were sold on credit, secure it, and then claim the goods. And if the seller stopped them maliciously, or without actual belief of insolvency on good grounds, he would doubtless be answerable for any damages the buyer should sustain thereby. If the goods were to be paid for by acceptances or notes, and the buyer is willing to accept the bills or sign the notes, and is not insolvent, the seller cannot stop the goods.1 But if a compliance with the terms of the sale is refused by the buyer, then the seller may refuse to deliver the goods, or, what is the same thing, stop them _in transitu._ It is in fact insolvency so far as he is concerned.

The seller's right to stop the goods cannot be defeated by any bargain between the consignee and his assignee;2 or by any claim, or lien, or attachment of any other person.3 It may be

was refused the goods, he should have evidenced his insolvency by some overt act. Mr. Smith, in his work which has been mentioned, clearly favors the same view. Comp. Merc. Law, 130, n. Hence, it appears that the authorities and text writers furnish no support to the claim, that a mere general inability to pay doubts, unacceptompanied with any visible change in the circumstances of the debtor, constitutes insolvency, in such a sense as to confer the right of stoppage _in transitu._"

The rule generally laid down is, that a person is insolvent when he is not in a condition to pay his debts in the usual and ordinary course of trade and business. Shone r. Lucas, S. Dovil, & R. 218; Bayly v. Schofield, 1 M. & S. 383; Biddlecombe v. Bond, 4 A. & E. 832; Thompson v. Thompson, 4 Cush. 197, 184. In Secon v. Nutt, 14 B. Moq. 324, on the question whether the vendor was insolvent, the court said: " To establish insolvency it is not necessary to prove that he is not able to pay a cont, or any particular sum, but it is sufficient to show that he is unable to pay his debts. The true meaning and effect of the preference given to the vendor, while the goods sold on a credit are in _transiti_, is that he is relieved from the necessity of a race for priority, and of sharing with general creditors the proceeds of goods sold by himself. To save him from this scramble it is sufficient to show with reasonable certainty, that is, with probability, that the vendor is embarrassed and not able to make full or general payment of his debts. And it would seem that the vendor's own admission of the fact to his vendor would be sufficient to authorize the latter to act upon it, and should, unless disproved, sustain his claim, to stop the goods _in transitu._" In Hays v. Monille, 14 Penn. State, 51, the vendee was indebted some $60,000, and his assets were only $25,000. His creditors were watching for the goods which the vendor had sold, and attached them while _in transitu._ The court held, that the jury were warranted in finding from these facts that the vendee was'insolvent. See also, Naylor v. Dennie, 8 Pick. 198, 205.

1 Walley v. Montgomery, 3 East, 585. See also, The Constantia, 6 Rob. Adm. 321.

- See ante, p. 362, note 2.
- Smith v. Goss, 1 Camp. 282; Le Bay De Chsumont v. Griffin, cited 15 Wend.

CHL x.\] HOW THE RIGHT OF STOPPAGE MAY BE EXERGISED. 373

necessary for the seller to discharge the claim, as if it be a lien for freight;1 but even this is not necessary, where the attachment is by a creditor of the buyer or consignea; for the seller's lien takes precedence. But if the goods have arrived at the journey's end, and are only prevented by the attachment from removal by the consigne, this may prevail, on the ground that the transit has ended and the lien gone.2

Footnote 1: See ante, p. 350, D.

Footnote 2: In Hitchcock v. Corvil, 20 Wendl. 167, _Nelson_, C. J., seems to have been of this opinion though the case was decided on another ground. If the goods have arrived at their place of destination, but before they are delivered to the vendee, they are attached by a creditor of his, and he takes no step to obtain the possession of them, the right of the vendor still remains. Naylor v. Dennie, 8 Pick. 198. But if, while they are attached, he takes such possession as he is able to, prior to the assertion of the right of the vendor, the _transitu_ will be held to have terminated. Ellis v. Hunt, 3 T. R. 464.

Footnote 3: In Hitchcock v. Hunt, cited SS T. R. 231 ; Ellis v. Hunt, 3 T. R. 464 ; Scott v. Petti, 3 B. & P. 469, 471 ; Mottram v. Heyer, 5 Den. 629.

Footnote 32: **B. & P. 469, 471 ; Mottram v. Heyer, 5 Den. 629.**

Footnote 33: **P. 469, 471 ; Mottram v. Heyer, 5 Den. 629.**

Footnote 34: **P. 469, 471 ; Mottram v. Heyer, 5 Den. 629.**

Footnote 35: **P. 469, 471 ; Mottram v. Heyer, 5 Den. 629.**

Footnote 36: **P. 469, 471 ; Mottram v. Heyer, 5 Den. 629.**

Footnote 37: **P. 469, 471 ; Mottram v. Heyer, 5 Den. 629.**

Footnote 38: **P. 469, 471 ; Mottram v. Heyer, 5 Den. 629.**

Footnote 39: \*\*P. 469, 471 ; Mottram v. Heyer, 5 Den.

374 on THE LAW OF SHIPPING.

\[B00K L\]

not criminal.1 But, as the goods may be secured against stoppage by passing into the constructive possession of the buyer, so they may be effectually stopped by the seller's acquiring a constructive possession of them. This is usually and properly done by giving notice to the carrier of the title and purpose of the seller, and forbidding him to deliver the goods to the buyer, and requiring him to give them up to the seller or his agent, or to hold them subject to his order. This notice should be given to the person who has actual possession of the goods.2 If given only to the servant of the carrier, a question might arise whether this would be sufficient. We may suppose, for example, that a parcel sent by a carrier to a buyer had been delivered by the carrier to his porter, who was about to enter the buyer's home with it, when ordered by the seller's agent, of whom he knew nothing, not to deliver it. We should say, however, even in so extreme a case, that the buyer had succeeded in stopping the goods, and if there had been no negligence on his part, and the porter still went on and delivered the parcel to the buyer, that the seller would have a lion on them, and might, if they were not paid for, bring trover for them against the assignees of the buyer.

Footnote 1: Since $v$. Precoct, 1 Atk. 245, 250, per Lord Chancellor _Hardeiste_.

If notice is given to the principal and not to the servant, a different question may arise ; and here it seems to be held, that a notice to the principal carrier is not sufficient, unless given in such way and at such a time, as to enable the principal carrier to send word to his servant not to deliver the goods.3 CH. x.\] HOW THE RIGHT OF STOPPAGE MAY BE EXERGUSED. 375

If a notice be properly given to the carrier, it is his duty to comply with it. And if he does not, but actually delivers the goods to the buyer after such notice, this delivery does not defeat the right of the seller to stop the goods, if his demand was in all respects legal. The possession of the buyer is then unlawful, and will be held to be by construction of law the possession of the seller. And the carrier will be responsible to the seller for all the injury he may sustain.1 Or, if the buyer becomes insolvent, and the goods pass into the possession of his assignees, the seller may bring an action of trover against the assignees.3 And if the carrier, in whose hands the goods are duly stopped, delivers them to the buyer by mistake, the latter does not obtain such possession of the goods as will defeat the lion of the seller.8 If, however, both parties claim the goods of the carrier, as of a ship-master, for example, he should ask an indemnity from the person whose claim seems to him best founded; if refused, he may ask an indemnity from the other party, and on that deliver it. There is no legal obligation imposed on either party to give such indemnity, but if circumstances warranted the master in asking it, and it was refused, and thereupon he refused to deliver the goods, the rightful claimant would doubtless recover them, or their value, but nothing, we think, by way of cost or, damages for the detention. If the goods are in the custom-house, the seller may take possession by entering them as his own and paying or securing the duties.4

Footnote 376 ON THE LAW OF SHIPPING. \[B00K L \]

What the consignor may do personally, he may do by an authorized agent.1 And if the demand be made by one who acts as agent but without authority, a subsequent adoption and ratification will have the effect of a previous authority, provided this be made before the goods are demanded by the buyer.3 If made afterwards, it is said, it cannot give validity to the stoppage.3

Footnote 1: Holst v. Pownal, 1 Exp. 240 ; Whitehead v. Anderson, 9 M. & W. 518 ; Donath v. Broomhead, 7 Barr, 301 ; Mottram v. Heyer, 5 Den. 629. If an agent has it in his power to stop the goods but neglects to do so, he is liable in an action by the principal against him. Howatt v. Davis, 5 Mumd. 34. * Wood v. Jones, 7 Dowl. & R. 126 ; Newhall v. Vargas, 13 Maine, 93. See also, Nicholls v. Le Fevvre, 2 Bing. N. C. 81 ; Bailey v. Calverwell, 8 B. & C. 448 ; Bartram v. Farebrother, 4 Bing. 579. If one unauthorized takes possession of the goods before they reach the vendees, the question is _que amino_ he does it, whether as agent of the consignor, or of the vendee. Per Parke, B., James v. Griffin, 1 M. & W. 20, 29. * Bird v. Brown, 4 Exch. 786. The persons who stopped the goods in this case were not even the general agents of the vendors. But in Newhall v. Vargas, 13 Maine, 93, a ratification, after the goods were demanded by the administrator of the consignor, who had died insolvent, was held to be effectual. The principle upon which the court proceeded in the case of Bird v. Brown, seems to us to be the more correct. It is that the act of ratification must take place at a time, and under circumstances, when the ratifying party might himself have lawfully done the act which he ratifies. The court said: "In the present case, the stoppage could only be made during the transitus. During that period the defendants, without authority from Illins, made the stoppage. After the transitus was ended, but not before, Illins ratified what the defendants had done. From that time the stoppage was the act of Illins, but it was then too late for him to stop. The goods had already become the property of the plaintiffs, free from all right of stoppage."

- See ante, p. 336, n. 3.

CH X.\] HOW THE RIGHT OF STOPPAG MAY BE EXERGINED. 377

his possession, shall be fully indemified for all the costs and charges which they have properly incurred on account of them.1

Indeed, this is only an unusual application of the same principle which the law-merchant already applies to stoppage _in transitu_, in reference to freight.

1 Code de Commerce, art. 579. "In case of stoppage in transitu, the vendor shall be bound to indemify the estate of the insolvent for all advances for freight, or trans-portion, commission, insurance, or other charges, or to pay the sums due for these expenses if they have not been discharged."

32

**378** ON THE LAW OF SHIPPING. \[B00K L

**CHAPTER XI**

**OF THE DUTIES AND POWERS OF THE MASTER.**

**SECTION I**

**OF THE FOUNDATION AND NATURE OF THE MASTER'8 AUTHORITI.**

**THE master of a ship holds a peculiar and responsible position. As the owner is bound, in order that his ship may be sea-worthy, to put in command of her a master who is fully competent in respect of skill, care, and honesty, so the master is bound to all whose interests are under his charge, as owners of the ship, or hirers of it, or as owners of the goods, or even as insurers of the ship, goods, or freight, to use proper care and skill, and entire integrity in the protection and preservation of their interests. He must see to the lading of the goods on board ; and take care that the dunnage, the stowage, and arrangement of the several articles are all that they should be. He must ascertain that the condition of the ship, as to her hull, rigging, and all appurtenances, and all provisions and supplies, is satisfactory. He must take on board and carefully preserve all such papers as the ship should carry and as fall within his duty. During the whole voyage he must conduct himself, not only under ordinary circumstances, but in all exigencies and emergencies, with due discretion, courage, and energy, and complete fidelity to his duties.**

**If the ship be wrecked, or in peril, or arrested, or captured, it is his duty to stay by her as long as any rational possibility exists that any good can be done by him, nor should he desert her until all hope has gone ; to use the common phrase among seamen, " the captain should be the last man to quit the ship."**

\*\*It is impossible to define all these duties, or state them indetail. Some of them, and some of the most important among them, arise only on extraordinary occasions ; and must be measured and defined by the circumstances of each case, and the exigencies which it presents.

In general, the established usage and custom of seamen, and the very nature of their duties, are the best, if not the only guide, in determining what they require. So too, this usage gives them certain privileges, which are always subject to bargain between the owner and master, but are generally very similar in similar ships. As the privilege of carrying goods for himself, or for others, in certain parts of the ship, he receiving the freight, or a right to a certain amount of tonnage.1 So too he has his primage, which is a small percentage on the freight, and is a perquisite over and above his wages;2 in this country it is, we believe, in foreign voyages, usually five per cent. After the voyage has commenced it seems that the owners have a right to change it reasonably and in good faith, and are then not liable to the master for all the wages or privileges previously stipulated for.8 In a case where the master was to receive a certain sum per month as wages and a commission of five per cent. and also a proportion of the profits, it was held that he could not traffic on his own account, for his own benefit.1

Footnote 1: Mathewson $v$. Clarke, 6 How. 125.

The powers of the master are not quite so indefinite, perhaps, as his duties. They rest upon certain ascertained principles, and are, for the most part, measured by exact rules. He is the agent of the owner; appointed by him, and by that appointment authorized to act as his agent in all matters which are fairly embraced within the scope of his appointment.2 To know what this authority is, in general, or under any particular circumstances, we may appeal to the law of agency, and the principles of that law which are applicable to the particular case. Thus, the universal principle, that he who appoints another to do any thing for him, authorizes the person thus appointed to do whatever fairly and properly belongs to the doing of that thing, suffices for most of these questions. It is not, however, a rule equally universal, that authority to do a certain thing, always implies authority to do whatever can, in any emergency, become necessary for the doing of it. For, if circumstances should make an effort, expenditure, or sacrifice, necessary to the doing of the thing, which would certainly deter any reasonable man from doing it, the agent ought then to consider his authority as at an end.

Where the owner is himself present, or within easy access, that agency of the master which is founded on necessity disappears, for the necessity has ceased to exist.3 We have seen that he may sell the ship when the sale is justified by a sufficient CH. XI.\] FOUNDATION AND NATURE OF MASTER'S AUTHORITY. 381

necessity ;1 but no necessity can be sufficient if the owner were so near that the master was not obliged to act Without his instructions.3 And if a master is specially empowered to sell a vessel in a particular manner, his principal is not bound if he exceeds his authority, the vendee knowing that the master was specially authorized.3

Footnote 1: See ante, p. 59-65. But the master has authority to sell part of a steam- boat to a person for the purpose of keeping a bar. Kelly v. Dickinson, 15 Mo. 193.

Footnote 2: See ante, p. 64, notes 2 and 3.

Footnote 3: Johnson v. Wingate, 29 Maine, 404.

Footnote 4: See poet, v. 4.

Footnote 5: See ante, p. 231, note 3.

Footnote 6: As a general rule, in a foreign port, the master has authority to bind the owners for repairs, or supplies furnished the vessel, or to pledge the credit of the owners by raising money for necessary purposes. Hoskins v. Slayton, Cas. Temp. Hardv. 376 ; Rich v. Coe, 2 Cowp. 636 ; Spoering (Boperman, in al. ed.) , p. Degrave, 3 Vern. 643 ; Stewart , Hall, 2 Dow. 29 ; _Ex parte Bland_, 3 Rose, 91 ; Webster v. Beckamp, 4 B. & Ald. 352 ; Arthur v. Barton, 6 M. & W. 138, 143 ; Edwards v. Havell, 14 C. B. 107, 24 Eng. L. & Eq. 308 ; Millward v. Hallett, 3 Caines, 77, 81 ; Marquand v. Webb, 16 Johns. 89 ; The Aurora, 1 Wheat. 96 ; Abbott v. Balt. & Rapp. S. P. Co., 1 Md. Ch. 543 ; The Ellarity, Blatcht, & H. Adm. 90 ; The Gustaria, id. 189 ; Thomas v. Osborn, 19 How. 29, 28 ; Henshaw v. Rollins, 5 L. 385. See also, James v. Blixby, 11 Mass. 34 . In Beldon v. Campbell, 6 Exch. 886, 6 Eng. L. & Eq. 473, it was held, that the master had not authority to borrow money to pay for work already done, and, therefore, where the ship, bound for Newcastle, was towed into that port, no agreement having been previously made that the storage was to be paid for immediately, and the master, six days afterwards, borrowed money to pay for the toragy, it was held, that the owner was not liable. The tendency of the recent cases in England is to hold the person, furnishing necessary to a vessel at the request of the master, to a strict proof that the latter was the agent of the owner sought to be charged. Thus, in Mitcheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219, the action was for goods sold and delivered, for work and materials provided, etc. The defendant was, during the repairs, and afterwards, the registered owner of the ship. One Christie appeared on the register as master from August 7, 1850, until September 14, 1852. On the latter day the name of Thompson was substituted. The plaintiff proved that the repairs and articles furnished were necessary, that they were furnished from October 10, 1852, to November 17th, of that year. During that time Thompson was on board acting as master, and gave the orders for the repairs. The defendant showed that on the 14th of July of that year be entered into an agreement to sell the ship to one Gomperst on certain conditions, he to have the possession of the ship to fit her for a voyage to Australia. Thompson was appointed by Gomperst, and the repairs and supplies were furnished while in his possession. Subsequently, the conditions being broken, the defendant took possession of the vessel again. Held, that he was not liable. This case virtually overrules Frost v. Oliver, 3 Ellis & B. 801, 20
382 ON THE LAW OF SHIPPING. \[BOOK L\] a part owner, he has authority to settle a claim for demurrage, and he would probably have this right if he were not a part owner.1 Nor is it the _place_, which determines his power to do these things; for if he be abroad, and the owner be there also; or if an agent be there especially authorized and instructed by the owner upon these points, there is no _necessity_ for the master's authority; and consequently it does not exist.2 If, however, in a home port, and under the owner's eye, he makes contracts respecting the ship to which the owner assents in fact, or which he justifies the other contracting party in believing that he assents to,8 or if he voluntarily accepts and retains the benefit

Eng. L. & Eq. 114. And in Mackenzie v. Pooley, 11 Exch. 638, 34 Eng. L. & Eq. 486, it was held, that, where the vessel was sold after she sailed, the vendec was not liable for money borrowed by the master to buy necessitates, in a foreign port, although at the time the defendant was the registered owner. In England it seems now to be settled that the master has no power, in a foreign port, to create a lion on the vessel as security for the payment for repairs and supplies, except by a bottomry bond. Stinbank v. Fanning, 11 C. B. 51, 6 Eng. L. & Eq. 412; Stinbank v. Shepard, 13 C. B. 418, 20 Eng. L. & Eq. 547. 1 Alexander v. Dowie, 1 H. & N. 152, 87 Eng. L. & Eq. 549. 1 See ante, p. 380, note 3. 1 In The Schoomer Tribune, 3 Sumner, 144, the master of a vessel made a charter-party at a home port. It was held, under the circumstances, to be binding on the owners. Speaking of the power of the master, Mr. Justice Story said; " As to his right to make such a contract in the home port of the owners, I agree that it cannot be ordinarily presumed from his character as master. It is not an incident to his general authority; nor can it be presumed, under such circumstances, as an ordinary superadded agency. But there are peculiar circumstances, however, in the present case, which do create some presumption of such a superadded agency. In the first place, such had been his authority in the former voyages of the vessel; and such seems also to have been his authority under her subsequent employment. And I think is might fairly be presumed, that in the home port he would scarcely have had the rashness to make so important and definite a contract without some authority." And in The Flash, Abbott, Adm. 67, it was held, that the master may make an ordinary contract of affiebment at the home port. The learned judge, in the case of The Tribune, supra, was also of opinion that one of the owners, who was the ship's husband, must have had fall knowledge of what the master had done. But it is not sufficient that the master acted with the priority of the owner unless he was his agent. Micheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219. And in Jordan v. Young, 37 Maine, 276, it was held, that the master of a vessel has no authority in a home port to order repairs, and that a vessel which is imported at the port adjoining that in which the owner resides is at her home port. But see Provost v. Patchin, 5 Seld. 235, where it is held that the master, as the general agent of the owners, has authority to bind them in a home port for necessary repairs, unless it can be shown that the owners themselves, or a ship's husband, managed the vessel, and that the party contracting with the master was aware of this.

CHL XL\] FOUNDATION AND NATURE OF MASTER'S AUTHORITY. 383

of the contract when it is executed, when he is perfectly at liberty to return or renounce such benefit, in all such cases the owner is responsible, on general principles, as has been previously stated.

One general limitation of the power of the master to bind the owner by the contracts he makes for him, is this : they must relate to the condition, or the use and employment of the ship, and be within the usual duty and business of a master; and they must not be so unreasonable in themselves as to raise the suspicion that the contracting party acted fraudulently or recklessly in making them. By the general rule of the maritime law the master has the power to hire seamen, and the contract which he makes with them for wages is binding on the owners.1

Footnote 1: Some doubt has been expressed whether this rule applies to fishing voyages, but we think in the absence of a usage to the contrary the power of the master would be considered the same in voyages of this description as in freighing voyages. In Sherwood v. Hall, 3 Summer, 197, and in Walcott v. Willett, U. S. D. C., Mass., Boston Courier, May 19, 1858, it was held, that the owners of a whaling ship were liable for damages for the abduction of a minor by the captain, although they had no personal knowledge of the fact, the act being held to be within the scope of the authority of the master as agent of the owners. In Baker v. Corey, 19 Pick. 496, it was held, that the owners of a fishing vessel might hire men to navigate the vessel and to fish for the account of the owners, on wages instead of shares, and that although the master might not have this power virtue _official_, yet if he were also a part owner, and the other owners did not interfere in the management of the vessel, he would be deemed their agent, and they would be bound by his acts.

- See 2 Parsons on Contracts, 94-100.
- Pope v. Nickerson, 8 Story, C. C. 465. The action in this case was assumpuit on four bills of lading. The question arose by what law the bills of lading were to be governed, whether by the law of Spain, where the contracts of shipment were made, or by the law of Pennsylvania, where the goods were to be delivered, or by the law of Massachusetts, where the owners resided, and to which the vessel belonged. The court held, that the laws of Massachusetts were to govern. See also, The Packet, 3 Mason,
  384 on THE LAW OF SHIPPING. \[B00K L

The master has no power, as agent of the owner, to settle, or deal with any claims or questions that do not accrue or arise while he is master.1 If the contracts which he makes are in his own name, then, it is said, that the owner cannot be made liable for them, on the contracts.2 But most maritime contracts on which the owner should be liable, give to the contracting party a lien on the ship, and through this, the owner may be indirectly reached. And it may well be doubted whether, in this country, the owner himself might not, generally, be made directly responsible.3 The master is, in almost all cases, where he makes a contract for his ship, himself responsible;4 as on all charter-parties or bills of lading signed by him.6 And if goods on board are injured by the uskillfulness or wrong doing of the master, or of the crew without the fault of the master, or if they are stolen, or lost so as to make the owner responsible, the master, generally, would be responsible also;5 for the maritime law considers both the owner and master as carriers of the cargo?

Footnote 1: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 255: The Nelson, 1 Hagg. Adm. 169. See _contro_, Malpica v. McKown, 1 La. 148; Arroyo C. Currol, 1 La. 558.

1 & Kelley v. Merrill, 14 Maine, 228.

2 & Garnahan v. Bennett, 2 Stra. 816; Thorn v. Hicks, 7 Cov. 697; Hensay s. Allen, 6 Mass. 163; James v. Bixby, 11 Mass. 34, 37 ; Nickerson v. Sch. Monsoon, 5 Law Bporter, 416; Wainwright v. Crawford, 3 Yeates, 131.

3 & See Phillips v. Tapper, 2 Barr, 328.

4 & Rich v. Coe, 2 Covby. 636; Marand v. Webb, 16 Johns. 89; James v. Bixby, 11 Mass. 34; Stocker v. Corlet, 1 Const. R. 81. In Sydnor v. Hard, 8 Texas, 98, the master was held liable on the following instrument: " Due Sydnor & Bone, or order, by Sch. Cornelius and owners for supplies and materials received, the sum of two hundred and six dollars. William Hurd."

5 & W Parkinson v. Langbton, 8 Johns. 313; The Sch. Leonidas, Olcott, Adm. 12, 15. But in an action of assumption for the breach of a contract of affheightment the owner and master should not be joined. Patton v. Magrath, Rice, 162.

6 & Morse v. Slue, 1 Yent. 190, 338; Barclay v. Cucella y Gans, 8 Dong. 889; Wathinson v. Langbton, 8 Johns. 213.

7 & Elliott v. Rosell, 10 Johns. 1; Oakey v. Russell, 18 Mar. La. 58.

8 & See ante, p. 231, n. S.

GL XI.\] MASTER's POWER FROK NECESSITY. 385

section II.

OF THE MASTER's POWER FROM NECESSITY.

As the master's power often arises from necessity, and is measured by it, it is important to ascertain what this necessity must be in each particular instance. For this necessity is very different, in different cases. Courts and, text-writers use the same words in all these cases, saying in all alike that the master has the power, _from necessity_; but they must mean very different things. Thus, we have already seen what the necessity is which alone gives the master power to sell the ship without consulting the owner.1 And it is also true that he may borrow money and hypotecate the ship for it by a bottomy bond, if this be necessary.2 And he may also bind the owner to pay for the reptrs which he makes, if those repairs were necessary.3 But 386 ON THE LAW OF SHIPPING. \[BooK L\] he has no power to draw upon the owners by a bill of exchange for supplies furnished in a foreign port, and render them liable as acceptors.1

To justify a sale, the necessity must be, as we have seen, of the most positive and stringent character. To make the owner responsible for repairs, however, it could not be necessary to show that the ship would have sunk or gone to ruin without them; for if they are, on the whole, reasonable and proper, that is enough.2 Again, the necessity which authorizes a borrowing on bottomry, is not the same as either of these; it need not to be so stringent and extreme as the first; but it must be far greater than the second; it lies between them.3 And we might go on and speak of other necessities and other powers springing from them, and endeavor to classify them. But it would accomplish no practical good; for after all, the only, and the reasonable rule must be, that the owner authorizes the learned judge above cited, apply only to the case which was then before the court, where the master was also the charterter, though the decision would unquestionably have been the same had been merely the master.

Footnote 2: In the case of the ship, for which the master may lawfully bind the owner of the ship, I have not been able, after a pretty thorough search into the authorities and text writers, ancient and modern, to find is anywhere laid down in direct or temporary terms, that they are such repairs, and such repairs only, as are absolutely indispensable for the safety of the ship, or the voyage, or that there must be an extreme necessity, an invisible distress, or a positive urgent incapacity, to justify the master in making the repairs. The general formality of expression found to be laid down is, simply, that the repairs are to be necessary, without in any manner pointing out what repairs are, in the sense of the law, deemed necessary, or what constitutes the true definition of necessity. But a thorough examination of the common text writers, ancient as well as modern, will, as I think, satisfactorily show, that they have all understood the language in a very mitigated sense; and that _necessary repair_ mean such as are reasonably fit and proper for the ship under the circumstances, and not merely such as are absolutely indispensable for the safety of the ship or the accomplishment of the voyage." See also, Webster v. Soekamp, 4 B. & Ald. 859 ; Rocher v. Bisher, 1 Stark. 27 ; United Ins. Co. v. Scott, 1 Johns. 106 ; Milward v. Hallett, 2 Caines, 77 ; Pratt v. Reed, 19 How. 859, 861, 19 ;

- See post, 1 4, C. In Pratt v. Reed, 19 How. 859, 861, 1 was said that the only difference between a case of necessity which would authorize an _implied_ hypotension of the vessel for supplies or repairs, and that necessity which would justify the giving of a bond, was, that in the latter case, the additional fact must appear, that the master could not procure the money, without giving the extraordinary interest incident to that species of security.

CH. XI.\] MASTER's POWER FROM NECESSITIT. 387

- the master to do every thing within the general scope of a master's employment, which a rational man might believe that a rational owner would certainly do for himself if he were present at that time and place.1

**So a master may, if necessary, appoint another in his place; although generally, an agent cannot delegate his power or duty without especial authority; and the master so appointed by a master, may bind the owner in like manner as the original master might have done.2 So a master duly appointed by a charterer, binds not only his immediate principal, the charterer, but also the ship. But if appointed by the charterer, he would not, we think, bind the owner personally, without something from the owner, indicating, by word or act, that the master so appointed, was also clothed with authority by the owner.3 A master appointed abroad by a consul, or any official person, agreeably to the usage of merchants in the given case, has the same power.4 So the master of a steamboat,5 or of a privateer,6 has similar powers; always under the definition or description we have given above, of the necessity which creates or confers those powers.**

\*\*Even if the contract be without the usual scope of the mas * 388 ON THE LAW OF SHIPPING. \[BOOK I \]

ter's employment, as the purchase of a cargo,1 it may be adopted and confirmed by the owner; and such ratification may be express, or proved by acts which indicate such confirmation, or inferred from the voluntary acceptance and retaining of the cargo,2 or from the fact that that owner had frequently and usually employed that master to act for him in that way.3 But a master cannot, by any official or implied authority, annuli or materially vary a contract expressly made by the owner himself; circumstances may change entirely, and it is perhaps possible that this change be such as to authorize the master to rescind or vary the owner's express contract; still, in point of fact, it may be said that nothing can raise a presumption of authority to do this;4 nor can be bind the owner by a contract which is clearly neither necessary nor beneficial; as to carry goods in his ship free from freight and without any compensation whatever.5 It may, perhaps, be proper to remark, that the liability of the master and of the owner are both controlled by the rule, that any party who chooses to give credit to one only when he might have held others, cannot afterwards resort to those others. The, if one contracts for supplies to the ship, with the owner exclusively, he can never look to the master;6 and if with the master exclusively, he can never look to the owner.7 And this exclusive credit may be proved either by words and express agreement, or ci. **XI.**\] MASTER's POWER FROM NECESSITY. 389

by adequate circumstances. In the latter case, however, the circumstances must be such as would show conclusively that . the creditor intended to charge the one, and not to charge the other; and it is doubtful whether a mere entry on his books charging either party would suffice to do this.1 But it is customary for persons who deal in supplying vessels, to make the charge to the vessel itself, adding sometimes such words as " and all concerned in her."2 This would be the same as to the ship " and owners."

Footnote 1: See **ante**, p. 91, n. 3.

Footnote 2: See **ante**, p. 40, n. 2.

Footnote 3: We thank the referee for his comments.

**An** owner is responsible as such, who is actually an owner, although not registered as such, and his name does not appear on the papers of the ship.3

Footnote 4: See **ante**, p. 91, n. 3.

Footnote 5: See **ante**, p. 40, n. 2.

Footnote 6: We thank the referee for his comments.

As the master may raise money for the ship, or expend his own, or procure supplies, or make other necessary and beneficial contracts, and is personally bound on those contracts, out of this grows his lien on the ship or the freight, for whatever is due to him. How far this lien extends, and indeed in what cases it exists, the authorities do not, perhaps, enable us to state very positively. In England it has been held that he can have no lien on the ship,7 and therefore none on the freight, because this is a mere incident to the ship.

Footnote 7: See **ante**, p. 91, n. 3.

Footnote 8: See **ante**, p. 40, n. 2.

Footnote 9: Wilkins v. Carmichael, 1 Doug. 101; Hussey v. Christie, 9 East, 496; The Johannes Christoph, 33 Eng. L. & Eq. 600. But see Watkinson v. Bernadison, 2 P. Wms. 367, note, where the Master of the Rolls decreed that sums disbured by the captain on account of the ship in foreign ports, together with the wages of himself and crew, should be paid out of the proceeds of the ship, as they constituted a lien upon it.

Footnote 10: See **ante**, p. 91, n. 3.

Footnote 11: See **ante**, p. 40, n. 2.

Footnote 12: See **ante**, p. 40, n. 2.

Footnote 13: We thank the referee for his comments.

Footnote 14: See **ante**, p. 40, n. 2.

Footnote 15: See **ante**, p. 40, n. 2.

Footnote 16: We thank the referee for his comments.

Footnote 17: See **ante**, p. 40, n. 2.

Footnote 18: See **ante**, p. 40, n. 2.

Footnote 19: We thank the referee for his comments.

Footnote 20: See **ante**, p. 40, n. 2.

Footnote 21: See **ante**, p. 40, n. 2.

Footnote 22: See **ante**, p. 40, n. 2.

Footnote 23: We thank the referee for his comments.

Footnote 24: See **ante**, p. 40, n. 2.

Footnote 25: See **ante**, p. 40, n. 2.

Footnote 26: We thank the referee for his comments.

Footnote 27: See **ante**, p. 40, n. 2.

Footnote 28: See **ante**, p. 40, n. 2.

Footnote 29: We thank the referee for his comments.

Footnote 20: See **ante**, p. 40, n. 2.

Footnote 21: See **ante**, p. 40, n. 2.

Footnote 23: We thank the referee for his comments.

Footnote 24: See **ante**, p. 40, n. 2.

Footnote 25: See **ante**, p. 40, n. 2.

Footnote 26: We thank the referee for his comments.

Footnote 27: See **ante**, p. 40, n. 2.

Footnote 28: See **ante**, p. 40, n. 2.

Footnote 29: We thank the referee for his comments.

Footnote 20: See **ante**, p. 40, n. 2.

Footnote 21: See **ante**, p. 40, n. 2.

Footnote 22: See **ante**, p. 40, n. 2.

Footnote 23: We thank the referee for his comments.

Footnote 24: See **ante**, p. 40, n. 2.

Footnote 25: See **ante**, p. 40, n. 2.

Footnote 26: We thank the referee for his comments.

Footnote 27: See **ante**, p. 40, n. 2.

Footnote 28: See **ante**, p. 40, n. 2.

Footnote 29: We thank the referee for his comments.

Footnote 30: We thank the referee 390 ON THE LAV OF SHIPPING. \[DOOK L\]

ments.1 But for both of these he has a lien on the freight according to the best authorities.3 But he has no lien for a general account.3 If the cargo belongs to the owner of the ship, it has been held that the master has a lien on it for his disburements.4

And if he has a lien on the freight, it would follow that he might detain the goods even against a shipper or consignee who had paid the freight to the owner of: the ship, if the consignee had been'duly notified by the master of his claim and lien, and ordered not to pay the owner.5

D. C., Ohio, 8 Am. Law Register, 629; Hopkins v. Forsyth, 14 Penn. Stans, 34; Richardson v. Whiting, 18 Pick. 530 ; Case v. Woolley, 6 Dana, 17, 22. But if a person is merely called a master, but is not one in fact, be can proceed against the ship in run for his wages. L'Arina v. Brig Exchange, Boe, Adm. 198.

Footnote 1: In Gardner v. The Now Jersey, 1 Pet. Adm. 223, 226, it was held that a master who paid claims which were liens on the vessel, was substituted in place of the lien creditors, and acquired a lien on the vessel. "See also, Balpian v. Sloop Rainbow, Bet. Adm. 116. Mr. Justice Story in the Ship Packt, 3 Mason, 255, 263, suggested that the master might have a lien on the ship where he used his own money to repair her in preference to borrowing on bottomy. But that he did not mean to express an opinion that generally a master has a lien on the ship for disburements is evident, for in Steamboot Orleans v. Phebos, 11 Pet. 175, the expressly states that this right does not exist. In a recent case before Mr. Justice Curis, the whole question was kindly examined, and it was held that no lien on the ship existed in such a case. The Larch,1 Curtis, C. C. 427. See also, Hopkins v. Forsyth, 14 Penn. Stans, 34. By an early state in Connecticut, the master in case of the neglect of the part-owner to furnish the outfits, could supply them and look to the vessel, but had no personal remedy against the owner. Brook v. Williams, 3 Root, 37.

- That he has a lien on the freight for his disburements, see Lane v. Penniman, 4 Mass. 91 ; Lewis v. Hancock, 11 Mass. 72. In which case the court said : " He may be understood, as against the owner himself, to have the same right in the freight-money which a factor or consignee has in the goods of the principal or consignor, for whom money has been advanced, or any liabilities have been, incurred, in consequence of the employment or consignment. The master of a vessel in a foreign port, and at home after a voyage performed, has many liabilities, from which he may have cause to protect himself, by insisting on his right to collect the freight-money." See also, Ingersoll v. Van Bokokiln, 7 Cow. 670, 5 Wond. 315 ; The Ship Packet, 3 Mason, 255 ; Draiskumar v. Brig Sparna, Ware, 149 ; Richardson v. Whiting, 18 Pick. 530. If by the shipping articles the master is directly republish to the scanner for their wages, it would seem that he might retain the freight to indemify himself. See Goodridge v. Lord, 10 Mass. 483. In regard to his lien on the freight for his wages, see Driskwater v. Brig Sparna, Ware, 149 ; Richardson v. Whiting, 18 Pick. 530, 532. In Ingersoll v. Van Bokiln, 7 Cow. 670, the Supreme Court held that he had a lien on the freight for his wages, but this decision was reversed by the Court of Errors, 5'Wond, 315.

- Shaw v. Gookin, 7 N. H. 16. See also, Hodghn v. Butts, 3 Cranch, 140.

- Newhall v. Dunlap, 14 Maine, 180.

- See ante, p. 356, n. 4.

- \[CL XL\] HOW FAR LIABLE FOR TORTS OF THE MASTER. 391

- \[Section III\].

- \[How FAR THE OVERER IS LIABLE FOR THE TORTS OF THE MASTER.

- \[The owner is liable not only upon the contracts of the master of the kind above designated, but also for his wrong doings, and the injuries resulting from them, to a certain extent.1 We consider that the principles of the law of agency, or of the relation of master and servant, suffice to measure this liability and to determine where it exists. Thus, the vessel and owners are liable for the delay of the master in presenting a proper manifest so that the owner of goods can pass his property through the custom-house, but they are not responsible for a tortious endeavor on the part of the master to prevent the owner from obtaining his goods.2 If a vessel is chartered, and the master is the agent of the owners, it is his duty to collect the freight-money for the benefit of the charteres; and if he neglect to do so his owners are liable, unless the charteres directed some other person to collect it.3 And if a master, by want of skill or care, brings his ship while navigating her into collision with another and inflicts injuries thereby, the owner is certainly liable.4 But it has been held that the owners are not liable for a wilful col
  392 ON THE LAW OF SHIPPING. \[B00K L lision.1 So if the master embezzles goods put on board, the owner is liable.2 But he is not liable if the master embezzles or injures goods which he took on board to fill his own privilege, and received all the freight, commissions, and profits on them.3 Nor is he responsible for goods clandestinely taken on board by the master, when the owner is himself on board, managing the lading of the vessel, or appointing an agent expressly therefor, and employing the master only in navigating the ship, and the shipper either did know this, or has sufficient notice to put him on his guard.4 Nor is he responsible for money which the mas CR. XI.\] How FAR LIABLE FOR TORTS OF THE MASTER. 393

ter borrows for his own private purposes, unless the lender believed on sufficient reason that it was borrowed for the ship.1

Footnote 1: This is the same as the one in the previous section.

The owners of a privateer are responsible for the torts of the officers and crew committed in the exercise of their employment,3

but they are not liable for piratical acts committed by such officers and crew.8 All of these cases, and very many more of

acustomed to have. The judge, at _Nisi Prius_, instructed the jury, "That, although

the owners of ships were generally liable for the contracts of their masters abroad

touching the ship on the vorgage ; yet, as the owner, in this instance, had himself gone in the ship, for the purpose of procuring a cargo, and as the ship was not put up for freight, and as the defendant was not consulted respecting this shipment, nor the persons who attended to his business in his absence, but they were taken on board without his knowledge, he was not accountable originally for the safe transportation and delivery of the goods; but that, if the jury believed that the defendant know, before his ship saided from Monte Video, that these bales had been taken on board by the master, he must be considered as having adopted the act of the master, and as having consented thereto, and so would be accountable." These instructions were held to be correct, with the exception that it was not sufficient to charge the owner that he knew that the goods were taken on board, but that he must have "knowledge that the goods were received on board upon freight." In Nichols , DeWolf, 1 R. I. 277, it was held that where an owner sent a vessel on his own account, the master as such had no authority to sign bills of lading." But in Murfroe v. Redding, 1 Hayw. 276, the owner

denied his liability for the breach of a contract of affreightment entered into by the master, on the ground that the latter was put on board merely to navigate the vessel. But the court were of opinion that as he was held out as master, the contract being within the scope of his authority, the owner was liable.

1 See post, p. 413, n. 7.

- The San Juan Baptista, 5 Rob. Adm. 33 ; The Karasan, id. 291 ; Die Fire Damer,

id. 357 ; Notra Sigmora de los Dolores, 1 Doda, 290 ; LInvincible, 1 Wheat, 238 ; The Anna Maria, 3 Wheat, 327 ; The Amable Nancy, 1 Paine, C. C. 111, 3 Wheat,

546 ; Talbot v. The Commanders of Three Brigs, 1 Dall. 95 ; Del Col v. Arnold,

3 Dall. 333 ; Arnold v. Del Col, Bee, Adm. 5 ; Gibbs v. The Two Friends, Boe, Adm.

416. In The Amiable Nancy, _supra_, a doubt was expressed whether the liability extended to personal responses committed by the master and crew against persons on board the price. Some of the case above cited would seem, however, to extend the liability of the owners to a greater extent than more modern cases would justify.

8 Dias $p$. The Privatecer Revenge, 8 Wash. C. C. 262, 268. This case might seem to

contanene a distinction which has been sometimes taken between mere torts and

offences for which the master is criminally responsible. See Ralston v. The State

Rights, Crabbe, 22.

But the writers on maritime law do not appear to make any distinction in this respect between acts which are criminally punishable, and such as are not, nor is it apparent how they could do so, save in the case of offences against the law of nations; and Dr. Lushington, in the case of The Druid, 1 W. Rob. 891, intimated that he believed none to exist. In Mauro v. Almeida, 10 Wheat, 473, it was argued that, as the response complained of was alleged to have been piraticaly done, the civil remedy merged in the crime. The court said: "But this we think, clearly, cannot 394 ON THE LAW OF SHIPPING. \[BOOK L \]

a like kind, resolve themselves into this rule ; that the owner is responsible for the direct consequences of any wrong doing of the master, which is done by him as master, in the discharge of his duty, and under the authority given him as master.1 And here, as in most cases under the law of shipping, the established usage of the port, or of the trade in which the vessel is employed, is of great importance. The question how far the owners of a vessel are liable for the wilful and malicious act of the master, is one of great difficulty, especially when such act is done by the master while employed in the usual course of his business. It is said in one case that the liability of the owners depends on the general principles of the maritime law, and not on any special contract.2 But their liability may undoubtedly be increased by a special contract, and the distinction has been taken in some recent cases between the act of the master towards one to whom the owner owes no more duty than one citizen owes to another, and his act when this duty is increased by reason of a special contract or an obligation imposed upon him by virtue of his office as carrier. In such a case it would seem that the owner is liable even for the wilful tort of his servant, if it was committed while in his employ and in the management of the conveyance under his ,control, although the wrong was done in direct opposition to the express commands of the owner.8 And if the owners are obliged to pay dam * \[\]

- \[\]
  of their ship and freight. There has been quite a discussion whether this provision applied to contracts made by the master within the legitimate scope of his authority as master, as where he borrowed money for the necessary repairs and supplies of the ship.1

Footnote 1: Valin, book 2, tit. 8, art. 2, and Pothier, " Des Proprietaires," liv. 2, tit. 8, art. 3, hold, on the one hand, that the provisions of the article above referred to, do not apply to the contracts of the master, while Emerigon, Traito & In Grosse, ch. 4, SS 11, is of the opposite opinion. The New Code de Commerce adopts substantially the language of the Ordonance, and this has occasioned another controversy. Pardecaus, Cours & Droit Comm. tom. 3, tit. 3, e. 3, art. 665, supports the views of Valin, while Boulay Paty, Droit Comm. tom. 1, tit. 3, adopts those of Emerigon. The Court of Cassation has, however, decided that the owner of a vessel is indefinitely responsible for all the acts of the captain within the sphere of his authority, and especially for bottomy loma contracted in the course of a voyage. Tournel v. Fabry, 19 Am. Jurist, 233.

Footnote 2: Stats. 7 Geo. 2, e. 15; 26 Geo. 3, e. 86; 53 Geo. 3, e. 189; 17 & 18 Vict. e. 104, SS 503, et seq.

In England the liability of the owners of vessels has been limited by various statutes to the value of the ship and freight3 The language of the statute now in force is as follows, that "the owners shall not be answerable in certain specified cases, beyond the value of the ship and the freight due or to grow due, in respect of such ship during the voyage which at the time of the happening of, any such events as aforesaid is in prosecution, or contracted for." This statute is substantially the same as the prior ones, and gives no right of abandonment. Several questions of great interest have been decided under the preceding statutes, which we refer to as aids in the true construction of our statutes.

Footnote 3: Wilson _v._ Dickson, 2 B. & Ald. 2. This decision was affirmed in a subsequent case, under similar circumstances. Cannon _v._ Meaburn, 1 Bing. 465.

The question first discussed was in respect to the time at which the value of the ship and freight were to be taken, in a case where the master improperly sold the cargo and terminated the voyage, and the court held that the value at the time of the loss, and not that at the commencement of the voyage, was to be taken.4 All the subsequent cases England, where the time at which the value should be taken has been discussed, have been cases of collision, and it has been held that the value existing immediately prior to the occurrence of the accident, is

**CL XI.\]** HOW FAR LIABLE FOR TOTRS OF THE MASTER. **397**

that on which the liability of the owners is to be based, even though the vessel in fault sunk immediately after the collision.1 The value of the vessel at that time is the sum for which she could have been sold, and this is to be ascertained, not by making deductions from her cost price proportioned to her age, but by a valuation and appraisement.2 In respect to the freight, that paid in advance has been included.8 And it has been held that the whole freight is liable, and that no deductions are to be made for, or on account of bottomy, mortgage, pilotage, or towage, or for seamen's wages.4 The amount of freight for which the owners are liable, is that which would have been earned had the voyage been completed, and not that calculated on at the commencement of the voyage.5

Footnote 1: Brown v. Wilkinson, 15 M. & W. 391; The Mary Caroline, 8 W. Rob. 101; Legector v. Logan, 8 Kay & J. 446.

Footnote 2: Wilson v. Dickson, 2 B. & Ald. 2; Dobree v. Schroder, 6 Sim. 291, 2 Myrne & C. 489. In The African Steasmship Co. v. Swamy, 2 Kay & J. 660, it was held, that the voise of a ship within the meaning of the Merchant Shipping Act of 1854, 17 & 18 Vict. c. 104, 4. 504, was not the value which the owner would have set upon his vessel, nor was the sum, for which he might have recently insured her, the only criterion, although it might be one of many. But under ordinary circumstances, and with the exception of the case where there is no market for a ship of the kind, such value would be taken to be what the ship would have brought, if sold immediately before the loss. In the excepted case one criterion would be to ascertain what the ship cost, and then to deduct the subsequent deterioration. See also, generally, The Dundoe, 1 Hagg. Adm. 109, S. C., Gale v. Laurie, 5 B. & C. 156; The Carl Johan, cited 1 Hagg. Adm. 113.

Footnote 3: Wilson v. Dickson, 2 B. & Ald. 2.

Footnote 4: The Benares, 1 Eng. L. & Eq. 637.

Footnote 5: Cannan v. Meaburn, 1 Bing. 465. In this case the vessel sailed with a full cargo, the freight of which would have amounted to PS8,000 if the goods had arrived at their port of destination. On the voyage the vessel put into port in distress, and the capital sold a part of the cargo which belonged to the owners of the vessel for the purpose of raising funds for repairs. Part was applied to this object, and the remainder of the proceeds was remitted to the owners of the vessel. The vessel then proceeded on her voyage, but became leaky, and a jet of another portion of the cargo was made. She then put into an intermediate port, and the cargo was unloaded and stored in two warehouses. Soon after one warehouse with its contents was consumed by fire, leaving one hundred and forty chests of indigo, and thirty casks of tallow, which were in another warehouse, remaining. The ship and the remaining cargo were afterwards sold without the knowledge or priority of the defendants. The jury found that the ship might have been repaired and the goods forwarded. The court held that only the freight of the goods which remained, and which might have been sent on, was liable.

**VOL. L**398 ON THE LAW OF SHIPPING. \[B00K L\] his negligence does not deprive the other owners of the benefit of the statute.1 Nor can the negligent part-owner be made answerable beyond the value of the ship and freight, if the action is _in rem_, and be is a party to the suit, merely by reason of his entering his appearance as owner.2 The owners of a vessel are, however, personally liable for costs, if the ship and freight are not sufficient to compensate for the damage done.3

Footnote 1: Wilson v. Dickson, 2 B. & Ald. 2.

Footnote 2: The Volant, 1 W. Rob. 385: Dobree v. Schroder, 6 Sim. 291 ; The John Dunn, 1 W. Rob. 159. A prohibition was afterwards moved for in this case in the Court of Queen's Bench, but the rule was discharged, the court being of the opinion that the true principle had been adopted in the admiralty court. Ex parte Rayne, 1 Q. B. 982, 1 Gale & D. 374.

Footnote 3: Hunter v. M'Gown, 1 Bligh, 573. It was held in this case that the owners of a gabert, a species of lighter, were liable for the loss of goods on board by an accidental figure.

The statute of 26 Geo. 3, c. 36, was designed to apply only to vessels usually employed in making sea voyages, and not to small craft, lighters, or boats engaged in inland navigation.4

Footnote 6: Act of 17 & 18 Vict. c. 104, SS 514.

Where a liability is incurred by any owner of a vessel in a case where he is responsible only to the value of the ship and freight, and several claims are made or apprehended in respect to such liability, it is obvious that great injustice would be done were the owner liable to each party interested, to the full value of the ship and freight, and this would be true, on the other hand, in respect to the others having claims against the owner, were it held that the latter was only liable to the first who should obtain judgment against him. To obviate this difficulty it has been provided that the owner may institute proceedings in the High Court of Chancery in England or Ireland, and in Scotland in the Court of Session, and in any British possession in any competent court, to determine the amount of his liability, and to distribute such amount stably among the several claimants, with power to the court to stop all actions and suits pending in any other court in relation to the same subject-matter.5 But as a general rule the court in which the case is pending will not restrain the plaintiff from proceeding because the defendant * CH. XL\] HOW PAR LIABLE FOR TOTRS OF THE MASTER. 399 has filed his bill in equity for relief.1 And in order to stay proceedings the owner must aver that he had incurred liability in respect of some damage.2 If a party obtains judgment in another court before the owner institutes proceedings in chancery, he is allowed his costs, but is entitled to no other preference over the other claimants, and must share stably with them in the value of the ship and freight.3

Footnote 1: Thiseldon _v._ Gibbons, 8 Dovl. P. C. 419, nom. Thistleton _v._ Gibbons, 4 Jar. 629.

Footnote 2: Hill _v._ Andres, 1 Kay & J. 263.

Footnote 3: Legvester _v._ Logan, 3 Kay & J. 446.

Footnote 4: The Richmond, 3 Hagg: Adm. 431; The Mary Caroline, 8 W. Bob, 101, 105; The Duchesse de Brasent, Eng. Adm., 91 Law Reporter, 243.

Footnote 5: Rev. Stats. Mass. 32, 1 1.

Footnote 6: Rev. Stats. Mass. 1841, e. 47, $ ; Rev. Stats. 1857, c. 36, $ 5.

Footnote 7: Act of 1851, c. 43, 9 U. S. Stats. at Large, 635.

Footnote 8: Stinson _v._ Wyman, Daveis, 172. The action in this case was on a bill of lading to recover for damage done to goods by their being improperly carried on deck. It was held, that the statute was intended to limit the responsibility of the owner for losses occasioned by the fault or negligence of the master, as well as for those which arise from direct and wilful fraud; and that if the decree should exhaust the whole value of the ship and freight, the respofficients, by abandoning, would be released from further responsibility.

The statutes of Massachusetts and Maine provide that "no ship-owner shall be answerable, beyond the amount of his interest in the ship and freight, for any embezzlement, loss, or destruction, by the master or mariners, of any goods, wares, or merchandise, or any property put on board of such ship or vessel, nor for any act, matter or thing, damage or forfeiture done, occasioned or incurred, by the said master or mariners, without the priority or knowledge of such owner." Neither of these statutes, it will be seen, gives the right of abandonment, but in a case in Maine, the statute seems to have been construed as if such a clause existed;8 but the language of Mr. Justice \_S 400 ON THE LAV OF SHIPPING.

\[Book L \*\] subsequent case under the Massachusetts statute, tends to show that the value of the ship and freight in cases of tort, as well as in cases of contract, is to be taken at the time when the right of action accrues to the injured party.1

Footnote 1: For a review of the results of this paper, see \[1\].

The United States statute, passed in 1851,2 differs in some respects from the statutes previously referred to. The third section provides, 4 That the liability of the owner or owners of any ship or vessel, for any embezzlement, loss, or destruction, by the master, officers, marners, passengers, or any other person or per- * CH. XL\] How far liable FOR TOTRS OF THE MASTER. 401

- sons, of any property, goods, or merchandise, shipped or put on board of such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or for-feiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively, in such ship or vessel, and her freight then pending."

The fourth section provides, " That if any such embezzlement, loss, or destruction shall be suffered by several freighters or owners of goods, wares, or merchandise, or any property whatever, on the same voyage, and the whole value of the ship or vessel and her freight for the voyage, shall not be sufficient to make compensation to each of them, they shall receive compensation from the owner or owners of the ship and vessel, in proportion to their respective losses; and for that purpose the said freighters and owners of the property, and the owner or owners of the ship or vessel, or any of them, may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner or owners of the ship or vessel may be liable amongst the parties entitled thereto.1 And it shall be deemed a sufficient compliance with the requirements of this act, on the part of such owner or owners, if he or they shall transfer his or their interest in such vessel and freight, for the benefit of such claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such trustee for the person or persons who may prove to be legally entitled thereto, from and after which transfer, all claim and proceedings against the owner or owners shall cease."

Footnote 1: The 2d section of the Massachusetts statute and the 9th section of the Maine statute are very similar to this. Rev. Stats. Mass. c. 39 ; Rev. Stats. Maine, c. 47, This is substantially reenacted by Rev. Stats. Maine, 1857, c. 36, 1 5.

Several questions of great difficulty and importance have arisen in respect to the construction of these two sections. First, Is the value of the ship and freight to be estimated immediately prior to the occurrence of the event which imposed the liability on the ship-owner, or is that existing at the time of suit brought to be taken ? Second, Does the same rule apply to cases of a breach of a contract of affeighment and those of collision, under the third section ? Third, How far does the right of abandonment given by the fourth section correspond with the provisions of the maritime law, and what effect does it have upon the third section as determining the time when the value of the ship and freight is to be taken? Fourth, Is an abandonment allowed in a case of collision under the fourth section ?

It is a primary rule in the interpretation of a statute, that all the sections thereof are to be construed together, so that one section may often be explanatory of another.1 We shall, therefore, first consider the effect of the fourth section relative to the right of abandonment.

Footnote 1: See The Dandee, 1 Hagg. Adm. 109, 121 ; Wattson v. Marks, U. S. D. C., Penn., 9 Am. Law Register, 157.

The first part of this section, we think, clearly does not apply to a case of collision. It is limited in express terms to the case of loss suffered by freighters or owners of goods or any property whatever on the same voyage ; and is intended to allow the proceedings therein set forth only in a case of a breach of a contract of affeighment, where several claims are pending against, or apprehended by, the owners of the ship. The omission of the subject of collision seems to have arisen by the framers of the statute following the statutes of Massachusetts and Maine, which, like the early English statutes of 7 Geo. 2, c. 15, and 26 Geo. 3, c. 86, limited the owner's liability to cases of affeighment and did not apply to collision. We infer this because the language of the 53 Geo. 3, c. 159, which applies to collision, is so clear and explicit on this point that it must have been followed, had it not been overlooked, or intentionally passed over. This statute provides that "if several persons shall suffer any loss or damage in or to their goods, wares, merchandises, ships, or otherwise," etc.

The question then is, whether the last part of the fourth section, which commences, " And it shall be deemed a sufficient compliance with the requirements of this act," applies solely to the former part of the same section, or to the third section. If the former construction be the true one, the right of abandonment is but an extension of the right given by the English and American statutes alike of applying to the court where there are several claims pending or apprehended. So that the ship G.Xl.\] HOW FAR LIABLE FOR TOSTRS OF THE MASTER. 408

owner has the right of ceasing to be a party to the suit by transferring his interest (which must then be construed to mean the amount of his liability) to a trustee.

It is an undoubted principle, that statutes which are in derogation of the common law are to be construed strictly, and this, and similar statutes, limiting the liability of ship-owners, are clearly subject to this rule.1 Now by the common law the owner was liable to the full extent of the damage done.

But the right of action did not accrue in all cases at the same time. In a case of tort, the right of action existed the moment the tort took place, while in an action for a breach of contract, no right existed till the time when the contract was broken, or when it became evident that it could not be performed. It would, therefore, follow that if the right of abandonment does not apply to any thing more than the first part of the fourth section, the value of the ship and freight in a case of collision should be taken at the time when the right of action accrued, and this, according to the.English decisions, is the value immediately prior to the accident. In cases of contracts of affheightment the right of action may accrue at different times according to circumstances. Thus, if on a voyage the goods are embezzled, it may well be that the right does not accrue till the end of the voyage because the master may obtain possession of the goods and deliver them, in accordance with the terms of the bill of lading. But where the goods are wrongfully sold by the master and the voyage broken up, we think it equally clear that the right of action accrues at once and that the value of the ship and freight should be estimated at that time.2

Footnote 1: Pope v. Nickerson, 3 Story, 465; The Rebecca, Ware, 188 ; The Phebe, Ware, 263, 71 ; Stinson v. Wyman, Davis, 173, 175 ; The Karasan, 5 Bob. Adm. 91 ; The Boares, 1 Eng. L. & Eq. 637 ; L.w v. Mumford, 14 Johns. 426 ; Patten v. Gurney, 17 Mass. 182.

It may be said that since the trustee is authorized to hold for the benefit of " the person or persons who may prove to be entitled thereto," it follows that the act had reference to a case where there was but one claimant, and this could only be under the third section. But the answer is, that although there be several claimants, yet only one may be entitled to recover, and the word " person" is meant to apply to him.

Our confidence in this position is somewhat shaken by a learned and elaborate decision in the District Court of the Pennsylvania District,1 but we think further adjudication is necessary to determine the various points which have arisen under this statute. It was also held, in this case, that the fact of the vessel's being insured and a loss paid, would confer no rights upon the shipper, this not being an "interest in the vessel " within the meaning of that term, in the Act of 1851.

Footnote 1: Watson s. Marks, U. S. D. C., Penn., 2 Am. Law Register, 157. The point actually decided in this case does not conflict, we think, with any of the English cases. And the opinion of the court, though very learned and elaborate, does not seem to lie every respect accurate, especially in stating the points decided in cases cited in the course of the decision. The libel was in _person_ upon a contract of affreighment. The read was wrecked on the coast of California, and at some time, either shortly before or after she struck, the goods of the libellant were stolen by some person unknown. _Kane_, J, said, p. 163 : " But whether the robbery precoded or followed the moment of wreck, or was contemporaneous with it, is in my judgment of no importance." This opinion proceeds on two grounds, first, that aside from the fourth section of the statute the value of the ship and freight is to be taken at the time the right of action accrued to the shipper, and that " the right of action, in a contract of affreighment against the carrier, unlike that which grows out of a collision, does not accrete till the end of the voyage, or the lapse of a reasonable time for the delivery of the cargo." And, second, because under the fourth section the measure of the ship-owner's liability must be, " is cases of affreighment at least, the value of the vessel and freight at the time of sub brought." The reason given for this is, that the transfer of his interest could not pass more than had at the time. But the words " interest in such vessel and freight" may mean something more than merely his share in the vessel, and may be construed as the amount due by reason of such ownership, or in other words, his interest in the ship and freight at the time the right of action accrued.

- Allen v. Mackay, U. S. D. C., Mass., 16 Law Reporter, 686.
- Ch. 43, 9 U. S. Stats. at Large, 635.

CH. XI.\] HOW FAR LIABLE FOR TOTRS OF THE MASTER. 405

other precious metals, coins, jewelry, bills of any bank or public body, diamonds or other precious stones, shall lade the same on board of any ship or vessel, without, at the time of such lading, giving to the master, agent, owner, or owners of the ship or vessel receiving the same, a note in writing of the true character and value thereof, and have the same entered on the bill of lading therefor, the master and owner or owners of the said vessel shall not be liable, as carriers thereof, in any form or manner. Nor shall any such master or owners be liable for any such valuable goods beyond the value and according to the character thereof so notified and entered."

Under this statute it has been held, that where the contract of carriage has been clearly defined in all its particulars by the parties in the bill of lading, and there is no imputation of fraud or mistake against the shipper, but he has fully executed his part of the contract, the ship-owner shall not relieve himself from liability by alleging that there has been a want of literal conformity to the provisions of this section; and that the carrier is estopped from denying his liability, if the bill of lading contains a substantial and clear recognition of all the facts which the statute required the shipper to inform the master of.1

Footnote 1: Watson v. Marks, U. S. D. C., Penn., 2 Am. Law Register, 157. The case of Greyt v. The Black Warior, U. S. D. C., La., Boston Conrier, March 18, 1858, seems to be opposed to so liberal a construction, but the report of the case does not state whether or not the bill of lading contained a statement of the facts required by the statute to be in the note.

The English statute of 17 & 18 Vict. c. 104, $ 503, exempts the owners of a vessel from loss occasioned by reason of robbery, embezzlement, making away with or secreting similar articles, " unless the owner, or shipper thereof, has, at the time of shipping the same, inserted in his bills of lading, or otherwise declared in writing to the master or owner of such ship, the true nature and value of such articles." Under this statute it has been held, that the description in the bill of lading of a parcel of gold shipped as " one box containing about two hundred and forty-eight ounces of gold dust," is not a sufficient statement of its value.2

**We have already seen that both in England and in this country the owner of a vessel is not liable for damage done to goods by an accidental fire happening to, or on board, of a vessel.1 The act of 1851 does not apply to any canal boat, barge, or lighter, or to any vessel of any description whatsoever, used in river or inland navigation.2 Under this section it has been held, that a vessel on Lake Erie is not a vessel used in inland navigation, the lakes not being considered as inland waters.3**

**SECTION IV.**

OF THE CONTRACTS OF BOTTORARY AND OF RESPONDENTIAL.

**A.**_Of the purpose of a Bottomy Bond_.

One of the most important of the powers of the master is that of making a bottomy bond. By this instrument the ship is hypothecated for the payment of money borrowed.4 As usually defined, its essentials are, that it shall bind the ship for the payment of the money, provided the ship perform a certain voyage and arrive in safety; and if the ship be lost, no part of land, the bills of lading described the property as "1,338 hard dollars," which was a coin current at Valparaiso at the time. It was held to be a sufficient compliance with the provisions of the statute of 26 Geo. 8, c. 86, s. 3, which is similar to that above, on the ground that it is enough to state the value at the port of shipment. Lord _Alice-ger_ also doubted whether the act could apply to countries not subject to British rule, and was clearly of the opinion that if it did, it could only be when the goods were shipped to an English port.

1 See ante, p. 183, note.

2 4 7, 9 U. S. Stats. at Large, 636.

3 4 Moore v. American Transp. Co., Supreme Ct., Mich., Boston Courier, Aug. 3, 1858.

4 The contract of bottomy is so called because the keel or bottom of the ship is pledged, a part being figuratively used for the whole. The Atlas, 2 Hagg. Adm. 48, 53; Scarborough v. Lyrus, Latch, 252, Nov, 95. In Blaine v. The Charles Carter, 4 Cranch, 328, Chase, J., said: " A bottomy bond made by the master, vets no absolute indetermisable interest in the ship on which it is founded, but gives a claim upon her, which may be enforced, with all the expedition and efficiency of the admiriately process." See also, Johnson v. Shippen, 3 Lid., Raym. 982; Johnson v. Gravers, 4 Tann. 344; United States v. Delaware Ins. Co., 4 Wash. C. C. 418.

CH. XI.\] CONTRACTs OF ROTOMEY AND OF RESPONDENTIAL. 407

the sum borrowed is to be repaid;1 and because the lender takes upon himself this risk, he may charge for the use of the money, maritime interest, or extra interest which will cover and compensate for the risk he runs, which interest would be usurious but for that risk.3 Such is the description in fact of nearly all bottomry bonds; but there seems no good reason why a bottomry bond may not provide for common interest, and for payment by the owner of the ship of the money borrowed whether the ship be safe or lost; and, nevertheless, be so far a bottomry bond as to bind the ship effectually and give a lien upon it which may be enforced as in the case of an ordinary bottomry.

Footnote 1: The Atlas, 2 Hagg. Adm. 48; Jennings _v._ Ins. Co. of Penn., 4 Binn. 244 ; Greley _v._ Waterhouse, 19 Maine, 9; Leland _v._ The Ship Medora, 2 Woodb. & M. 92, 107; Rucher _v._ Conygham, 2 Pet. Adm. 295, 303 ; The Brig Draco, 2 Sumner, 157; Bary v. Bates, 9 Met. 237 ; The William and Emmeling, Blackf. & B. Adm. 66 ; The Brig Atlantic, 1 Newt. Adm. 514; The Emmencipation, 1 W. R. 124 ; Stainbank v. Fennings, 11 C. B. 51, 6 Eng. L. & Eg. 412. In The Nelson, 1 Hagg. Adm. 169, the sum was to be paid within one month "after the ship arrived at her port." This was held to be a sufficient description of a sea risk. In Simons _v._ Hodgson, 8 B. & Ad. 50, the bond, after reciting that the vessel had received damage, and that the master had borrowed _c1_,077, proceeds as follows : "I bind myself, my ship, her appar, lackle, etc., as well as her freight and cargo, to pay the above sum with _c12_ per cent. bottomry premium ; and I further bind myself, said ship, her freight and cargo, to the payment of that sum, with all charges thereon, _in eight days after my arrival_ at the port of London; and I do hereby make liable the said vessel, her freight and cargo, _wicker she do or do not arrive at the port of London,_ in preference to all other debts or claims, declaring that this pledge or bottomry has, and must have, preference to all other claims and charges, until such principal sum, with _c12_ per cent. bottomry premium, and all charges are duly paid." Held, reversing the judgment of the Court of Common Pleas, 6 Bing. 114, that this was an instrument of bottomry, that the words _my arrival_ must be understood to mean _my ship's arrival_, and that the words, "I make liable the said vessel, etc., whether she do, or do not arrive at London," were intended only to give the lenders a claim on the ship, in preference to other claims, in case of the ship's arrival at some other than the destined port, and not to provide for the event of the loss of the ship.

- Shapley _v._ Hurvel, Cro. Jace. 208; Socomp _v._ Gleen, Sid. 27 ; The Cognac, 2 Hagg. Adm. 377, 387. In The Atins, 2 Hagg. Adm. 48, 57, Lord _Skowell_ said : "If the ship arrived safe, the title to repayment became vested; but if the ship perished _in itiner_, the loss fell entirely upon the lender. Upon that account, the lender was entitled to demand a much higher interest than the current interest of money in ordinary transactions. It partook of the nature of a wagger, and, therefore, was not limited to the ordinary interest; the danger lay not upon the borrower, as in ordinary cases, but upon the lender, who was, therefore, entitled to charge his _pretium periculi_, his valuation of the danger to which he was exposed." In White _v._ Ship Daeedalus, 1 Stuart, Lower Canada, 130, a bond on a voyage from Quebec to London at twenty-five per cent. interest, was held to be valid.

**It must be remembered that the law-merchant not only permits such a bargain, but of itself, and by its own proper force, has this effect. For if a master borrow money abroad, for the necessities of the ship and so apply the same, and no instrument of bottomy or hypothecation is given, the law-merchant gives to the lender a lien on the ship for the amount, in addition to any remedy he may have at common law against the owner as his debtor for money borrowed.1 And it is not easy to see, why an instrument executed between the parties, and intended to have this very effect, may not be permitted to do so.2**

Footnote 1: See Wainwright _v._ Crawford, 3 Yeates, 131, 4 Dall. 225. And it is said that the owner is liable for money borrowed in a case of necessity, although the necessity now by the fault of the master. Descadillas _v._ Ikarris, 8 Greenl. 298.

Footnote 2: It has been said, that unless more than legal interest is charged by the contact, it is not a loan on bottomy. Leland _v._ The Moderns, 2 Woodb. & M. 92, 107 ; The Mary, 1 Paine, C. C. 671. In The Emancipation, 1 W. Rob. 124, 130, Dr. L'ankinga said:

"I am aware that it is not absolutely necessary that a bottomy bond should carry maritime interest, and that a party may be content with ordinary interest; but when the character of an instrument is to be collected from its contents, and where the argument in support of the bond is, that the advance of the money was attended with risk, it is a material circumstance, that only an ordinary rate of interest should be demanded. It is impossible to conceive that any merchant carrying on his business with ordinary care and caution, would be content to divest himself of all security for the loan of his money but a bottomy bond, and ask no greater employment than the ordinary interest of $\\mathcal{L}$6 per cent, if the payment of such loan was to depend upon the safe arrival of the vessel at the port of her destination, after performing such a voyage." In this case only legal interest was stipulated for, and the preparation of the loan did not depend on the safe arrival of the vessel. The bond was held invalid. See also, Sainbank r. Fanning, 11 C. B. 51, 6 Eng. L. & Eq. 412; Jennings _v._ Ins. Co. of Penn., 42 Ban. 244. It does not appear very distinctly from the case of Selden _v._ Hendrickson, 1 Brock. C. C. 396, whether the bond was given on legal or on maritime interest, though the former seems to be the more correct view, the decreo being for the amount of the bond with seven per cent, interest, that being the legal interest at the port where the bond was given; and _Marakall_, C. J., said: "In fact I can conceive no reason, why a master may not, for the success of the voyage, hypothecation the vessel to secure a debt carrying only legal interest, in any case where he might bind the owner personally." See also; The Brig Atlantic, 1 Newb. Adm. 514. In the case of The Hunter, Ware, 249, money was advanced, on the personal credit of the owner, for refuting the ship, and a bond subsequently given. The court held, that the bond was invalid, but, on the libel being amended, rendered a decreo for the sum advanced with legal interest.

\*\*Mr. Justice _Ware_ said: "If the court has authority to separate the good from the bad, and to reduce the maritime premium when an oppressive advantage has been taken of the necessities of the borrower, is it quite certain that it may not, in the exercise of its equitable powers, render judgment, in a case like the present, for the principal sum advanced with land interest '" See also the remarks of Mr. Justice _Sory_ in the case of The Virgin, 8 Pet. 538, 550. But in the case of The Brig Ann C. Pratt, 1 Curtig, C. C.

CH. XI.\] CONTRacts of ROTOMARY AND OF RESPONDENTIAL. 409

It is to be remarked, however, that a bottomry bond becomes payable not only when the ship arrives in safety, but also on some other contingencies, as when the voyage or adventure is broken up and terminated by a third party,1 by the owner, or by his servant the master, by a voluntary and unnecessary act, in any way whatever; as by deviation;2 or by a sale;3 or by an intended wreck, or any intentional loss of the ship.4 It is not

340, where a sum of money was advanced on the faith of a bond, and subsequently a bond was made out in which a much larger sum was inserted, in order to deceive the underwriters, and'two sets of accounts and vouchers were made out, Mr. Justice Curtis held the bond invalid on the ground of fraud, and also was of the opinion that the libellants had no line in _ren_ on the vessel for the amount actually advanced, on the ground that the parties contracted solely with.reference to the bond, and did not intend that a line should exist on the ship as a security for the simple loan. This case was affirmed on appeal, on the ground of fraud, Carrington v. Pratt, 18 How. 63. In The William and Emmeline, 1 Blatecht. & H. Adm. 66, the instrument, purporting to be a bottomry bond, bound the ship for a certain sum with simple interest, which was to be paid at all events. Mr. Justice Bettle held, that, though this was not in strictness a bond, yet the vessel was liable in _ren_.

1 Greely r. Smith, 3 Woodb. & M. 236.

2 Emerigon, Trait a la Grosse, ch. 8, 4 ; Harman v. Vanhatton, 2 Vern. 717 ; Western v. Wildb, Skin. 152 ; Williams v. Steadman, id. 345. In Wilmer v. The Smil-lav, 2 Pet. Adm. 295, note, the bond was given for a specific voyage, which was never commenced, but the vessel performed another. Held, that the right of the owner to demand his money back was complete the moment the vessel salied on the new voyage. But a deviation from necessity will not have this effect. The Armadillo, 1 W. Rob. 251.

3 The Brig Draco, 2 Summer, 157.

4 In Pope v. Nickerson, 3 Story, 465, the vessel put into an intermediate port, having received damage, and was sold by the master. Subsequently she was repaired by the vendee and made a voyage to the United States. Mr. Justice Story said, p. 486 : " The next question is, whether, in the events detailed in the statement of facts, and the evidence, the money on the bottomry bond became due, and payable to the lender ! I am of opinion that it did become due. The voyage was not completed from any incapacity of the schooner to perform it; and in point of fact, she did, after being repaired, return safely to the United States. The voyage was broken up by the master voluntarily, upon the ground, that the schooner was not worth repairing for the voyage, because the expense of the repairs would exceed her reasonable value, or what ought, with reference to the interests of the owners, to be expanded upon her, to enable her to carry the cargo to the port of destination. I do not say, that the master acted unwisely or improperly, under all the circumstances, in coming to this conclusion. Perhaps it was exactly what the owners might have done, if they had been personally present. If the owners had so abandoned the voyage, being personally present, because their interest would have been injinously affected by not so doing; what ground could there be to say, that the bottomry bond should not be paid ! See also, Thomson v. Royal Exch. Ass. Co., 1 M. & S. 30 ; The Dante, 2 W. Rob. 437 ; The Catherine, 1 VOL. I.

necessary to say in the bond, that the ship is to be delivered or made over to no other use or purpose whatever, until payment of the bond is made, for the law implies this.1 And where there are no laches on the part of the lender, his lien will be upheld even against a _bond fide_ purchaser without notice.2

Footnote 1: The first author is a copy of the author, and the second author is a copy of the author.

If marine interest is requisite to a bottomy loan, it may be presumed to be included in the principal sum.8 The bond should describe sufficiently the risk which the lender assumes. This is, generally, the loss of the ship by the perils of the sea and any such words as "the bond is gone if she does not arrive," or "if she is lost," or "the money to be paid after her safe arrival," are sufficient to indicate this. The risk must be such as justifies maritime interest; 4 and if the ship be lost by a peril, or from a cause not enumerated or implied, the debt survives, even with the maritime interest; as if the ship be lost through the misconduct of the master or owner.5

Footnote 8: We will use the term "the" term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the "the term "the term "the term "the "the term "the term "the "the term "the term "the "the term "the term "the "the term "the term "the "the term "the term "the "the term "the "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " "the term "the " " "the term "the " " "the term "the " " "

\*\*ON. XI.\]\*\*CONTRacts OF BOTOMARY AND OF RESPONDENTIAL. 411

far as his own interest is concerned.1 He may make such a bond hypothecating a vessel, before sailing on her first voyage, if he pleases. It is then nothing more than a borrowing of money at extra interest, the lender assuming an extra risk. Sometimes this is in fact little more than nominal; the whole transaction being substantially a legal loan for usurious interest with security; for a party may lend ten thousand dollars on a bottomy for fifteen per cent. interest, when six per cent. is the legal interest, and three per cent. the usual premium for insurance on that voyage; and as a lender on bottomy has an insurable interest,2 he may, by expending three per cent. interest, insure the ship and secure the payment of his loan at all events, and yet receive his twelve per cent. net for the use of his money. It is true that the uniform language of courts, both as to bottomy and resondentia bonds, is, that if the transaction be colorable only, and a mere pretence for getting usurious interest, it has none of the privileges given to these bonds, but is like any other loan on usury;3 and this is a question for the jury. But there is no precise limit nor measure to marine interest; and in practice the interest must be far beyond the risks to be affected by the usary, as they would be measured by the mere rate of insurance.4

Footnote 1: Greek y. Waterhouse, 19 Maine, 9; The Mary, 1 Paine, C. C. 671 ; The Brig Draco, 2 Sumner, 157. But see Greely v. Smith, 3 Woodb. & M. 236, 254. So of a respondents bond. Conard v. Atlantic Ins. Co., 1 Pet. 886 ; The Brig Bridgewater, Oleout, Adm. 35 ; The Ship Panama, Oleout, Adm. 343.

Footnote 2: I Phil. Ins. 400.

Footnote 3: Thorbille v. Stone, 11 Pick. 187 ; Conard v. Atlantic Ins. Co., 1 Pet. 386, 437.

Footnote 4: See ante, p. 407, note 2.

Footnote 5: And where the voyage is not under the direction of the party granting the bond, but is under the control of government, a bond is not invalid because the voyage is not described. The Jane, 1 Dodds. 461.

Footnote 6: The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; Bray v. Bates, 9 Met. 237.

**Bottomy bonds made abroad are generally made on the next voyage of the ship; which must be described with reasonable accuracy, or as near as the master can, but need not be precisely set forth.5 When made at home, by the owner, they are frequently made on time, as for a year.6**

Footnote 7: The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; Bray v. Bates, 9 Met. 237.

**Remark 1.1**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; The Brig Bridgewater, Oleout, Adm. 35 ; The Ship Panama, Oleout, Adm. 343._

**Remark 1.2**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; The Brig Bridgewater, Oleout, Adm. 35 ; The Ship Panama, Oleout, Adm. 343._

**Remark 1.3**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; The Brig Bridgewater, Oleout, Adm. 35 ; The Ship Panama, Oleout, Adm. 343._

**Remark 1.4**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; The Brig Bridgewater, Oleout, Adm. 343._

**Remark 1.5**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; Bray v. Bates, 9 Met. 237._

**Remark 1.6**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; The Brig Bridgewater, Oleout, Adm. 343._

**Remark 1.7**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; The Brig Bridgewater, Oleout, Adm. 343._

**Remark 1.8**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; Bray v. Bates, 9 Met. 237._

**Remark 1.9**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; Bray v. Bates, 9 Met. 237._

**Remark 2.10**: _The Brig Draco, 2 Sumner, 157 ; Thorbille v. Stone, 11 Pick. 183 ; The Brig Bridgewater, Oleout, Adm. 343._

**Remark 2.11**: \_The Brig Draco, 2 Sumner, 157 ;

### _When the Master may make a Bottomy Bond._

Although an owner may make a bottomry bond anywhere, and for any reason, the master can do so, only abroad and from necessity;1 his power in this respect being exactly analogous to his power to sell; excepting that he may be justified, as we have already said, in giving a bottomy bond, by a less necessity than is required to authorize his sale of the ship. And the power belongs to any one who is lawfully master of the ship, however appointed;2 as where he is appointed by the agent of the owners.8 So, if he is appointed by the consignees of the cargo.4 In one case where the captain was appointed by a foreign merchant, and gave a bond to him, the bond was held to be valid4 And in another case, the same was held in respect to a bond given to the charterer by whom the master was appointed.6 So, too, the master of a transport, hired by government, and in the national service, may bottom her.7 And the master of a beligerent ship that is in a foreign port by virtue of a cartel, may give a bond, and this may be enforced in the courts of the country to which the master is an enemy.8 But a bottomy bond on a belligerent ship is discharged by the capture of the ship; and the courts of the captors will not enforce it as a subsistingCH. XL.\] CONTRASTS OF BOTTOARY AND OF RESPONDENTIAL. **413**

claim even in favor of a subject of the capturing power.1 After the master has ceased to act and another is appointed, he cannot give a bond, since he is _functus officio_.3

Footnote 1: The Tobago, 5 Rob. Adm. 218.

If a ship be captured and restored to the owners, it is a detention or interruption of the voyage, and not a loss of the ship;8 but if it be captured, condemned, and sold, and the proceeds afterwards restored to the owner by decree8, this is a loss of the ship, and the owner holds the proceeds free from any claim of the bond holder, on the bond;4 and if, as has been said, there is no salvage in bottomry,6 it would be difficult to give him any relief. But not only the justice of his claim, but some authorities indicate, what we must think should be the law, that he has such claim either by way of salvage, or in admiralty, on the general principles of equity.6

Footnote 1: The Tobago, 5 Rob. Adm. 218.

Footnote 2: Walden v. Chamberlain, 3 Wash. C. C. 290.

Footnote 3: Joyce v. Williamson, 3 Doug. 164. This was an action on a bond which contained a clause, that if the ship should be taken by the enemy, cast away, miscarry, or be lost, before her safe arrival at New York, the bond should be void. The ship sailed on her voyage, was captured, and afterwards retaken and carried to Halifax, where part of the cargo was sold for salvage and repairs. The vessel afterwards arrived at New York with the remainder of her cargo on board. The ship and freight were then worth the sum in the bond, but not worth that sum together with what had been laid out in repairs. The bond was pronounced for.

Footnote 4: Appleton v. Crownshield, 3 Mass. 443, 8 Mass. 340. In this case the vessel was captured and condemned. On appeal the decree was reversed and restoration ordered ; and afterwards the value of the vessel and freight, with interest, was awarded to the owner. The court held that no action would lie on the bond, but intimated that an action for money had and received would lie against the owner. Accordingly such an action was brought, and the plaintiff recovered.

Footnote 7: King v. Perry, 3 Salk. 23. The following case is related by Loceneius, lib. 2, c. 6, 1 12. The master of a ship being in a Spanish port, and having exposed the ship to seizure by his neglect to comply with a particular regulation of the country, entered into an agreement with a person who was supposed to possess sufficient influence to obtain the restitution of the ship, to pay him a very considerable sum with maritime interest, if he should procure the restitution of the ship, and she should afterwards return home in safety; and for securing the payment, executed an instrument in the nature of a bottomry bond. By the interest of the person with whom the agree
**414** ON THE LAW OF SHIPPING.

\[BOOK L\] use. But it is otherwise, if at the same time be is master and mortgagor in possession, and it is a question for the jury to decide in which capacity he acted.1 And it must be the necessity of the ship ; for he cannot make a bottomy of the ship for the benefit of the cargo.2 That is a sufficient necessity which would induce an owner to do it if on the spot;3 and therefore the master may hypothecate the vessel in a foreign country to enable him to return home, though the original voyage was broken up by capture and the compulsory sale of the cargo.4 But this necessity of judging whether the owner would do it, does not exist if the owner himself can act or be consulted.5 It is said that a master in a port of this country, may bottom his ship if her home port is in another state.6 But this ruling cannot be sustained; for the master does not have the power of thus binding the ship to the payment of maritime interest, if the owner can be consulted, whether he be in the same, or in a neighboring state, or in another country. If the master be in the British provinces, and the owner in the state of Maine, within a day's sail or ride of him, the master can have no such power. It must be a foreign port in the sense of a distant port;7 this is sufficient; and it may therefore be the port of destination.8

Footnote 1: The author is grateful to the anonymous referee for his help and to the GE XL\] CONTRACTS OF BOTOTOMERY AND OF RESPONDENTIA. **415**

The master, for the same reason, has no such power if he have funds of the owner within his reach; or if he can borrow

Gent, 2 Q. B. 431, n.; Beldon v. Campbell, 6 Exch. 886, 6 Eng. L. & Eq. 473. In The Bhadamante, 1 Dods: 201, Sir Wm. _Soft_ was of opinion that Cork was a foreign port as respected England, though the point was not decided. And in The Barbara, 4 Rob. Adon. 1, Jersey was held a foreign port in regard to London. But these distinctions are now done away with, and the only question is whether the owners could have been consulted. Thus in The Oriental, 3 W. Rob. 243, 2 Eng. L. & Eq. 546, the vessel was at New York, and the owners at St. Johns, New Brunswick. There was a telegraph between the two places. The master gave a bond without consulting the owners. Dr. _Lashington_ held the bond was valid, but, on appeal, the judgement was reversed. Wallace v. Fielden, 7 Moore, P. C. 398. In the case of The Bonsparte, 3 W. Rob. 298,1 Eng. L. & Eq. 641, a bond was given by the consent of the owners of the vessel on _she_ ship, freight, and cargo. The shipper of the cargo was applied to, but refused to advance any money. It did not appear that the owners of the cargo had been notified. Dr. _Lashington_ was of opinion that it was not necessary for the master to consult the owners of the cargo, and pronounced for the bond. On appeal the privy council remitted the case to allow evidence to be taken, as to what notice, if any, had been given to the owners of the cargo. Wilkinson v. Wilson, 8 Moore, P. C. 452,36 Eng. L. & Eq. 62. The law is stated by the court, on p. 478, and p. 70, of the respective reports, as follows: " That it is an universal rule, that the master, if in a state of distress, or pressure, before hypotheating the cargo, must communicate, or even endeavor to communicate, with the owner of the cargo, has not been alleged, and is a position that could not be maintained ; but it may safely, both on authority and on prim-cjols, be said, that in general it is his duty to do so, or it is his duty in general to attempt to do so. If, according to the circumstances in which he is placed, it is reason-ble that he should, it was rational to expect that the might obtain an answer within a time not inconvenient with reference to the circumstances of the case ; it must be taken, therefore, upon authority and principle, that it is the duty of the master to do so, or at least to make the attempt." On the case being sent back, further evidence was taken ; it is prepared that the British causal had written, on behalf of the master of the vessel and his agent, to the consigees in England, informing them of the damage sustained by the ship, but making no application for money, nor referring to the necessity for repairs. The letter also requested instructions as to what should be done. No answer was returned. Dr. _Lashington_ held that under these circumstances the owners of the cargo were bound by the bond. The Bonsparte, 20 Eng. L. & Eq. 649. On appeal his decision was affirmed. 8 Moore, P. C. 459, 483, 36 Eng. L. & Eq. 75. See also, generally, The Lochiel, 2 W. Rob. 84; The Ware, 4 Eng. L. & Eq. 889 ; Agricultural Bank v. The Bark Jane, 19 La. 1. In The Nuova Lounce, 92 Eng. L. & Eq. 623, a bottomary bond was granted by the master at the port where the owner of the cargo, who was also character of the ship, resided. Advertisements for the loan were published. This fact was known to the owner of the cargo, and he was also aware that the ship was unavoidently, and that the cargo had been laden and unladen while the ship was in port. No direct communication, or application for advances, was made to him. Field that the bond was invalid as far as his interest was affected -- It is true that in the case of The William and Emmeline, 1 Blaichf. & H. Adm. 66, 71, Mr. Justice _Betts_ held that Charleston, South Carolina, was a foreign port in respect to New York, yet this case was decided in 1828, when a long time was required for communication be tween the two cities, and moreover, though a bond was given in the case, yet it was informal, and the case was decided on the ground that repairs furnished in another State constitute a lien on the ship.

1 Tunno v. Ship Mary, Bee, 120; Boreal v. The Golden Rose, id. 131 ; Putnam v. Sch. Polly, id. 157 ; Sloan v. Ship A. E. I., id. 250 ; Forbes v. The Hannah, id. 348, Hopk. 176 ; Canizares v. The Santisima Trinidad, Bee, 358, Hopk. 185 ; Racher v. Corypham, p. Fed. Adm. 295 ; Cupiliano v. Peres, 2 Dall. 194 ; The Ship Larinia v. Barclay, 1 Wash. C. C. 49 ; The Ship Packett, 3 Mason, 255 ; Ross v. The Ship Active, 2 Wash. C. C. 296 ; Walden v. Chamberlain, 3 Wash. C. C. 290 ; Paton v. The Randolph, Gilpin, 457 ; The Nelson, 1 Hagg. Adm. 169 ; The Rhadamante, 1 Dods. 201 ; The Sydney Cove, 2 Dods. 1, 7. In the case of The Virgin, 8 Pet. 538, the court held that if the necessity for the supplies and advances is once made out, it is incumbent upon the owners, who assert that they could have been obtained upon their personal credit to establish that fact by competent proofs, unless it is apparent from the circumstances of the case. It was also held that it was not enough to show that there were funds at the port of distress, which ought to have been appropriated to the use of the ship, and that the master was justified in giving a bond if he could not obtain them, because, " the non-existence of funds, and the non-ability to get at them, must, as to the master, be deemed to be precisely equal predicaments of distress."

- In the case of The Ship Packet, 3 Mason, 255, 263, Mr. Justice Story said : If the master has money of his own on board, sufficient for the ship's necessities, it is by no means certain, that he has a right in such a case to resort to the extraordinary measure of bottomy. In case of there being money of the owner of the ship on board, it is very clear, that he cannot resort to bottomy. And although I would not absolutely decide, that under no circumstances be could so resort, where he has sufficient money of his own on board; yet if he can, it must be in a case of a very peculiar character, and such as ought to induce the court to uphold it from great public principles." In Canizares v. The Santisima Trinidad, Bee, Adm. 358, the master had goods of his own on board, and could also have procured money from the intendant at the port of distress. Edeld, that he had no authority to give a bond. Same case on appeal, Cupiliano v. Peres, 2 Dall. 194. But if this latter element had been wanting, we think that a bond given by him would be valid. See The William & Emmeline, 1 Blatchf. & H. Adm. 66, 72.

CH. XL.\] CONTRacts OF BOTTOMRY AND OF RESPONDENTIA. **417**

which belongs to the shippers, nor, perhaps, has he a right to do this.1

Footnote 1: In the Ship Packet, 3 Mason, 255, it was objected that the master should not have given a bond, as he had specio dollars on board which belonged to some of the shippers. Mr. Justice Story said, p. 258 : "The general principle is, that he (the master) is bound to act with a reasonable discretion. He is to get the necessary repairs done at as little sacrifice as is practicable. If he has money on board, and the use of that will be the least sacrifice, he ought to resort to it in the first instance. But there may be cases, in which the use of such money would be the greatest sacrifice that could be made, and the whole objects of profit in the voyage might be thereby defeated. Suppose a voyage to the East Indies or China, in which the principal outward property on board is Spanish dollars, and a disaster happens on the first passage, requiring repairs, the use of those dollars may be the most mischievons exercise of his discretion, and destroy the hopes of the voyage. ... In all these cases, therefore, much must be left to the master's discretion, and he must exercise it consectiensly for the general interest. If he acts bond fide and with reasonable care, the rights of the parties are bound up by his acts, although it should afterwards be found, that he had committed an error in judgment, and might have acted more beneficially in another manner."

- Patton _v._ The Randolph, Gilpin, 457. See also, Selden v. Hendrickson, 1 Brock. C. C. 396. Kent (3 Comm. 172) says, on the authority of Boulay Paty, Conrs de Droit Com. Mar. tome 2, p. 271, that if only a minority of the owners are present, the captain's power remains good.
- In some cases not only has the bond been pronounced valid, where there was at the time an agent at the place, but it has been also held, that a master may give a bond to the agent himself. See post, p. 425, n. 2.
- Harry _v._ Ship John and Alice, 1 Wash. C. C. 293 ; Walden v. Chamberlain, 8 Wash. C. C. 290 ; Clark v. Laidlaw, 4 Rob. La. 345 ; The Aurora, 1 Wheat. 96 ; The Lochiel, 2 W. Rob. 34 ; The Osmanli, 3 W. Rob. 198 ; Smith v. Gould, 4 Moore, P. C. 21. But see The Mary Ann, 10 Jurisat, 253, 4 Notes of Cases, 376, 390. In the case of The Ocean, 10 Jur. 504, 4 Notes of Cases, 566, A bought up several simple contract debts, due on account of a certain vessel. He afterwards advanced money on bottomry on the same ship, and repaid himself out of the money so advanced the sums which he had paid for the contract debts. . Held, that as to this part of the transaction the bond was void. In Cohen v. Sch. Amanda, Crabbe, 277, the bond was given to a party on condition that he should assume the debts which the vessel owed. No question seems to have been made as to the validity of such a bond. Payment was contested on the ground that the debts had not been paid. The court held, that

**418**: ON THE LAW OF SHIPPING. \[BOOK L\]
**way to liberate the ship from arrest and sale for those debts.1**: And if a bond, given by the owner, includes other and former debts, those debts are merged in the bond, and are discharged by whatever discharges the bond, and no other or former securities on those debts are enforceable by themselves, or available in any way excepting through the bond.2\*\*:

Footnote 1: See the following discussion.

The master may give a bond for the amount due in good faith for compensation for services rendered in a foreign port by a consul of the country, to which the ship belongs.8

Footnote 69GL. XI.\] CONTRACTS OF BOTTOARY AND OF RESPONDENTIA. \[419\] Probably the same rule would be applied as in the sale of a ship, and if a sufficient necessity seemed to the lender to exist, after all reasonable precaution and inquiry on his part, it would be enough; although in fact he were mistaken.1 If he connives in any way at any fraud of the master, this avoids the bond in toto, nor has he any lien on the ship for the amount actually advanced;2 but the fraud 'of the master or borrower does not have this effect if the lender were neither participant in, nor conusant of it;3 nor is the lender bound to see that the master actually applies the funds thus raised to the ship's necessities.4

Footnote 1: The Ship Fortitude, 3 Sunner, 228, 249. See also Soares v. Rahn, 5 Moore, P. C. 1.

Footnote 2: The Nelson, 1 Haggs. Adm. 169, 176 ; The Tartar, id. 1, 14 ; The Brig Ann C. Pratt, 1 Curtis, C. C. 340 ; s. c. affirmed on appeal, Carrington v. Pratt, 18 Howr. 63.

Footnote 3: Atlantic Ins. Co. v. Conrad, 4 Wash. C. C. 669, 1 Pet. 886.

Footnote 4: Scarborough v. Lyrus, Latch, 252, Nov, 95, 14 Vin. Ab. Hyph. (A.) pl. 2; The Ship Fortitude, 8 Sunner, 228 ; Conrad v. Atlantic Ins. Co., 1 Pet. 886, 437 ; The Virgin, 8 Pet. 538, 553 ; The Orelia, 3 Haggs. Adm. 75, 84 ; The Jane, 1 Dods. 461, 44 ; The Royal Stuart, 33 Eng. L. & Eq. 602.

Footnote 5: The Ship Fortitude, 3 Sunner, 228 ; The Virgin, 8 Pet. 538 ; The Duke of Bedford, 2 Haggs. Adm. 294, 300 ; The Vibilia, 1 W. Rob. 1, 5 ; The Mary Ann, 10 Jur. 153, 4 Notes of Cases, 376.

Footnote 6: The Ship Fortitude, 3 Sunner, 228. But see the further remarks of Mr. Justice Sory, on this point, in the same case, p. 264 ; and Furniss v. The Brig Magoun, Olecht, Adm. 55, 60. In this case Mr. Justice Bets held, that he was competent, especially if released. See also, Evans v. Williams, 7 T. R. 481, note ; Rocher v. Dasher, 1 Stark. 27 ; Milward v. Hallett, 2 Caines, 77.

Footnote 7: Rucher v. Conyngham, 2 Pet. Adm. 295 ; The Aurora, 1 Wheat. 96 ; Harry v. The Ship John and Alice, 1 Wash. C. C. 298 ; The Hobe, 3 W. Rob. 146.

Footnote 8: The Ship Fortitude, 3 Sunner, 228 ; The Virginia, 8 Pet. 538 ; The Duke of Bedford, 2 Haggs. Adm. 294, 300 ; The Vibilia, 1 W. Rob. 1, 5 ; The Mary Ann, 10 Jur. 153, 4 Notes of Cases, 376.

Footnote 9: The Ship Fortitude, 3 Sunner, 228 ; The Ship Fortitude, 3 Sunner, 228 If the lender, from improper motives, connives with the master to send the ship on a new voyage, not authorized by the owner, this is a fraud which will defeat his bottomry bond.1 But the power of the master is not limited to necessaries to complete his original voyage. He may thus raise money to perform any voyage he is authorized by law to undertake, if there be no collusion between him and the lender.3

Footnote 1: The Virgin, 8 Pet. 538 ; The Reliance, 9 Hagg. Adm. 66.

Footnote 2: The Virgin, 8 Pet. 538, 552 ; The Hunter, Ware, 249, 253. See also, The Tsur, 1 Hagg. Adm. 1 ; The Mary Ann, 4 Notes of Cases, 876, 881, 10 Jar. 253. In The Reliance, 3 Hagg. Adm. 66, the ship was freighted from London to Calcutta and back. The agents there, upon whom the master had a limited credit, and which he had exhausted, induced the master to undertake a series of voyages in defense of the owner's instructions. The bond was given for advances made'on one of these voyages. Had, that it was void, for if a necessity existed, is arose from the conduct of the parties in whose favor it was given.

Footnote 3: The Jane, 1 Dods. 461, 466 ; The Tsurat, 1 Hagg. Adm. 1 ; The Nelson, 1 Hagg. Adm. 169, 179 ; The Kennedy Castle, 3 Hagg. Adm. 1 ; The St. Catherine, 3 Hagg. Adm. 250 ; The Emancipation, 1 W. Rob. 124, 129 ; The Ariadne, 1 W. Rob. 41, 421 ; The Lord Cochrane, 2 W. Rob. 320 ; The Hunter, Ware, 249 ; The Sch. Zephr, 3 Mason, 341 ; Leland v. The Ship Medors, 9 Wood. & M. 93, 100 ; Greely e. Smith, 3 Woodb. & M. 236 ; The Brig Atlantic, 1 Newb. Adm. 514. So if property is not-gaged to secure a bond, the mortgage is defeated by whatever avoids the bond. Thorndike v. Stone, 11 Pick. 183 ; Bray v. Bates, 9, 267 387. 4 M. Justice Story, in the case of the Virgin, 8 Peters, 538, 554, stated the law at follows: " In England and America the established doctrine is, that the owners are not personally bound except to the extent of the fund pledged,-which has come into their hands. To this extent, indeed, they may correctly be said to be personally bound; for they cannot subtract the fund, and refuse to apply it to discharge the debt. But in that case the proceeding against them is rather in the character of possessors of the thing pledged, than strictly as owners. In the present case, the value of the ship, the only fund out of which payment can be made, falls far short of a full payment of the .\] CONTRACTS OF BOTOTOMERY AND OF RESPONDENTIA. 421

may not often give this claim, because there is the ship, which is ample security; and if the ship be not there and that security is lost, then the debt is paid, or, at least, the bond is discharged by that loss. This question is not without its difficulties, nor are we much aided in reference to it, by adjudication. It would seem, however, that by the ordinary bond of bottomy, the owners are not personally held. That is, they are usually so written as to confine the lender to the ship in any event, giving the owner the right to abandon the ship to the lender, on its safe arrival, and to exempt himself from further responsibility. We do not know that the parties might not make a different bargain; but the rule of the Supreme Court of the United States seems to confine the claim to the property.1

If a master destroys a ship, or if an owner causes it to be destroyed, there would then be a remedy against the wrongdoer personally; and so there would be, perhaps, whenever by the fault of the master or owner, the lender lost the security of the ship.2

amount does upon the bottomy bond. But this is the misfortune of the lender, and not the fault of the owners. They are not to be made personally responsible for the act of the master, because the fund has turned out to be inadequate; since by our law he had no authority by a bottomy bond to pledge the ship, and also the personal responsibility of the owners. The consequence is, that the loss, intra the amount of the fund plugged, must be borne by the libellant." See also, Capuilino _v._ Perez, 2 Dall. 194; The Ship Fortirade, 8 Sumner, 228, 230; Johnson _v._ Shippen, 1 Salk. 35, 2 Ld. Raym. 982; Benson _v._ Duncan, 8 Exch. 644, 656; Staibanak v.\_ Feening, 11 C. B. 51, 6 Eng. L. & Zi. 411; The Tartar, 1 Hagg. Adm. 1, 18; The Nelson, 1 Hagg. Adm. 169, 176. But see Groev & Smith, 8 Woodb. & M. 396, 249.

Footnote 1: The eigheten Rule of Practice in the Admiralty, prescribed by the Supreme Court, is as follows: " In all suits on bottomy bonds, properly so called, the suit shall be in rem only, against the property hypothecated, or the proceeds of the property, in whosover hands the same may be found, unless the master has, without authority, given the bottomy bond, or by his fraud or misconduct, has avoided the same, or has subtracted the property, or unless the owner has, by his own misconduct or wrong, lost or subtracted the property, in which latter cases the suit may be in person against the wrongdoer." If the voyage is put an end to by the fraudulent act of the master, it would seem, therefore, that if no proceeds of the ship or cargo can be got at, the only remedy is against the master. See The Brig Ann C. Pratt, 1 Curtis, 351, per _Curts_, _J._ Although, if the owner by his own act prevents the ship from arriving, then he is personally liable, as has been already said.

- We are not aware of any cases which would lead to the conclusion that an action against the owner can be sustained unless distinctly for his own wrong doing. The Klephanta, 9 Eng. L. & Eq. 553, is an important case on this point. There the bond was given on ship, freight, and cargo, and was not to be put in force in case the ship and her cargo should be lost, or should miscarry, or be cast away on the voyage. The VOL. I.

**422**: **ON THE LAW OF SHIPPING.** \[B00K I.\*\*

\*\*If the owner chooses to sell a wrecked or injured ship because her repairs will cost more than she will be worth, he may, by abandonment, make this a total loss against insurers; but not against a bottomy bond holder; for here there is no abandonment.**1**: \*\*Nor, says Mansfield, is there any salvage or average upon a bottomy bond.**2**: \*\*But the parties may stipulate that the bond holder shall be liable to contribute in general average.**3**: **And it is now very common to provide that he shall be liable both for average and salvage. In such a case he contributes only on the value of the property hypothecated without the addition of maritime interest,**4**: and he is entitled to contribution and to salvage.**

**F.**: _Of a Bottomy Bond for Supplies or Repairs._

\*\*If the master order the supplies and they are rendered, and the repairs made, and the bottomy bond given afterwards, this bond is good if it was originally intended to furnish the supplies on the credit of the ship, and to secure this by a bottomy bond;**6**: but if the original purpose and understanding were to ship did not arrive at her port of destination, but was abandoned as for a total loss at Algoa Bay, where part of the cargo was sold, and the proceeds brought to England, and part put into another ship, and also brought to England. It did not appear that the ship could not be repaired. The bond was enforced against the proceeds of the ship, the cargo which had been sold, and against that transshipped. See also, Pope v. Nickerson, 3 Story, 465. 1 Thomson v. Royal Exch. Ass. Co., 1 M. & S. 30; The Elephanta, 9 Eng. L. & Eq. 553; The Dante, 2 W. Rob. 427; Ins. Co. of Penn. v. Duval, 8 S. & R. 188; Pope v. Nickerson, 3 Story, 465. 2 Joyce v. Williamson, 3 Doug. 164. See also, Walpole v. Ewer, Park, Ins. 565, per Lord Kenyon, C. J.; Robertson v. United Ins. Co., 2 Johns. Cas. 250, 252, per Kent, J. By the ordinance of Hamburg the lender does not contribute to general area ago. Titi. 8, art. 3; 3 Magenus, No. 981. In France the law is the other way. Code de Commerce, n. 141 ; Le Guidon, c. 19, a. 5. So in Denmark. Walpole v. Ewer, Park, Ins. 565. 3 Ins. Co. of Penn. v. Duval, 8 S. & R. 188. 4 Gibson v. Philadelphia Ins. Co., 1 Binn. 405. 4 The Virginia, 8 Pet. 551, 555; La Ysabel, 1 Dods. 273, 276; The Augusta, 1 Dods, 283; The Alexander, 1 Dods. 379, 880; The St. Catherine, 3 Hagg. Adm. 350; The Rubicon, 8 Hagg. Adm. 9; Turnius v. Brig Magoon, Olcott, Adm. 55, 63; The Ship Panama, Olcott, Adm. 343, 350. In the case of The Vibilia, 1 W. Rob. 1, it was held that, where advances were made on the personal credit of the master, or owners, and a bond subsequently given, the bond was void, but that where advancesfor the first time, the second one is to say that the second one from arrest for debt, is a good cause for bottomy, yet if the attaching creditor is himself the obligee, the bond is invalid.1

fact, that a lien existed on the ship by the law of the country in which the bond was given, was an important ingredient, and furnished a presumption in favor of bottony, and against personal credit. But we are not inclined to carry the law further than this, and to say that in all cases the arrest of the ship for debt would authorize the giring of a bond by the master. In The Aurora, above cited, it was held that a mere thrust to arrest the ship for a preexisting debt, would not justify the master in giving a bond. See also, The Boston, I Blastoft & H. Adm. 309, 324. It is true that in the case of Smith v. Gould, 4 Moore, P. C. 21, Lord _Campbell_ used language which is inconsistent with this view of the case. The vessel, bound for New York, had a very long passage, and having got out of water, the persons on board used some cases of porter belonging to a freighter. On arrival the consiage threatened to use the ship for the non-delivery. The captain raised money, to pay for the damage done, by the bond on which this suit was brought. It did not appear in evidence whether by the laws of New York the ship could have been arrested, and the bond was pronounced to be void. But Lord _Campbell_ expressed his opinion that a master might hypotheshes his vessel in any case where it might be arrested, and sold for a demand for which the owner would be labile. The whole subject was discussed at great length by Dr. _Luslington_, in the case of The Osmnil, 3 W. Rob. 198, and a conclusion contrary to that of Mr. Justice _Shy_ arrived at. The Osmnil was arrested for debts due from her owner, on account of advances made for The Osmnil, and for other ships of the same owner, on former voyages. The arrest was legal in all respects, though of course the ultimate consequences of it could not be determined. The captain borrowed money on bottony to release the vessel, the tender knowing it was to be so applied. The bond was held to be invalid. In The Augusta, 1 Doda, 283, 288, Lord _Sbound_ remarked : " It has been said that the party might, by the law of Russia, have detained this ship till the money was repaid; but I do not think that circumstance alone will be sufficient to convert this into a case of hypotension. Ships might, in all cases, be obtained on the same ground by the general law of Europe, and if the position, which has been laid down, were to be supported, it would go the length of turning every case into a case of ly-potheation, or at least there would be a necessity of inquiring, in every case, into the state of the foreign law." However the law may be in regard to the arrest of the ship, it is clear that the fact of the master's being arrested will not be sufficient to authorize the giring of a bond, to raise money to procure his release, although he was arrested for a debt contracted for the vessel in his capacity of master. Smith v. Gould, 4 Moore, P. C. 21. See also, The Aurora, 1 Wheat. 96. It is obvious that these questions can only arise in reggtd to old debts. For if advances are made to the ship, they are either on the credit of the ship, or of the master or owner. If the latter, the ship could not be legally arrested, and if illegally, it is clear that no necessity would exist for the giring of a bond. If they are made on the credit of the ship, we have seen that a bond is valid, although given subsequently. The case of The Osmnil proceeds on the ground that as the master has no right to bottom for old debts, so it has not the right, when the ship is arrested for those debts.

${}^{1}$ Thus Mr. Justice _Shy_ in the case of The Aurora, 1 Wheat. 96, 105, said: " Nor does it by any means follow, because a debt sought to be enforced by an arrest of the ship might uphold an hypothecation in favor of a third person, that a general creditor would be entitled to acquire a like interest. It would seem against the policy of the law to permit a party, in this manner, to obtain advantages from his contract for CH. XL.\] CONTRACTS OF BOTOMERY AND OF RESPONDENTIAL. **425**

G. _Of a second Bottomry Bond._

If a master in a foreign port bottom his vessel, and then go to another port and make a new bottomry, the funds necessary to pay off the former bottomry may enter into the new one. But then the holders of the second bond will stand as the assignees of the first; so far at least, that if the first bond was not good because not necessary, or for any fraud in the lender, the second bond will not be good for so much as paid off the first bond, although the second bond holder advanced the money in good faith.1

Footnote 1: Dobson v. Lyall, SS Jur. 969; Walden v. Chamberlain, SS Wash. C. C. 290; The Aurora, 1 Wheat. 96. See also, Conard v. Atlantic Ins. Co., 1 Pet. 436, where the loan was applied in discharge of a prior loan. Mr. Justice Story said: " In our judgment, that makes no difference, as to the legal rights of the parties. The borrower had a right to apply the loan in any manner he pleased, and the mode of its application, if it be otherwise bond fide and legal, does not change the posture of the rights of the lender." This was a case of a bond given by the owner of the cargo. So in Greeley v. Waterhouse, 19 Maine, 9, it was held that where a bottomry bond is given by an owner to secure an old debt, if that was to be discharged to the extent of the bond, the bond might be regarded as a new loan on bottomry, but not where the bond was intended merely as a collateral security for the old debt. In Merwin v. Shailer, 16 Conn. 489, the vessel put into Charleston for repairs. The master borrowed a sum of money on bottomry from A. Subsequently, another master was appointed who borrowed an equal sum from B, and took up the first bond. The court held that the owners were not liable for this last, such change of responsibilities not growing out of the necessitie of the voyage, or the safety of the vessel. * If the consignee has funds in his hands belonging or due to the owners of the vessel, it is well settled that he cannot lend his own money on bottomry. Hurry v. The 36 \*
426 ON THE LAV OF SHIPING. \[BOOK L

court, under circumstances which, if not exciting suspicion, should at least call for unusual care and vigilance in ascertain-

Ship John & Alice, 1 Wash. C. C. 203 ; The Ship Larinia _e._ Barclay, 1 Wash. C. C. 49 ; Ross _v._ The Ship Active, 3 Wash. C. C. 205 ; Reade _v._ Commercial Ins. Cq., 3 ; Johns. 352. It is true that in the case of Liebart _v._ The Ship Emperor, Bee, Adm. 339, 344, the bond was given to consignees, and pronounced invalid, and that on appeal the court said : " No authority is shown, and none can be shown, because none ought to be, that an hypothecation can be made to a consignee : great miscibile might arise if capitals could hypothecate to consignees." But these remarks are to a great degree _obiter_, for there were special circumstances in the case which were relied on, which would have doubtless rendered the bond invalid, even if it had been given to a stronger. That a bond may be given to a consignee there can be no doubt. See The Ship Larinia _v._ Barclay, 1 Wash. C. C. 49 ; Boss _v._ Ship Active, 3 Wash. C. C. 206. In Rucher _e._ Conygham, 2 Pet. Adm. 307, the court said : " The facts of this case, in a great degree, if not entirely, supersed the necessity of discussing the question of the propriety of a consignee taking a bottomy bond from the master, in virtue of the power given him merely as master. I will only say, that in general, I think there is a legal impropriety and invalidity in such bonds. The practice may lead to abuses and collisions, to charge the owner with unwarrantable and unnecessary various premiums. But I will not say that there may not be cases, where the consignee is not bond, more than any other leader, to advance for repairs, without taking the ship as security for a loan on maritime interest. A consignee not in the habit of dealing with or crediting an owner, and not having any goods, funds, or means of security at the time, seems not under any obligation to risk his property, without the usual and adequate compensation and security." In England, in the case of The Alexander, 1 Dods. 278, a bond given to the consignees of the cargo was pronounced valid. So in The Nelson, 1 Hagg. Adm. 169, where it was given to the consignee of the cargo, and the agent of the charterter, the consignee of the ship being at the port, but refusing to advance funds. See also, The Lord Cochrane, 2 W. Rob. 320. Lord _Slowl_, in the case of The Hero, 2 Dods. 139, 144, states the law as follows : " I will not take upon myself to lay it down as an universal proposition, that an agent may not, under any circumstances, take the security of a bottomy bond. Cases may possibly arise in which an agent may be justified in so doing. I can be no part of his duty to advance money without a fair expectation of being reimbursed, and if he finds it unable to extend credit to his employers beyond certain reasonable limits, he may then surely be at liberty to hold hard, and to say, I give up the character of agent, and as any other merchant might, to lend his money upon bond, to secure its payment, with maritime interest. If in such a case, he gives fair notice that he will not make any further advances as agent, and affords the master an opportunity of trying to get money elsewhere, and the master is unable to do so, but is obliged to come back to him for a supply, then he is fairly at liberty, like any other merchant, to advance the money on a security that is more satisfactory to himself. I will not say that the case might not go further. If the agent had given credit for all the displacements of the ship, and found, contrary to his expectations, that they amounted to more than be calculated, and went beyond any advances which be might reasonably be called upon to make on the mere personal credit of his employers, and if there was no time to look to other quarters for assistance, he might possibly be justified in resorting to this species of security, giving the earliest notice of the necessity under which he acted. Under such circumstances he'might not, perhaps, be out of the reach of the protection which a botuory bond

**CH. XL.\] CONTRACTS OF ROTOMRY AND OF RESPONDENTIA.**

ing that there was a sufficient necessity for the loan, and entire good faith in the transaction. If these are found to exist, then we must say that such a bond may be valid, or that a consignee must advance his own funds without the interest or security any other person would be entitled to, for which there is no law, or else that a consignee who is willing to save a ship on fair terms, must let her perish, because he cannot be treated as well as a stranger. Perhaps it should be shown that the master, or other agent, could not raise money on the same terms from another party; and, with better reason, the consignee might lose his remedy on the bond if it could be shown that the funds might have been raised on better terms from another. He should be held to all the strict accountability of an agent;1 but if every thing which good faith could require would afford him." And Dr. _Lushington_, in the case of The Oriental, **3 W.** Rob. 243, \*\*2 Eng. L. & Eq. 546, uses language no less strong. He says : " That an agent cannot, under any circumstances, take a bond of bottomy upon the vessel in whose service he is employed, is a proposition which cannot, I conceive, be universally maintained. There can be no obligation upon a merchant, merely because he takes upon himself the character of agent, to advance to any required extent his own funds for the repairs and outfit of a vessel consigned to his charge. It forms no part of the contract into which he enters when he becomes an agent, that he should make such advances, and it must rest with himself to judge of the protence of so doing, according to the circumstances in which the vessel is placed." Though this case was reversed on appeal, yet it was on another ground. Wallace _v._ Fielden, 7 Moore, P. C. 398. See also, The **Nova Loanese, 22 Eng. L. & Eq. 623.** In Clark _v._ The Bark Leopard, U. S. D. C., Mass., 4 Law Reporter, 153, the libellant, who was also the consignee of the vessel, employed her on various voyages, without accounting for the earnings, and in other respects acted fraudically, and it was accordingly held that he could not recover.

1 This is well illustrated by the late case of The Royal Stuart, 33 Eng. L. & Eq. 602. The agents for the vessel at Australia, put on board, for England, a quantity of damaged flour. All parties believed that it might be safely conveyed without risk to the ship, or those in it. But it became heated before the vessel left port and was necessarily related. The agents also supplied the ship with necessitates for the homeward voyage, and advanced a large sum of money to the master. They then took a bond covering the cost of supplies, the expense of relanding the flour, and the money advanced to the master. The bond was admitted, but on reference to the registrar and merchants, thecharges for relanding the flour, and the amount of money advanced to the master, were disallowed. The case tame before the court on a motion to confirm the report of the registrar. It was held that the agents had no right to ship their own property on board, which from its nature might be dangerous, and then, when it became so, charge the owner with the expense of relanding it. Dr. _Lushington_ said : " It must be remembered always that this is a bond taken by the agent of the ship, whose duty it is to protect the ship from all improper charges; and though it is true inwere in the case, we do not know why the bond might not be valid, even if the consignee had appointed the master who made it.1

Footnote 1: See also \[1\].

We should answer the question, whether a valid bottomy bond may be made to a charterer, in the same way. Such a bond would be open to suspicion, and would require the most careful scrutiny; but would be valid if wholly unimpeached.1 It is, however, decided on good authority, and for good reason, that a bottomy bond to a part-owner, which binds the shares of the ship belonging to the other owners to payment with extra interest for repairs, is not valid.2

Footnote 1: See also \[1\].

Footnote 2: See also \[1\].

## 11 A Bond may be good in part and void in part

A bottomy bond may be given for a sum of money composed of several items, for a part of which such q bond may lawfully be given, and for a part of which it may not be given. The bond will then be good _pro tanto_; for it seems to be quite well settled that it-may be good in part and void in part.4 If many claims are added together to make up the amount for which the bond is given, a court in which enforcement of it is sought, will analyze these claims, requiring them to be severally proved; and will decree in favor of those only, or that part of the bond only, which is sustained by sufficient proof and is not open to
\[EL XI\] 'CONTABCTS OF BOTTOMBY AND OF RESPONDENTIAL. 429

\[0.1\] It is doubtful whether courts of common law have this power; we think they have not.2

Footnote 2: The Jahn, 8 W. Rob. 170. See also, The Cynthia, 20 Eng. L. & Eq. 625.

\[0.1\]

**J.**_Of the Hypothecation of the Freight._

**A** bottomry bond which hypotheses the ship does not, of necessity, hypothecate the freight also.8 But the master has the same power over the freight that he has over the ship, and may hypothecate the freight under the same circumstances, for the same reasons, in the same way, and by the same bond.4 And a general hypothecation of the freight by the master in a foreign port, will be construed to include all the freight of the whole voyage, whether earned at the time the bond is made or not,5 provided it have not been paid to the master or owner.6\*\*

Footnote 7: The Mary, 1 Paine, C. C. 671 ; The Duke of Bedford, 2 Hagg. Adm. 294, 304; The Mary Ann, 9 Jur. 94; The Orelia, 3 Hagg. Adm. 75, 83; The Hersey, 3 Hagg. Adm. 404, 407. See also, cases ante, p. 410, note 2. In the case of The Alino, 1 W. Rob. 111, a collision occurred, and the vessel, to the negligence of whose crew the collision

Footnote 8: The Monomer Zephy, 3 Mason, 341. In The Jacob, 4 Rob. Adm. 245, the freight of a subsequent voyage, was, under the circumstances of the case, held liable for the bond. The freight is liable to contribute _pro vata_ with the ship, although the ship and freight belong to different persons. The Dowthorpe, 3 W. Rob. 73. And freight earned from subshipers of goods by permission of the characters of the whole ship, is liable, as against them, in payment of a bottomry bond given at the port of the character, for advances subsequent to the charter-party. The Elias, 3 Hagg. Adm. 87.

Footnote 9: The John, 8 W. Rob. 170. See also, The Cynthia, 20 Eng. L. & Eq. 625.

Footnote 7: The Mary, 1 Paine, C. C. 671 ; The Duke of Bedford, 2 Hagg. Adm. 294, 304; The Mary Ann, 9 Jur. 94; The Orelia, 3 Hagg. Adm. 75, 83; The Hersey, 3 Hagg. Adm. 404, 407. See also, cases ante, p. 410, note 2. In the case of The Alino, 1 W. Rob. 111, a collision occurred, and the vessel, to the negligence of whose crew the collision

**K.**_Of the Construction of a Bottomry Bond._

**A** bottomry bond is preferred to any other 430 ON THE LAW OF SHIPPING. \[B00K L\]

cepting only the lien of the seamen for wages; \[1\] and the lien of material men for repairs or supplies indispensable to her safety.3

The reason of this rule is, that a bottomry bond saves the ship; for it is to be presumed that it was made from a strict necessity; and if it had not been made the other liens on it would have been worthless. The reason of the exception is, that the bottomry bond itself would never have brought the ship within reach of any persons having an interest in or a lien upon her, had shb not been navigated home by the seamen. So, too, if there be several bottomry bonds on the same ship, the last takes precedence, and a latter over a former, on the same ground, that it is the last which saved the ship.8 And if a bottomry bond was owing, put into Cows for repairs. Application was made to D., a merchant of that port, for assistance in procuring the necessary repairs. D. declined unless the master would execute a bottomry bond for such sums as might be expended. This the master agreed to do. D. had no knowledge of the claim against the vessel. Part of the repairs were made prior to the arrest of the vessel for the damage done by the collision, and part subsequent. The court having pronounced the vessel in fault, she was sold by order of court, and the proceeds paid into the registry. D. having intervened for his claim, the question came before the court as to which claim should be preferred. Held, that D. was entitled to priority only to the extent of the increased value of the vessel arising from the repairs. The vessel in this case had not left Cows when she was arrested, and no bond had been executed. The decrere, therefore, is to be taken in connection with all the circumstances of the case; and Dr. _Lashington_ expressly said that he could not hold that, universally, bonds given for repairs must give way to prior claims of damage.

The Madonna D'Idra, 1 Dods. 37, 40 ; The Sydney Core, 2 Dods. 1, 13 ; The Constacia, 4 Notes of Cases, 512, 10 Mar. 845, 850 ; The Louis Bertha, 1 Eng. L. & Eq. 665 ; Blaine v. Ship Charles Carter, 4 Cranch, 328 ; The Virgin, 8 Pet. 538 ; The Hilarity, 1 Blatchf. & H. Adm. 90 ; Families v. The Brig Magoun, Cloott, Adm. 55, 66 . In The Selina, 2 Notes of Cases, 18, it was held that wages earned antecedently to a salvage service would not be entitled to priority. And in The Mary Ann, 9 Jar. 34, Dr. _Lashington_ is reported to have said: " Suppose the wages send for had been, in part, wages on the outward voyage, before the bottomry bond was taken; then would arise a question of no small importance, namely, whether these wages would be entitled, as against the ship, to priority over the bottomry bond. I apprehend, not." But in the subsequent case of The Louisiana Bertha, 1 Eng. L. & Eq. 665, where there were several voyages, the court held, that the lien of the seamen for their wages extended to all the voyages, they serving under a continuous contract.

The Jerusalem, 2 Gallis. 345. Soe also, _Ex parte_ Lewis, id. 483.

The Exeter, 1 Rob. Adm. 173 ; The Sydney Core, 2 Dods. 1 ; The Elim, 3 Hagg. Adm. 87 ; The Trident, 1 W. Rob. 29 ; Leland v. The Medora, 2 Wood. & M. 113; Furniss v. The Brig Magoun, Cloott, Adm. 66 ; Code de Commerce, book 2, it. 9, art. 393. In the case of The Betey, 1 Dods. 289, the first bond was given on the 12th of March, and on the 17th of the same month, more money being required, another bond was given to another party. The preference was given to the latter bond, al
OH. XI. CONTRACTS OF BOTTOARY AND OF RESPONDENTIA. 431

holder discharges the demands of the seamen for their wages, he perhaps stands as assignee of their claims, and has their lien for wages, in connection with his own.1 It may be doubted, however, whether the principle of novation does not apply so far as to require the assent of the owner, or some security to protect his interests.2 If the lender had, under the same necessity and to liberate the ship, repaid advances made for indispensable repairs or supplies, he could include them in his claim.3

Footnote 1: The author is grateful to the anonymous referee for his comments.

Footnote 2: See Dr. _Lushington's_ remarks in the case of The John Fehrman, 20 Eng. L. & Eq. 648.

Footnote 3: See Miller v. The Snow Rebecca, Bee.,151.

Footnote 4: Simonds v. Hodgson, 3 B. & Ad., 50 ; The Alexander, 1 Dods. 278; The Reda- manthe, id. 201 ; The Hero, 2 id. 159 ; The Calypeco, 3 Hagg. Adm. 169 ; The Reliance, id. 66, 74 ; The Schooner Zephyr, 3 Mason, 341 ; Pope v. Nickerson, 8 Story, 465, 486. In The Jacob, 4 Rob. Adm. 245, 249, Lord _Slowell_ said: " The disposition of this court would certainly be, to uphold the efficacy of bonds of this nature, as far as is consistent with law. They are bonds of great sanctity, and highly necessary in mercantile affairs, and, therefore, the court would be inclined to support them, as far as the justice of the case will admit." See also, The St. Catherine, 3 Hagg. Adm. 250, 253 ; Smith v. Gould, 4 Moore, P. C. 28 ; The Mary Ann, 10 Jar. 253, 4 Notes of Cases, 376.

the same time, because they are made from necessity, or, as is sometimes said, are creatures of necessity and distress,1 they are very carefully watched, and, while the lender is protected against any formal or technical objections if he has acted in good faith, the ship-owner is also protected against oppression.3 Admiralty courts are especially disposed to apply to all questions which come before them on contracts of bottomy, principles and considerations of equity.8 Thus, although there is no precise limit to what is called maritime interest, and in some cases a very large percentage is allowed,4 yet if it be apparent and certain that the lender took advantage of the borrower's necessities to make him pay for the money far more than it was worth, a court of admiralty will interfere, and reduce the interest within proper bounds.8 It has been held, that if the voyage is de
GR. XI.\] CONTRACTS OF BOTOMERY AND OF RESPONDENTAL. 433

feated before the marine risk has begun to run, only legal interest can be allowed.1 So, too, while the lien of the lender is preserved very carefully, and goes with the ship unharmed through great distances and during long periods, yet when the lender can enforce and realize this lien he should do so. Voluntarily to permit the ship to voyage about the world with this unrecorded and secret lien on her, exposes innocent purchasers to great danger. It is, therefore, either a fraud on the part of the lender, or a carelessness which has the effect and does the work of fraud. It is, therefore, held, that the bond does not create any absolute interest in the ship, nor give an indissoluble lien; and if the lender delays enforcing it for an unreasonable time and without reasonable cause, and a third person, by purchase or levy, acquires the vessel without knowledge of the lien, the lender will be held to have waived and lost his lien; otherwise, not.2

Footnote 1: Gruely v. Smith, 3 Wood. & M. 236. See also, 3 Kent, Comm. 357.

Footnote 2: Blaine v. The Ship Charles Carter, 4 Cranch, 398; Wilmer v. The Smilax, 2 Het. Adm. 295, note; The Rebecca, 5 Rob. Adm. 102. See also, The Sydney Cove, 2 Dodds. 1, 7; Leland v. The Ship Medora, 2 Wood. & M. 92, 105; The Brig Draco, 2 Sumner, 157, 191; The Brig Nestor, 1 Sumner, 73, 85; The Barque Chusan, 2 Story, 455, 468. See also, cases ante, p. 118, note 3; p. 406, note 4.

If a a potentiorny suit has been commenced and then abandoned, Lord _Slowell_ has expressed himself as very reluctant to sustain another suit on the same bond.3 This reluctance would probably be felt by our admiralty courts; but would certainly be removed by any evidence explaining satisfactorily the abandonment of the former suit.

Footnote 3: The Fortiuto, 2 Dod. 58. In the Kalamasco, 9 Eng. L. & Eq. 557, a ship was arrested in a cause of collision and the damage pronounced for. Subsequently, it being ascertained that the damage to the cargo was to a greater extent, a new action was commenced, and the ship again arrested. Held, that this new action could not be maintained.

Footnote 4: We have not been able to find a solution to the problem of it during the voyage, carry it directly, and deliver it safely; and this comprises all his duties and all his powers. He may, indeed, be himself consignee or supercerago. Then he unites, but does not combine, these several offices. Generally, on the voyage, he will be regarded in respect to the cargo, as only master of the ship. But when the ship and cargo have reached their destination, and he then begins to deal with the cargo, the character of master drops, and that of supercerago or consignee begins. But still these functions may be in some degree contemporaneous, if not mingled. Thus, if at the port of destination, he takes the goods on shore, in doing this he is a master, and when he disposes of them on shore, he is consignee.1 But if he takes them on shore with the intent of there embezzling them, although the wrongful act begins when he is consignee, the wrongful intent in what he does as master, makes it a barratrous act, or an offence as master.2 So, if he makes a contract with a shipper which should give him a lien on the ship, it can only be when he makes it in his capacity of master.3 And if the necessity for the bond CH. XI.\] CONTRACTS OF ROTOMRY AND OF RESPONDENTIA. 435 arises from his acting contrary to the orders of his owners, he has no power to byothecate the vessel.1

Footnote 1: The Reliance, 3 Hagg. Adm. 66; The Mary Ann, 4 Notes of Cases, 376, 381, 10 Jarist, 253.

Generally, and in the exercise of his duties as master, he is a stranger to the cargo between the lading and the unloading. But exigencies and emergencies may arise, in which the master becomes, of necessity, supercargo or consignee, or to speak more correctly, is clothed with whatever agency or authority may be needed to enable him to protect the property and interests intrusted to him.2 In case of capture the master should do all in his power to procure the restoration of the cargo,8 but he is not bound to act fraudulently.4 The question has arisen in the case of the seizure of the vessel and cargo for breach of a blockade, how far the act of the master in attempting to enter is to be considered as the act of the owner of the cargo. The general rule which has been laid down is, that if the vessel sails with a full knowledge that the port of destination is blockaded, there is a presumption that this is done with the full knowledge of the owner of the cargo, and he is not allowed to prove the contrary; but if the blockade is proclaimed subsequently to the sailing of the vessel, the shipper is not bound by the act of the master in seeking to enter after being warned off.8

Footnote 2: The Gratithadine, 3 Rob. Adm. 240, 257; Vlierboom _v._ Chapman, 13 M. & W. 230, 239; Donglas _v._ Moody, 9 Mass. 548; Gillett _v._ Ellis, 11 Ill. 579.

Footnote 3: It is sufficient if what he does is done in good faith, and he is only answerable for fraud or intentional neglect. Chevitor _v._ Brooks, 1 Johns. 364.

Footnote 4: Hannay _v._ Eve, 3 Cranch, 242.

Footnote 5: The Adonis, 5 Rob. Adm. 256; The Brig Nayade, 1 Newb. Adm. 366.

Footnote 6: But if the voyage is broken up, he cannot sell the cargo at the intermediate port to pay for advances to him to repair the vessel for a new voyage, or to pay seamen's wages. Watt _v._ Potter, 2 Mason, 77. A sale without necessity is invalid, and conveys no rights to the purchaser. Freeman _v._ East India Co., 5 B. & Ald. 617; Morris v. Robinson, 3 B. & C. 196; Cannan _v._ Meaburn, 1 Bing. 243; Van Omoron v. Dowick, 2 Camp. 42; Wilson _v._ Millar, 2 Stark. 1; Ewbank v. Nutting, 7 C. B. 797; Campbell v. Thompson, 1 Stark. 490; Arthur v.\_ Schooner Cassius, 2 Story, 81; Pope v. Nickerson, 3 Story, 465, 504; Dodge v. Union Ins. Co., 17 Mass. 471, 478. See also, the important case of Post v. Jones, 19 How, 150. In Peters v. Ballistici, 3 in order to raise funds to pursue the voyage and carry on the remainder. But not until other means of raising money are exhausted, including the drawing of bills on the owner, hypotecating the ship, or making other use of the owner's property or credit. In regard to the exercise of this power, it can only be said that there must be an actual and urgent necessity ; and as to the manner of its exercise, much must be left to the discretion of the master. If he acts in good faith, and under a sufficient necessity, for the best interests of all concerned, and with reasonable discretion, his acts will be valid. But it is not enough that he acts _bond fide_ if no actual necessity existed.1 And although the beneficial effect of the sale will extend to the ship, by enabling her to earn her freight, and even if the ship profit most by it, yet if a part of the purpose and effect be to carry on the cargo that is not sold, it will be justified as an act for the common benefit.

Footnote 1: The Gratiudine, 3 Rob. Adm. 240, 263; Pope v. Nickerson, 3 Story, 465, 491; The Packet, 3 Mason, 255; The Joshna Barker, Abbott, Adm. 215 ; Myers v. Baymore, 10 Barr, 114 ; Stillman v. Hard, 10 Texas, 109; United Ins. Co. v. Scott, 1 Johns, 106 ; Fontane v. Col. Ins. Co., 9 Johns. 29 ; Searv e. Scovell, 4 Johns. Ch. 218, 224 ; Am. Ins. Co. v., Coater, 3 Paieg, 393 ; Ross v. Ship Active, 2 Wash. C. C. 286; Underwood v. Robertson, 4 Camp. 138. If the cargo belongs to the owner of the ship, the master may sell it at once for the benefit of the ship. Ross v. Ship Active, _supra_.

Footnote 2: See cases in note _supra_, also The Lord Cochrane, 1 W. Rob. 312, 2 id. 320; The Osmanil, 3 W. Rob. 198, 214 ; Justin v. Ballam, 1 Salk. 34.

Footnote 3: See cases in note _supra_, also The Lord Cochrane, 1 W. Rob. 312, 2 id. 320; The Osmanil, 3 W. Rob. 198, 214 ; Justin v. Ballam, 1 Salk. 34.

Footnote 4: See cases in note _supra_.

**M.**_Of a Respondentia Bond._

As the master may make a bottomry of the ship, so, either a part, or the whole of the cargo may be hypothecated by him, if necessary;2 but only a part can be sold to raise funds ; for if the whole is sold to raise money to repair the ship, this is no benefit to the cargo or to the shipper.3 CH. XI.\] CONTRACTS OF BOTOTOMETRY AND OF RESPONDENTIA. **437**

If the goods are hypothecated by the master abroad, this is usually done by a respondentia bond. This instrument, although sometimes in the form of a bill of sale, is usually in the form of a bond, and is almost the same thing in respect to the goods which a bottomy bond is to the ship.1 And like that it may be made by the owner of the goods at home, without any necessity, either before or during a voyage; and it may be so made to take up a former bond; and it is not necessary that the money so raised by respondentia on the goods should be expended in the purchase of them or in any way about them.2 If made by the master, it can only be made from necessity, and undoubtedly all the law and the rules in reference to this necessity would be the same as in a case of bottomy.3 A loan on respondentia is a loan on maritime interest; it must therefore be a loan which is secured by the goods on their safe arrival, but which puts both the principal and interest at risk, and gives the lender no claim for any payment whatever if the goods be lost.4 In practice the goods are also transferred to the obligee by an indorsement and delivery of the bills of lading, as collateral security; and this gives to the obligee a constructive possession of the goods.5

Footnote 1: The Grattudine, 3 Rob. Adm. 240, 260; The Osmanll, 3 W. Rob. 198, 214; The Nostra Senora del Carmine, 29 Eng. L. & Eq. 572. The master has no authority to give a bond on the cargo alone. If he does, the ship and freight are first liable, and then the cargo, because it is the same as if he had given a bond on the ship, freight, and cargo. La Constancia, 4 Notes of Cases, 285. And where a bond was,given on the ship and cargo, it was held that the freight was also liable. The Prince Regent, cited 2 W. Rob. 83.

Footnote 2: Soen, e.g., cases on bottomy bonds. In many instances the owners of the cargo are the only parties who oppose the bond. See The Bonaparte, 3 W. Rob. 298, 1 Eng. L. & Eq. 641.

Footnote 3: In Franklin Ins. Co. v. Lord, 4 Mason, 248, the bond was given on the cargo to secure the sum of ten thousand dollars loned upon the outward and the homeward cargoes of the vessel from Boston to Copenhagen and back. The vessel and cargo were totally lost upon the homeward passage. There was a clause in the bond that upon both voyages the vessel was to have on board the amount lent in goods. At the time of the loss she had only goods to the amount of nine thousand dollars on board. The lenders claimed to recover the whole amount on the ground that the having goods to the value specified was a condition precedent. But it was held that they could recover only the difference between the amount lent and the amount on board.

Footnote 4: In Johnson v. Greaves, 2 Taunt. 344, the master of a ship detained as a prize, and libelled in the prize court at Jamaica, gave bills of lading of the cargo, to a person 37 * 38 ON THE LAW OF SHIPENG. \[Book L

A bond of bottomry upon " the ship and freight " was held to bind them only, and to exclude the cargo, although in the retail of the same bond, it was said that the master was compelled to take up money "on the said schooner, her cargo and freight."1

If a portion of the cargo be pledged by respondents, it has a right of contribution for the purpose of redemption against the rest of the cargo ; and it is said that the court would be inclined to enforce this right against the other shippers, and not turn the party over to his remedy against the owner alone. But this must depend on circumstances. It might be a case in the nature of general average, and then all the interests benefited should contribute. But if, as would generally be the case, the ship was bound to carry the goods, and thereby earn her freight, and a part of the cargo was pledged for money to enable her to do this, the ship would be responsible in the first place, and the rest of the cargo would contribute only in case the ship could not be made to pay. For whatever other shippers contributed, they, too, could recover from the ship.2

who became ball for the ship and cargo there. The court held that the master had no authority to contract that the cargo should be sold in London, and the proceeds remit ted back to Jamaia, the owners being ready to give a sufficient security to indenify the ball in London. Blackstone, in his Commentaries, vol. 2, p. 458, says that when money is lent upon the cargo only the borrower is liable, and the loder has no claim against the goods. And the very obscure case of Busk _v._ Fearon, 4 East, 319, may seem to confirm this remark. But it is absent to say that money is lent upon a cargo, if it gives no lien on the cargo ; and the whole law of respondents would be defeated by such a rule. At most it can go to further than that a contract gives no lien on the cargo when it is plain that the cargo is to be sold, free from all lien, and the return cargo, which had no existence when the bond was made, cannot be subjected to the lien.

1 The Schooner Zephyr, 3 Mason, 341.

2 See ante, p. 302, n. 3; p. 303, n. 1; also Alers _v._ Tobin, before Lord Ellenberg, Abbott on Shipping, 372 ; Duncan _v._ Benson, 1 Exch. 587, 3 Exch. 644 ; Pope _v._ Nickerson, 3 Story, 465. In Hallett _v._ Wigram, 9 C. B. 580, an action of assampit was brought by a shipper against the owner of the ship to recover damages for the sale of a portion of a quantity of copper ore, shipped on a voyage from Adelaide in Australia to Swansea in South Wales. After having said, the vessel net with a storm, and was obliged to put back to Adelaide for repairs. To pay for these repairs a portion of the cargo was sold. The plea stated that the vessel net with a storm, and was obliged to put back, that repairs were necessary to enable her to deliver her cargo, and that no other ship could be obtained to take on the cargo, and that the master was unable by bottomry, hypotension, or otherwise, than by such sale to raise the money necessary for the repairs, and that the ship when repaired was not

## 1.1. **Some Special Rules in regard to Bottomy Bonds.**

In payment of a bottomy bond where all the interests are bound, the assets are to be marshalled. In the first place the property of the owner of the ship will be applied. Then, the money of the master, or perhaps his other property, before the goods of shippers.1 In making up the decree, the sum lent, together with the marine interest up to the time when the bond is payable, constitutes the principal, and legal interest is to be added to this from that time to the time of the decree.2

Footnote 1: The Ship Packet, 3 Mason, 255, 267. Both ship and freight are liable before the cargo, and this is true, although the bond is given on the cargo alone. The Constancia, 4 Notes of Cases, 285. For the way the court will marshal the assets where there are several bonds, one on ship and freight, and another on ship, freight, and cargo, see The Trident, 1 W. Rob. 29, ante, p. 430, n. 3.

Footnote 2: The Ship Packet, 3 Mason, 255, 267 ; Furnis v. The Brig Magoun, Olecott, Adm. 55, 66; The Ship Panama, id. 842, 352. In England, it would seem that the practice is to allow interest only on the bond, and not on the bond and interest. Marshall on Ins. b. 2, ch. 4, p. 752. Mr. Arnould, however, is of opinion that the law as laid down by Mr. Justice Sory in the case above, is now the law of England. 2 Arnould, Ins. 1340. No authority is cited for this, and the practice seems to be the other way. See The Cogusc, 2 Hagg. Adm. 377, 393; The St. Catharine, 3 Hagg. Adm. 250. After judgment, interest is not allowed unless the losing party occasion unnecessary delay. The Exeter, 1 Rob. Adm. 173. In The New Brunswick, 1 W. Rob. 28, it was held that where the legal bolters of a bond reside out of the country, and have no agent there, interest will be decreeed only from the time of the arrival of a power of attorney authorizing the receipt of the principal.

440 of THE LAW OF SHIPPING. \[B00K L\]

Although the last bottomy has a preference over all former ones, yet if the property will not pay all, and they are really concurrent, the parties being equally interested and on equal terms, they will be paid _pro rata_, although the different bonds may bear different actual dates.1

Footnote 1: The Exeter, 1 Rob. Adm. 173, 176 ; La Constancia, 4 Notes of Cases, 512, 516.

A bottomy bond in admiralty is generally regarded as a negotiable instrument or interest, which being transferred in good faith and for consideration, may be put in force by the holder in his own name.2

By the English statute of 7 Geo. 1, ch. 21, $ 2, contracts made by English subjects upon loans by way of bottomy on ships in the service of foreigners, designed to trade within the limits of the East India's Company's charter, were made void. And by 19 Geo. 2, ch. 37, $ 5, loans on bottomy upon ships belonging to English subjects, bound to or from the East Indies, were required to be made only on the ship and cargo, and to be so expressed in the bond.

In England courts of equity, as well as courts of admiralty, exercise jurisdiction over bottomy bonds.3

It may be added, that if a bond is obtained from the master by dures, it is of course void ; but the fact that he was under duress at the time it was executed, does not prove that the bond was obtained by duress.4

Footnote 8: The Rebecca, 5 Rob. Adm. 102, 104 ; The Prince of Saxe Cobourg, 3 Hagg. Adm. 387, s. c. Soares v. Rahn, 3 Moore, P. C. 1 ; The Osmanli, 3 W. Rob. 198. The Code de Commerce, art. 313, 314, provides that a bond payable to order may be negotiated like any other commercial instrument, but the guaranty of payment by inducement does not extend to the maritime interest, unless it is expressly so stipulated.

A bottomy bond in admiralty is generally regarded as a negotiable instrument or interest, which being transferred in good faith and for consideration, may be put in force by the holder in his own name.3

By the English statute of 7 Geo. 1, ch. 21, $ 2, contracts made by English subjects upon loans by way of bottomy on ships in the service of foreigners, designed to trade within the limits of the East India's Company's charter, were made void. And by 19 Geo. 2, ch. 37, $ 5, loans on bottomy upon ships belonging to English subjects, bound to or from the East Indies, were required to be made only on the ship and cargo, and to be so expressed in the bond.

In England courts of equity, as well as courts of admiralty, exercise jurisdiction over bottomy bonds.3

Footnote 8: Dokarton v. United Ins. Co., 2 Johns. Cas. 250.

It may be added, that if a bond is obtained from the master by duress, it is of course void ; but the fact that he was under duress at the time it was executed, does not prove that the bond was obtained by duress.4

Footnote 8: Dokarton v. United Ins. Co., 2 Johns. Cas. 250.

If the bond contains such clauses as are proper to mortgages; as that the master " grants, bargains, and sells the ship, with the usual proviso, that on payment of the money it is to be void," this does not prevent it from being a bottomy bond, if the maritime risk is incurred.5 CH. XII.\] HOW SEAMKEN ARE REGARDED BY THE COURTS. 441

CHAPTER XII

OF THE SEAMEN.

SECTION I.

HOW SEAMEN ARE REGARDED BY THE COURTS.

THE common law courts in some degree, and admiralty courts still more, regard these persons as peculiarly in need of, and entitled to, the protection of the courts, because peculiarly exposed to the wiles of sharpers and unable to take care of themselves.1

Footnote 1: Mr. Justice Story, in Harden v. Gordon, 2 Mason, 541, 555, states the law with great accuracy : "Every court should watch with jealousy an encroachment upon the rights of semen, because they are unprotected and need counsel; because they are thoughtless and require indalgence; because they are credulous and complying, and are easily overreached. But courts of maritime law have been in the constant habit of extending towards them a peculiar protecting favor and guardian-ship. They are emphatically the wards of the admiralty; and, although not technically incapable of entering into a valid contract, they are treated in the same manner as courts of equity are accustomed to treat young heinz, dealing with their expectations, wards with their guardians, and \_ecus * 442 ON THE LAW OF SHIPPING

B00K L

hibit the employment in their vessels of our citizens.1 And as these are very few, this circumstance and the necessities of commerce have caused this statute to be very seldom regarded or enforced.

Footnote 1: See, e.g., \[1\], \[2\], \[3\], \[4\], \[5\], \[6\], \[7\], \[8\], \[9\], \[10\], \[11\], \[12\], \[13\], \[14\], \[15\], \[16\], \[17\], \[18\], \[19\], \[20\], \[21\], \[22\], \[23\], \[24\], \[25\], \[26\], \[27\], \[28\], \[29\], \[30\], \[31\], \[32\], \[33\], \[34\], \[35\], \[36\], \[37\], \[38\], \[39\], \[40\], \[41\], \[42\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[43\], \[45\], \[47\], \[48\], \[49\], \[41\], \[42\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[44\], \[45\], \[47\], \[49\], \[41\], \[42\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[42\], \[45\], \[49\], \[40\], \[41\], \[42\], \[44\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[42\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[42\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[41\], \[42\], \[44\], \[49\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[44\], \[49\], \[42\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[41\], \[42\], \[44\], \[49\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[44\], \[49\], \[42\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[44\], \[49\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[44\], \[49\], \[42\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[41\], \[44\], \[49\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[44\], \[49\], \[44\], \[45\], \[46\], \[47\], \[49\], \[41\], \[44\], \[42\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[44\], \[49\], \[42\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[41\], \[44\], \[49\], \[42\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[44\], \[49\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[40\], \[41\], \[44\], \[49\], \[4 CH. XII.\] SHIPPING ARTICLES. 443

to protect a seaman against loose and indefinite language, or unfair, or new and unusual stipulations; \[1\] and wherever there is a doubt as to their meaning or obligation, the seaman has the benefit of the doubt. \[2\] Thus a voyage from one place to another being stated, and the words " and elsewhere" being added, these mean nothing, or only such further procedure by the vessel as fairly belongs to the voyage described; and this the law would permit without them. \[3\] But a definite usage may give a

where they contract, and it has been suggested that this so far modifies the former act, that the master or owner, if not relieved from producing them at the call of the seaman, because, being in the custom-house, they are as much at the command of the seaman as of the owner, yet at least the seaman should give distinct and reasonable notice that he desires them. The Brig Osccola, Olecott, Adm. 450, 459. This case also decides that in the absence of the shipping articles the statement of the mariner in the libel is only evidence of what the master is obliged to put in the articles, namely, " a declaration of the voyage or voyage, term or terms of time for which the seaman or mariner shall be shipped." And also, that if the owners prove a reasonable excuse for not producing the articles, they may contradict by parol the statement of their contents by the mariner. See Piehl _v._ Balchen, Olecott, Adm. 24. The shipping articles are admissible as evidence of the terms of hire in an action brought by the master, or his administrator against the owners, as well as in suits between the seaman and owners.

Willard _v._ Dorr, 3 Mason, 161.

1 The leading cases on this point are The Juliana, 2 Dods. 504 ; Harden _v._ Gordon, 2 Mason, 541 ; Brown _v._ Lull, 2 Sumner, 443. If the articles are signed under dures and protest, they are invalid. Stratton _v._ Babbage, U. S. D. C., Mass., 18 Law Bortor, 94.

2 See The Minerva, 1 Hagg. Adm. 347, 355 ; The Hoghton, 3 Hagg. Adm. 100, 112; Jansen _v._ The Heinrich, Crabbe, 226 ; Wape _v._ Hemenway, 18 Law Bortor, 390.

3 Brown _v._ Jones, 2 Gallis. 477. In an early case before Mr. Justice _Winchester_, Anonymous, 1 Hall, Am. Law Journal, 209, the shipping articles were for a voyage from Baltimore to Curcaos, and _deachree._ It was held, that this did not authorize a voyage from Baltimore to St. Domingo, and that the words " and elsewhere " must be construed either as void for uncertainty, since they did not contain any proper description of the terminus _a que_ and _d que_, as required by the act of congress, or as subordinate to the principal voyage stated, and authorizing the ship in the progress of the voyage to pursue such course as might be necessary to accomplish the principal voyage, and this would be no more than was implied by the law itself. And in Ely _v._ Peck, 7 Conn. 239, a description of a voyage from New London to Optor and elsewhere, was held to mean a voyage from New London to Optor ; and the words " and elsewhere " were rejected for uncertainty. See also, Gifford _v._ Kollock, U. S. D. C., Mass., 19 Law Bortor, 21 ; The Countes of Harocart, 1 Hagg. Adm. 248 ; The Elisa, id. 189, 185 ; The Minerva, id. 347, 354 ; The George Home, id. 370, 374. In this last case it was decided that under an engagement to go " from London to Batavia in the East India seas, or elsewhere, and until the final arrival at any port or ports in Europe," the sonmen were not bound, upon the arrival of the vessel at Cows for orders, according to previous agreement between the owners and the master, to proceed on a further voyage

### 444 on the law of shipping.

B00K L precise meaning to these words.1 And the shipping articles ought to declare explicitly the ports of the beginning and of the to Rotterdam. See also, The Westmorland, 1 W. Rob. 216, 925 ; Piehl v. Balen, Olecott, Adm. 24. In Douglas v. Eyre, Gilpin, 147, it was held, that the description of a voyage from Philadelphia to Gibraltar, other ports in Europe, or South America, and back to Philadelphia, authorized a voyage from Gibraltar to South America, direct. Mr. Justice Hopkinson was also of the opinion, in the case of Mage v. The Mos, Gilpin, 219, that a voyage from Philadelphia to Buenos Ayres, thence to Haran, thence to Marseilles, thence to a port in South America, and thence back to Philadelphia, came within the description of a voyage "from Philadelphia to South America, or any other port or ports, backwards and forwards, when and where required, and back to Philadelphia." This proceeds upon the ground that although the description to too broad to satisfy the act of congress, yet if the master does under it only what the court thinks reasonable, the seaman cannot leave the ship. This construction is opposed by Mr. Justice _Wra_, in the case of The Crusader, Wra, 437.

And it is now provided, by the Act of July 20, 1840, ch. 48, 5 U. S. Stats, at Largt, 395, 4 10, that all shipments of seaman contrary to the provisions of acts of congress shall be void. Accordingly it has been held, in a recent case, that a description of a voyage " from the port of Boston to Valparaiso, and other ports in the Pacific Ocean, at and from theme home, direct, or via ports in the East Indies or Europe," was not a compliance with the Act of 1790. Snow v. Wope, 2 Curtis, C. C. 301. Mr. Justice Curtis said : "It is manifest that no definite and specific voyage, nor even any limited number of voyages, is here described ; but liberty exists, to carry on any number of voyage, during such time as the vessel may last, at the discretion of the master, provided that the first port to which the vessel goes is Valparaiso, and her ultimate port of destination is Boston. These are the only fixed tormini, and between them there are no limits of time, and scarcely any of space. If this is a sufficient description to satisfy the requirement of the act, it is an idle requirement, and affords no protection to the seaman." See the same case in the District Court, 18 Law Reporter, 390. As to the meaning of the word " cruise" in the shipping articles, see The Brutus, 2 Gallis, Sit. A trading voyage does not include a frighting voyage. Brown v. Jones, 2 Gallis, 471.

Nor does a whaling voyage include a trading voyage to dispose of the cargo after it is obtained. Gifford v. Kollock, 19 Law Reporter, 21. In The United States v. Staly, 1 Wood. & M. 388, a voyage from the home port to Apalachicola, or elsewhere for a market, was held to be sufficiently described in the shipping articles to be binding. In Straton v. Babbage, U. S. D., C., Mass., 18 Law Reporter, 94, the question arose as to the meaning of "a port of discharge in the United States." It was held, that a port in the slave States, where colored seaman are obliged to remain in jail, or on board the vessel while she remains in port, is not a port of discharge for them. In The Varuna, Vice Adm. Ct., Lower Canada, 18 Law Reporter, 437, the voyage was " from the port of Liverpool to Constantingle, then (if required) to any ports or places in the Mediterranean or Black seas, or \_or _receiver freight mag offar_, with liberty to call at a port for orders, and until her return to a final port of discharge in the United Kingdom, or

1 Thus the same objection does not apply to the use of the word "elsewhere" in a whaling, as in a trading or frighting voyage. But even in such a case, there must be a terminus to the voyage specified. Gifford v. Kollock, 19 Law Reporter, 21. See also, Brown v. Jones, 2 Gallis, 477.

\*\*

**on. xii.\] SHIPPING ARTICLES.**

\*\*termination of the voyage.**1** If a number of ports are named, they must be visited in their geographical, or rather commercial order, or as they stand in the articles, without returning to any which' have been visited.**3** But if the shipping articles contain expressions not obviously oppressive, indicating distinctly that the master is to have a discretion in these matters, the courts will not interfere.**8**

\*\*So as to other stipulations, they will be sustained or rejected, as they seem to be fair or otherwise.**4** Any stipulation contra-

\*\*for a term not to exceed twelve months." The ship went to Constantinople, and then returned to Malta, and thence sailed direct to Quebec in search of freight. The court held, that the voyage to Quebec was not justified by the articles, because the words " wherever freight may offur" should be construed with reference to the previous description of the voyage, and must be considered as meaning any ports or places in the two seas mentioned in the articles, or some place in their immediate neighborhood, or between them and the United Kingdom. And in Peterson r. Gibson, Superior CL, Suffolk Co., Mass., 20 Law Reporter, 380, the description " a voyage from Liverpool to Havana, thence (if required) to any ports or places in the West Indies, or wherever freight may offer, and back to a final port of discharge in the United Kingdom, or for a term not exceeding twelve months," was held not to cover a voyage from the West Indies to Boston and back during the period. The following has been held to be a sufficient description: "From Boston to one or more ports south, theme to one or more ports in Europe, and back to a port of discharge in the United States." Thompson r. Ship Oakland, U. S. D. C., Mass., 4 Law Reporter, 349. Where the voyage was described in the shipping articles to be to a " final port of discharge," it was held that the voyage was not ended until the cargo was wholly unladen, and that the owner might order the vessel from port to port till that was done. United States v. Barker, 5 Mason, 404. * 1 Anonymous, 1 Hall, Am. Law Journal, 209; The Crusader, Ware, 437 ; Mageo v. The Moss, Gilpin, 219, 226 ; Gifford v. Kollock, 19 Law Reporter, 21. 2 Douglas v. Eyre, Gilpin, 147 ; Brown v. Jones, 2 Gallis. 477, 480. \*446 ON THE LAW OF SHIPPING. \[Book L\]

vening the language or the policy of a statute, is of course void.1

Not unfrequently clauses are introduced lessening the rights of the seamen to their wages, or the like; and though common law courts allow some force to these,2

admiralty courts never do;;8 nor do they give any effect to the receipt of a sailor for his rights will be in no way prejudiced by such a change. The Sarah Jane, 1 Blackl, & H. Adm. 401. It was also held, in this case, that under a stipulation that all differences between the master or owners and the crew, shall be referred to arbitrision, where wages due were demanded, but payment refused, there was no _difference_ within the meaning of the stipulation. In Brown v. Lull, _approx_, Mr. Justice _Sury_ said: "Courts of admiralty are not, by their constitution and jurisdiction, confined to the mere dry and positive rules of the common law. But they act upon the enlarged and liberal jurisprudence of courts of equity; and, in short, so far as their powers extend, they act as courts of equity. Whenever, therefore, any stipulation is found in the shipping articles, which dereges from the general rights and privileges of seamen, courts of admiralty hold it void, as founded on impoquior or an undue advantage taken of their necessities and ignorance and improvidence, unless two things occur; first, that the nature and operation of the clause is fully and fairly explained to the seamen; and, secondly, that an additional compensation is allowed, entirely adequate to the new restrictions and risks imposed upon them thereby." In Nevee a. Past, 5 B., & P. 408, the articles contained a clause that the seamen might leave the ship at the end of three months, if the ship was in port or in perfect safety, of which the captain was to be the sole judge. Held, that even if this proviso were not void, yet the captain could not refuse without reason, of which the jury were to judge. In Granon v. Harthorne, 1 Blackl, & H. Adm. 454, it was held, that a stipulation that the seamen should not sure or wages until the vessel was unladen, was binding if fairly made. And in the Atlantic, Abbott, Adm. 451, a stipulation in the articles for a whaling voyage, that if either of the officers or crew should be prevented by sickness or any other cause from performing their duty during the whole of the voyage, he should receive of his lay in proportion as the time served or duty performed by him should be to the whole time of the voyage, was held valid.

1 Harden v. Gordon, 2 Mason, 541.

8 Cutter v. Powell, 6 T. R. 820 ; Appleby v. Dods, 8 East, 300 ; Jesso v. Brg, 4 Tyrw. 626, 1 Cromp. M. & R. 316. In this case Lord _Lyndhurst_, C. B., # 6. XII.\] SHIPPING ARTIGLES. 447

wages, whether sealed or parol, unless there was an actual payment of them; 1 and if the shipping articles be sealed by the mariners but not by the master, assumpsit lies on them by the seamen, at common law.2 In admiralty, seals have no effect.3 The stipulation in the shipping articles is conclusive as to wages;4 and no more can be recovered on any special promise

be paid after the ordinary time for her arrival had elapsed. See also, Millot v. Lovett, Sep. Jud. Ch., Mass., 2 Dane, Abr. 461 ; Swift v. Clark, 15 Mass. 178. In the case of Goodridge v. Penbody, before the same court, 2 Dane, Abr. 462, the special agreement was fully explained to the seamen before he signed, and the case was, therefore, decided differently from those above cited. In Brown v. Lall, 2 Summer, 443, the following stipulation was held to be void : " In case of the said vessel being taken or lost in the course of the said voyage, no vages shall be demanded or received by the persons subscribing the same, except the advance wages received by them respectively, at the time of entry on board ; and that, if the said vessel should be restrained for more than thirty days at any one time, the wages should cease during such restraint and no longer." So in The Cypress, 1 Blatchf. & H. Adm. 83, it was held, that a stipulation was void which provided that the seamen should not, in any case, demand their wages until the expiration of twelve months, if the voyage was completed, or the meal discharged before that time. But a stipulation, that the seamen shall not sue for wages, until the vessel is unladen, is binding, if fairly made. Gannon v. Hartshorne, 1 Blatchf. & H. Adm. 454.

So a clause, usual in the Baltic trade, that the officers and seamen agree to accept half wages in case of the vessel wintering abroad, is valid. The Hoghorne, 3 Hagg. Adm. 100.

1 Thorne v. White, 1 Pet. Adm. 178 ; Jackson v. White, 14, 179 ; Whiteman v. The Neptune, 14. 180, 182; Harden v. Gordon, 2 Mason, 541 ; Thomas v. Lane, 2 Sumner, 1, 11 ; Piehl v. Balchen, Olecott, Adm. 24. And in Whitney v. Bager, Crabbe, 422, a release of all complaints against the officers of the vessel which the seamen had to sign in order to get his wages, was held to be void. But the evidence to control a receipt in full for wages must be clear and explicit. Leak v. Isaacson, Abbott, Adm. 41.

- This is in accordance with the head note in Sutherland v. Lishman, 3 Exp. 42, but it does not appear certainly what point the case decided. The action was assumpsit for wages. In defeno it was shown that the ship's articles were under seal, that they were signed by the plaintiff but not by the defendant, and it was contended that, the articles being under seal, the action ought to have been covenant. The report then adds: " Lord Eldon ruled, that the binding by dead ought to be mutual to make it necessary for the plaintiff to sue in covenant, that the defendant never having sealed the articles could not be sued in that form of action, and that the present action was not rightly brought. The defendant had a verdict." To make this language consistent, either the word "not," in the phrase "_not_ rightly brought," must be struck out, and the word "plaintiff" be substituted for " defendant" in the last sentence, or we must suppose that, owing to some facts not mentioned, assumption would not lie.

- The David Pratt, Ware, 495.

- While v. Wilson, 2 B. & P. 116; Elsworth v. Woolmore, 5 Exp. 84; The Isabella, 2 Rob. Adm. 241 ; Veaceock v. M'Call, Gilpin, 329. But see Parker v. The Ship Cullipe, 2 Pet. Adm. 273; Page v. Sheffield, 2 Curtis, C. C. 377. In Carter v. Hall, 3 Stark. 361, it was held, that a parser's steward, who receives a specific salary from the crown, cannot recover wages from the parser on an implied contract for his services

**448**: **ON THE LAW OF SHIPPING.** \[Book L\*\*

to pay for severe or extra labor or exposure in the course of duty.1

**If, however, a seaman be promoted, he takes the wages of his**

\*\*on board the ship. See also, Dafler v. Crosswell, 7 Dowl. & R. 650. But in Glutterbuck v. Coffin, 4 Scott, N. R. 509, it was held, that, the plaintiff having, at the request of the defendant, a captain in the nary, entered on board his ship as cook, on condition that he should be paid wages over and above the government pay, he might recover from the defendant. If a cook performs services out of the line of his employment, as where he acts as caller, he may recover additional compensation. The Exchange, 1 Blatchf. & H. Adm. 866. And the same rule applies where the captain pains his ship himself. String v. Hill, Crabbe, 454. But the master is entitled to call on the cook to do seaman's work, when the vessel is in port. Allen v. Hallet, Abbott, Adm. 573. In the case of The Brookline, U. S. D. C., Mass., 8 Law Reporter, 70, the crew were shipped on a voyage " to a port or ports easterly of the Cape of Good Hope, or any other port or ports to which the master should see fit to go in order to prove a cargo." The owners intended to go to Ichabose for a cargo of guano. This was concealed from the seaman. The seaman refused to work at loading the guano, and the master finally agreed to pay them a certain sum, over and above their wages, for every ton they should load. The court held, that the seaman were not bound to work for their ordinary wages ; because fraud had been practiced upon them to get them, and that they might recover compensation in addition to the sum agreed upon at the island. If marners are shipped during a war, but while on the voyage peace ensoes, their wages are not diminished. M'Calloc v. The Lethe, Boe, Adm. 423; Shaw v. The Lethe, id. 424. But if the ship do not enter upon the high seas, the score of danger, until after peace is declared, the wages will be decreased, after the time of such declaration. Brice v. The Nancy, Bee, Adm. 429.

1 Harris v. Watson, Peake, Cas. 72. So, where some of the crew deserted and the captain could not obtain any men to fill their places, a promise by him to divide the wages of those who had deserted, among the crew remaining, was held to be void. Stilk v. Myrick, 2 Camp. 317 ; Harris v. Carter, 3 Ellis & B. 559, 25 Eng. L. & Eq. 220. And in a case where the master had distributed the wages of the deerstv among the rest of the crew, it was held, that in an action by the crew for wages the owners could retain a sum equal to the amount so paid over. Dr. Lashington, however, said that he did not wish it to be inferred that seaman, when the outward voyage is completed, are bound to make the return voyage when the number of the crew is so small that risk of life may be incurred. The Arramina, 9 Eng. L. & Eq. 582. And if the vessel becomes so short-handed at an intermediate port as to be unasworthy, a note voluntarily given by the captain to a seaman to secure an extra remuneration, in consideration of the seaman's assisting to carry on the ship, is valid. Hartley v. Possibly, Q. B. 20 Law Reporter, 389. In Thompson v. Havelock, 1 Camp. 527, the plaintiff, who was captain of a vessel, let her to the government for a fixed price, and also stipulated that he should be paid, in consideration of the extra services we would be obliged to perform, one shilling per ton per month. The government paid this over to the owner, and in an action against him by the captain, it was held, that the latter could not recover it. A promise of higher wages made to seaman threatening to desert, is void. Bartlett v. Wyman, 14 Johns. 260. See also, Johnson v. Dalton, 1 Cow. 543. In Fraser v. Hatton, 2 C. B. v. s. 512, 40 Eng. L. & Eq. 318, the plaintiff signed shipping articles, by which he agreed to serve as steward on a certain voyage at the rate of _$3_ per month. The articles also provided that 6the crew, if required, might be transferred to any other ship in the same employ." It was held, under this provision, that

## 11. **Chl. Xil.**

SHIPPING ARTICLES.

new office.1But it seems that if he be afterwards degraded for incapacity, he cannot recover his advanced wages during the period of his advancement, but only wages as a seaman.2

Footnote 1: The author is grateful to the anonymous referee for his comments.

The power of the master, however, to degrade an officer 8 or a seaman, is limited and cannot be exercised for trivial offences.4 And as the power to disrate is remedial only, and not penal, the any member of the crew might be transferred without the rest, and that articles signed by the captain stipulating for higher wages for the plaintiff, he having been transferred, were null and void. In Mesner _v._ The Suffolk Bank, 1 Law Reporter, 249, it was held, where a steambox came into collision with a sailing vessel, and was in imminent danger of sinking, | a promise of a reward by a passenger to the officers or crew to secure their exercises in saving his property, was not binding.

Footnote 4: Sherwood v. McIntosh, Ware, 109. It was held, in this case, that a steward could be degraded for acts of dishonesty or habits of interpearance, but not for a single act of interpearance.

But if the ship is captured, and the captain, to induce one of the crew to become a hostage, promises to pay him wages, at the same rate as before the capture, as long as he shall remain a hostage, such promise is binding on the owners. Yates _v._ Hall, 1 T. R. 73.

1 The Providence, 1 Hagg. Adm. 391 ; The Gondolier,3 Hagg. Adm. 190 ; Hicks v. Walker, Exch. 1856, 37 Eng. L. & Eq. 542. Where the mate succeeds to the command of the vessel, on the death of the captain, he becomes entitled to extra wages, but a question has arisen whether he can sue in rem for his services as master. In England it is settled that he cannot. Read _v._ Chapman, 2 Strange, 937 ; The Favourite, 2 Rob. Adm. 232. The case of The Brig George, 1 Sumner, 151, has been supposed to advance a contrary doctrine. The action was _in rem_ by the mate to recover his wages. The claim was admitted, but the owners sought to set off a claim for money expended on account of his sickness, after he had become master. It does not appear that the increased wages die him as master were included in his demand, and the only pdf in controversy was as to the validity of the set-off. The English authorities have been followed by Mr. Justice _Betus_ in the case of The Schooner Leonidas, Olecott, Adm. 12. See also, Airey _v._ The Brug Ann C. Pratt, 1 Curtis, C. C. 395, 398.

8 Wood v. The Nimrod, Glipn, 83.

9 In the case of The Ship Mentor, 4 Mason, 84, 101, Mr. Justice _Sloy_ said : "I must be permitted to say, that when a man ships in any particular capacity on board a ship, it is not for slight causes that he is to be degraded or compelled to perform other duty. He is not to be subject to the caprico, or diastate, or petilance of the master. He stipulates for fair and reasonable knowledge, and due diligence ; but not for extraordinary talents. If he is guilty of fraud or misrepresentation he is doubtless subject to all just consequences. But when he acts _bond fide,_ and is willing to perform his duty, if he should be more tardy in his movements than other men, it constitutes no just ground for degradation." Soe also, Aiky _v._ Burrows, 1 Pet. Adm. 244, 247 ; The Exeter, 3 Rob. Adm. 261 ; Thompson-v. Busch, 4 Wash. C. C. 388. But if an officer or seaman is incompetent to may be distracted. The Elizabeth Frith, 1 Blatell. & H. Adm. 195, 210 ; The Exchange, 366 ; Morris v. Cornell, & Law Reporter, 304. And a steward may be distracted for embezing the ship stores. Burton v. Salter, U. S. C., Mass., 21 Law Reporter, 148.

8 Sherwood v. McIntosh, Ware, 109. It was held, in this case, that a steward could be degraded for acts of dishonesty or habits of interpearance, but not for a single act of interpearance.

master cannot degrade a person to the lowest station if there be an intermediate one which he is competent to fill.1 But if an officer is promoted during the voyage by the captain, it seems that he may send him back to his former situation for a less offence than he could, if he had originally been shipped for the higher station.2 Accidental omissions in the shipping articles may be supplied by parol; and if seamen sail without any shipping articles, they are then entitled to the highest rate of wages paid at the place at which they ship, within the preceding three months, for the same voyage.3 All interlineations, erasures, or alterations, are presumed to be fraudulent, unless satisfactorily .

1 Smith v. Jordan, U. S. C. C., Mass., 1857, 21 Law Reporter, 204. It was held, in this case, that a cooper could not be distracted, and ordered to do the duty of a for-mast hand, but he should be first tried as cooper's mate.

- Wood v. The Nimrod, Glipin, 83.
- Stat. 1790, ch. 29, 4, 1, U. S. Stats. at Large, 131 ; Stat. 1840, ch. 48, 4, 10, 5 U. S. Stats. at Large, 394. The former of these acts has been held not to be applicable to a seamen on board a tag boat which ran from the mouth of the River Detroit to Port Huron. Milligan v. Propeller B. F. Bruce, 1 Newb. Adm. 539. In England if the articles are signed, and the rate of wages omitted, parol evidence of the rate agreed on is admissible. The Porcupine, 1 Hagge. Adm. 375; The Harvey, 2 Hagge. Adm. 79; The Prince George, 3 Hagge. Adm. 376. The same rule has been adopted in this country. Wickham v. Blight, Glipin, 452; The Warrington, 1 Blatchf. & B. Adm. 335. It seems to have been supposed, by Mr. Justice Betts, that the highest rate of wages payfilled within the three months provions might be recovered in such a case. But the state of 1790 applies only when the master neglects to insert in the contract the voyage and the length of time, and does not apply to the omission to insert the rate of wages. Under the statute of 1790, Mr. Justice Peters, in the case of Jameson v. The Ship Regulus, 1 Pet. Adm. 212, stated that he had been of the opinion that if there was a verbal agreement for wages, this superced the law, and was to be taken as the contract. Mr. Justice Sorys, in a note to Abbott on Shipping, 607, said : No case is referred to where such a decision had been made; and before it could be made, it would require very grave consideration, how far such a verbal agreement, in courvention of the statute, should be admitted to supersede the positive direction of the statute as to the highest wages." In The Crusader, Ware, 437, parol evidence was held indmissible to prove that a lower rate of wages or a different mode of conspensation was agreed on. The Act of 1840 has enlarged that 1790 to some extent. The tenth section provides that " all shipments of seamen made contrary to the provisions of this and other acts of congress, shall be void ; and any seamen so shipped may leave the service at any time, and demand the highest rate of wages paid to any seamen shipped for the voyage, or the sum agreed to be given him at his shipment." The Act of 1790, does not exempt the seamen from penalties and forfeitures incurred under the maritime laws prekistent to that act. Jameson v. The Ship Regulus, 1 Pet. Adm. 212. If a seamen ship without signing the articles, an implied contract is presumed by which he is bound to remain with the ship till the voyage is terminated. Jansen v. The Heinrich, Crabbe, 226.

CH. XII.\] SHIPPING ARTICLES.

explained.1 It may be added, that the usual rules of evidence and of construction apply to the shipping articles;2 but a seaman may show by parol that written statements were made to induce him to sign,3 as that the voyage or time of service represented was not that which is on the paper;4 or that the articles have been altered since they were subscribed.6 In the United

Footnote 1: Stat. 1840, ch. 48, SS 4, 5 U. S. Stats. at Large, 395. In the case of The Sch. Eagle, Olcott, Adm. 232, it was held, that this applied only to such alterations as would vary the effect of the shipping articles in regard to seamen, and not to immaterial erasures.

Footnote 2: But a court of admiralty will construe the articles liberally. Mr. Justice _Sory_, in the case of The Brutus, 2 Gallis. 526, 537, said, speaking of shipping articles : "These, like all other mercantile instruments, are drawn up in a very lax and inartificial manner. To construe the language by the technical rules of literal interpretation would be to defeat the manifest intention of the parties. We are, therefore, bound to construe it with great liberality, and to look to the general scope and object of the instrument, rather than to weigh minutely the force of detached expressions."

Footnote 3: But a court of admiralty will construe the articles liberally. Mr. Justice _Sory_, in the case of The Brutus, 2 Gallis. 526, 537, said, speaking of shipping articles : "These, like all other mercantile instruments, are drawn up in a very lax and inartificial manner. To construe the language by the technical rules of literal interpretation would be to defeat the manifest intention of the parties. We are, therefore, bound to construe it with great liberality, and to look to the general scope and object of the instrument, rather than to weigh minutely the force of detached expressions."

Footnote 4: In The Cypress, 1 Blatchf. & H. Adm. 83, twelve months was the time of service mentioned in the articles. Held, that it could be shown by parol that nine was the time agreed upon. The question, in regard to the admissibility of parol evidence to change the voyage described in the shipping articles, was elaborately discussed in the late case of Page $v$. Sheffield, 2 Curtis, C. C. 377. The action was for wages alleged to be due on a voyage from San Francisco to Calcutta, and there to Boston. The libellant was discharged against his will at Calcutta. In the articles the voyage was described to be from San Francisco to Calcutta. Evidence was offered to prove that the libellant shipped for the whole voyage from San Francisco to Boston. Mr. Justice _Curtis_ held, that it was admissible on two grounds. First, that the voyage from San Francisco to Calcutta, and from the latter place to Boston, might be considered as distinct, and the articles for the first not being intended to include the second, the latter might be proved by parol. Second, if the contract was entire, then the articles did not describe the voyage, and the master was, therefore, prohibited from taking the libellant to sea under such articles, and parol evidence is always admissible to impeach a contract, by showing it to be made in violation of law. See also, the same case in the District Court, 18 Law Reporter, 99. But the ship-owner cannot vary the voyage by parol evidence. The Triton, 1 Blatchf. & H. Adm. 282; The Exchange, id. 366.

Footnote 6: See _supra_, note 1. The general rule in regard to parol evidence is stated in _Willard v. Dorr, 3 Mason_, 161, 169. Mr. Justice _Sory_ there said : "But _primal facie_ the shipping articles are presumed to import verity, and to be as well known to the owner as master ; and it is incumbent on the owner, if he means to contest the fact, to offer some evidence of fraud, mistake, or interpolation." If there is a stipulation in writing for a series of voyage, this may be terminated or varied by the mutual consent of the master and crew, and a new voyage substituted by a parol agreement. Piehl v. Balchen, Olcott, Adm. 24. In The Trial, 1 Blatchf. & H. Adm. 94, it was held, that in a suit for wages if the owners do not produce the shipping articles, even though they are not called upon to do so, parol evidence of the terms of hiring may be given. But see The Brig Osceola, Olcott, Adm. 450.

**Notes**

CH. XII.\] PROVISIONS.

extra, to every seaman, for the days on which he is on short allowance.1 If, however, the necessity of short allowance springs from a peril of the sea, or any accident of the voyage, or the delivery of a part of the provisions to another vessel in distress, the extra wages are not given.2

Footnote 1: Ac of 1790, ch. 29, 1 9, 1 U. S. Stats. at Large, 131, 135. In Gardner _v._ The Ship New Jersey, 1 Pet. Adm. 223, the voyage was an entire one from Philadelphia to Caxton, with liberty to go to other intermediate ports, and back to Philadelphia. It was contended that as some of the marines shipped at foreign ports, they did not come within the statuto. But the objection was overraled.

It has been held that a deficiency in one kind of provisions is not compensated by an abundance in another; as a deficiency in bread by an excess of beef;3 but it is clear that the master must have in every port a certain discretion in supplying whole-some and abundant food, of such kinds as can be most economically procured, if those specified in the act cannot be obtained by reasonable exertions.4 The master must see to the expenditure of the provisions; he should guard against waste; and putting the crew on an allowance is by no means the same thing as putting them on short allowance.5 * \[B00K L\]

## Section IV.

Of THE SEA-WORTHNESS OF THE SHIP.

So, too, the owner would be bound to provide a sea-worthy ship;1 and our statutes provide the means of lawfully ascertaining her condition, on the complaint of the mate and a majority of the seamen, by a regular survey, at home or abroad1

- \[Bhip Washington, 1 Pet. Adm. 219 ; The Mary, Ware, 454, 460 ; Ship Elizabeth .
- \[Bickers, 2 Paine, C. C. 291, 298. In this case Mr. Justice Thompson said: " To subject the master or owners to the extra wages, the crew must be put upon short allowance ; by which I should understand that there must be some order or command to that effect given, or some gross negligence in the master. An accidental or unintentional deficiency in weight, would not subject the master or owner to the penalty." If extra wages are claimed, the answer must set forth precisely whether the vessel shipped the quantity and quality of provisions, required by the statute. The Elizabeth Frith, 1 Blackf. & H. Adm. 195. See Appendix for the many ration.
- \[1\] In Couch v. Steel, 3 Ellis & B. 402, 24 Eng. L. & Eq. 77, an action was brought by a seaman to recover damages for injuries sustained in consequence of the vessel leaving port in an unseworthy condition. There was no allegation that the owners knew the vessel was unseworthy. On denumer the court held that the plaintiff could not recover, as there was no implied warranty on the part of the owners that the ship should be sea-worthy. This decision is clearly repugnant to the principles of the American authorities on this subject, independent of statute provisions. In the case of Dixon v. Ship Cyrs, 2 Pet. Adm. 407, 411, decided in 1789, it was held that both law and reason implied that at the commencement of the voyage the vessel should be sea-worthy. See also, Rice v. The Polly & Kitty, id. 420. In the case of The Ship Moslem, Olecott, Adm. 289, the vessel put into Cape Town in a leaky condition. The libellants shipped there for the home voyage to New York. The condition of the rest sel was known to them, and they shipped with the express notice that their services would be required in pumping out the vessel on her voyage. Yet it was held that if the vessel was actually unseworthy when she said, that is if she was anti for the voyage, the libellants were not bound by their contract, and could rightfully refase to continue,their voyage, and compel the master to return to port. In Eaken v. Thom, 5 Esp. 6, it was held that where the ship sealed in an unseworthy condition, and in consequence thereof the voyage was afterwards abandoned, no height being earned, the seamen were not entitled to their wages. This case was doubled by Kent, C. J., in Hoyt v. Wildfire, 3 Johns. 518. As the voyage was lost by the default of the owner in sending the vessel to sea in such a condition, it seems clear that the wages should have been paid. See Hindman v. Shaw, 2 Pet. Adm. 264, 266.
- \[A Act of July 90, 1790, ch. 56, 4, 3, 1 U. S. Stats. at Large, 139 ; Act of July 20, 1840, ch. 48, 4 12, 13, 14, 5 U. S. Stats. at Large, 396. The former of these acts provides that if the mate or first officer under the captain, and a majority of the crew of
- \[GE. XII.\] SEA-WORTHNESS OF THE SHIP. 455 The third section of the statute of 1794, provides that the master shall pay the costs of the survey in the first instance, and if the complaint appears to have been without foundation, the costs and a reasonable sum for the detention shall be paid out of the wages of the crew. But it has been held that if there was reasonable cause for the survey, the owners could not charge the expense to the seamen.1 Seamen, after shipping, often refuse to proceed on the voyage; and if then arrested for the mutiny, the condition of the vessel, if that be their excuse, is inquired into by the court; and if she is found to be unsea-worthy, their punishment is reduced and mitigated accordingly.2

any vessel bound on a voyage to & foreign port, shall, before the vessel has left the land, require the sea-worthiness of the vessel to be inquired into, the master shall stop at the nearest port for the purpose of having such inquiry made. On the construction of this act, _Ware_, _J._, remarked in the case of The William Harris, Ware, 367, 373, that the reason of the law applied as strongly to the case of a vessel departing from a foreign port on her return, as leaving her home port on a foreign voyage. This is now settled by the statute of 1840. By this act the consult, or commercial agent at the foreign port, is directed on complaint being made in writing by any officer and a majority of the crew, to appoint two persons to inspect the vessel, etc. By the Act of 1850, ch. 27, $\\sharp$ 6, 9 U. S. Stats. at Large, 441, the Act of 1840 is so far amended, as to require the complaint to be signed, by the first, or the second and third officers, and a majority of the crew. If the crew, instead of availing themselves of their statute remedy, suffer the owner to repair the vessel of his own accord, and he employs an agent who pronunches her sea-worthy, they cannot refuse to proceed on the ground that the repairs are insufficient, if they are not so in fact. Porter v.Andrews, 9 Johns. 350.

1 The William Harris, Ware, 367. The statute of 1840, provides that the expenses shall be deducted from the wages of the seamen, on the inspectors certifying that the complaint was made without good and sufficient cause.

- United States v. Nye, 2 Curtis, C. C. 295. Mr. Justice _Curtis_ in this case said :

" I think the correct rule is, that after the men have rendered themselves on board, pursuant to their contract, and before the voyage is begun, they may lawfully refuse to go to sea in the vessel, if they have reasonable cause to believe, and do believe the vessel to be unseavoury. But the presumption is that the vessel was sea-worthy; and the seamen must prove that they acted in good faith, and upon reasonable grounds of belief that the ship was not in a fit condition to go to sea, by reason of unseaworthiness. If they prove this, they are justified in their refusal, and are not guilty of any offence." See also, United States v. Staly, 1 Woodb. &. M. 388; Dixon v. The Ship Cyrus, 2 Pet. Adm. 407. So unseaworthiness is a sufficient defence to the charge of endeavoring to commit a revol by compelling the master to return to port. United States v. Ashton, 2 Sumner, 13. Seo also, The William Harris, Ware, 367.

**456** ON THE LAW OF SHIPPING. \[BOOK I.

**SECTION V.**

OF THE CARE OF SEAMEN IN Sickness.

\*\*Sickness is provided for by statute, so far as to require that every ship of the burden, of one hundred and fifty tons, navigated by ten or more persons in the whole, and bound on a voyage without the limits of the United States, should have a proper medicine chest on board.1 This act has been extended to vessels of seventy-five tons, navigated by six or more persons in the whole, bound from the United States to any port in the West Indies.2 By other statutes the master may deduct twenty cents a month from every seaman's wages, to make up a fund for the support of marine hospitals, in which every sailor may have medical treatment.8 There is, however, by the general law-merchant, an obligation upon every ship-owner or master to provide for a seaman who becomes sick, or wounded, or maimed in the discharge of his duty, whether at home or abroad, at sea or on land, -- if it be not by his own fault, -- suitable care, medicines, and medical treatment, including nursing, diet, and lodging.4 At first it was held that the statute requiring a medi
GEL. XII.\] GARE OF SEAMEN IN SICKNESS. 457

cine chest, substituted this requisition for the more general requirement of law; but it may be doubted whether this is so, in any degree; and it seems to be well settled, that the general obligation of the law-merchant remains in force, unless the medicine chest is provided with medicines and means of medical treatment which the particular case requires, and there is sufficient skill on board to make a proper use of those medicines.1

Baker, I Blatchf & H. Adm. 372, 382; Nevitt v. Clarke, Olecott, Adm. 316. In Reed v. Canfield, _supra_, it was held that if the seaman was injured while in the service of the ship, he was entitled to the expenses of his cure until it was completed, as far as the ordinary medical means extend, but that the owners were not liable for consequential damages. In Nevitt v. Clark, Olecott, Adm. 316, it was held that the owners were only liable for expenses while the seaman was in their employ. See also, The Atlantic, Abbott, Adm. 451, where this question is discussed at length. In Ringold v. Crocker, Abbott, Adm. 344, the seaman went on shore without leave, and on returning to the vessel, when asked by the mate why he went ashore, answered in an insolent manner, whereupon the mate struck him with a delaying pin and injured him severely. The master was boarding op shore at the time, and when the seaman went to him he placed him in a house there, and directed a physician to attend him. Held that the seaman was entitled to be cured if injured while in the service of the ship, and that he was to be deemed in the service while under the power and authority of the officers, and that an injury received in executing an improper order, or inflicted on him by the wrongful violence of an officer, would equally entitle him to this privilege.

1 If from the nature of the disease or from other circumstances, there is no person on board by whom the medicines can be safely administered under the printed medical directions accompanying the chest, the attendance of a physician will be a charge on the owners. The Forest, Ware, 420. Cases requiring extraordinary assistance, such as surgical aid, which the medicine chest cannot supply, are not within the spirit of the statue, which it seems "is limited to the ordinary cases of illness on board the ship; a sickness of such a character that the patient may be and is kept on board, and receives or may receive the benefit of the medicine chest and directions, and the advice and assistance of the master of the ship or some other competent person, attached to the ship, in the application of the medical directions accompanying the chest, and such nursing and attendance as the situation of the ship may admit." Per Davis, J., in Lampson, W. Wostcott, I Sumaper, 591, 595, Appen. See also, the remarks of Peters, J., in Hastings v. The Happy Return, 1 Pet. Adm. 253, 256, n.; and the case of Reed v. Canfield, I Sumaper, 195, where a seaman, whose feet had been frozen in the service of the ship, so that partial amputation became necessary, was allowed to recover the expenses of his care from the owners under the general maritime law. The charge for nursing and attendance is not affected by the act. _Sory_, J., in Harden v. Gordon, 2 Mason, 541. The burden of proof, as to the sufficiency of the medicine chest, is always upon the owner. The Forest, Ware, 420; The Nimrod, id. 9; Harden v. Gordon, _supra_; Freeman v. Baker, 1 Blatchf & H. Adm. 372, 382; The William Harris, Ware, 367, 375. It was also held in this case that the captain is not a proper person to prove the sufficiency of the medicine chest, but the testimony of some reptable physician, who has examined it, is requisite. In Knight v. Parsons, U. S. D. C., Mass., 18 Law Reporter, 96, one of the crew of a mackerel vessel was taken YOL. L.

**Abstract**

The first author is a summary of the results of the paper.

CH. XII.\] RETURN OF SEAARN TO THIS COUNTRY. 459

oath of the master; \[1\] this he is required to present to the consul or commercial agent of the United States, at every foreign port which he visits, when so requested, \[2\] and is under bond to deliver to the boarding officer who comes on board his ship at the first home port which he reaches, and to produce the persons named therein, \[8\] that it may be ascertained that he has his whole crew on board. If it appears that any of them are missing, he must account for their absence. \[4\] If he discharges any of them abroad, with his or their own consent, he must pay to the American consul of the port or the commercial agent, over and above the wages then due, three months' wages, of which two thirds are paid to the seaman, and one third. retained by the consul and re-mitted to the treasury of the United States, to form a fund for the maintenance of American seamen abroad and for bringing them home. \[5\] If the discharge is caused by any disaster which breaks

1 \*\*Act of 1803, ch. 9, **i** 1, \*\*2 U. S. Stats. at Large, 2003. \*\*The Act of 1840, ch. 48, **i** 3, \*\*5 U. S. Stats. at Large, 395, requires the master to produce the list above mentioned to the consul or other commercial agent, " whenever he may deem their contents necessary to enable him to discharge the duties imposed upon him by law toward any marmer applying to him for his aid or assistance." \[8\] Act of 1803, ch. 9, **i** 1, \*\*2 U. S. Stats. at Large, 2003. \*\*The bond is not forfeited, however, if any of the persons not produced have been discharged in a foreign country with the consent of the consul, vice-consul, commercial agent, or vice-commercial agent there residing, and such consent is signified in writing under his hand and official seal, and produced to the collector with the rest of the crew, nor if any such persons have died or abeconded, or have been forchly impressed into other service, of which satisfactory proof shall be then exhibited to the collector. Act of 1803, ch. 9, **i** 1. Under this section it has been held that the certificate of the consul must state that the seamen were left in the foreign port with their consent, and a certificate that they were left in a hospital unable to return, and that the master had paid for their maintenance, and left the amount of their wages, was held insufficient, and parcel evidence of the consent of the consul or seamen was not admitted. United States v. Hatch, 1 Paine, C. C. 386. \*\*Act of 1803, ch. 9, **i** 3, \*\*2 U. S. Stats. at Large, 2003. If a seaman is left in a foreign port, and the vessel is subsequently sold, it is doubtful if he can recover the extra wages allowed by this act in the case of sale. Nevit v. Clarke, Olecott, Adm. 316. The Act of 1840, ch. 48, **i** 5, \*\*5 U. S. Stats. at Large, 395, allows a consul, upon the application of both the master and any marmer under him, to discharge such mariner, if the thinks it expedient, without requiring the payment of three months' wages. And it seems that the certificate of the consul that the seaman was discharged with his own consent, is conclusive of the fact unless fraud on the part of the consul is shown. Lamb v. Briard, Abbott, Adm. 367. But the certificate must show on what ground the consul proceeded, and it is not enough for him to certify that he gave the discharge "lawfully," or that he gave it "in accordance with the law of the United States," but it must set forth that the discharge was made on the application of the mas * 460 ON THE LAV OF SHIPPING. \[B00K I.

up the voyage, so that the ship cannot be repaired and the voyage resumed in a reasonable time and at a reasonable cost, the above requirement does not apply to it.1

ter and the mariner, or on that of the mariner alone. And to entitle it to the respect accorded to documents under an official signature and seal, the signature must be legible, and the impression of the seal sufficiently distinct to allow the 'vignette and motto to be distinguished. The Atlantic, Abbott, Adm. 451. And to avail the owner in a suit brought against him for the two months' wages, it must appear that the consul personally made an official entry of his act both upon the list of the crew, and upon the shipping articles. Miner v. Harbeck, Abbott, Adm. 546. In Emerson v. Howland, I Mason, 45, it was held that where seamen were discharged abroad, without the payment of the three months' wages, required by the above act, the court would enforce the payment in this country by a libel in persona, for wages, against the owners of the vessel. See also, Orme v. Townsend, 4 Mason, 541 ; The Saratoga, 2 Gallis. 164, 181 ; Well v. Meldran, 1 Blatchf. & H. Adm. 842; Pool v. Welsh, Glipin, 193. But in Ogden v. Orr, 12 Johns. 143, the court refused to sustain an action at law brought by a seaman discharged by his own consent, in a foreign port, against the owners of a vessel, to recover two thirds of the three 'months' wages. The ground taken by the court was, that the statute does not require the master to pay the money to the seamen, but to the consul, and that the payment was in the nature of a penalty for the discharge of American seamen in foreign countries. See also, Van Beuren v. Wilson, 9 Cov. 158. The English Admiralty court has also refused to enforce this provision, on the ground of their having no jurisdiction, it being a municipal regulation of a foreign country. The Courtney, Edw. Adm. 239. -- Where a vessel is sold, the seaman is entitled to his wages up to the actual sale of the vessel, and not merely to the time of the advertisement of such sale. Lang v. Holbrook, Crabbe, 179. The Act of 1856, ch. 127, 4 26, 11 U. S. Stats, at Large, 62, makes it obligatory upon the consul, upon the application of any seaman or mariner for a discharge, if it appear that he is entitled to it under any act of congress, or according to the general principles or usages of maritime law, as recognized in the United States, to discharge him, and to require the three months' extra wages, as provided in the Act of 1803, ch. 9, and the master shall pay this in all cases, unless the consul shall be satisfied that the contract has expired, or the voyage been protracted by circumstances beyond the control of the master, without any design to violate the articles of shipment, in which case if he decms it just he may discharge the mariner without exacting the additional pay. The three months' wages are to be held by the consul for the same purposes as provided in the Act of 1803, and if the consul neglects to require the payment of, and to collect the said wages, he shall be answerable to the United States, and to the seaman, respectively, for their shares of such wages.

1 The Dawn, Ware, 485, Daveis, 121 ; Henop v. Tucker, 2 Paione, C. C. 151 ; The Saratoga, 2 Gallis. 164, 181. This is now so provided by statute in the case of wrecked or stranded vessels, or where they are condemned as unfit for service. Act of 185, ch. 127, 4 26, 11 U. S. Stats. at Large, 62. In Brown v. The Independence, Crabbe, 54, it was held, where a seaman was injured by the mate, and the police authorities of the place took him on shore to the hospital without his request, and against the will of the master, who also wanted to take him away with him when he left, that the seaman was not entitled to the benefit of the Act of 1803.

OH. XII.\] RETURN OF SEAMEN TO THIS COUNTRY. 461

The ship must be repaired,1 or if captured, all proper means used to obtain restoration, and the seamen may hold on, a reasonable time, for this purpose. And if discharged before, they may claim their extra wages.2 Our consuls and commercial agents may authorize the discharge of a seaman for good cause, but this must be disobedience, or misconduct, or disability by his own fault, of an extreme degree.8 If the stipulations of the shipping articles are violated by the master,4 if the vessel be un * 462 ON THE LAV OF SHIPPING. \[DOOK I:

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OH. XIIL\] DISOREDIENCE OF SEAMEN. 463

SECTION VII.

OF THE DISOREDIENCE OF SEAMEN.

Disobedience, or misconduct of a sailor is, of necessity, punishable with great severity, because discipline must be preserved, as without it the ship would always be in great peril, and no voyage could be 'successfully conducted.1 Formerly, there was Morgan, 11 Johns. 66 ; Rico v. The Polly and Kitty, 2 Pet. Adm. 420, 425, note ; The Gloucester, 2 Pet. Adm. 403, 406, note; The Littlejohn, 1 Pet. Adm. 115, 119, 120. But these apparent contricities are easily reconcilable, when the circumstances of each case are carefully examined. In all the cases, a compensation is intended to be allowed, which shall be a complete indemity for the illegal discharge, and this is ordinarily measured by the loss of time, and the expenses incurred by the party. It is presumed that after his return home, or after the lapse of a reasonable time for that purpose, the seaman may, without loss, engage in the service of other persons, and where this happens to be the case, wages are allowed only until his return, although the voyage may not then have terminated. On the other hand, if the voyage have terminated before his return, or before a reasonable time for that purpose has elapsed, wages are allowed up to the time of his return, for otherwise he would be without any adequate remedy. Cases, however, may occur of such gross and harsh misbehavior, or wanton injacic, as might require a more ample compensation than could arise from either rule." See also, The Union, 1 Blatchf. & H. Adm. 545 ; Farrell v. French, 1 Blatchf. & H. Adm. 275 ; The Maria, id. 331 ; Brunen v. Tabor, U. S. D. C., Mass., 18 Law Reporter, 685 ; Nevit v. Clarke, Oloott, Adm. 316 ; The Nimrod, Waro, 9 ; Hutchinson v. Coombs, id. 65 ; Ex parc Gliddings, 2 Gallis, 56. No deductions are made except that the wages earned on the homeward voyage are to be deducted from the expenses allowed for the return. Emerson v. Howland, 1 Mason, 45, 54 ; Hutchinson v. Coombs, Waro, 65. In Sheffield v. Page, U. S. D. C., Mass., 18 Law Reporter, 99, the mate was tortouically discharged at Calcutta. No situation was offered him as mate, and he came home before the mast. Held that the wages thus earned by him should not be deducted from the amount decreted against the owner. See Hoy v. Wildfare, 3 Johns. 518 ; Nevit v. Clarke, Oloott, Adm. 316, 320. Where seaman were turned off from a printer without - lawful cause, they were held to be entitled to their proportion of the prige taken during their absence. Mahoon v. The Gloucester, 2 Pet. Adm. 403 -- As a general rule of law a branch of a statuto by a master, which subjects him to a penalty, does not take away the right of a seaman, who has been injured, in consequence of such breach. Couch v. Steel, 3 Ellis & B. 402, 24 Eng. L. & Eq. 77. 1 Thorne v. White, 1 Pet. Adm. 168 ; Gardner v. Bibbins, 1 Blatchf. & H. Adm. 356 ; The Elizabeth Frith, id. 195, 208 ; The United States v. Wickham, 1 Wash. C. C. 316 ; Jordan v. Williams, 1 Curtis, C. C. 69 ; United States v. Smith, 3 Wash. C. C. 525 ; Michaelson v. Denison, 3 Day, 294 ; United States v. Freeman, 4 Mason, * 464 ON THE LAW OF SHIPPING. \[B00K L

no specific limit to the right of punishment. It might be administered by the master in any form, and in any measure, he always being answerable for his excess or cruelty, both criminally 1 and in damages to the seaman.3 But if the mate, in

505, 512; Carleton v. Davis, Daveis, 291; Turner's case, Ware, 83; United States v. Peterson, 1 Woodb. & M. 305; Fuller v. Colby, 3 id. 1. See also cases in/r. In Sheridan v. Furbur, 1 Blatchf. & H. Adm. 423, it was held that general orders from one officer would not excuse disobedienco to the specific orders of another.

A hammer is an improper, weapon to strike a seaman with, nor is it any excuse that the weapon was causally in the hands of the captain, and that he used it in a moment of excitement, and under circumstances, which would have justified some punishment.

Sanders n. Backup, 1 -Blatchf. & H. Adm. 364. So a word is an improper weapon to strike a seaman with, but a bucket of water thrown over a person to make him . move quicker, has been held to be no severe punishment, especially in the month of

August. Schelter v. York, Crabbe, 449. And it has been held in the same court, that

a blow with a dirty frying-pan, or giving a dirty knife on the face of the person, whose

duty it was to keep these articles clean, is not a very aggravated or cruel assaults.

Forbes r. Parsons, Crabbe, 283. See also, Benton v. Whitney, id. 417. A belaying pin

is an improper instrument for punishment. Carleton v. Davis, Daveis, 291; Shorey v.

Rennell, U. S. D. C., Mass., 188, per _Sparague_, J.; Ringold v. Crocker, Abbott,

Adm. 344 ; as is a log of firewood. Brown v. The Independence, Crabbe, 54. But

if a person is indicted for committing an assault with a dangerous weapon, it is a question for the jury, and not for the court, whether the instrument used was a dangerous weapon. United States v. Small, 2 Curtis, C. C. 241. In Jarvis r. Sherwood,

Bee, Adm. 248, it is held that a cutlass should only be used when a mutiny exists or

is threatened, but moderate correction with the fist is justifiable. This case also

decates that a captain who encourages disorderly conduct in his men is the less excxanable

for inflicting unusual punishment for conduct arising, in some measure, out of that.

1 Act of 1825, ch. 65, 4 29, 4 U. S. Stats. at Large, 122; Act of 1835, ch. 40, 4 3,

4 U. S. Stats. at Large, 776. For decisions under the former of these acts, see United

States v. Grush, 5 Mason, 290; United States v. Hunt, 2 Story, 120. In United

States v. Cutler, 1 Curtis, C. C. Sol, the master was indicted under the Act of 1838, for

beating one of his crew with malice and without justifiable cause. _Curtia_, J., said :

" The government must prove : 1, the beating; 2, the want of justifiable cause; 3, malice." See also, United States v. Alden, 7 Law Reporter, 469 ; United States v. Winn, 8 Summer, 209; United States v. Small, 2 Curtis, C. C. 241. Although flogging is now abolished, yet is in a cruel and unusual punishment, within the meaning of the third section of the Act of 1835. United States v. Collins, 2 Curtis, C. C. 194.

2 In Forbes v. Parsons, Crabbe, 283, it was held that a seaman is, in general, entitled to recover damages for an assault from the master, first, where personal violence

is inflicted, not excessively, but wantonly, and without provocation or cause; second,

where there was provocation and cause, but the punishment was cruel, or excessive;

third, where the punishment is inflicted with a dangerous weapon. See also, The

Agincourt, 1 Hagg. Adm. 271; Watson v. Christie, 2 B. & P. 294; Shorey v. Rennell,

U. S. D. C., Mass., 1858; Brown v.Howard, 14 Johns. 119; Sampson v. Smith, 15

Mass. 365; Rico v. The Polly & Kitty, 2 Pet. Adm. 420; Roberts v. Dallas, Bos,

Adm. 239; Jarvis v. Sherwood, Bee, 248; Jenks v. Lewis, Ware, 51; 3 Mason, 503;

Elwell # Martin, Wary, 53; Butler v. McLellan, id. 219; Hutson v. Jordan, id.

- \[GE. XIII.\] DESODENCE OF SEAMEN. 465
- \[385\]; Polytore v.'Prince, id. 402; Bangs v. Little, id. 506; PettingIII v. Dismmore, Davis, 208; Thomas v. Lane, 2 Summer, 1; Morris v. Cornell, 6 Law Reporter, 304, 310; Whitney v. Eager, Crsbe, 422; Sheridan v. Furbur, 1 Blatchf. & H. Adm. 438.
- \[1\] Butler v. McLellan, Ware, 219.
- \[2\] Shorey v. Bennell, U. S. D. C., Mass., 1858.
- \[3\] Ibid.
- \[4\] R. of 1850, ch. 80, 9 U. S. Stats. at Large, 515, contains the following clause :
- \[4\] Provided, That fogging in the navy, and on board vessels of commerce, be, and the same is hereby abolished, from and after the passage of this act." Mr. Justice Curtia, in a charge to the grand jury, delivered at Providence, R. I., November 15, 1858, instructed them that the words " vessels of commerce," in the above static, included vessels engaged in the whale and other fisheries. 1 Curtia, C. C. 509. So held also in United States v. Cutler, 1 Curtis, C. C. 501. The Act of 1850 is not a penal law, and no indictment can be framed upon it. But it has an important bearing upon the Act of 1855, in regard to the question of justifiable cause and malice. Same case. In a case decided by Mr. Justice _Sproya_, in the District Court of the United States for the Massachusetts District, February, 1857, Captain Lendholm of the ship Josephine was charged with marketing his crew of Lasers. The court held that although the
- captain was apparently honest in the belief that the men had conspired to poison him, yet he had no right to floe them.
- \[5\] Charge to the Grand Jury, 1 Curtia, C. C. 509. In United States v. Cutler, 1 Curtia, C. C. 501, the master of a vessel was indicted under the Act of 1835, for beating one of his crew maliciously, and without justifiable cause. The master had punished the seaman by inflicting six blows upon him with a piece of ratlin stuff. Mr, Justice _Curtia_ said : "If the punishment inflicted was the punishment of fogging, within the meaning of the Act of 1850, there could be no justifiable cause, the author 466 ON THE LAW OF SHIPPING. \[BOOK L.

Pleas, February, 1854, it was held, on what seems to us to be good reasons, that the statute was intended to apply to deliberate flogging by way of punishment, and not to a blow or blows of any kind inflicted upon an emergency to produce immediate obedience.1 Generally the only punishments which can now be resorted to, to enforce obedience and good conduct, are, forfeiture of wages,2 irons,3 imprisonment,4 hard labor,5 or such other means

ity of the master to punish by fogging being taken away. And it is for the jury to find whether what was done, amounted to the punishment of fogging abolished by that act. In order to decide this question, it is necessary for the jury to attend to what is the punishment of fogging referred to in that law; and my instruction is, that it is corporal punishment by stripes inflicted with a cat, or any punishment which, in substance and effect, amounts thereto. The particular form of the instrument is not material; what you must look to is the effect produced. If the man was punished by stripes, inflicted with a rope, and this, in substance and effect, is the same kind of punishment as the punishment of fogging with a cat, then it is prohibited by this law. The degree of severity of the punishment is not material. It is the kind, and not the degree, of punishment which is important. It may be, that one blow with a cat would inflict stripes more painful to be borne, than one blow with a piece of ratlin stuff. But this is not material, if both are corporal punishment by stripes, and both are in substance the same kind of punishment."

1 And _Sparague_, $\\hat{J}$, in the case of Shorey v. Rennell, U. S. D. C., Mass., 1858, said: "Any officer may use violence when necessary to coerce the performance of a duty, when an exigency requires instant obedience."

- Relf v. Ship Maria, 1 Pot. Adm. 185 ; Adyrus v. Burrows, id. 244 ; Thorne v. White, id. 168 ; Buck v. Lane, 12 S. & R. 26.

- Turner's Case, Ware, 83 ; Macmber v. Thompson, 1 Sumner, 384, 89 ; Sampson v. Smith, 15 Mass. 365, 369 ; Shorey v. Rennell, U. S. D. C., Mass., 1858.

- Under some circumstances the master may imprison the seamen on shore. United States v. Roggles, 8 Mason, 1992; Relf v. Ship Maria, 1 Pet. Adm. 186 ; Wood v. The Niimrod, Gilpin, 83, 89. But, as is said by Mr. Justice _Hopkinson_, in Wilson v. The Mary, Gilpin, 31, 32, "The practice of imprisoning disobedient and refractory seemen in foreign goals is one of doubtful legality. It is certainly to be justified only by a strong case of necessity. It is not among the ordinary means of discipline put into the hands of the master. I am inclined to think there should be danger in keeping the offender on board, or some great crime committed when this extreme measure is resorted to. It should be used as one of safety rather than discipline, and never applied as a punishment for past misconduct. The powers given by the law to the master, to preserve the discipline of his ship, and compel obedience to his authority, are so strong and fall, that they can seldom fail of their effect: they should be clearly insufficient, before we should allow the exercise of a power which may so easily be

- In Allen v. Hallet, Abbott, Adm. 573, it was held in an action brought against a master by a cook who had secreted himself on board, to recover damages for being punished for refusal to obey orders, that it was incumbent on the master to prove, in order to justify the punishment, that the man possessed the experience and capacity which would enable him to fulfil the order with safety.

## 4.2. Xil.\] Disobedience of Seamen.

as may be invented to take the place of flogging. In connection with this subject we will consider briefly the offences for which made an instrument of cruelty and oppression, and may be so terrible in its consequences." See also, Thorne v. White, 1 - Pet. Adm. 168, 175, note; Mage v. The Moss, Gipin, 219 ; The Nimrod, Ware, 9, 18 ; The William Harris, 1d. 367 ; The David Pratt, 4, 496, 503 ; Jay A. Almy, 1 Woodb. & M. 269 ; Snow v. Wope, 2 Curtis, C. C. 301 ; Johnson v. Ship Coriolanus, Crabbe, 289 ; Gardner v. Bibbins, 1 Blatchf. & H. Adm. 356 ; Buddington v. Smith, 13 Conn. 334. " When a master of a ship thinks it necessary to cause any of his crew to be confined in a foreign jail, he should pay some regard to their condition and treatment there, and should from personal examination, see that they are such as humanity requires." Per _Sprague_, J., Shorey v. Rennell, U. S. D. C., Mass., 1855. If a seaman is imprisoned by the authorities of a foreign country for the violation of its laws, the costs and charges may be deduced from his vages. Mage v. The Moss, Gipin, 219. But if he is imprisoned by the master, neither the costs and charges, nor the pay for the hire of another, are to be deducted from his vages. Same case. See also, Thorne v. White, 1 - Pet. Adm. 168, 176, note; Wilson v. The Mary, Gipin, 31 ; Wood v. The Nimrod, 1d. 83, 89 ; The Nimrod, Ware, 9, 19 ; The William Harris, 3d. 367 ; Johnson v. Ship Coriolanus, Crabbe, 239 ; The Maria, 1 Blatchf. & H. Adm. 381 ; Thomas v. Gray, 4d. 493. But see Jordan v. Williams, 1 Curtis, C. C. 69, 86. In Johnson v. Ship Coriolanus, supra, it was held that the certificate of a consul setting forth the facts that led to the imprisonment was not evidence,and afforded no justification for the master, and that the court would examine the whole question _de novo_, and determine whether the imprisonment was justifiable. See also to the same effect, Brown v. Brig Independence, Crabbe, 54 ; Wilson v. The Mary, supra ; The William Harris, Ware, 367, 372. The cleventh section of the Act of 1840, ch. 48, 5 U. S. Stats at Large, 395, is as follows: "It shall be the duty of consulas and commercial agents to reclaim deserters and discontaneo insubordination by every means within their power ; and where the local authorities can be usefully employed for that purpose, to lend their aid and use their exertions to that end in the most effected manner." In Jordan v. Williams, 1 Curtis, C. C. 69, 80, this section was considered to change the law above stated, and it was there held that if the master in a foreign port lays a complaint against any of his crew before the consul, and the latter, upon examination, finds it expedient or necessary to make use of the local authorities, the master is not responsible for their imprisonment as for a tort, the consul being answerable to the injured party for any malversation or abuse of power. See also, Tingle v. Tucker, Abbott, Adm. 519. Bug if the consul is absent, his clerk or assistant has no power to procure the interposition of the local authorities, and if the master imprison a seaman, he is liable as for a tort. Snow v. Wope, 2 Curtis, C. C. 301. In Shorey v. Rennell, U. S. D. C., Mass., 1858, _Sprague_, J., said: " Upon the authority of the case of Jordan v. Williams, the captain must be exonerated from liability for the imprisonment on shore by the order and warrant of the consul. But I cannot extend the same immunity to what was done on board the ship. There the captain was supreme, and must be responsible in damages for wrongs done to his men by his authority or acquiescence. The instructions of the consul might avail him much in a criminal prosecution, in which malice is an essential agreement, and a mistake without evil intent would be a good defence, but in a civil suit the question is whether a wrong has been done to the libellants, and if so they are entitled to indemitly." the penalty of forfeiture of wages is imposed. A trivial act of irregularity will not work a forfeiture,1 nor will a single act of intemperance, nor an occasional act, but it must be habitual to have this effect.2 If, during the voyage, either the master or a seaman smuggle goods, he either forfeits all his wages, or the damage actually sustained by the owners of the vessel may be charged upon his wages.8 Embezzlement by the master or crew also works a forfeiture.4 In England it seems that the court have * 469

only power to decree the whole wages forfeited or none.1 But in this country, a part may be forfeited according to the nature of the offence.3 Only those wages earned before the act of misconduct, are forfeited.8 So if the mate is promoted during the voyage, and while master, commits an offence, it cannot be set up as working a forfeiture of the wages earned as mate.4 If the seaman repeats and offers to return to duty, the master should receive him, and, if he does so, this acts as a condonation of the offence.5 And if he punishes him severely the forfeiture is considered as remitted.6

Mr. Justice Story, after an elaborate review of the authorities, stated as his opinion : " That where the embezzlement has arisen from the fault, fraud, convinance, or negligence of any of the crew, they are bound to contribute to it, in proportion to their wages; that where the embezzlement is fixed on an individual, he is solely responsible : that where the embezzlement is clearly shown to have been made by the crew, but the particular offenders are unknown, and from the circumstances of the case, strong presumptions of guilt apply to the whole crew, all must contribute; but that where no fault, fraud, convinance, 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 : that in no case are the innocent part of the crew to contribute for the midemeanors of the guilty ; and further, that in a case of uncertainty, the burden of the proof of innocence does not rest on the crew ; but the guilt of the parties is to be established beyond all reasonable doubt, before the contribution can be demanded." See also, Joy . Allen, & Wood, & M. 308. The rule in England is similar. Thompson . Collins, & B. & P. 847; The Prince Frederick, 2 Hagg. Adm. 394 ; The Duchess of Kent, 1 W. Rob. 283, 285. In Anderson _v._ Sloop Solon, Crabbe, 17, it was held not to be embezzlement for a seaman to sell part of the cargo by direction of the mate in order to precure provisions for the vessel, the master being permanently liable. Nor are the crew liable if a slave, who is entered on board as seaman, escapes. Carey v. Sch. Kitty, Bee, Adm. 255. 1 The Blake, 1 W. Rob. 73, 87. 8 Sprague v. Kain, Bee, Adm. 184 ; Humphreys v. Brig America, Bee, Adm. 237 ; Maconber _v._ Thompson, 1 Sumner, 384 ; The Maria, Blatch. & H. Adm. 331 ; The Moslem, Olecott, Adm. 300 ; Orne v. Townsend, 4 Mason, 541 ; Mitchell v. The Ship Orozimbo, 1 Pot. Adm. 250. 8 The Ship Mentor, 4 Mason, 84 ; Smith v. Treat, Daveis, 266. 4 The Brig Ann C. Pratt, 1 Curtis, C. C. 395, 398. 5 Atkyns v. Burrows, 1 Pet. Adm. 244 ; Horne v. White, id. 168 ; Black v. The Ship Louisiana, 2 Pet. Adm. 388 ; Bell v. The Ship Maria, 1 Pet. Adm. 186 ; Dixon v. The Ship Cyrs, 2 Pet. Adm. 407 ; Johnson v. The Elizs, U. S. D. C., Mass., Abbott on Shipping, 655, n. ; The Ship Mentor, 4 Mason, 84 ; Drydale v. Schooner Ranger, Bee, Adm. 148. 5 Sprague v. Kain, Bee, Adm. 184 ; Buck v. Lane, 18 S. & R. 266. In The Ship Moslem, Olecott, Adm. 289, 300, Mr. Justice Betts said: "The after submission of the men to the authority of the ship, and return to duty, with the acquiescence of the master, and their continuing to serve on board until her arrival at Pernambuco, should VOL. I.

- 470 ON THE LAW OF SHIPPING. \[B00K I.

Section VIII

OF THE DESERTION OF SEAMEN.

Desertion is an offence which it is of great importance to prevent, as otherwise a ship, with all her cargo, might be left unmanageable. It is distinguished from absence without leave, by the intention not to return.\[1\] But it is desertion to refuse to operate in equity to preserve the wages agreed in the shipping articles. I do not hold the transaction an entire condensation of their offence, yet I do not think the master should be allowed to inflict corporeal punishment sufficient to bring the men back to duty, avail himself of their services, and then exact a confiscation of their whole wages for conduct, although highly disorderly and mutinous, yet based upon colorable grounds of wrong towards them, and of right on their part to hold themselves discharged of all obligation to the ship."

1 Colouran v. Tunison, 1 Sunner, 373, 375; Coffin v. Jenkins, 3 Story, 108 ; Spencer v. Eustis, 21 Maine, 519 ; The Rovens, Ware, 309 ; The Brig Cadmus v. Matthews, 2 Paine, C. C. 329 ; Borden v. Hiern, Blatch. & H. Adm. 293 ; The Union, id. 545, 552 ; Ship Union v. Jansen, 2 Paine, C. C. 377 ; The Westmond, 1 W. Rob. 216 ; The Two Sitsets, 3 W. Rob. 195 . In The Westmond, it was held, that the going on shore without leave to ask advice as to the effect of the article, was not a desertion by the maritime law. So it has been uniformly held, that it is not desertion for the seamen to leave the vessel against orders to go before the consul, at a foreign port, to complain of their treatment. Freeman v. Baker, Blatch. & H. Adm. 372 ; Hart v. The Brig Otis, Crabbe, 52. The Act of 1840, ch. 48, 4, 16, 6 V. S. Stata. A Large, 396, provides that "the crew of any vessel shall have the fullest liberty to lay their complaints before the consul or commercial agent in any foreign port, and shall in no respect be restrained, or hindered therein by the master or any officer, unless some sufficient and valid objection exist against their landing ; in which case, if any mariner desire to see the consul or commercial agent, it shall be the duty of the master to acquaint him with it forthwith; stating the reason why the mariner is not permitted to land, and that he is desired to come on board; whereupon it shall be the duty of such consul or commercial agent to repair on board, and inquire into the causes of the complaint, and to proceed thereon as this act directs." In Morris v. Cornell, 6 Law Reporter, 304, 309, Mr. Justice _Sprongue_ said of this act. "It has may be called the _hosean corpus_ of the seaman, and the court will carefully and vigorously guard its irviability." The right of the seaman under this act to lay his complaints before the consul has been held to extend only to those complaints over which the consul has jurisdiction, as where the seaman is detained contrary to his agreement, or after he has fulfilled it, or where the vessel is unseworthy, but not to a case of complaint by the seaman that they are badly treated. But even if: they have a right to see the consul, they cannot refuse to attend to duty at any moment until they have seen him, unless such refusal is abso CH. XII.\]DESERTION OF SEMANEN. \[471\]

return when ordered, after an absence without leave,1 or other temporary separation; as by capture, or wreck.2 Description is justified, or rather it is not desertion, when the vessel is left for good cause, as a change of the voyage without consent,3 crucity,4 insufficient provisions,5 or unseaworthiness of the ship.6 It has been held that if desertion is attempted to be justified on the ground that the deserter was a negro, and that the captain threatened to sell him as a slave, it must be averred that the place where the threat was to be executed was one where slaves could .be sold.7 If the seaman returns after desertion, and is received by the master or by the owner, this is a condonation of the .

Footnote 1: The Bulmer, 1 Hagg. Adm. 168 ; Piehl _v._ Balchen, Olcott, Adm. 24.

Footnote 2: Boardman _v._ The Brig Elizabeth, 1 Pet. Adm. 128.

Footnote 3: The Cambridge, 2 Hagg. Adm. 943 ; Moran _v._ Bandin, 2 Pet. Adm. 415 ; Ingramham _v._ Alboe, Blatchf. & H. Adm. 389 ; United States _v._ Matthews, 2 Sumner, 470. See also, cases ante, p. 448, note 3. But the crew are not justified in such a case in seizing the vessel and bringing it home. The Mary Ann, Abbott, Adm. 270.

Footnote 4: The Minerva, 1 Hagg. Adm. 347, 368 ; Limland _v._ Stephens, 3 Esp. 269 ; Prince Edward _v._ Trevellick, 4 Ellis & B. 59, 28 Eng. L. & Eq. 205 ; Ward _v._ Ames, 9 Johns. 138 ; Reif _v._ The Ship Maria, 1 Pet. Adm. 186, 198 ; Rice _v._ The Polly and Kitty, 2 id. 420 ; Sherwood _v._ McIntosh, Ware, 109 ; The America, Blatchf. & H. Adm. 185. In Steele _v._ Thatcher, Ware, 91, 94, Mr. Justice _Ware_ said : "I am, as at present advised, far from being prepared to hold that a battery, simply because it is excessive, will be a justification, even though it should pass very considerably beyond the limits of a moderate discretion. As a general rule, it seems to me that another ingredient should enter into the case. The seaman who proposes, on this ground, to justify a desertion, should not only exhibit proof of the injury, but a just and reasonable ground of apprehension that it would be casselessly repeated, either by showing a general disposition to craelty on the part of the master, or the existence of some particular pique or malevolence toward him personally." See also, Magee _v._ The Moss, Gilpin, 219, 228.

Footnote 4: If no provisions at all are provided, then it is clear that a desertion for this cause is justifiable. The Castalia, 1 Hagg. Adm. 59 ; The Eliza, id. 182, 186 ; Dixon _v._ The Ship Cyrus, 9 Pet. Adm. 407. See also, Sigard _v._ Roberts, 3 Esp. 71. But to justify a desertion on account of bad provisions, it must be shown that the food is not merely not of the best, but positively bad and unfit for the support of the crew. Ulamy _v._ The Ship Washington, Crabbe, 204.

Footnote 5: In Savory _v._ Clements, Sup. Jud. Ct., Mass., March T. 1857, 20 Law Reporter, 296, an action was brought by a seaman for work and labor done, etc. The defence was desertion. On the trial it appeared that the ship was unseaworthy, and the court held, that the plaintiff was entitled to recover. See also, Bray _v._ Ship Atlanta, Bee, Adm. 48 ; Bucker _v._ Klerkgeter, Abbott, Adm. 402 ; and cases ante, p. 454, note 1.

Footnote 7: Prince Edward _v._ Trevellick, 4 Ellis & B. 59, 28 Eng. L. & Eq. 205.

offence and a waiver of the forfeiture ; \[1\] and it has this effect even if there be a clause to the contrary in the shipping articles. \[2\] He must be received if he offer to return in a proper way, and within a reasonable time, before any other person is engaged to take his place. \[8\] If he desert before the voyage begins, by not rendering himself on board, he forfeits the advance wages and an equal sum in addition ; \[4\] or he may be apprehended under the warrant of a justice, and compelled forcibly to go on board; \[6\] but if this be done the forfeiture is waived. \[6\] It has, however, been held, that receiving a seaman on board after the proper time is no waiver of the penalty. \[7\] He may be apprehended if he deserts on the voyage. \[8\] And for such desertion he forfeits all his wages, \[8\] CH. XII.\]

DESERTION OF SEAMEN. 473

and all his property on board the ship, unless he is received again on board, and he is liable to pay all damages and costs sustained by the owner in hiring another seaman in his place.1

Footnote 1: The fifth section of the Act of 1790, ch. 29, 1 5, 1 U. S. Stats. at Large, 183, provided that if the seaman absented himself without permission, and the specified entry was made thereof in the log-book, if he should return to duty within forty-eight hours, he should forfeit three days2 pay for every day he was absent, but if he should be absent for a longer time he should forfeit all the wages dae, all his property on board, or lodged in any store at the time of the deseration, to the use of the owners of the ship, and should pay them all damages they might sustain by being obliged to hire other sesmen in his place. This has been materially changed by the twenty-fifth section of the Act of 1856, ch. 127, 11 U. S. Stats. at Large, 62, which provides that in case of deseration in a foreign country, the fact and the date thereof shall be noted by the master or commander on the list of the crew, and the same shall be officially authenticated at the first port or place of consulate or commercial agency visited after such deseration, and if there shall be no port visited where there is such an agency, or if the deseration occurred in this country, the fact and time of such deseration shall be officially authenticated before a notary-public immediately at the first port or place where such vessel shall arrive after such deseration. The wages of the seaman, and his interest in the cargo if any, are forfeited to the use of the United States, and are to be paid over to the collector of the port where the crew are to be accounted for. The owners of the vessel may deduce any expenses they have necessarily 'incurred in consequence of such deseration, and money actually paid, or goods at a fair price supplied, or expenses incurred to, or for such seaman. By the general maritime law description is a forfixture of wages. Ord. Wisbury, art. 61 ; Hans Towns, art. 55 ; Jollo, ch. 3, 1 10 ; Cloutman , Tunion, 1 ; Sumner, 378 ; Coffin , Jenkins, 3 Story, 108 ; The Rovens, Ware, 309 ; Spencer , Esatis, 21 Maine, 519 ; The Brig Osedusa, Olcott, Adm. 450, 461 ; The Brig Cadmus v. Matthews, 2 Paine,C. C. 299 ; The Baltic Merchant, Edw. Adm. 86 ; The Pearl, 5 Rob. Adm. 294. But the court is not obliged to pronounce an entire forfeiture in all cases, but may take into consideration palliating circumstances not amounting to an excuse. Gifford v. Kolloch, U. S. D. C., Mass., 19 Law Reporter, 31. If a minor is shipped on a whaling voyage by his father, and, after serving several years, deserts after having become of age, the father is entitled to his wages earned during his minority. Coffin v. Shaw, U. S. D. C., Mass., 19 Law Reporter, 146. So the minor, if he ships after the death of his father, may avoid the contract by deserting, and recover on a quantum arenit. Veni v. Osgood, 19 Pick. 872. And if he ships during the lifetime of his father, and then deserts, his father may recover for his services prior to the deseration. Bishop r. Shepherd, 23 Pick. 492. If there be a series of voyages, wages earned in one will not be forfeited by a desertion in a subsequent voyage. Piehl v. Balchen, Olcott, Adm. 24. \*

**474**: **ON THE LAW OF SHIPPING.** \[BOOK I.\*\*

**And there must be an exact entry of the fact on the log-book setting forth the circumstances, made on the day when the absence begins;**${}^{1}$ **and it must be a continued absence for forty-eight suc-**

\*\*no forfelture of wages by the maritime law. This was the view taken by the District Court for the Southern District of New York in numerous cases. See The Cadmus, Blatchf. & H. Adm. 139; The Martha, id. 151; The Elizabeth Frith, id. 195; The Union, id. 545, 555. The same view seems to have been taken in the Eastern District of Pennsylvania. See Wood _v._ The Nimrod, Gilpin, 83; Snell, v. The Independence, id. 140; Knage v.; Goldsmith, id. 207. See also, The Schoener Probe v. Dignum, 1 Wash. C. C. 48; Brig Betey v. Duncan, 2 Wash. C. C. 272; Herron v. Schoener Peggy, Bee, Adm. 57. On the other hand Mr. Justice Story, in Cloutman v. Tunison, 1 Sumner, 373, 380, speaking of this act, said: "But, inasmuch as such prolonged absence might endanger the safety of the ship, or the due progress of the voyage, it deems forty-eight hours' absence without leave, to be _ipso facto_ a desertion, and inflicts upon it a total forfelture of wages. It thus creates a statute desertion, and makes that conclusive evidence of the fact, which would, upon the common principles of the maritime law, be merely presumptive evidence of it. It does not supersede the general doctrine of the maritime law, or repeal it; but merely in a given case applies a particular rule _in paman,_ leaving the maritime law in all other cases in full efficiency." Although these remarks are to a great extent _obiter_, there being neither maritime nor statutable desertion in that case, yet the doctrine therein contained was fully sustained by the same learned judge in a subsequent case, Coffin v. Jenkins, 8 Story, 108, and it may now be considered as the settled construction. See The Brig Cadmus v. Mathews, 2 Paine, C. C. 229; Barton v. Salter, U. S. C. C., Mass., 91 Law Reporter, 148; Ship Union v. Jansen, 2 Paine, C. C. 277; The Rovens, Waro, 309; The Brig Osceola, Oicott, Adm. 450, 461. If- a seaman remains on shore more than forty-eight hours without leave, seeking redress before a public tribunal for an assault committed on board the vessel, it would seem that he could not be treated as a deserter. Sherwood v. McIntosh, Ware, 109. 1 Act of 1790, ch. 29, ! 5, 1 U. S. Stats. at Large, 100. In Cloutman v. Tunison, 1 Sumner, 373, 381, Mr. Justice Story said: " To work the statute forfelture, it is made an indispensable condition that the mate, or other officer having charge of the log-book, should make an entry therein of the name of such seaman, on the day on which he shall so absent himself; and the entry must not merely state his absence, but that he is absent without leave. The entry on the very day is, therefore, a _size qud non."_ See also, Spencer v. Esutis, 91 Maine, 119; The Schoener Probe v. Dignum, 1 Wash. C. C. 48; Brig Betey v. Duncan, 2 id. 272; The Brig Cadmus v. Matthews, 2 Paine, C. C. 229; The Rovens, Ware, 309, 312; Lord v. Kimball, Sup. Jud. Ct., Mass., 1804, Abbott on Shipping, 648, n.; The Cadmus, Blatchf. & H. Adm. 139; The Martha, id. 151; The Union, id. 545; Wood v. The Nimrod, Gilpin, 83; Snell v. The Independence, id. 140; Knage v. Goldsmith, id. 207; Mageo v. The Moss, id. 219; Hunt v. The Brig Otis, Crabe, 52; Bray v. Ship Atlanta, Bee, Adm. 48; Herron v. Sch. Peggy, id. 57. In Uary v. The Ship Washington, Crabe, 204, the entry in the log-book on the day the men left was " they ran away," and on subsequent days, " absent without leave." Held, that the latter entries were explanatory of the first, and sufficient. But see The Rovens, Ware, 309, 313. The entry is necessary although the absence is permanent. Knage v. Goldsmith, supra. The entry in the log is not conclusive, and parol is admissible to falsify it. Malone v. The Brig Mary, 1 Pet. Adm.

\[\]

**476** ON THE LAW OF SHIPING. \[B00K I.

after she is moored, and before the full unlivery of the cargo or the discharge of the crew, it is not a desertion under the law-merchant,1 but gives to the ship-owner his claim for compensation in damages.2 A desertion of a part of the crew does not exonerate the remainder from their obligation to perform their duties, although it may make these duties more onerons.8

Footnote 1: Hastings _v._ The Ship Happy Return, 1 Fet. Adm. 253; Cloutman _v._ Tunison, 1 Sumner, 373; The Ship Elizabeth _v._ Rickers, 2 Paine, C. C. 291; The Martha, Blatchf. & H. Adm. 151, 157; Granon _v._ Hartshorne, id. 454; Knagg _v._ Goldsmith, Gilpin, 207; Jansen _v._ The Heinrich, Crabe, 296; Herron _v._ Schooner Peggy, Boe, Adm. 57. See also, Frontine _v._ Frost, 3 B. & P. 302; M'Donald _v._ Joplin, 4 M. & W. 284; The Two Sisters, 2 W. Rob. 125. See _contra_, Webb _v._ Duckingfield, 13 Johns. 390.

Footnote 2: See ante, p. 448, note 1.

Footnote 3: The Dawn, Ware, 486, 494; The Brig Osecola, Olecott, Adm. 450, 461; The Cadmus, Blatchf. & H. Adm. 139; Matthews _v._ The Cadmus, 2 Paine, C. C. 299.

**SECTION IX.**

-

OF THE CONTRACT OF THE SEAMEN.

**We would add the general remark, that the contract between a seaman and the owner of the ship, or the master as his agent, is essentially a contract of hiring and service. All that is implied in such contracts by the law generally belongs to their contract;4 as, on the one hand, the doing the work faithfully, obeying all proper orders and directions, and possessing and exerting the knowledge, skill, and care requisite for doing in a proper way the service undertaken ; and, on the other, good treatment, and due payment. All of these are somewhat modified by the peculiar nature of this contract, or relation, and by the statutes to which it has given rise. But so far as these modifications or qualifications do not apply specifically, we find the general principles of the law in force.**

**Seamen may be hired and payment promised in four ways. They may be employed for a certain voyage, to receive a certain**
OH. XII.\]CONTRACT OF THE SEAMEN. 477

proportion of the freight earned ;1 but we doubt whether this is ever practised in this country, unless, perhaps, in small coasting vessels. They may be hired for a certain voyage,2 or by the run, to be paid a round sum at the close; 8 and this is not very unusual. They may be hired on shares, which is in practice confined to whaling4 and fishing voyages,6 with some exception in the case of coasting vessels.6 But the fourth, which is by far the most common and well-established practice, is to hire them for a definite voyage or voyages, or sometimes for a definite period, on monthly wages.7

Footnote 1: The Sarah Jane, Blatchf. & H. Adm. 401 ; Anonymous, 1 Pet. Adm. 905, note.

Footnote 2: The Debrecia, 3 W. Rob. 33.

Footnote 3: The Louis Bertha, 1 Eng. L. & Eq. 665; Miller v. Kelly, Abbott, Adm. 564.

Footnote 4: Bamev, Coffen, 3 Pick. 115; Bishop p. Shepherd, 25 Pick. 492; Coffen v. Jenkins, 3 Story, 108; Joy. Allen, 2 Woodb. & M. 303; Allen v. Hitch, 2 Curtis, C. C. 147 ; The Sarah Jane, Blatchf. & H. Adm. 401 ; Reed v. Hussey, id. 525. The contract is one of hiring, and not of partnership. Wilkinson v. Frasier, 4 Exp. 182 ; Mair v. Glennie, 4 M. & S. 240 ; The Frederick, 5 Rob. Adm. 8; Baxter v. Rodman, 3 Pick. 435; Groizier v. Atwood, 4. 384 ; Bishop p. Shepherd, 38 41 492; Reed v. Hussey, Blatchf. & H. Adm. 525 ; Knight v. Parsons, U. S. D., C. Mass, 18 Law Reporter, 96. In the above case of Bamev v. Coffen, it was held that a usage that the master of a whaling ship should have a lion on the lays of the seamen for necessary clothing furnished during the voyage was reasonable in its nature, and that the lion was not lost by putting theoil marked with the ship's mark on a wharf, whence part of it was taken by one of the owners of the vessel but afterwards returned and delivered up to a general agent to be sold for the purpose of settling the voyage. In Jay v. Almy, 1 Woodb. & M. 262, it was held that the master of a whaling ship is not personally responsible for the wages of a seamen, when the vessel has been lost, and the cargo sent home. In Hussey v. Fields, U. S. D. C., Mass., 20 Law Reporter, 673, eight hundred barrels of oil had been sent home, and two thousand more taken when the ship put into a foreign port and was condemned and sold. The master settled with the men for their share on board and gave them orders on the owners for their proportion of the eight hundred barrels. The other portion was handed over to the consul to be sent home, when it was illegally seized and sold. The owners claimed, that as the crew were only entitled to share the net profits of the voyage, the portion they had received should be debited to them as against the whole amount of oil realized by the voyage. But the court held, that the captain, in making the disposition of the property, acted as the agent of the owners and not of the crew, and that the latter were entitled to their proportion of the eight hundred barrels.

Footnote 6: See Wait v. Gibbs, 4 Pick. 298.

Footnote 7: The Crusader, Ware, 437, 441.

Footnote 7: The Brig Cadmus v. Matthews, 2 Paine, C. C. 229 ; The Cadmus, Blatchf. & H. Adm. 139. See also, The Steambon Hudson, Olcott, Adm. 396. It is sometimes important to determine whether the contract is for the entire voyage at so much per month, or for that rate so long as the party remains during the voyage. In Taylor v. Laird, 1 H. & N. 266, 38 Eng. L. & Eq. 281, the following letter was written to the differ somewhat; but we give in the Appendix .the principal provisions enacted by pilot commissioners in pursuance of the power given them by the statutes of New York and Massachusetts, to one or other of which those of the other States generally conform.1 It will be seen that no persons can act as such, but those who are regularly commissioned. It is true that any person may undertake to guide his own or another's vessel anywhere; but he cannot claim the compensation allowed by law for this service unless he be duly appointed; nor can he claim any compensation for the service if he falsely pretended to have a commission, or as it is technically termed, a branch, and obtains the direction of the ship by this pretence; but he is liable not only civilly in damages, but criminally for any losses or injuries resulting from his falsehood. Every pilot age, R. M. Charit. 302, 314. But in Hobart v. Drogan, 10 Pet. 108, Mr. Justice _Shory_ hold that the United States courts had a concurrent jurisdiction with the State courts, although the pilot's compensation was established by the law of the State in which the action was brought. See also, The Anne, 1 Mason, 508 ; Dexter v. Bark Richmond, U. S. D. C., Mass., 4 Law Reporter, 20. The State laws are entitled to a liberal construction, as they are especially designed to promote the interests of commerce, and to protect the lives and property of the citizens engaged in it. Smith v. Swift, 8 Met. 332. The law of 1789, provides that pilots shall be governed by the existing laws of the States, and also by future laws, " until further legislative provision shall be made by congress." Since this act was passed the several States have enacted new laws, or modified the old laws to a great extent. If the power to regulate commerce belongs exclusively to Congress by the Constitution, Congress has no power to delegate that power to the several States, though it may adopt the acts which they have already passed, and they then become of force. But they are then acts of Congress and cannot be changed by the States, unless Congress has the power to adopt prospectively subsequent State laws. But _Marshall_, C. J., in Gibbons v. Ogden; 9 Wheat. 1, 518, declared that Congress cannot enable a State to legislate. We are therefore driven to the alternative, that either all the pilot acts passed by the several States since 1789, are void, or that the States have concurrent jurisdiction over the subject. And this latter view has been adopted by the Supreme Court of the United States in the case of Cooley v. The Board of Wardens of the Port of Philadelphia, 12 How. 299. Mr. Justice Curtis, in delivering the opinion of the court, said: "It is the opinion of the majority of the court that the mere grant to Congress of the power to regulate commerce, did not deprive the States of the power to regulate pilots, and that although Congress has legislated on this subject, its legislation manifests an 'intention, with a single exception, not to regulate this subject, but to leave its regulation to the several States. To those precise questions, which are all we are called on to decide, this opinion must be understood to be confined." Mr. Justice _Wayne_ delivered a very able dissecting opinion, which is worthy of an attentive perusal. 1 For decisions under the State statutes, see Tilley v. Farrow, 14 Mass. 17; Ayers v. Knox, 7 Mass. 306; Shepherd v. Mitchell, 10 Johns. 119; Heridia v. Ayres, 12 Pick. 334; Hunt v. Card, 14 Pick. 135; and cases _infra_.

OH. XIII.

- 482 ON THE LAW OF SHIPPING. \[B00E I.
- 1 Snell v. Rich, 1 Johns. 805.
- 2 In Aldrich v. Simmons, 1 Stark. 214, an action of case was brought against the owner of a vessel for the negligence of the pilot who was employed both by the owner and by the master. The pilot was called as a witness for the defendant who had released him. It was objected that the master should also have given a release. But _Ghba_, C. J., held that he was competent without a release, since the captain could not be responsible to the owner for the misconduct of the pilot. Bowcher v. Noidstrom, 1 Tann. 568, was a case where an action was brought against the master, not for the negligent set of the pilot, but for a vifil injury on his part, and it was held that the master was not liable. There is also a _dicum_ to the effect that a master is not liable in Yates v. Brown, 8 Pick. 24, per _Parker_, C. J. But in Dension v. Seymour, 9 Wend. 9, where an action was brought against the master of a steamboat for damage caused by a collision, and it was proved that at the time the master was on board but not on deck, and that the pilot was chosen by the owners, and at the time was at the wheel, and had the exclusive command of the vessel, the master was held liable. See also, United States v. Forbes, Crabbe, 558; United States v. Lynch, 2 N. Y. Legal Observer, 51.
- 3 In Aldrich v. Simmons, 1 Stark. 214, an action of case was brought against the owner of a vessel for the negligence of the pilot who was employed both by the owner and by the master. The pilot was called as a witness for the defendant who had released him. It was objected that the master should also have given a release. But _Ghba_, C. J., held that he was competent without a release, since the captain could not be responsible to the owner for the misconduct of the pilot. Bowcher v. Noidstrom, 1 Tann. 568, was a case where an action was brought against the master, not for the negligent set of the pilot, but for a vifil injury on his part, and it was held that the master was not liable. There is also a _dicum_ to the effect that a master is not liable in Yates v. Brown, 8 Pick. 24, per _Parker_, C. J. But in Dension v. Seymour, 9 Wend. 9, where an action was brought against the master of a steamboat for damage caused by a collision, and it was proved that at the time the master was on board but not on deck, and that the pilot was chosen by the owners, and at the time was at the wheel, and had the exclusive command of the vessel, the master was held liable. See also, United States v. Forbes, Crabbe, 558; United States v. Lynch, 2 N. Y. Legal Observer, 51.

CH. XIIIL\] WHO PILORS ARE AND WHAT THEIR DUTIES. 483

disability, or dangerous ignorance or mistake, to disobey him

and dispossess him of his authority.1 And although a master,

1 The question of the respective rights and duties of the pilot and master, has come up in several recent cases in England, in regard to the liability of owners of vessels for torts or acts of negligence of the pilot, it being held, under their pilots acts, as we shall presently see, that if the injury is occasioned by the negligence of the pilot alone, the owners are not responsible, but otherwise if there is negligence in the master, either in acts of commission or omission. In The Girolamo, 3 Hagog. Adm. 169, 176, the collision arose from the vessel's going on in a fog, and it was argued that the master was _in pari dolicto_ from not having interposed and brought the vessel up. Sir John

_Nickoll_ expressed a strong opinion in favor of this view, but left the point underdermined. In The Loehlbo, 3 W. Rob. 310, 1 Eng. L. & Eq. 651, it was held that is was solely the duty of the pilot to determine when the vessel should be brought up; and on appeal this decision was affirmed. Polko _v._ McAlpin, 7 Moore, P. C. 427.

The court said : " It was contended at the bar that, in this case, the impropriety of

sailing through the Downs was so manifest, that the captain ought to have refused in

spite of the pilot's opinion. But we cannot assent to this. It would be very dangerous

to hold, that there can be any divided authority in the ship with reference to the same

subject, and whether the ship was to anchor or to proceed, was a matter which we

think belonged exclusively to the pilot to decide." See also, The Maria, 1 W. Rob.

95. It is the duty of the pilot to select the time and place of coming to anchor. The

George, 2 W. Rob. 386; The Massachusetts, 1 W. Rob. 371. So when a vessel is

taking her berth, the time and manner of dropping the anchor are exclusively within

the proving of the pilot. The Agricola, 2 W. Rob. 10. And the manner of catting

it, preparatory to bringing up for the purpose of taking a berth is within the province

of the pilot. The Gipsey King, 2 W. Rob. 537. But in Griewold _v._ Sharpe, 2 Calif.

17, it was held, that it was the duty of the master or harbor master to select a proper

borth, and not the pilot's. But it is provided by statate that the pilot shall

might safely where the master of the vessel, or the harbor master direct. Compiled

Laws of Cal., ch. viil. $\\sharp$ 24. In The Diana, 1 W. Rob. 131, affirmed, Stuart _v._ Isemonger, 4 Moore, P. C. 11, it was held to be the duty of the master to see that a

good look-out was kept, although a pilot was on board. The court said : " Although

the directions of the pilot may be imperative upon them " (the master and crew), " as

to the course the vessel is to pursue, the management of the ship is still under the

control of the master." s. r. Netherlands S. B. Co. v. Styles, Privy Council, 40 Eng.

**L. & Eq. 19.** If two vessels are entangled together, and they can be separated by cutting away part of the rigging, it is the duty of the master to give orders about it. The

Massachusetts, 1 W. Rob. 371. And in The Christiana, 7 Notes of Cases, 2, affirmed

**Hammond v.** Rogers, 7 Moore, P. C. 160, it was held to be the duty of the master to

have the top-gallant and main royal yards sent down when this was necessary. When

the pilot is remula in his duty, it is difficult to determine with precision to what extent

the master is bound to Intefer. In the case of The Maria, 1 W. Rob. 95, 110, Dr. _Lashington_ said: " It would be a most dangerous doctrine to hold, except under most extra-

ordinary circumstances, that the master could be justified in interfering with the pilot in

his proper vocation. If the two authorities could so clash, the danger would be mat

tially augmented, and the interests of the owners, which are now protected both by

the general principles of law, and specific enactments from liability for the acts of the

pilot, would be most severely prejuded." In Netherlands Steambou Co. v. Styles

40 Eng. L. & Eq. 19, a case where, in consequence of a defective look-out, a barge * \[BooK I.\]

if present, is not answerable for any ordinary accident or injury arising from the pilot's default, he would be answerable if it arose from such act or default on the pilot's part, as, within the rule just stated, made it the master's duty to repossess himself of the control and direction of the ship.

Section II

How far owners are responsible for the TORTS OF PILORS.

The pilot is the servant of the owner. And if the owner is not obliged to take a pilot, the law only securing to him, and appointing a sufficient pilot if he wishes one, it follows that the owner is responsible for injuries resulting from the default of the pilot.1 In England it is provided by statute that no owner or was sunk by a swell caused by the steamer, the court said that if the look-out had informed the pilot, of the barge, and he had insisted on going on, the owners would have been discharged. See also, Pollok v. McAlpin, supra; The Christina, 3 W. Rob. 27. But, " it is the duty of the master to observe the conduct of the pilot, and in the case of palpible incompetence, whether arising from intoxication, or ignorance, or any other cause, to intropose his authority for the preservation of the property of his employers." The Duke of Manchester, 2 W. Rob. 470, 480. Affirmed on appeal. Sherby v. Hibbert, 6 Moore, P. C. 90. See also, The Christina, 7 Notes of Cases, 3; Hammond v. Rogers, 7 Moore, P. C. 160; The Joseph Harvey, 1 Bob. Adm. 806, 811. If the pilot goes below for a few minutes, leaving the second mate in command, with general directions now to steer, and a collision occurs partly through the fault of this officer, the ship is responsible. The Mobile, Privy Council, 20 Law Reporter, 172. In The Lochlibo, 8 W. Rob. 329, 1 Eng. L. & Eq. 651, 656, it was held that if there was a hail from the look-out to alter the haim, and the pilot altered it without exercising his own judgment, the owners of the vessel would be liable. Speaking of interference on the part of the master or crew, Dr. \_Lawlington said: " I should never go the length of saying that the mere suggesting to the pilot on the part of the master to take in this sail, or otherwise to keep as near the South Sand light, and vice verad, or to bring the ship up, was interfering, in the legal acceptation of the term, with the duties of the pilot; illegal interference is of a different description. If, for example, in this case the bostawian had called out to the men below to straboard the helm, or if the master called out to port the helm, it would be interference, but it would not be interference to consult the pilot, or to suggest to him that the measures pursued were not proper, or that other measures would in all probability be attended with greater success."

1 The Attorney-General v. Case, 8 Price, 301; The Neptune, 1 Dods. 467; The
Of. XVII.\] 0WHERE RESPONSIBLE FOR TORTS OF PILOTS. 485

master of any ship or vessel shall' be answerable for any loss or damage which shall happen to any person or persons, by reason of any neglect, default, incompetency, or incapacity of any licensed pilot in charge of the vessel in pursuance of the provisions of the act.\[1\] It was formerly held, under this statute, that if there was a pilot on board, and there was a neglect in the navigation of the vessel, it was _primal facie_ attributable to him.\[2\] But the rule is now well established, that as the owners claim an exemption from a general liability by reason of a special legislative enactment, the burden is on them to show in order to bring themselves within the provisions of the enactment, that the pilot was alone in fault.\[8\] The eighty-ninth section

Transit, cited 1 W. Rob. 50; The Eden, 2 W. Rob. 442; Yates v. Brown, 8 Pick. 23;

Basy v. Donaldson, 4 Dall. 206; Williamson v. Price, 16 Mart. La. 399; Pilot Boat

Washington v. The Sahala, U. S. D. C., S. Car., April, 1831; The Bark Lotty,

Olcott, Adm. 329; Smith v. The Crebo, 2 Wallace, C. C. 485; The Carolus, 2 Curtis,

C. C. 69. In this case the vessel was going out of the harbor with a pilot on board

who was employed by the owner of the vessel, and the vessel was held liable. Mr.

Justice Curtis said: " If the pilot in charge of this ship had not been selected and employed by the owner, but had been received by the master in obellegence to a requisition

of law, enforced by a penalty, then, under the authority of Carruthers v. Bydebotham,

4 M. & S. 77; The Maria, 1 W. Rob. 95; and The Agricola, 2 id. 10, the owners

would seem not to be liable for the misconduct or mismanagement of the pilot. But

in this instance the pilot has testified that he was employed by the owner of the ship;

and no such case is made by the answer as would compel an owner to receive a pilot on board under the statute laws of Massachusetts."

1 6 Geo. 4, c. 125, 55. In England it is well settled that if the pilot is alone in

fault the owners are not liable. Bennet v. Moita, 7 Taunt. 258; Ritchie v. Bowsfield,

id. 309; M'Intosh v. Slade, 6 B. & C. 657; The Christiana, 3 Bagg. Adm. 188; The

Protector, 1 W. Rob. 45; The Maria, id. 95; The Duke of Sussex, id. 270; The

Vernon, id. 316; The Agricola, 2 W. Rob. 10; The Fama, id. 184; The George, id. 388; The Staarivar, id. 407; The Atlas, id. 502; The Gipsey King, id. 537;

Bennet v. Moita, 7 Taunt. 258; The Christiana, 2 Hagg. Adm. 183; The Vernon,

1 W. Rob. 316.

The Protector, 1 W. Rob. 45; The Diana, 1 W. Rob. 181, affirmed Stuart v.

Isemonger, 4 Moore, P. C. 11 ; The Ripon, 6 Notes of Cases, 945;the Christiana, 7

Notes of Cases, 2, affirmed Hammond v. Rogers, 7 Moore, P. C. 160. See also, The

Massachusetts, 1 W. Rob. 371; Rodrigues v. Melhuish, 10 Exch. 110, 28 Eng. L. &

Eq. 474; The Mobile, Priy Connell, 90 Law Reporter, 172; Netherlands S. B. Co. v.

Stylos, Priy Connell, 40 Eng. L. & Eq. 19. In The Staarivar, 2 W. Rob. 407, the

plot had been in the constant employ of the owners for fifteen years, but as he was

alone in fault the owners were held not liable. In The Christiana, appru, the pilot had

done his duty by bringing the vessel to the Downs, where she anchored, but as he

could not leave on account of bad weather the owners were held entitled to the legal

protection which his presence gave them. See also, Lacey v. Ingram, 6 M. & W. 309.

The 87th section of the 6 Geo. 4, c, 125, provided that noticing in the act contained
41 " of this statute provides that'the act shall not extend to ports in relation to which special provisions have been made in any particular act or acts of parliament. It would clearly seem that by this section the general act does not apply to the ports of Liverpool and Newcastle, and it has been so held.1 The Liverpool and Newcastle acts contain no clause similar to that in the general statute of 6 Geo. 4, but provide merely, that a master shall take a pilot on board or shall pay pilotage. This is similar to our own statutes, and the question arises whether the pilot can be said to be taken on board by such compulsion that the owner is not liable for his acts. In England the weight of authority is clearly in favor of exonerating 'the owner.2 But in this country the question does not seem to be fully determined.3

should extend to, affect, or impair the jurisdiction of the High Court of Admiralty., Sir John Nicholl construed this to mean that the act only applied to the common law courts, and that the vessel was still liable in _rem_ although there was a pilot on board. The Girolamo, 3 Hagg. Adm. 169. See also, The Baron Holberg, 3 .Hagg. Adm. 244; The Glaidator, id. 340; The Eoldices, id. 367 ; Smith v. The Creole, 2 Wallace, C. C. 485, 518. But it is now well settled in England that the clause above cited means that the Court of Admiralty shall retain its jurisdiction to administer the law as altered by the act, and therefore, the vessel is not liable if the pilot is alone in fault. The Protector, 1 W. Rob. 45, 52, and cases supra. * Attorney-General v. Case, 3 Price, 302. The King's Bench, in Carruthers v. Sydeboham, 4 M. & S. 77, were of a different opinion. The Supreme Court of the United States, in a case of collision happening in the port of Liverpool between 'two American vessels, seemed to consider it settled by the English admiarty cases that the owners were not liable if there was a pilot on board. Smith v. Condry, 17 Pet. 20, 1 How. 28. It is to be observed, however, that the cases cited are The Maria, 1 W. Rob. 95; The Protector, id. 45; The Diana, id. 131. The last two cases were decided under the general act, and are, therefore, not authorities to the point that the 55th section applies to the Liverpool act. In The Maria, supra, which was a case under the Newcastle act, which is similar to the Liverpool, Dr. _Lashington_ said he doubted very much whether he could apply the 55th section of the general act to the case of a Newcastle pilot. He expresses the same doubt also in the subsequent case of The Agricola, 2 W. Rob. 10. * The Court ofKing's Bench, in Carruthers v. Sydebotham, 4 M. & S. 77, and the Court of Exchequer, in Attorney-General v. Case, 3 Price, 302, have arrived at opposite conclusions in regard to the construction of the Liverpool act. In the former case it was held, that the taking a pilot on board was compulsory, and the owners, therefore, were not liable. In the latter case a different opinion was expressed, but the facts of the case did not call for it. The vessel was lying at anchor in the river Mersey. By the 31st and 34th sections of the Liverpool act, it is provided, that any vessel, whilst lying at anchor, may require a pilot to remain on board, upon payment of five CH. XIII.\]OWNERS RESPONBABLE FOR TORTS OF PILOTS. 487

If a ship neglects to take a pilot that offers, the owners will be answerable in damages to shippers or others, for any loss which may happen by reason of their neglect or refusal.\[1\] And pilots themselves are answerable like other persons for any harm which they may do, by negligence or default.\[2\]

shillings a day for his services. The pilot was-retained on board, and the owners were held liable. This case, therefore, is not an authority against the construction of the act, as laid down in Carruthers v. Sydebotham. See also, Rodrigues v. Melhuish, 10 Exch. 110, 28 Eng. L. & Eq. 47. It was held, in The Montreal, 24 Eng. L. & Eq. 580, where a pilot had been taken on board under the Liverpool act to pilot the vessel to the Queen's Docks at Liverpool, and had subsequently anchored in the river Mersey, and came into collision the next day while proceeding up the river, that the vessel was not liable, the pilot being alone to blame. And in The Maria, 1 W. Rob. 95, and The Agricola, 7 W. Rob. 10, cases under the Newcastle act, it was hold, that if the master was obliged to take a pilot on board or to pay full pilotage, such a taking was by complusion and the owners were not liable. In both these cases the vessels were homeward bound.

1 See M'Millan v. Union Ins. Co., 1 Rice, 248 ; Keeler v. Fireman's Ins. Co., 8 Hill, 250. And in an English case, where a vessel, seized on justifiable grounds, as appeared by the condemation of a part of her cargo, was lost by the neglect, of the captors to take a pilot on board, the Court of Admiralty decreted restitution in value against them. The William, 6 Rob. Adm. 316. But if no pilot can be obtained, and the most judicious course is for the master to attempt to go into port without one, the owners will not be responsible for a loss happening in consequence of his so doing. Vanyckle v. The Sch. Thomas Ewing, U. S. D. C., Penn., 3 Law Reporter, 449.

2 Yates v. Brown, 8 Pick. 24 ; Heridia v. Ayros, 12 id. 534 ; Campbell v. Willamward bound, so that the master would have been obliged to have taken the first pilot that offered, or have paid full pilotage, that the owners of the vessel would not have been liable for the collision. Let us see then whether this opinion is repugnant to the American authorities. In Tates v. Brown, 8 Pick. 23, the vessel was outward bound. In Bussy r. Donaldson, 4 Dall. 206, and in Williamson v. Price, 16 Mart. 399, it does not appear which way the vessels were going. In the case of The Bark Lotty, Olcott, Adm. 329, it was contended that the exemption from liability continued after the vessel was moored to the wharf by the pilot. But the court, very properly, decided otherwise. Smith v. The Croole, 2 Wallace, C. C. 485, was also a case of an outward bound vessel. This case was argued at great length, and a very learned opinion pronounced by Mr. Justice Grier, to the effect that the Pennsylvania act, which provides that every vessel shall be obliged to receive a pilot, or in default thereof, shall pay a sum equal to half pilotage, is not compulsory. Such also, is the opinion of Mr. Justice Sory; Story on Agency, 456 a, note 1. In Griswold v. Sharpe, 2 Calif. 17, it was said that when a vessel is properly in charge of a licensed pilot, the owner is not responsible for damages which may ensue for his negligence or misconduct. But in that case, the master being in fault, the owners were held liable. It will thus be seen that there is no decision in opposition to the suggestion thrown out by Mr. Justice Curtis, though it cannot be denied that the principles and reasonings upon which the authorities are based, are against it.

488 ON THE LAW OF SHIPPING. \[BOOK L\]

son, 2 Whatr. Dig. 680. See also, Slade $v$. The State, 2 Carter, 33. In Lawson $v$. Dunlin, 9 C. B. 54, an action was brought against a pilot for negligently running into the ship of the plaintiff. The pilot, at the time, was in command of another vessel. He was held liable. In Stort $v$. Clements, Peako, 107, the general rule was admitted, but as the collision took place in consequence of the pilot steering the vessel according to the direction of the officer in charge, he was not held responsible. If a steamboat is hired for the purpose of towing a vessel, to which she is fastened, and both are under the direction of a licensed pilot, if the steamboat is injured in the course of the navigation, the owner of her is not entitled to damages, unless it was caused by the undone negligence of the pilot. Reverse $v$. The Ship Constitution, Glipin, 579.

If a pilot refuses to board a vessel he is liable for damages civilly and criminally. Commissioners of Pilotage $v$. Low, R. M. Chavli, 298.

CH. XIV.\] MATERIAL MEN AND THEIR LIENS. 489

## Chapter Xiv.

Of Material MEN AND THEIR LIENS.

The persons employed to repair the ship, or in general, to do any work about her, and those who furnish for her use supplies of things necessary to her equipment and safe navigation, are known in the law of shipping, as material men; they are defined in Jacobsen's Sea Laws as "the persons who furnish and construct the different materials of a ship;"1 but a somewhat broader sense is usually given to this phrase, and Lord _Slowell_, in one case, cited's report of Sir Leoline Jenkins, made to the king, in which 'that learned judge said : " Those are commonly called material men, whose trade it is to build, repair, or equip ships, or to furnish them with tackle and provision necessary in any kind."2 Those who build a ship or who furnish supplies to a ship that is building, are not, however, now considered as having a lien upon it by the maritime law, as will be seen presently. It has been held, that a ship broker who obtains a crew for a vessel has a lien on her for his services and for advances for their wages.8 And a person who lends money for the use of a foreign ship has the same privilege as a material man.4 But stevedores have no lien _in rem_ for their services in loading a vessel.5 Nor can they sue _in personam_ for their services, in admiralty.6 They may, however, proceed against

**490 ON THE LAW OF SHIPPING.** \[BOOK I.\*\*

\*\*remnants in the registry.**1** \*\*And a person employed to visit a vessel from time to time to see to her safety, ventilate her, and try her pumps, etc., cannot sue in the admiralty to recover compensation for his services, but he can maintain a suit if he navigates the vessel from one anchorage to another.**2** \*\*And a person hired to scrape the bottom of a vessel preparatory to her being coppered, cannot sue in admiralty.**3** \*\*So the expense of compressing a cargo for the purpose of more convenient stowage, the cost of advertising the vessel for sea, portage, commissions for procuring freight, and wages of lightermen, do not give a lion on the ship.**4** \*\*Nor has a ship broker any lion on the vessel for services in drawing a contract between the owner of horses shipped as part of the cargo, and persons who were to accompany the vessel and take charge of the horses, as hostlers.**5** \*\*And the general agent of the owners of a steamboat cannot sue in admiralty for the balance of an account for money expended in paying for supplies, repairs, and advertising of the boat, or for his commissions on the disbursements.**6** \*\*That is deemed necessary which a careful and prudent owner would supply.**7** **By the general maritime law, and the civil law from which many of its provisions are derived, all material men have a lion**CLXIV.\] MATERIAL MEN AND THEIR LIENS. 491 on the ship.1 This was asserted also, and enforced in the admiralty courts in England, until they were compelled to abandon this jurisdiction in the reign of Charles II.2 Since then, this lien has been confined in that country (until a statute passed in 1840 gave a lien to material men generally),8 to the case of a ship-wright or other person to whom possession of the ship has been given for the purpose of repair; he might retain his possession for his Wages or charges as any other workman may any chattel (a tailor, clothing; a watchmaker, a watch;) by the common law of bailment.4 This is undoubtedly in force in this country.8 But our admiralty courts claim and exercise a full jurisdiction over all these claims and questions, and give to all material men a lien on the ship; provided the supplies were necessary and could be obtained only by a credit on the vessel.8

This lien or "privilegium," by the civil law and the general maritime law, extends to all ships without any distinction between foreign and domestic vessels.1 Here, however, it is otherwise ; and there is no lien on domestic ships, unless it is given by the law of the State in which the supplies are furnished.2 For the purpose of this distinction, each of our States is considered foreign to the rest; so that material men in New York would there have a lien in admiralty for work done on a Philadelphia ship.3 So CH. XIV.\] MATERIAL MEN AND THEIR LIENS. 493

far as this jurisdiction belongs to the admiralty courts and is practised there, we shall not treat of it at length until we reach this topic in our chapters on Admiralty. But many of our States have, by statute, given this liea to material men against ships in their home ports.1 We must refer to these statutes for their es pecial provisions, which do not, however, generally differ very much from the rules of admiralty in relation to the same lien. We will here state some of the results of adjudication upon them.

In New York the lien of the builder attaches as soon as the structure assumes the form of a ship.1 The statute does not apply to canal boats.2 But it has been held to apply to an old steamboat which was fitted up as a theatre, and used as such at different river ports, and the vessel was held liable though some of the supplies were furnished for the theatre.8 A debt for goods furnished is not contracted till the goods are actually delivered, and an agreement to deliver is not enough.4 If the creditor permits the vessel to sail without enforcing his lien he loses it, but if she sails on a trial trip merely, for the purpose of testing her machinery, this is not a departure within the statute.5 So, if she leaves the State in a fraudulent manner, at a time when she was not legally liable to arrest.6 Where repairs were put on a boat running from New York to Albany, at different times under one general order to repair the boat when necessary, it was held that the contract was not an entire or indivisible one, but that each job constituted a separate debt, and that every trip of the boat was a departure within the statute.7 Wood for fuel

Footnote 165: So also, The Civil Code, art. 2748, and the case of Peyroux v. Howard, 7 Put. 324, 341.

Footnote 1: Phillips v. Wright, 5 Sandf. 342.

Footnote 2: Many v. Noyes, 5 Hill, 34. But special provision is made for canal boats by the Act of 1888, c. 347.

Footnote 3: PendIGO v. Franklin, 3 Seld. 508, affming the same case, Franklin v. PendIGO, 3 Sandf. 572.

Footnote 4: Velman v. Thompson, 8 Comat. 488; The Alida, Abbott, Adm. 178.

Footnote 5: Hancox v. Dunning, 6 Hill, 494.

Footnote 6: The Steamboat Joseph E. Cofleo, Cloott, Adm. 401. See also, Nicholson v. May, Wright, 660. By the statute under which these decisions were made, the debt ceased to be a lien at the expiration of twelve days after the day of departure to a port within the State. And in all cases the lien was to cease immediately after the vessel's leaving the State. This is amended by the Act of 1885, so that the lien remains in force till the expiration of sixty days after the return of the vessel to the port at which she was when the debt was contracted, but in all cases the lien ceases immediately after the vessel leaves such port, unless within ten days after such departure, a specification of the lien is worn to and filed in the county clerk's office of the county where such lien is created.

7: Bockefeller v. Thompson, 2 Sandf. 395; The Alida, Abbott, Adm. 165. The same rule was laid down in a suit against the same boat, for coal furnished at different times under one agreement. Abbott, Adm. 173.

CH. XIV.\] MATERIAL MEN AND THEIR LIENS. \[495\] has been held in New York not to be included within the term " supplies." 1 But in Illinois the point has been determined the other way.2 And in New York it has been held to come within the term " stores." 3 In Maine the lien is on the vessel while building, and continues for four days after she is launched. If the materials are sold on time, and this time is not elapsed at the expiration of the four days, the lien is gone.4 The materials must be actually used in the construction of the vessel, and it is not sufficient that they were furnished under a representation that they were to be used.5 The statute does not embrace tools or other articles used by the workmen in doing their work, but only materials which go into the ship and make part of it when finished.6 Nor has a person a lien who procures insurance on a

**496**: **ON THE LAW OF SHIPPING.** \[BOOK I.\*\*

**cargo of timber purchased for and used in the construction of a ship, he being no otherwise interested in the timber. But it would seem that he would have the lion, were he the furnisher of the materials.1**

**The Massachusetts statute of 1848, provided that if the vessel sealed from one port in the State to another, the lion should cease at the expiration of twenty days after the day of departure ; and in all cases should cease after the vessel's arrival at a port out of the Commonwealth. In one case the vessel sailed from Newburyport for Boston, but in consequence of head winds and a dense fog, put into Portsmouth in New Hampshire, and it was held that the lion was lost.2 The statute of 1855 gives a lion to certain persons when money is due to them by reason of any contracts express or implied with the** _owners_ **of any ship or vessel, etc. It has been held that the word** "owners" means special as well as general owners, so that a person repairing a vessel under a contract made with a special owner has a lion.3\*\*

**Under the third section of the statute providing for the mode of enforcing the lion in the State court, it has been held that the petition cannot be filed until the sum has remained unpaid sixty days after it was payable.4 A trench excavated in front of the**

Footnote 1: The Kearsarge, Ware, 2d ed. 546, 549. Mr. Justice Ware, in this case said : "Another item in the account objected to, is a charge of insurance paid by the libelants on a cargo of timber procured for the ship and used in her construction. Had such a charge been made by the vendor and furnisher of the materials, it might perhaps, like the freight, be allowed as part of the cost of materials at the place of delivery, unless by the bargain they were to be delivered at the ship-yard of the builders, and then the insurance, as well as freight, would be involved in the price. But the insurance here was procured by a stranger, and if he can claim in this libel, it must be in the character of a material man. But the mere payment of insurance on a cargo of lumber, though actually furnished for the ship and used in the construction, cannot give him the character of a furnisher of materials in the sense of the law."

Footnote 2: The Sam Slick, 2 Curtis, C. C. 480, reversing the decrero of the District Court, Hooper $v$. The Sam Slick, 18 Law Reporter, 162.

Footnote 3: Hawes v. Bark James Smith, U. S. D. C., Mass., 1858. The owner of the vessel in this case made a contract of sale by which the vendees were to have possession of the vessel, and if not paid for within a certain time, possession was to revert to the owner. While in the possession of the vendees repairs were put upon the vessel, and it was held that these constituted a lion upon her which was enforced after the original owner had resumed possession in consequence of a breach of the condition.

Footnote 4: Tyler v. Currier, S. J. C., Mass., 20 Law Reporter, 657. See also, as to the proper mode of serving the petition, Patrick v. Tafts, Superior Court, Suffolk Co., Mass., 21 Law Reporter, 163.

**The Massachusetts statute of 1848, provided that if the vessel sealed from one port in the State to another, the lion should cease at the expiration of twenty days after the day of departure ; and in all cases should cease after the vessel's arrival at a port out of the Commonwealth. In one case the vessel sailed from Newburyport for Boston, but in consequence of head winds and a dense fog, put into Portsmouth in New Hampshire, and it was held that the lion was lost.2 The statute of 1855 gives a lion to certain persons when money is due to them by reason of any contracts express or implied with the** _owners_ **of any ship or vessel, etc. It has been held that the word** "owners" means special as well as general owners, so that a person repairing a vessel under a contract made with a special owner has a lion.3\*\*

Footnote 4: The Kearsarge, Ware, 2d ed. 546, 549. Mr. Justice Ware, in this case said : "Another item in the account objected to, is a charge of insurance paid by the libelants on a cargo of timber procured for the ship and used in her construction. Had such a charge been made by the vendor and furnisher of the materials, it might perhaps, like the freight, be allowed as part of the cost of materials at the place of delivery, unless by the bargain they were to be delivered at the ship-yard of the builders, and then the insurance, as well as freight, would be involved in the price. But the insurance here was procured by a stranger, and if he can claim in this libel, it must be in the character of a material man. But the mere payment of insurance on a cargo of lumber, though actually furnished for the ship and used in the construction, cannot give him the character of a furnisher of materials in the sense of the law."

Footnote 5: The Sam Slick, 2 Curtis, C. C. 480, reversing the decrero of the District Court, Hooper $v$. The Sam Slick, 18 Law Reporter, 162.

Footnote 6: Hawes v. Bark James Smith, U. S. D. C., Mass., 1858. The owner of the vessel in this case made a contract of sale by which the vendees were to have possession of the vessel, and if not paid for within a certain time, possession was to revert to the owner. While in the possession of the vendees repairs were put upon the vessel, and it was held that these constituted a lion upon her which was enforced after the original owner had resumed possession in consequence of a breach of the condition.

Footnote 7: Tyler v. Currier, S. J. C., Mass., 20 Law Reporter, 657. See also, as to the proper mode of serving the petition, Patrick v. TCH. XIV.\] MATERIAL MEN AND THEIR LIENS. **497**

lannching ways of a ship for the purpose of deepening the water, does not make part of the launching ways within the statute.1

In Pennsylvania the lien continues until the vessel goes to sea, although the owner becomes bankrupt before her departure.2 Among others mentioned in this statute are ship-chandlers, to whom a lien is given for articles used in the fitting, furnishing, and equipping of a vessel; and it has been held that every debt contracted with a ship-chandler for articles or materials used for any of these purposes is within the law.8

If a barge is necessary to a steamboat, its hire to it will be regarded as a material furnished for its equipment.4 And, in some States, money loaned to a person to enable him to build a vessel, gives the lender a lien ; in others it does not.5

Footnote 2: The author is grateful to the anonymous referee for his careful reading of the manuscript.

Footnote 3: The author is grateful to the anonymous referee for his careful reading of the manuscript.

Footnote 4: This work was supported by the National Science Foundation of China under grant No. 10000100010001000010 In Ohio, if a person has engaged to build and deliver a boat at a future day at a specific price, and has delivered it accordingly, he cannot afterwards proceed against it in the hands of a third person, to recover for materials, supplies, and labor, expended in building it.1

In Michigan there is no lion for supplies furnished while a vessel is being built.2 In Missouri, if the supplies are furnished on the order of the steward, engineer, or mate, with the knowledge or consent of the master, they are considered as ordered by him.8

This lion extends beyond mere repairs ; certainly to the alterations of a vessel,4 and perhaps to its reconstruction ; but not to its original construction,6 unless the statute includes ship-build-
OH. XIV.\] MATERIAL MEN AND THEIR LINRS. 499

ing.1 These statute liens take precedence of the claims of all other creditors.3 But a laborer employed in general work by a shipwright or mechanic engaged upon the vessel, and who is

When the case came before the circuit court, it was dismissed for want of jurisdiction, on the ground that the contract was not one of a maritime nature. The decision was given by _Clifford_, J., September 6, 1858.

1 The lien given by a State statute to persons building a vessel, has been enforced in admiarity in numerous cases. The Calisto, Daveis, 29, s. c. nom. Read v. The Hull of a New Brig, 1 Story, 244; The Hull of a New Ship, Daveis, 199; The Young Mechanic, Ware, 2d ed., 535, 2 Curtis, C. C. 404; The Kearsarge, Ware, 2d ed., 546, 2 Curtis, C. C. 401; Partion v. The Hull of a New Ship, Ware, 2d ed. 556, 2 Curtis, C. C. 416; Sewall v. The Hull of a New Ship, Ware, 2d ed. 565; Davis v. A New Brig, Gilpin, 473. And in The Ship Harriet, Oloott, Adm. 299, and The Ship Harvest, id. 271, services which were not maritime in their nature, were enforced in admiarity, as they were made a lien on the vessel by the State law. But in the above case of the People's Ferry Co. v. Beers, 30 How. 393, the court said :

" It is proper, however, to notice the fact, that district courts have recognized the existence of admiarity jurisdiction _in rem_ against a vessel to enforce a carpenter's bill for work and materials farlished in constructing it, in cases where a lien had been created by the local law of the State where the vessel was built. Thus far, however, in our judicial history, no case of the kind has been sanctioned by this court." Mr. Justice _Betts_ has acted upon the above suggestion in a late case by holding that the lion given by a State statute for building and equipping a vessel could not be enforced in admiarity. The Sch. Coerning, U. S. D. C., N. Y., 1858, 21 Law Reporter, 843. A contrary decision was given in the case of The Bervene Center No. 1, U. S. D. C., Ohio, 21 Law Reporter, 881. An action was brought _in rem_ by a person furnishing materials to the original contract, under the statute of Ohio, which gives a lien to parties building a vessel, and to those who furnish materials for building. The assignees of the original builders intervened as claimants, alleging a lien by virtue of their contract with the owner. The court held that as the contract between the builders and owners was not a maritime contract no lien existed, in their favor; that there was no priority of contract between the libellant and the owner, but, for the supplies furnished to the builders a lien was given by the State law which could be enforced in admiarity. See post, p. 501, n. 2.

- The Hull of a New Ship, Daveis, 199; Sewall v. The Hull of a New Ship, Ware, 2d ed. 565; The Kearsarge, 2 Curtis, C. C. 421, 423; Dudley v. The Steamboat Superior, U. S. D. C., Ohio, 3 Am. Law Reg. 622. In The Young Mechanic, Ware, 2d ed. 535, 2 Curtis, C. C. 404, the lien of the material man was preferred to the claim of one who had lent money to the owner for the purpose of building the vessel, and had taken a mortgage from the owner. And this, though the person who employed the libellant was dead, insolvent, and by the laws of the State such a claim was not a preferred debt. See also, The Revenue Center No. 1, U. S. D. C., Ohio, 21 Law Reporter, 281. In Reeder v. Steambing George's Creek, U. S. D. C., Maryland, 3 Am. Law Reg. 232, the vessel ran between New York and Baltimore. In the summer of 1854 repairs were put upon her in Baltimore. In December, 1853, she was mortgaged by her owners to parties in New York to secure the payment of $30,000. This mortgage was duly recorded in the office of the collector of customs at the port of New York where the vessel was enrolled, and also in the office of the register of 500 ON THE LAW OF SHIPPING. \[Book I.

employed sometimes on the vessel and sometimes elsewhere, has no lien on the vessel for that part of his labor which is performed upon it.1 The lien given by the maritime law or by a

consequences for the city of New York. On the 17th of October, 1854, a decree was passed by the superior court for the city of New York for the sale of the vessel to pay the mortgage debt. This libel was filed on the 18th of the same month. The court held that the lion of the material man might still be enforced. The principle recognized in this case that a vessel may be proceeded against, though in the hands of a _bond fide_ purchaser, is well settled. The Schoauer Mario, I Story, 68, 72 ; The Barque Chusan, 2 id. 455; Cole v. The Atlantic, Crabbe, 440. In the Barque Chusan, Mr. Justice _Sloy_ said : " The lien, however, which is given by the maritime law on the ship, although it is, or may be treated as, a permanent or abiding lien upon the ship, until the debt is paid, as between the original owners, and the material men, and their personal representatives, is liable to a very different consideration, when the ship has passed into the hands of a _bond fide_ purchaser, for a valuable consideration, without notice of the lien. In respect to such a purchaser, the lien must be enforced within a reasonable time after the debt is due, and the credit, if any, has expired ; otherwise a court of admiralty will protect him, as a court of equity would do, against the claim as stale and inequitable. What will consitute a reasonable time, must depend upon the circumstances of each particular case, and is not a point susceptible of any definite or universal formality of interpretation." It is difficult to reconcile the cases where the question of the loss of the lien by delay has arisen. See Reader v. Steambhip George's Creek, and Cole v. The Atlantic, _apra_, on one side, and Leland v. The Medora, 2 Woodb. & M. 92, 99; Bryant v. Brig Lillie Mills, U. S. D. C., Mass., 18 Law Reporter, 494; The Utility, Blatchf. & H. Adm. 218; on the other side. If a creditor advances money to the ballder on a mortgage of the vessel, he succeeds to the place of the owner, and takes an interest in the vessel subject to the lien of the material men. The Kearsare, Ware, 2d ed. 546.

1 The Calisto, Daveis, 29; s. c. Read v. The Hull of a New Brig, 1 Story, 244. The question has been considerably discussed whether sub-contractors, and day laborers, not employed by the owner, master, or consignee, have a lien for work done, or materials furnished at the request of a person employed by the owner, master, or consignee. In Maine it is held that such a lien exists, in favor of a person performing labor on a vessel. Purinton v. The Hull of a New Ship, Ware, 2d ed. 556, 2 Curtis, C. C. 416. But a doubt has been intimately whether a sub-contractor furnishing supplies would have the same right. The Young Sam, 20 Law Reporter, 608, 610, per Curtis, J. In the State courts it has been held that a sub-contractor cannot sue the owner and attach the vessel, but he should sue the person who employed him, and attach the vessel. Ames v. Swett, 33 Maine, 479; Atwood v. Williams, 40 Maine, 409. In Doe v. Monson, 33 Maine, 430, an action against the contractor, and the owner as trustee, was sustained. In Smith v. Steamer Eastern Railroad, 1 Curtis, C. C. 253, is was held that no lien existed in such a case under the Massachusetts statute of 1848. But in a subsequent case before Mr. Justice _Sprogue_, it was held that that decision did not apply to the case of a person furnishing materials to the builder of a ship, he not knowing that the vessel was owned by another party. Hooper v. The Sam Slick, U. S. D. C., Mass., 18 Law Reporter, 162. In Smith v. Steamer Eastern Railroad, the repairs were made on an old vessel known to be owned by parties other than the contractors. The Act of 1835, ch. 231, has put the matter at rest by providing that a CH. XIV.\] MATERIAL MEN AND THEIR LIENS. 501 State statute may be enforced against the vessel though she is owned by government, in the same way as if a private citizen was the owner.1

All persons having a lien on a ship by a State statute, may enforce it in the State courts; and there have been many decisions permitting the enforcement of this lien in the admiralty courts sitting in that district.2 But as the maritime law does not give a lien, for repairs or supplies furnished to a domestic ship, the courts of admiralty can enforce the lien only because the statute gives it; and in applying the statute and enforcing the lien, they would doubtless be governed by the terms of that

\*\*Iien shall exist in all such cases. In the case of Oti s. Brig Whitaker, U. S. D. C., Mass., 18 Law Reporter, 496, which seems to follow Smith v. Steamer Eastern Railroad, it does not appear whether the services were rendered before or after the passing of the statute, and the vessel was proceeded against as a foreign vessel. But there can be no doubt that in a case under the statute of 1855, under similar circumstances, a lien would exist. The lien exists in Ohio, Webster v. Brig Andes, 18 Ohio, 187. So in Kentucky, unless the owner of the vessel has paid the person who employed the sub-contractors. Stephens v. Ward, 11 B. Mon. 337. But there is no lien in New York, Pennsylvania, or Indiana. Hubbell v. Denison, 20 Wend. 181 ; Harper v. The New Brig, Gilpin, 536; Southwick v. Packet Boat Clyde, 6 Blackf. 148. And in Childs v. Steamboat Brunette, 19 Mo. 518, it was held that a ship-carpenter who contracts to repair a boat and furnish materials is not an agent within the meaning of the act concerning boats and vessels, and cannot create a lien on the boat in favor of a party from whom he purchased materials. 1 The Revenue Cutter No. 1, U. S. D. C., Ohio, 21 Law Reporter, 281. In this case, Wilson, J., said : "If the property is legally incumbered by mortgage or other liens, the transfer of title does not divest it of those incumbraces. In this respect the government stands upon precisely the same-footing as that of individuals. In controversies in courts of justice, involving the rights of property, it has no ruminants of title sanctified by avercterighty which should exempt it from the rules of law governing individuals in like cases."

**2**: Peyroux v. Howard, 7 Pet. 324 ; Weaver v. The S. G. Owens, 1 Wallace, Jr. 358 ; Sutton v. The Albatross, 2 id. 327 ; Raymond v. Schooner Ellen Stewart, 5 McLean, C. C. 269 ; The Ferax, U. S. D. C., Mass., 12 Law Reporter, 183 ; Phillips v. The Thomas Scattergood, Gilpin, 7 ; Hooper v. The Sam Slick, 18 Law Reporter, 162 ; The John Walls, Jr. 12 id. 24. But see ante, p. 498, n. 5. The 12th Admiralty rule of the Supreme Court predicts that there shall be a proceeding in ren in cases of domestic ships, where by the local law a lien is given to material men for supplies, repairs, or other necessaries. The general doctrine, then, that the admiralty has jurisdiction where the State law gives a lien, must be taken as subject to this rule, that the party claiming the lien must be a _material man_, and that the lien must be for " supplies, repairs, or other necessaries." It has accordingly been held that although the law of a State gives a lien to a wharfinger, yet as he is not a "material man," he cannot enforce his lien in the admiralty. Russel v. The Asa R. Swift, 1 Newb. Adm. 553.

502 ON THE LAW OF SHIPPING. \[B00E L. statute, and not by the maritime law generally, wherever those terms were explicit.1 But in construing those terms where doubtful, they would probably be influenced by admiralty principles, which are those of equity, and would doubtless apply them to a case distinctly before them; although the case itself might not come within their jurisdiction, except by force of the statute.

It has been said that if a person furnishing a foreign ship, gives credit, the lien is discharged or does not attach, so that a suit _in rem_ will not lie to enforce it.2 But this is stated too broadly. The lien is not waived unless the contract contains stipulations inconsistent with it.3

Footnote 1: The General Smith, 4 Wheat. 438; The Barque Chusan, 2 Story, 455, 462; The Ship Robert Fulton, 1 Paine, C. C. 620, 526; The Calisto, Daveis, 29, 33; The Stephen Allen, Blackf. & H. Adm. 175, 179; Harper v. The New Brig, Gilpin, 536; Tree v. The Indians, Crabbe, 476.

- Zane v. The Brig President, 4 Wash. C. C. 453.
- Peyroux v. Howard, 7 Pet. 344; The Brig Nestor, 1 Sumner, 73, 80; Phillips v. Wright, 5 Sand. 342. Thus if the duration of the lien is fixed by law, and credit is given which extends beyond that time, the lien is considered as waived. Peyroux v. Howard, 7 Pet. 324, 344; Bennants in Court, Olecott, Adm. 382; Veltman v. Thompson, 3 Comst. 438. But if the credit may expire before the lien, then, whether it is waived or not, is a question of intention. The Kearsore, Ware, 2d ed. 546. If credit is given for a definite time, the lien is suspended all that time expires, but may be enforced afterwards. The Brig Nestor, 1 Sumner, 73, 85; The John Walls, Jr., U. S. D. C., Mass., 19 Law Reporter, 24. If a party furnishing materials before the vessel is completed or named, charges them to the owner on his books, this is no waiver of the lien, it appearing that he had no intention of relinquishing it. Hooper v. The Sam Slick, U. S. D. C., Mass., 18 Law Reporter, 162. The giving of a note does not, as a general thing, amount to a waiver of the lien, and the claim will be enforced against the ship if the note is surrendered at the trial. The Brig Nestor, 1 Sumner, 73, 86; The Bark Chusan, 2 Story, 455, 467; Leland v. The Ship Medora, 2 Wood. & M. 92, 100; Raymond v. The Schoener Ellen Stewart, 5 McLean, C. C. 269; Sutton v. The Albatross, 2 Wallace, C. C. 327; The Schoener Active, Olecott, Adm. 286; The Steamer Fashion, U. S. D. C., Mich., 78 Law Reporter, 50; Merrick v. Avery, 14 Arkan. 370; Steamboast Charlotte v. Kingland, 9 Mo. 66.

APPENDIX.

Two modes of arranging these statutes and statutory provisions have been considered; one, to place them in the chronological order of their enactment; the other, to group them by their subjects, so that those which relate to the same matter, may be found together. The latter method has obvious advantages, and has been given up only because it was found to be open to very serious objections. The most important of these arise from the fact that many provisions of great moment are intercalated in statutes where they have no legitimate place. For example, the enactment against fogging of esamen is contained -- not in a separate section -- but in a mere proviso, in an appropriation bill! This prevailing want of an arrangement by subjects in the statutes themselves, makes it difficult to arrange them thus in this Appendix. And, upon the whole, it has seemed best to place them chronologically, and facilitate a reference to them, partly by a list, and much more by a full index of the matters in the Appendix, which will follow immediately after the Appendix itself.

ACT OF 1789, CHAPTER IX. (1 U. S. Stats. at Large, 53).

_An Act concerning Pilots._

Sec. 4. _And be it further enacted_, That all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by congress.

ACT OF 1790, CHAPTER IX. (1 U. S. Stats. at Large, 113).

_An Act for the Punishment of certain crimes against the United States._

Sec. 8. _And be it further enacted_, That if any person or persons shall commit upon the high seas, or in any river, haven, basin, or bay, out of the VOL. L 506. APPENDIX.

jurisdiction of any particular State, murder or robbery, or any other offence which if committed within the body of a county, would by the laws of the United States be punishable with death; or if any captain or mariner of any ship or other vessel, shall piratically and feloniously run away with such ship or vessel, or any goods or merchandise to the value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander, thereby to hinder and prevent'his fighting in defence of his ship or goods committed to his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the district where the offender, is apprehended, or into which he may first be brought.

Sec. 9. _And be it further enacted_, That if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea, under color of any commission from any foreign principe, or State, or on pretence of authority from any person, such offender shall, novwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and on being thereof convicted, shall suffer death.

Sec. 10. _And be it further enacted_, That every person who shall, either upon the land or the seas, knowingly and wittingly aid and assist, procure, command, counsel, or advise any person or persons, to do or commit any murder or robbery, or other piracy aforesaid, upon the seas, which shall affect the life of such person, and such person or persons shall thereupon do or commit any such piracy or robbery, then all and every such person so as aforesaid aiding, assisting, procuring, commanding, counselling, or advising the same, either upon the land or the sea, shall be, and they are hereby declared, deemed, and adjudged to be accessary to such piracies before the fact, and every such person being thereof convicted shall suffer death.

Sec. 11. _And be it further enacted_, That after any murder, felony, robbery, or other piracy whatsoever aforesaid, is or shall be committed by any pirate or robber, every person who knowing that such pirate or robber has done or committed any such piracy or robbery, shall on the land or at sea receive, entertain, or conceal any such pirate or robber, or receive or take into his custody any ship, vessel, goods, or chattels, which have been by any such pirate or robber piratically and feloniously taken, shall be, and are hereby declared, deemed, and adjudged to be accessary to such piracy or robbery, after the fact; and on conviction thereof, shall be imprisoned not exceeding three years, and fined not exceeding five hundred dollars.

APPENDIX.

Sec. 12. _And be it further enacted_, That if any seaman or other person shall commit manslaughter upon the high seas, or confederate, or attempt, or endeavor to corrupt any commander, master, officer, or mariner, to yield up or to run away with any ship or vessel, or with any goods, wares, or merchandise, or to turn pirate, or to go over to or confederate with pirates, or in anywise trade with any pirate knowing him to be such, or shall furnish such pirate with any ammunition, stores, or provisions of any kind, or shall fit out any vessel knowingly and with a design to trade with or supply or correspond with any pirate or robber upon the seas; or if any person or persons shall any ways consult, combine, confederate, or correspond with any pirate or robber on the seas, knowing him to be guilty of any such piracy or robbery; or if any seaman shall confine the master of any ship or other vessel, or endeavor to make a revolt in such ship; such person or persons so offending, and being thereof convicted, shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars.

Sec. 18. _And be it further enacted_, That if any person or persons, within any of the places upon the land under the sole and exclusive jurisdiction of the United States, or upon the high seas, in any vessel belonging to the United States, or to any citizen or citizens thereof, on purpose and of malice aforethought, shall unlawfully cut off the ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, cut off the nose or a lip, or cut off or disable any limb or member of any person, with intention in so doing to main or disfigure such person in any the manners before mentioned, then and in every such case the person or persons so offending, their counsllors, aiders, and abettors (knowing of and privy to the offence aforesaid) shall, on conviction, be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars.

ACT OF 1790, CHAPTER XXX. (1 U. S. Stats. at Large, 131).

_An Act for the Government and Regulation of Seamen in the Merchant Service._

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That from and after the first day of December next, every master or commander of any ship or vessel bound from a port in the United States to any foreign port, or of any ship or $\\cdot$ vessel of the burden of fifty tons or upwards, bound from a port in one State to a port in any other than an adjoining State, shall, before he proceed on such voyage, make an agreement in writing or in print, with every seaman or mariner on board such ship or vessel (except such as shall be appFentice or servant to himself or owners) declar 508 APPENDIX.

ing the voyage or voyages, term or terms of time, for which such seaman or mariner shall be shipped. And if any master or commander of such ship or vessel shall carry out any seaman or mariner (except apprentices or servants as aforesaid) without such contract or agreement being first made and signed by the seamen and mariners, such master or commander shall pay to every such seaman or mariner the highest price or wages which shall have been given at the port or place where such seaman or mariner shall have been shipped, for a similar voyage, within three months next before the time of such shipping : _Provided_ such seaman or mariner shall perform such voyage : or if not, then for such time as he shall continue to do duty on board such ship or vessel ; and shall moreover forfeit twenty dollars for every such seaman or mariner, one half to the use of the person prosecuting for the same, the other half to the use of the United States : and such seaman or mariner, not having signed such contract, shall not be bound by the regulations, nor subject to the penalties and forfeitures, contained in this act.

Sec. 2. _And be it further enacted_, That at the foot of every such contract, there shall be a memorandum in writing, of the day and the hour on which such seaman or mariner, who shall so ship and subscribe, shall render themselves on board, to begin the voyage agreed upon. And if any such seaman or mariner shall neglect to render himself on board the ship or vessel, for which he has shipped, at the time mentioned in such memorandum, and if the master, commander, or other officer of the ship or vessel, shall, on the day on which such neglect happened, make an entry in the log-book of such ship or vessel, of the name of such seaman or mariner, and shall in like manner note the time that he so neglected to render himself (after the time appointed) ; every such seaman or mariner shall forfeit for every hour which he shall so neglect to render himself, one day's pay, according to the rate of wages agreed upon, to be deducted out of his wages. And if any such seaman or mariner shall wholly neglect to render himself on board of such ship or vessel, or having rendered himself on board, shall afterwards desert and escape, so that the ship or vessel proceed to sea without him, every such seaman or mariner shall forfeit and pay to the master, owner, or consignee of the said ship or vessel, a sum equal to that which shall have been paid to him by advance at the time of signing the contract, over and besides the sum so advanced, both which sums shall be recoverable in any court, or before any justice or justices of any State, city, town, or county within the United States, which, by the laws thereof, have cognizance of debts of equal value, against such seaman or mariner, or his surety or sureties, in case he shall have given surely to proceed the voyage.

Sec. 8. _And be it further enacted_, That if the mate or first officer under the master, and a majority of the crew of any ship or vessel, bound on a \*
\*
ing the contract for the voyage, together with such reasonable costs as shall be allowed by the said justice, and inserted in the said warrant, and the surety or sureties of such seaman or mariner (in case he or they shall have given any) shall remain liable for such payment; nor shall any such seaman or mariner be discharged upon any writ of habeas corpus or otherwise, until such sum be paid by him or them, or his or their surety or sureties, for want of any form of commitment, or other previous proceedings. _Provided,_ That sufficient matter shall be made to.appear, upon the return of such habeas corpus, and an examination then to be had, to retain him for the causes hereinbefore assigned.

Sec. 4. And be it further enacted, That if any person shall harbor or secrete any seaman or mariner belonging to any ship or vessel, knowing them to belong thereto, every such person, on conviction thereof before any court in the city, town or county where he, she, or they may reside, shall forfeit and pay ten dollars for every day which he, she, or they shall continue so to harbor or secrete such seaman or mariner, one half to the use of the person prosecuting for the same, the other half to the use of the United States; and no sum exceeding one dollar, shall be recoverable from any seaman or mariner by any one person, for any debt contracted during the time such seaman or mariner shall actually belong to any ship or vessel, until the voyage for which such seaman or mariner engaged shall be ended.

Sec. 5. And be it further enacted, That if any seaman or mariner, who shall have subscribed such contract as is herein before described, shall absent himself from on board the ship or vessel in which he shall so have shipped, without leave of the master or officer commanding on board; and the mate, or other officer having charge of the log-book, shall make an entry 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 may have been lodged at the time of his desertion, to the use of the owners of the ship or vessel, and moreover shall be liable to pay to him or them all damages which he or they may sustain by being obliged to hire other seamen or mariners in his or their place, and such damages shall be recovered with costs, in any court or before any justice or justices having jurisdiction of the recovery of debts to the value of ten dollars or upwards.

Sec. 6. And be it further enacted, That every seaman or mariner shall be entitled to demand and receive from the master or commander of the

## Appendix

ship or vessel to which they belong, one third part of the wages which shall be due to him at every port where such ship or vessel shall unlade and deliver her cargo before the voyage be ended, unless the contrary be expressly stipulated in the contract : and as soon as the voyage is ended, and the cargo or ballast be fully discharged at the last port of delivery, every seaman or mariner shall be entitled to the wages which shall be then due according to his contract ; and if such wages shall not be paid within ten days after such discharge, or if any dispute shall arise between the master and seamen or mariners touching the said wages, it shall be lawful for the judge of the district where the said ship or vessel shall be, or in case his residence be more than three miles from the place, or of his absence from the place of his residence, then, for any judge or justice of the peace, to summon the master of such ship or vessel to appear before him, to show cause why process should not issue against such ship or vessel, her tackle, furniture, and apparel, according to the course of admiralty courts, to answer for the said wages : and if the master shall neglect to appear, or appearing, shall not show that the wages are paid, or otherwise satisfied or forfeited, and if the matter in dispute shall not be forthwith settled, in such case the judge or justice shall certify to the clerk of the court of the district, that there is sufficient cause of complaint whereon to found admiralty process, and thereupon the clerk of such court shall issue process against the said ship or vessel, and the suit shall be proceeded on in the said court, and final judgment be given according to the course of admiralty courts in such cases used ; and in such suit all the seamen or mariners (having cause of complaint of the like kind against the same ship or vessel) shall be joined as complainants ; and it shall be incumbent on the master or commander to produce the contract and :-log-book, if required, to ascertain any matters in dispute; otherwise the complainants shall be permitted to state the contents thereof, and the proof of the contrary shall lie on the master or commander ; but nothing herein contained shall prevent any seaman or mariner from having or maintaining any action at common law for the recovery of his wages, or from immediate process out of any court having admiralty jurisdiction, wherever any ship or vessel may be found, in case she shall have left the port of delivery where her voyage ended, before payment of the wages, or in case she shall be about to proceed to sea before the end of the ten days next after the delivery of her cargo or ballast.

Sec. 7. _And be it further enacted,_ That if any seaman or mariner, who shall have signed a contract to perform a voyage, shall, at any port or place, desert, or shall absent himself from such ship or vessel, without leave of the master, or officer commanding in the absence of the master, it shall be lawful for any justice of peace within the United States (uponthe complaint of the master) to issue his warrant to apprehend such de-serter, and bring him before such justice ; and if it shall then appear by due proof, that he has signed a contract within the intent and meaning of this act, and that the voyage agreed for is not finished, altered, or the contract otherwise dissolved, and that such seaman or mariner has de-serted the ship or vessel, or absented himself without leave, the said juSlice shall commit him to the house of correction or common jail of the city, town, or place, there to remain until the said ship or vessel shall be ready to proceed on her voyage, or till the master shall require his discharge, and then to be delivered to the said master, he paying all the cost of such commitment, and deducting the same out of the wages due to such seaman or mariner. Sec. 8. _And be it further enacted_, That every ship or vessel belonging to a citizen or citizens of the United States, of the burden of one hundred and fifty tons or upwards, navigated by ten or more persons in the whole, and bound on a voyage without the limits of the United States, shall be provided with a chest of medicines, put up by some apotheary of known reputation, and accompanied by directions for administering the same ; and the said medicines shall be examined by the same or some other apotheary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled ; and in default of having such medicine-chest so provided, and kept fit for use, the master or commander of such ship or vessel shall provide and pay for all such advice, medicine, or attendance of physicians, as any of the crew shall stand in need of in case of sickness, at every port or place where the ship or vessel may touch or trade at during the voyage, without any deduction from the wages of such sick seaman or mariner. Sec. 9. _And be it further enacted_, That every ship of vessel, belonging as aforesaid, bound on a voyage across the Atlantic ocean, shall, at the time of leaving the last port from 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 hundred pounds of wholesome ship-bread, for every person on board such ship or vessel, over and besides such other provisions, stores, and live-stock as shall by the master or passengers be put on board, and in like proportion for shorter or longer voyages ; and in case the crew of any ship or vessel, which shall not have been so provided, shall be put upon short allowance in water, flesh, or bread, during the voyage, the master or owner of such ship or vessel shall pay to each of the crew, one day's wages beyond the wages agreed on, for every day they shall be so put to short allowance, to be recqvered in the same manner as their stipulated wages, APPENDIX.

ACT OF 1792, CHAPTER XXIV. (1 U. S. Stats. at Large, 254).

_An Act concerning Consula and Vice-Consula._

For carrying into full effect the convention between the King of the French, and the United States of America, entered into for the purpose of defining and establishing the functions and privileges of their respective consula and vice-consula;

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That where in the seventh article of the said convention, it is agreed that when there shall be no consul or vice-consul of the King of the French, to attend to the saving of the wreck of any French vessels stranded on the coasts of the United States, or that the residence of the said consul, or vice-consul (he not being at the place of the wreck) shall be more distant from the said place than that of the competent judge of the country, the latter shall immediately proceed to perform the office therein prescribed; the district judge of the United States of the district in which the wreck shall happen, shall proceed therein, according to.the tenor of the said article. And in such cases it shall be the duty of the officers of the customs within whose districts such wreoks shall happen, to give notice thereof, as soon as may be, to the said judge, and to aid and assist him to perform the duties hereby assigned to him. The district judges of the United States shall also, within their respective districts be the competent judges, for the purposes expressed in the ninth article of the said convention, and it shall be incumbent on them to give aid to the consula and vice-consula of the King of the French, in arresting and securing deserters from vessels of the French nation according to the tenor of the said article.

And where by any article of the said convention, the consula and vice-consula of the King of the French, are entitled to the aid of the competent executive officers of the country, in the execution of any precept, the marshals of the United States and their deputies shall, within their respective districts, be the competent officers, and shall give their aid according to the tenor of the stipulations.

And whenever commitments to the jails of the country shall become necessary in pursuance of any stipulation of the said convention, they shall be to such jails within the respective districts as other commitments under the authority of the United States are by law made.

And for the direction of the consula and vice-consula of the United States in certain cases.

Sec. 2. _Be it enacted by the authority aforesaid,_ That they shall have right in the ports or places to which they are or may be severally ap * \[30\] A. A. K.

## Appendix.

owners. _Provided_, That no consul or vice-consul shall have authority to take possession of any such goods, wares, merchandise, or other property, when the master, owner, or consignee thereof is present, or capable of taking possession of the same.

Sec. 4. _And be it further enacted_, That it shall and may be lawful for every consul and vice-consul of the United States, to take and receive the following fees of office for the services which he shall have performed.

For authenticating under the consular seal, every protest, declaration, deposition, or other act, which such captains, masters, mariners, seamen, passengers, merchants or others as are citizens of the United States may respectively choose to make, the sum of two dollars.

For the taking into possession, inventorying, selling, and finally settling and paying, or transmitting as aforesaid, the balance due on the personal estate left by any citizen of the United States who shall die within the limits of his consulate, five per centum on the gross amount of such estate.

For taking into possession and otherwise proceeding on any such estate which shall be delivered over to the legal repres@tatives before a final settlement of the same, as is herein before directed, two and an half per 'centum on such part delivered over as shall not be in money, and five per centum on the gross amount of the residue.

And it shall be the duty of, the consuls and vice-consuls of the United States, to give receipts for all fees which they shall receive by virtue of this act, expressing the particular services for which they are paid.

Sec. 5. _And be it further enacted_, That in case it be found necessary for the interest of the United States, that a consul or consuls be appointed to reside on the coast of Barbary, the President be authorized to allow an annual salary, not exceeding two thousand dollars to each person so to be appointed : _Provided_, That such salary be not allowed to more than one consul for any one of the States on the said coast.

Sec. 6. _And be it further enacted_, That every consul and vice-consul shall, before they enter on the execution of their trusts, or if already in the execution of the same, within one year from the passing of this act, or if resident in Asia, within two years, give bond with such sureties as shall be approved by the secretary of state, in a sum of not less than two thousand nor more than ten thousand dollars, conditioned for the true and faithful discharge of the duties of his office according to law, and also for truly accounting for all money, goods, and effects which may come into his possession by virtue of this act : and the said bond shall be lodged in the office of the secretary of the treasury.

Sec. 7 and 8 are repealed.

Sec. 9. _And be it further enacted_, That the specification of certainpowers and duties, in this act, to be exercised or performed by the consuls and vice-consuls of the United States, shall not be construed to the exclusion of others resulting from the nature of their appointments, or any treaty or convention under which they may act.

ACT OF 1792, CHAPTER I. (1 U. S. Stats. at Large, 287).

**Section 1**.: _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That ships or vessels, which shall have been registered by virtue of the act, entitled "An act for registering and clearing vessels, regulating the coasting trade, and for other purposes," and those which after the last day of March next, shall be registered, pursuant to this act, and no other (except such as shall be duly qualified, according to law, for carrying on the coasting trade and fisheries, or one of them) shall be denominated and deemed ships or vessels of the United States, entitled to the benefits and privileges appearing to such ships or vessels : _Provided,_ That they shall not continue to enjoy the same, longer than they shall continue to be wholly owned, and to be commanded by a citizen or citizens of the said States.

Sec. 2\*\*.: _And be it further enacted,_ That ships or vessels built within the United States, whether before or after, the fourth of July, one thousand seven hundred and seventy-six, and belonging wholly to a citizen or citizens thereof, or not built within the said States, but on the sixteenth day of May, in the year one thousand seven hundred and eighty-nine, belonging and thenceforth continuing to belong to a citizen or citizens thereof, and ships or vessels which may hereafter be captured in war, by such citizen or citizens, and lawfully condemned as prize, or which have been, or may be adjudged to be forfeited for a breach of the laws of the United States, being wholly owned by a citizen or citizens thereof, and no other, may be registered as hereinafter directed : _Provided,_ That no such ship or vessel shall be entitled to be so registered, or if registered, to the benefits thereof, if owned in whole, or in part, by any citizen in the United States, who usually resides in a foreign country, during the contingency of such residence, unless such citizen be in the capacity of a consul of the United States, or an agent for, and a partner in, some house of trade or copartnership, consisting of citizens of the said States actually carrying on trade within the said States : _And provided further,_ That no ship or vessel, built within the United States, prior to the said sixteenth day of May, which was not then owned wholly, or in part, by a citizen or citizens of the United States, shall be capable of being registered, by virtue

## Appendix A Appendix.

of any transfer to a citizen or citizens, which may hereafter be made, unless by way of prize or forfeiture : _Provided nevertheless_, That this shall not be construed to prevent the registering anew, of any ship or vessel, which was before registered, pursuant to the act before mentioned.

Sec. 8. _And be it further enacted_, That every ship or vessel, hereafter to be registered (except as is hereinafter provided) shall be registered by the collector of the district in which shall be comprehended the port to which such ship or vessel shall belong, at the time of her registry, which port shall be deemed to be that, at or nearest to which, the owner, if there be but one, or if more than one, the husband, or acting and managing owner of such ship or vessel, usually resides. And the name of the said ship or vessel, and of the port to which she shall so belong, shall be painted on her stern, on a black ground, in white letters, of not less than three inches in length. And if any ship or vessel of the United States, shall be found, without having her name, and the name of the port to which she belongs, painted in manner aforesaid, the owner or owners shall forfeit fifty dollars ; one half to the person giving the information thereof, the other half to the use of the United States.

Sec. 4. _And be it further enacted_, That, in order to the registry of any ship or vessel, an oath or affirmation shall be taken and subscribed by the owner, or by one of the owners thereof, before the officer authorized to make such registry, who is hereby empowered to administer the same. declaring, according to the best of the knowledge and belief of the person so swearing or affirming, the name of such ship or vessel, her burden, the place where she was built, if built within the United States, and the year in which she was built ; and if built within the United States, before the said sixteenth day of May, one thousand seven hundred and eighty-nine, that she was then owned wholly, or in part, by a citizen or citizens of the United States ; and if not built within the said States, that she was, on the said sixteenth day of May, and ever since, hath continued to be, the entire property of a citizen or citizens of the United States ; or that she was, at some time posterior to the time when the act shall take effect (specifying the said time), captured in war by a citizen or citizens of the said States, and lawfully condemned as prize (producing a copy of the sentence of condemnation, authenticated in the usual form) or that she has been adjudged to be forfeited for a breach of the laws of the United States (producing a like copy of the sentence whereby she shall have been $\\approx$ adjudged), and declaring his or her name and place of abode, and if he or she be the sole owner of the said ship or vessel that such is the case ; or if there be another owner or other owners, that there is or are such other owner or owners, specifying his, her, or their name or names, and place or places of abode, and that he, she, or they, as the case may be, so swearing or affirming, is or are citizens of the United States ; and where VOL. L.

## Appendix.

an owner resides in a foreign country, in the capacity of a consul of the United States, or as an agent for, and a partner in, a house or copartnership, consisting of citizens of the United States, and actually carrying on trade within the United States, that such is the case, and that there is no subject or citizen of any foreign prince or State, directly, or indirectly, by way of trust, confidence, or otherwise, interested in such ship or vessel, or in the profits, or issues thereof; and that the master, or commander thereof is a citizen, naming the said master, or commander, and stating the means whereby, or manner in which, he is so a citizen. And in case, any of the matters of fact, in the said oath or affirmation alleged, which shall be within the knowledge of the party so swearing or affirming, shall not be true, there shall be a forfeiture of the ship or vessel, together with her tackle, furniture, and apparel, in respect to which, the same shall have been made, or of the value thereof, to be recovered, with costs of suit, of the person, by whom such oath or affirmation shall have been made : _Provided always_, That if the master, or person having the charge or command of such ship or vessel, shall be within the district aforesaid, when application shall be made for registering the same, he shall, himself, make oath, or affirmation, instead of the said owner, touching his being a citizen, and the means whereby, or manner in which, he is so a citizen; in which case, if what the said master, or person having the said charge or command, shall so swear or affirm, shall not be true, the forfeiture aforesaid shall not be incurred, but he shall, himself, forfeit and pay, by reason thereof, the sum of one thousand dollars : _And provided further_, That in the case of a ship or vessel, built within the United States prior to the sixteenth day of May aforesaid, which was not then owned by a citizen or citizens of the United States, but which, by virtue of a transfer to such citizen or citizens, shall have been registered, pursuant to the act before mentioned, the oath or affirmation, hereby required, shall and may be varied, according to the truth of the case, as often as it shall be requisite to grant a new register for-such ship or vessel.

Sec. 5. _And be it further enacted_, That it shall be the duty of every owner, resident within the United States, of any ship or vessel, to which a certificate of registry may be granted (in case there be more than one such owner), to transmit to the collector, who may have granted the same, a like oath or affirmation with that hereinbefore directed to be taken and subscribed by the owner, on whose application such certificate shall have been granted, and within ninety days after the same may have been so granted; which oath or affirmation may, at the option of the party, be taken and subscribed either before the said collector, or before the collector of some other district, or a judge of the supreme, or a district court of the United States, or of a superior court of original jurisdiction of some one of the States. And if such oath or affirmation shall not be taken,

## Appendix.

subscribed, and transmitted, as is herein required, the certificate of registry, granted to such ship or vessel, shall be forfeit and void.

Sec. 6. _And be it further enacted_, That before any ship or vessel shall be registered, she shall be measured by a surveyor, if there be one, or by the person he shall appoint, at the port or place where the said ship or vessel may be, and if there be none, by such person as the collector of the district, within which she may be, shall appoint, according to the rule prescribed by the forty-third section of the act, intitled "An act to provide more effectually for the collection of the duties imposed by law on goods, wares, and merchandise, imported into the United States, and on the ton-nage of ships or vessels." And the officer, or person, by whom such advertisement shall be made, shall, for the information of, and as a voucher to the officer by whom the registry is to be made, grant a certificate, specifying the built of such ship or vessel, her number of decks and masts, her length, breadth, depth, the number of tons she measures, and such other particulars as are usually descriptive of the identity of a ship or vessel; and that her name, and the place to which she belongs, are painted on her stern, in manner required by the third section of this act; which certificate shall be countersigned by an owner, or by the master of such ship or vessel, or by some other person who shall attend her advertisement, on behalf of her owner or owners, in testimony of the truth of the particulars therein contained; without which, the said certificate shall not be valid. But in all cases, where a ship or vessel has before been registered, as a ship or vessel of the United States, it shall not be necessary to measure her anew, for the purpose of obtaining another register; except such ship or vessel shall have undergone some alteration, as to her burden, subsequent to the time of her former registry.

Sec. 7. _And be it further enacted_, That, previous to the registry of any ship or vessel, the husband or acting and managing owner, together with the master thereof, and one or more sureties, to the satisfaction of the collector of the district, whose duty it is to make such registry, shall become bound to the United States, if such ship or vessel shall be of burden not exceeding fifty tons, in the sum of four hundred dollars; if of burden above fifty tons, and not exceeding one hundred, in the sum of eight hundred dollars; if of burden above one hundred tons, and not exceeding two hundred, in the sum of twelve hundred dollars; if of burden above two hundred tons, and not exceeding three hundred, in the sum of sixteen hundred dollars; and if of burden exceeding three hundred tons, in the sum of two thousand dollars; with condition, in each case, that the certificate of such registry, shall be solely used for the ship or vessel, for which it is granted, and shall not be sold, lent, or otherwise disposed of, to any person or persons whomsoever; and that, in case such ship or vessel shall be lost, or taken by an enemy, burnt, or broken up, or shallbe otherwise prevented from returning to the port to which she may belong, the said certificate, if preserved, shall be delivered up, within eight days after the arrival of the master, or person, having the charge or command of such ship or vessel, within any district of the United States, to the collector of such district : and that if any foreigner, or any person or persons, for the use and benefit of such foreigner, shall purchase, or otherwise become entitled to the whole, or any part or share of, or interest in, such ship or vessel, the same being within a district of the United States, the said certificate shall, in such case, within seven days after such purchase, change, or transfer of property, be delivered up to the collector of the said district ; and that if any such purchase, change, or transfer of property, shall happen, when such ship or vessel shall be at any foreign port or place, or at sea, then the said master, or person having the charge or command thereof, shall, within eight days after his arrival within any district of the United States, deliver up the said certificate to the collector of such district; and every such certificate, so delivered up, shall be forth- with transmitted to the register of the treasury, to be cancelled, who, if the same shall have been delivered up to a collector, other than of the district in which it was granted, shall cause notice of such delivery to be given to the collector of the said district.

Sec. 8. _And be it further enacted,_ That in order to the registry of any ship or vessel, which, after the last day of March next, shall be built within the United States, it shall be necessary to produce a certificate, under the hand of the principal or master carpenter, by whom, or under whose direction, the said ship or vessel shall have been built, testifying, that she was built by him, or under his direction, and specifying the place where, the time when, and the person or persons for whom, and describing her built, number of decks and masts, length, breadth, depth, tonnage, and such other circumstances as are usually descriptive of the identity of a ship or vessel ; which certificate shall be sufficient to authorize the removal of a new vessel, from the district where she may be built, to another district in the same, or an adjoining State, where the owner or owners actually reside, provided it be with ballast only.

Sec. 9. _And be it further enacted,_ That the several matters hereinbefore required, having been complied with, in order to the registering of any ship or vessel, the collector of the district comprehending the port to which she shall belong, shall make, and keep, in some proper book, a record or registry thereof, and shall grant an abstract or certificate of such record or registry, as nearly as may be, in the form following :

"In pursuance of an Act of the Congress of the United States of America, entitled 'An act concerning the registering and recording of ships or vessels,' \[inserting here the name, occupation, and place of abode of the person by whom the oath or affirmation aforesaid, shall have been

## APPENDIX.

made,\] having taken or subscribed the oath (or affirmation) required by the said act, and having sworn (or affirmed) that he (or she, and if more than one owner, adding the words, 'together with,' and the name or names, occupation or occupations, place or places of abode, of the other owner or owners) is (or are) the only owner (or owners) of the ship or vessel, called the \[inserting here her name\] of \[inserting here the port to which she may belong\] whereof \[inserting here the name of the master\] is at present master, and is a citizen of the United States, and that the said ship or vessel was \[inserting here, when and where built\] and \[inserting here, the name and office, if any, of the person by whom she shall have been surveyed or admeasured\] having certified that the said ship or vessel has \[inserting here, the number of decks\] and \[inserting here, the number of masts\] and that her length is \[inserting here, the number of feet\] her breadth \[inserting here, the number of feet\] and that she measures \[inserting here, her number of tons\] that she is \[describing here, the particular kind of vessel, whether ship, brigantine, snow, schooner, sloop, or whatever else, together with her built, and specifying whether she has' any, or no gallery or head\] and the said \[naming the owner, or the master, or other person, acting in behalf of the owner or owners, by whom the certificate of admeasurement shall have been countersigned, as aforesaid\] having agreed to the description and admeasurement, above specified, and sufficient security having been given, according to the said act, the said ship or vessel has been duly registered at the port of \[naming the port where registered\]. Given under my hand and seal, at \[naming the said port\] this \[inserting the particular day\] day of \[naming the month\] in the year \[apecifying the number of the year, in words at length;"\]_Provided_, That if the master, or person having the charge or command of such ship or vessel, shall, himself, have made oath or affirmation touching his being a citizen, the wording of the said certificate shall be varied so as to be conformable to the truth of the case : _And provided_, That where a new certificate of registry is granted, in consequence of any transfer of a ship or vessel, the words shall be so varied, as to refer to the former certificate of registry, for her admeasurement.

Sec. 10. _And be it further enacted_, That it shall be the duty of the secretary of the treasury, to cause to be prepared, and transmitted, from time to time, to the collectors of the several districts, a sufficient number of forms of the said certificates of registry, attested under the seal of the treasury, and the hand of the register thereof, with proper blanks, to be filled by the said collectors, respectively, by whom also, the said certificate shall be signed and sealed, before they shall be issued ; and where there is a naval officer at any port, they shall be countersigned by him ; and where there is a surveyor, but no naval officer, they shall be counter

###### Abstract

The first attempt to understand the nature of the universe is to understand the nature of the universe. The second attempt to understand the nature of the universe is to understand the nature of the universe. The second attempt to understand the nature of the universe is to understand the nature of the universe. The second attempt to understand the nature of the universe is to understand the nature of the universe. The second attempt to understand the nature of the universe is to understand the nature of the universe.

shall, himself, forfeit and pay, by reason thereof, the sum of one thousand dollars.

Sec. 12. _And be it further enacted,_ That when any ship or vessel, entitled to be registered, pursuant to this act, shall be purchased by an agent or attorney for, or on account of a citizen or citizens of the United States, such ship or vessel, being in a district of the United States, more than fifty miles distant, taking the nearest usual route by land, from the one comprehending the port to which, by virtue of such purchase, and by force of this act, such ship or vessel ought to be deemed to belong, it shall be lawful for the collector of the district, where such ship or vessel may be, and he is hereby required, upon the application of such agent or attorney, to proceed to the registering of the said ship or vessel, the said agent or attorney, first complying, on behalf, and in the stead of, the owner or owners thereof, with the requisites prescribed by this act, in order to the registry of ships or vessels, except, that in the oath or affirmation, which shall be taken by the said agent or attorney, instead of swearing or affirming that he is owner, or an owner of such ship or vessel, he shall swear or affirm, that he is agent or attorney for the owner or owners thereof, and that he hath _bond fide_ purchased the said ship or vessel, for the person or persons, whom he shall name and describe as the owner or owners thereof: _Provided nevertheless,_ That whenever such ship or vessel shall arrive within the district comprehending the port to which such ship or vessel shall belong, the certificate of registry, which shall have been obtained, as aforesaid, shall be delivered up to the collector of such district, who, upon the requisites of this act, in order to the registry of ships or vessels, being complied with, shall grant a new one, in lieu of the first; and the certificate, so delivered up, shall forthwith be returned by the collector, who shall transmit the same to the collector who shall have granted it. And if the said first mentioned certificate of registry, shall not be delivered up, as above directed, the owner or owners, and the master of such ship or vessel, at the time of her said arrival within the district comprehending the port to which she may belong, shall, severally, forfeit the sum of one hundred dollars, to be recovered, with costs of suit, and the said certificate of registry shall be thenceforth void. And in case any of the matters of fact, in the said oath or affirmation alleged, which shall be within the knowledge of the party so swearing or affirming, shall not be true, there shall be a forfeiture of the ship or vessel, together with her tackle, furniture and apparel, in respect to which, the same shall have been made, or of the value thereof, to be recovered, with costs of suit, of the person by whom such oath or affirmation shall have been made: _Provided always,_ That if the master, or person having the charge or command of such ship or vessel, shall be within the district aforesaid, when application shall be made for registering the same, he shall, himself, make oath or affirmation, instead of the said agent or attorney, touching his being a citizen, and the means whereby, or manner in which, he is so a citizen ; in which case, if what the said master, or person having the said charge or command, shall so swear or affirm, shall not be true, the forfeiture aforesaid shall not be incurred, but he shall, himself, forfeit and pay, by reason thereof, the sum of one thousand dollars.

Sec. 13. _And be it further enacted,_ That if the certificate of the registry of any ship or vessel shall be lost or destroyed, or mislaid, the master, or other person having the charge or command thereof, may make oath or affirmation, before the collector of the district where such ship or vessel shall first be, after such loss, destruction, or mislaying, who is hereby authorized to administer the same, which oath or affirmation shall be of the form following : "I (inserting here the name of the person swearing or affirming) being master (or having the charge or command) of the ship or vessel, called the (inserting the name of the vessel) do swear (or affirm) that the said ship or vessel, hath been, as I verify believe, registered, according to law, by the name of (inserting again the name of the vessel) and that a certificate thereof was granted by the collector of the district of (naming the district, where registered) which certificate has been lost (or destroyed, or unintentionally and by mere accident mislaid, as the case may be), and (except, where the certificate is alleged to have been destroyed) that the same, if found again, and within my power, shall be delivered up to the collector of the district, in which it was granted ;" which oath, or affirmation, shall be subscribed by the party making the same, and upon such oath or affirmation being made, and the other requisites of this act, in order to the registry of ships, or vessels, being complied with, it shall be lawful for the collector of the district, before whom such oath or affirmation is made, to grant a new register, inserting therein, that the same is issued, in the room of the one lost or destroyed. But in all cases, where a register shall be granted, in lieu of the one lost or destroyed, by any other than the collector of the district, to which the ship, or vessel actually belongs, such register shall, within ten days after her first arrival within the district to which she belongs, be delivered up to the collector of the said district, who shall, thereupon, grant a new register, in lieu thereof. And in case the master, or commander shall neglect to deliver up such register within the time aforesaid, he shall forfeit one hundred dollars ; and the former register shall become null and void.

Sec. 14. _And be it further enacted,_ That when any ship or vessel, which shall have been registered, pursuant to this act, or the act hereby, in part, repealed, shall, in whole, or in part, be sold, or transferred to a citizen or citizens of the United States, or shall be altered in form or

## Appendix A Appendix.

burden, by being lengthened, or built upon, or from one denomination to another, by the mode or method of rigging or fitting, in every such case, the said ship or vessel shall be registered anew, by her former name, according to the directions herein before contained (otherwise she shall cease to be deemed a ship or vessel of the United States), and her former certificate of registry shall be delivered up to the collector to whom application for such new registry shall be made, at the time, that the same shall be made to be by him transmitted to the register of the treasury, who shall cause the same to be cancelled. And in every such case of sale or transfer, there shall be some instrument of writing, in the nature of a bill of sale, which shall 'recite at length the said certificate, otherwise the said ship or vessel shall be incapable of being so registered anew. And in every case in which a ship or vessel is hereby required to be registered anew, if she shall not be so registered anew, she shall not be entitled to any of the privileges or benefits of a ship or vessel of the United States. And further, if her said former certificate of registry shall not be delivered up as aforesaid, except where the same may have been destroyed, lost, or unintentionally mislaid, and an oath or affirmation thereof shall have been made, as aforesaid, the owner or owners of such ship or vessel shall forfeit and pay the sum of five hundred dollars, to be recovered with costs of suit.

Sec. 15. _And be it further enacted,_ That when the master, or person having the charge or command of a ship or vessel, registered pursuant to this act, or the act hereby in part repealed, shall be changed, the owner, or one of the owners, or the new master of such ship or vessel, shall report such change to the collector of the district where the same shall happen, or where the said ship or vessel shall first be, after the same shall have happened, and shall produce to him the certificate of registry of such ship or vessel, and shall make oath or affirmation, showing that such new master is a citizen of the United States, and the manner in which, or means whereby, he is so a citizen ; whereupon the said collector shall indorse upon the said certificate of registry, a memorandum of such change, specifying the name of such new master, and shall subscribe the said memorandum with his name, and if other than the collector of the district, by whom the said certificate of registry shall have been granted, shall transmit a copy of the said memorandum to him, with notice of the particular ship or vessel, to which it shall relate ; and the collector of the district, by whom the said certificate shall have been granted, shall make a like memorandum of suh change, in his book of registers, and shall transmit a copy thereof, to the register of the treasury. And if the said change shall not be reported, or if the said oath or affirmation shall not be taken, as above directed, the registry of such ship or vessel shall be void, and the said master, or person, having the charge or command of her shall forfeit and pay the sum of one hundred dollars.

Sec. 16. _And be it further enacted_, That if any ship or vessel, heretofore registered, or which shall hereafter be registered, as a ship or vessel of the United States, shall be sold or transferred, in whole or in part by way of trust, confidence or otherwise, to a subject or citizen of any foreign prince or State, and such sale or transfer shall not be made known, in manner herein before directed, such ship or vessel, together with her tackle, apparel, and furniture shall be forfeited. _Provided,_ That if such ship or vessel shall be owned in part only, and it shall be made to appear to the jury, before whom the trial for such forfeiture shall be had, that any other owner of such ship or vessel, being a citizen of the United States, was wholly ignorant of the sale or transfer to, or ownership of, such foreign subject or citizen, the share or interest of such citizen of the United States shall not be subject to such forfeiture; and the residue only shall be so forfeited.

Sec. 17. _And be it further enacted_, That upon the entry of every ship or vessel of the United States, from any foreign port or place, if the same shall be at the port or place, at which the owner, or any of the part-owners reside, such owner or part-owner shall make oath or affirmation, that the register of such ship or vessel contains the name or names of all the persons, who are then owners of the said ship or vessel; or if any part of such ship or vessel has been sold or transferred, since the granting of such register, that such is the case, and that no foreign subject or citizen hath, to the best of his knowledge and belief, any share, by the way of trust, confidence, or otherwise, in such ship or vessel. And if the owner, or any part-owner, shall not reside at the port or place, at which such ship or vessel shall enter, then the master or commander shall make oath or affirmation, to the like effect. And if the owner, or part-owner, where there is one, or the master or commander, where there is no owner, shall refuse to swear or affirm as aforesaid, such ship or vessel shall not be entitled to the privileges of a ship or vessel of the United States.

Sec. 18. _And be it further enacted_, That in all cases, where the master, commander, or owner of a ship or vessel, shall deliver up the register of such ship or vessel, agreeable to the provisions of this act, if to the collector of the district, where the same shall have been granted, the said collector shall, thereupon, cancel the bond, which shall have been given at the time of grafting such register; or, if to the collector of any other district, such collector shall grant to the said master, commander, or owner, a receipt or acknowledgment, that such register has been delivered to him, and the time, when; and upon such receipt being produced to the collector, by whom the register was granted, he shall

## Appendix.

cancel the bond of the party, as if the register had been returned to him.

Sec. 19. _And be it further enacted_, That the collector of each district shall progressively number the certificates of the registry by him granted, beginning anew, at the commencement of each year, and shall enter an exact copy of each certificate, in a book to be kept for that purpose; and shall, once in three months, transmit to the register of the treasury, copies of all the certificates, which shall have been granted by him, including the number of each.

Sec. 20. _And be it further enacted_, That every ship or vessel, built in the United States, after the fifteenth day of August, one thousand seven hundred and eighty-nine, and belonging wholly, or in part, to the subjects of foreign powers, in order to be entitled to the benefits of a ship, built and recorded in the United States, shall be recorded in the office of the collector of the district, in which such ship or vessel was built, in manner following, that is to say: The builder of every such ship or vessel shall make oath or affirmation, before the collector of such district, who is hereby authorized to administer the same, in manner following: "I (inserting here the name of such builder) of (inserting here the place's of his residence) shipw, do swear (or affirm) that (describing here the kind of vessel, and whether ship, brig, snow, schooner, sloop, or whatever else) named (inserting here the name of the ship or vessel) having (inserting here the number of deck) and being, in length (inserting here the number of feet) in depth (inserting here the number of feet) and measuring (inserting here the number of tons) having (specifying, whether any or no) gallery, and (also specifying, whether any or no) head, was built by me, or under my direction, at (naming the place, county, and State) in the United States, in the year (inserting here the number of the year;") which oath or affirmation shall be subscribed by the person making the same, and shall be recorded in a book, to be kept, by the said collector, for that purpose.

Sec. 21. _And be it further enacted_, That the said collector shall cause the said ship or vessel to be surveyed or admeasured, according to the rule, prescribed by the forty-third section of the act, intitluded "An act to provide more effectually for the collection of the duties imposed by law on goods, wares, and merchandise, imported into the United States, and on the tonnage of ships or vessels;" and the person, by whom such admeasurement shall be made, shall grant a certificate thereof, as in the case of a ship or vessel to be registered; which certificate shall be countersigned by the said builder, and by an owner, or the master, or person having the command or charge thereof, or by some other person, being

## Appendix.

an agent for the owner or owners thereof, in testimony of the truth of the particulars therein contained.

Sec. 22. _And be it further enacted,_ That a certificate of the said record, attested under the hand and seal of the said collector, shall be granted to the master of every such ship or vessel, as nearly as may be, of the form following: "In pursuance of an act, inituled 'An act concerning the registering and recording of ships or vessels,' I (inserting here the name of the collector of the district) of (inserting here the name of the district) in the United States, do certify, that (inserting here the name of the builder) of (inserting here the place of his residence, county, and State) having sworn, or affirmed, that the (describing the ship or vessel, as in the certificate of record) named (inserting here her name) whereof (inserting here the name of the master) is, at present, master, was built at (inserting here the name of the place, county, and State, where built) by him, or under his direction, in the year (inserting here the number of the year) and (inserting here the name of the surveyor, or other person, by whom the same admeasurement shall have been made) having certified, that the said ship or vessel has (inserting here her number of decks) is, in length (inserting here the number of feet) in breadth (inserting here the number of feet) and measures (inserting here the number of tons) : And the said builder and (naming and describing the owner, or master, or agent for the owner or owners, as the case may be, by whom the said certificate shall have been countersigned) having agreed to the said description and admeasurement, the said ship or vessel has been recorded, in the district of (inserting here the name of the district, where recorded) in the United States : Witness my hand and seal, this (inserting here the day of the month) day of (inserting here the name of the month) in the year (inserting here the number of the year) ;" which certificate shall be recorded in the office of the said collector, and a duplicate thereof transmitted to the register of the treasury of the United States, to be recorded in his office.

Sec. 23. _And be it further enacted,_ That if the master, or the name, of any ship or vessel so recorded, shall be changed, the owner, partowner, or consignee of such ship or vessel, shall cause a memorandum thereof to be indorsed on the certificate of the record, by the collector of the district, where such ship or vessel may be, or at which she shall first arrive, if such change took place in a foreign country ; and a copy thereof shall be entered in the book of records, a transcript whereof shall be transmitted, by the said collector, to the collector of the district, where such certificate was granted (if not the same person), who shall enter the same in his book of records, and forward a duplicate of suchAPPENDIX.

entry, to the register of the treasury of the United States; and in such case, until the said owner, part-owner, or consignee, shall cause the said memorandum to be made, by the collector, in manner aforesaid, such ship or vessel shall not be deemed, or considered, as a vessel recorded, in pursuance of this act.

Sec. 24. _And be it further enacted_, That the master, or other person having the command or charge of any ship or vessel, recorded in pursuance of this act, shall, on entry of such ship or vessel, produce the certificate of such record, to the collector of the district, where she shall be so entered; in failure of which, the said ship or vessel shall not be entitled to the privileges of a vessel, recorded as aforesaid: _Provided always, and be it further enacted_, That nothing herein contained shall be construed to make it necessary to record, a second time, any ship or vessel, which shall have been recorded, pursuant to the act, hereby in part re-pealed: but such recording shall be of the like force and effect, as if made pursuant to this act.

Sec. 25. _And be it further enacted_, That the fees and allowances, for the several services to be performed, pursuant to this act, and the distribution of the same, shall be as follows, to wit: For the admeasurement of every ship or vessel, of one hundred tons, and under, one cent per ton; for the admeasurement of every ship or vessel, above one hundred, and not exceeding two hundred tons, one hundred and fifty cents; for the admeasurement of every ship or vessel, above two hundred tons, two hundred cents; for every certificate of registry or record, two hundred cents; for every endorsement upon a certificate of registry or record, one hundred cents; and for taking every bond required by this act, twenty-five cents. The whole amount of which fees shall be received, and accounted for, by the' collector, or, at his option, by the naval officer, where there is one; and where there is a collector, naval officer, and surveyor, shall be equally divided, monthly, between the said officers; and where there is no naval officer, two thirds to the collector, and the other third to the surveyor; and where there is only a collector, he shall receive the whole amount thereof; and where there is more than one surveyor in any district, each of them shall receive his proportionable part of such fees, as shall arise in the port, for which he is appointed: _Provided always,_ that in all cases where the tonnage of 'any ship or vessel shall be ascertained, by any person appointed for that purpose, such person shall be paid a reasonable compensation therefor, out of the fees aforesaid, before any distribution thereof, as aforesaid. And every collector, and naval officer, and every surveyor, who shall reside at a port where there is no collector, shall cause to be affixed, and constantly kept, in some conspicuous part of his office, a fair table of the rates of fees, demandable by this act.

VOL. I.

**SEC. 26**.: _And be it further enacted_**, That every collector, or officer, who shall knowingly make, or be concerned in making any false register or record, or shall knowingly grant, or be concerned in granting, any false certificate of registry or record of, or for any ship or vessel, or other false document whatsoever, touching the same, contrary to the true intent and meaning of this act, or who shall designedly take any other, or greater fees, than are by this act allowed, or who shall receive any voluntary reward or gratuity, for any of the services performed, pursuant thereto; and every surveyor, or other person appointed to measure any ship or vessel, who shall wilfully deliver to any collector, or naval officer, a false description of such ship or vessel, to be registered or recorded, shall, upon conviction of any such neglect, or offence, forfeit the sum of one thousand dollars, and be rendered incapable of serving in any office of trust or profit, under the United States; and if any person or persons, authorized and required by this act, in respect to his or their office or offices, to perform any act or thing, required to be done or performed, pursuant to any of the provisions of this act, shall wilfully neglect to do or perform the same, according to the true intent and meaning of this act, such person or persons shall, on being duly convicted thereof, if not subject to the penalty and disqualification aforesaid, forfeit the sum of five hundred dollars for the first offence, and a like sum for the second offence, and shall, thenceforth, be rendered incapable of holding any office of trust or profit under the United States.**SEC. 27**.: _And be it further enacted_**, That if any certificate of registry, or record, shall be fraudulently or knowingly used for any ship or vessel, not then actually entitled to the benefit thereof, according to the true intent of this act, such ship or vessel shall be forfeited to the United States, with her tackle, apparel, and furniture.**SEC. 28**.: _And be it further enacted_**, That if any person or persons shall falsely make oath or affirmation, to any of the matters, herein required to be verified, such person or persons shall suffer the like pains and penalties, as shall be incurred by persons committing wilful and corrupt per jury; and that if any person or persons shall forge, counterfeit, erase, alter, or falsify any certificate, register, record, or other document, mentioned, described, or authorized, in and by this act, such person, or persons, shall, for every such offence, forfeit the sum of five hundred dollars.**SEC. 29**.: _And be it further enacted_**, That all the penalties and forfeitures, which may be incurred, for offences against this act, shall and may be sued for, prosecuted, and recovered, in such courts, and be disposed of in such manner, as any penalties and forfeitures which may be incurred for offences against the act, intitled " An act to provide more effectually for the collection of the duties imposed by law on goods, wares, and

## Appendix.

merchandise, imported into the United States, and on the tonnage of ships or vessels," may be legally sued for, prosecuted, recovered, and disposed of: _Provided always_, That if any officer entitled to a part or share of any such penalty or forfeiture, shall be necessary as a witness, on the trial for such penalty or forfeiture, such officer may be a witness upon the said trial; but in such a case, he shall not receive, nor be entitled to any part or share of the said penalty or forfeiture; and the part or share, to which he would otherwise have been entitled, shall accrue to the United States.

Szc. 30. _And be it further enacted_, That from and after the last day of March next, this act shall be in full force and effect; and so much of the act, initiuled "An act for registering and clearing vessels, regulating the coasting-trade, and for other purposes," as comes within the purview of this act, shall, after the said last day of March, be repealed.

## ACT of 1793, Chapter VIII (1 U. S. Stats. at Large, 305).

_An Act for enrolling and licensing Ships or Vessels to be employed in the Coasting Trade and Fisheries, and for regulating the same._

**Section 1**.: _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That ships or vessels, enrolled by virtue of "An act for registering and clearing vessels, regulating the coasting trade, and for other purposes," and those of twenty tons and upwards, which shall be enrolled after the last day of May next, in pursuance of this act, and having a license in force, or if less than twenty tons, not being enrolled, shall have a license in force, as is hereinafter required, and no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade or fisheries.

**Sec. 2**.: _And be it further enacted_, That from and after the last day of May next, in order for the enrolment of any ship or vessel, she shall possess the same qualifications, and the same requisites, in all respects, shall be cophplied with, as are made necessary for registering ships or vessels, by the act, initiuled "An act concerning the registering and recording of ships or vessels," and the same duties and authorities are hereby given and imposed on all officers, respectively, in relation to such enrolments, and the same proceedings shall be had, in similar cases, touching such enrolments; and the ships or vessels so enrolled, with the master, or owner or owners thereof, shall be subject to the same requisites, as are in those respects provided for vessels registered by virtue of the aforesaid act; the record of which enrolment shall be made, and an ab

### 632 APPENDIX.

stract or copy thereof granted, as nearly as may be, in the form following : "Enrolment in conformity to an act of the Congress of the United States of America, intitled 'An act for enrolling and licensing ships or vessels, to be employed in the coasting trade and fisheries, and for regulating the same,' \[inserting here, the. name of the person, with his occupation and place of abode, by whom the oath or affirmation is to be made\] having taken and subscribed the oath (or affirmation) required by this act, and having sworn (or affirmed) that he (or she, and if more than one owner, adding the words 'together with,' and the name or names, occupation or occupations, place or places of abode, of the owner or owners) is (or are) a citizen (or citizens) of the United States, and sole owner (or owners) of the ship or vessel, called the \[inserting here her name\] of \[inserting here the name of the port to which she may belong\] whereof \[inserting here the name of the master\] is at present master, and is a citizen of the United States, and that the said ship or vessel was \[inserting here when and where built\] and \[inserting here the name and office, if any, of the person by whom she shall have been surveyed, or admeasured\] having certified, that the said ship or vessel has \[inserting here the number of decks\] and \[inserting here the number of masats\] and that her length is \[inserting here the number of feet\] her breadth \[inserting here the number of feet\] and that she measures \[inserting here her number of tons\] that she is \[describing here the particular kind of vessel, whether ship, brigantine, snow, schooner, sloop, or whatever else, together with her built, and specifying, whether she has any or no gallery or head\] and the said \[naming the owner, or the master, or other person acting in behalf of the owner or owners, by whom the certificate of admeasurement shall have been countersigned\] having agreed to the description and admeasurement above specified, and sufficient security having been given, according to the said act, the said ship or vessel has been duly enrolled, at the port of \[naming the port where enrolled\]. Given under my hand and seal, at \[naming the said port\], this \[inserting the particular day\] of \[naming the month\] in the year \[specifying the number of the year, in words at length\]." Sec. 8. _And be it further enacted_, That it shall and may be lawful for the collectors of the several districts, to enroll and license any ship or vessel, that may be registered, upon such registry being given up, or to register any ship or vessel, that may be enrolled, upon such enrolment and license being given up. And when any ship or vessel shall be in any other district than the one to which she belongs, the collector of such district, on the application of the master or commander thereof, and upon his taking an oath or affirmation, that according to his best knowledge and belief, the property remains, as expressed in the register or enrolment proposed to be given up, and upon his giving the bonds required for grant

## Appendix.

ing registers, shall make the exchanges aforesaid ; but in every such case, the collector, to whom the register, or enrolment and license may be given up, shall transmit the same to the register of the treasury ; and the register, or enrolment and license, granted in lieu thereof, shall, within ten days after the arrival of such ship or vessel within the district, to which she belongs, be delivered to the collector of the said district, and be by him cancelled. And if the said'master or commander shall neglect to deliver the said register or enrolment and license, within the time aforesaid, he shall forfeit one hundred dollars.

Sec. 4. _And be it further enacted_, That in order to the licensing of any ship or vessel, for carrying on the coasting trade or fisheries, the husband, or managing owner, together with the master thereof, with one or more sureties to the satisfaction of the collector granting the same, shall become bound to pay to the United States, if such ship or vessel be of the burden of five tons, and less than twenty tons, the sum of one hundred dollars ; and if twenty tons, and not exceeding thirty tons, the sum of two hundred dollars ; and if above thirty tons, and not exceeding sixty tons, the sum of five hundred dollars ; and if above sixty tons, the sum of one thousand dollars, in case it shall appear, within two years from the date of the bond, that such ship or vessel has been employed in any trade, whereby the revenue of the United States has been defrauded during the time the license granted to such ship or vessel remained in force ; and the master of such ship or vessel shall also swear, or affirm, that he is a citizen of the United States, and that such license shall not be used for any other vessel, or any other employment, than that for which it is specially granted, or in any trade or business, whereby the revenue of the United States may be defrauded ; and if such ship or vessel be less than twenty tons burden, the husband or managing owner shall swear or affirm, that she is wholly the property of a citizen or citizens of the United States ; whereupon it shall be the duty of the collector of the district comprehending the port, whereto such ship or vessel may belong (the duty of six cents per ton being first paid), to grant a license, in the form following : " License for carrying on the \[here insert, coasting trade, whale fishery, or cod fishery, as the case may be\].

"In pursuance of an act of the Congress of the United States of America, intituled " An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same," \[inserting here the name of the husband or managing owner, with his occupation and place of abode, and the name of the master, with the place of his abode\] having given bond, that the \[insert here the description of the vessel, whether ship, brigantine, snow, schooner, sloop, or whatever else she may be\], called the \[insert here the vessel's name\], whereof the said \[naming the master\] is master, burden \[insert here the number of 45 \*tons, in words\] tons, as appears by her enrolment, dated at \[naming the district, day, month, and year, in words at length, (but if she be less than twenty tons, insert, instead thereof,) proof being had of her adamesment\] shall not be employed in any trade, while this license shall continue in force, whereby the revenue of the United States shall be defranded, and having also sworn (or affirmed) that this license shall not be used for any other vessel, or for any other employment, than is herein specified, license is hereby granted for the said \[inserting here the description of the vessel\] called the \[inserting here the vessel's name\] to be employed in carrying on the \[inserting here, coasting trade, whale fishery, or cod fishery, as the case may be\] for one year from the date hereof, and no longer: Given under my hand and seal, at \[naming the said district\], this \[inserting the particular day\] day of \[naming the month\] in the year \[specifying the number of the year in words at length\]."

Sec. 5. _And be it further enacted,_ That no license, granted to any ship or vessel, shall be considered in force, any longer than such ship or vessel is owned, and of the description set forth in such license, or for carrying on any other business or employment, than that for which she is specially licensed, and if any ship or vessel be found with a forged or altered license, or making use of a license granted for any other ship or vessel, such ship or vessel, with her tackle, apparel, and the cargo found on board her, shall be forfeited.

Sec. 6. _And be it further enacted,_ That after the last day of May next, every ship or vessel of twenty tons or upwards (other than such as are registered) found trading between district and district, or between different places in the same district, or carrying on the fishery, without being enrolled and licensed, or if less than twenty tons, and not less than five tons, without a license, in manner as is provided by this act, such ship or vessel, if laden with goods the growth or manufacture of the United States only (distilled spirits excepted) or in ballast, shall pay the same fees and tonnage in every port of the United States, at which she may arrive, as ships or vessels not belonging to a citizen or citizens of the United States, and if she have on board any articles of foreign growth or manufacture, or distilled spirits, other than sea stores, the ship or vessel, together with her tackle, apparel, and furniture, and the lading found on board, shall be forfeited : _Provided,_ however, if such ship or vessel be at sea, at the expiration of the time for which the license was given, and the master of such ship or vessel shall swear or affirm that such was the case, and shall also within forty-eight hours after his arrival deliver to the collector of the district in which he shall first arrive the license which shall have expired, the forfeiture aforesaid shall not be incurred, nor shall the ship or vessel be liable to pay the fees and tonnage aforesaid.

## Appendix A Appendix.

**Sac. 7**.: _And be it further enacted_**, That the collector of each district shall progressively number the licenses by him granted, beginning anew at the commencement of each year, and shall make a record thereof in a book, to be by him kept for that purpose, and shall, once in three months, transmit to the register of the treasury, copies of the licenses, which shall have been so granted by him; and also of such licenses, as shall have been given up or returned to him, respectively, in pursuance of this act. And where any ship or vessel shall be licensed, or enrolled anew, or being licensed or enrolled, shall afterwards be registered, or being registered, shall afterwards be enrolled, or licensed, she shall, in every such case, be enrolled, licensed, or registered by her former name.**

**Sac. 8**.: _And be it further enacted_**, That if any ship or vessel, enrolled or licensed, as aforesaid, shall proceed on a foreign voyage, without first giving up her enrolment and license, to the collector of the district comprehend the port, from which she is about to proceed on such foreign voyage, and being duly registered by such collector, every such ship or vessel, together with her tackle, apparel, and furniture, and the goods, wares, and merchandise, so imported therein, shall be liable to seizure and forfeiture:**Provided always**, if the port, from which such ship or vessel is about to proceed on such foreign voyage, be not within the district, where such ship or vessel is enrolled, the collector of such district shall give to the master of such ship or vessel a certificate, specifying that the enrolment and license of such ship or vessel is received by him, and the time when it was so received; which certificate shall afterwards be delivered by the said master to the collector, who may have granted such enrolment and license.**

**Sac. 9**.: _And be it further enacted_\*\*, That the license, granted to any ship or vessel, shall be given up to the collector of the district, who may have granted the same, within three days after the expiration of the time, for which it was granted, in case such ship or vessel 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 district, to the collector of such district, taking his certificate therefor; and if the master thereof shall neglect, or refuse to deliver up the license, as aforesaid, he shall forfeit fifty dollars; but if such license shall have been previously given up to the collector of any other district, as authorized by this act, and a certificate thereof under the hand of such collector, be produced by such master, or if such license be lost, or destroyed, or unintentionally mislaid, so that it cannot be found, and the master of such ship or vessel shall make and subscribe an oath or affirmation, that such license is lost, destroyed, or unintentionally mislaid, as he verily believes, and that the same, if found, shall be delivered up, as is herein required,536

APPENDIX.

then the aforesaid penalty shall not be incurred. And if such license shall be lost, destroyed, or unintentionally mislaid, as aforesaid, before the expiration of the time for which it was granted, upon the like oath or affirmation being made and subscribed by the master of such ship or resel, the said collector is hereby authorized and required, upon application being made therefor, to license such ship or vessel anew.

Sec. 10. _And be it further enacted,_ That it shall and may be lawful for the owner or owners of any licensed ship or vessel, to return such license to the collector who granted the same at any time within the year, for which it was granted, who shall thereupon, cancel the same and shall license such vessel anew, upon the application of the owner or owners, and upon the conditions hereinbefore required, being complied with; and in case the term, for which the former license was granted, shall not be expired, an abatement of the tonnage of six cents per ton shall be made, in the proportion of the time so unexpired.

Sec. 11. _And be it further enacted,_ That every licensed ship or vessel shall have her name, and the port to which she belongs, painted on her stern, in the manner as is provided for registered ships or vessels, and if any licensed ship or vessel be found, without such painting, the owner or owners thereof shall pay twenty dollars.

Sec. 12. _And be it further enacted,_ That when the master of any licensed ship or vessel, ferry boats excepted, shall be changed, the new master, or, in case of his absence, the owner or one of the owners thereof, shall 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 ship or vessel may next arrive, who, upon the oath or affirmation of such new master, or in case of his absence, of the owner or one of the owners, that he is a citizen of the United States, and that such ship or vessel shall not, while such license continues in force, be employed in any manner, whereby the revenue of the United States may be defrauded, shall indorse such change on the license, with the name of the new master; and when any change shall happen, as aforesaid, and such change shall not be reported, and the indorsement made of such change, as is herein required, such ship or vessel, found carrying on the coasting trade or fisheries, shall be subject to pay the same fees and tonnage, as a vessel of the United States, having a register, and the said new master shall forfeit and pay the sum of ten dollars.

Sec. 13. _And be it further enacted,_ That it shall be lawful, at all times, for any officer concerned in the collection of the revenue, to inspect the enrolment or license of any ship or vessel; and if the master of any such ship or vessel shall not exhibit the same, when thereinto required by such officer, he shall pay one hundred dollars.

Sec. 14. _And be it further enacted,_ That the master or commander of APPENDIX. 537

every ship or vessel licensed for carrying on the coasting trade, destined from a district in one State, to a district in the same, or an adjoining State on the sea-coast, or on a navigable river, having on 'board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding five thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise in packages, as imported, exceeding in value four hundred dollars, or goods, wares, or merchandise, consisting of such enumerated or other articles of foreign growth or manufacture, or of both, whose aggregate value exceeds eight hundred dollars, shall, previous to the departure of such ship or vessel from the port where she may then be, make out and subscribe duplicate manifests of the whole of such cargo on board such ship or vessel, specifying in such manifests, the marks and numbers of every cask, bag, box, chest, or package containing the same, with the name and place of residence of every shipper and consignee, and the quantity shipped by and to each, and if there be a collector or surveyor, residing at such port, or within five miles thereof, he shall deliver such manifests to the collector, if there be one, otherwise to the surveyor, before whom he shall swear or affirm, to the best of his knowledge and belief, that the goods therein contained were legally imported, and the duties thereupon paid or secured, or if spirits distilled within the United States, that the duties thereupon have been paid or secured, whereupon the said collector or surveyor shall certify the same on the said manifests, one of which he shall return to the said master, with a permit, specifying thereon, generally, the lading on board such ship or vessel, and authorizing him to proceed to the port of his destination. And if any ship or vessel, being laden and destined, as aforesaid, shall depart from the port where she may then be, without the master or commander having first made out and subscribed duplicate manifests of the lading on board such ship or vessel, and in case there be a collector or surveyor residing at such port, or within five miles thereof, without having previously delivered the same to the said collector or surveyor, and obtaining a permit, in manner as is herein required, such master or commander shall pay one hundred dollars.

Sec. 15. _And be it further enacted_, That the master or commander of every ship or vessel licensed for carrying on the coasting-trade, having on board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks exceeding two hundred gallons, and in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks exceeding two hundred gallons, and in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks exceeding two hundred gallons, and in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks exceeding two hundred gallons, and in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks exceeding two hundred gallons, and in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks exceeding two hundred gallons, and in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks or bags exceeding two hundred gallons, or in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks or bags exceeding two hundred gallons, or in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks or bags exceeding two hundred gallons, or in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks or bags exceeding two hundred gallons, or in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks or bags exceeding two hundred gallons, or in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks or bags exceeding two hundred gallons, or in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks or bags exceeding one thousand pounds, or foreign merchandise, as in casks or bags exceeding two hundred gallons, or in bottles exceeding one hundred dozen, sugar in casks or boxes exceeding three thousand pounds, coffee in
538

APPENDIX.

chandise in packages, as imported, exceeding in value four hundred dollars, or goods, wares, or merchandise, consisting of such enumerated or other articles of foreign growth or manufacture, or of both, whose aggregate value exceeds eight hundred dollars, and arriving from a district in one State, at a district in the same or an adjoining State on the sea-coast, or on a navigable river, shall, previous to the unloading of any part of the cargo of such ship or vessel, deliver to the collector, if there be one, or if not, to the surveyor residing at the port of her arrival, or if there be no collector or surveyor residing at such port, then to a collector or surveyor, if there be any such officer, residing within five miles thereof, the manifest of the cargo, certified by the collector or surveyor of the district from whence she sealed (if there be such manifest), otherwise the duplicate manifests thereof, as is herein before directed, to the truth of which, before such officer, he shall swear or affirm. And if there have been taken on board such ship or vessel, any other or more goods, than are contained in such manifest or manifests, since her departure from the port from whence she first sailed, or if any goods have been since landed, the said master or commander shall make known and particularize the same to the said collector or surveyor, or if no such goods have been so taken on board or landed, he shall so declare, to the truth of which he shall swear or affirm : Whereupon, the said collector or surveyor shall grant a permit for unloading a part, or the whole of such cargo, as the said master or commander may request. And if there be no collector or surveyor, residing at, or within five miles of the said port of her arrival, the master or commander of such ship or vessel may proceed to discharge the lading from on board such ship or vessel, but shall deliver to the collector or surveyor, residing at the first port, where he may next afterwards arrive, and within twenty-four hours of his arrival, the manifest or manifests aforesaid, noting thereon the times when, and places where, the goods therein mentioned have been unladen, to the truth of which, before the said last-mentioned collector or surveyor, he shall swear or affirm ; and if the master or commander of any such ship or vessel, being laden as aforesaid, shall neglect or refuse to deliver the manifest or manifests, at the times, and in the manner, herein directed, he shall pay one hundred dollars.

Sec. 16. _And be it further enacted,_ That the master or commander of every ship or vessel, licensed for carrying on the coasting-trade, and being destined from any district of the United States, to a district other than a district in the same, or an adjoining State, on the sea-coast, or on a navigable river, shall, previous to her departure, deliver to the collector residing at the port where such ship or vessel may be, if there is one, otherwise to the collector of the district comprehending such port, or to a surveyor within the district, as the one or the other may reside APPENDIX. 539

nearest to the port at which such ship or vessel may be, duplicate manifests of the whole cargo on board such ship or vessel, or if there be no cargo on board, he shall so certify, and if there be any distilled spirits, or goods, wares, and merchandise, of foreign growth or manufacture on board, other than what may, by the collector, be deemed sufficient for sea stores, he shall specify in such manifests, the marks and numbers of every eask, bag, box, chest, or package, containing the same, with the name, and place of residence, of every shipper and consignee of such distilled spirits, or goods of foreign growth or manufacture, and the quantity shipped by, and to each, to be by him subscribed, and to the truth of which he shall swear or affirm; and shall also swear or affirm before the said collector or surveyor, that such goods, wares, or merchandise, of foreign growth or manufacture, were, 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; upon the performance of which, and not before, the said collector or surveyor shall certify the same on the said manifests; one of which he shall return to the master, with a permit, thereto annexed, authorizing him to proceed to the port of his destination. And if any such ship or vessel shall depart from the port where she may then be, having distilled spirits, or goods, wares, or merchandise, of foreign growth or manufacture on board, without the several things herein required, being complied with, the master thereof shall foreit one hundred dollars; or if the lading be of goods, the growth or manufacture of the United States only, or if such ship or vessel have no cargo, and she depart, without the several things herein required, being complied with, the said master shall foreit and pay fifty dollars.

Sxc. 17. _And be it further enacted_, That the master or commander of every ship or vessel, licensed to carry on the coasting trade, arriving at any district of the United States, from any district, other than a district in the same, or an adjoining State on the sea-coast, or on a navigable river, shall deliver to the collector residing at the port where she may arrive, if there be one, otherwise to the collector or surveyor in the district comprehending such port, as the one, or the other, may reside nearest thereto, if the collector or surveyor reside at a distance not exceeding five miles, within twenty-four hours, or if at a greater distance, within forty-eight hours next after his arrival; and previous to the unloading any of the goods brought in such ships or vessel, the manifest of the cargo (if there be any).certified by the collector or surveyor of the district from whence she last sailed, and shall make oath or affirmation, before the said collector or surveyor, that there was not when he sailed from the district where his manifest was certified, or has been since, or then is, any more, or other goods, wares, or merchandise of foreign
538

APPENDIX.

chandise in packages, as imported, exceeding in value four hundred dollars, or goods, wares, or merchandise, consisting of such enumerated or other articles of foreign growth or manufacture, or of both, when aggregate value exceeds eight hundred dollars, and arriving from a district in one State, at a district in the same or an adjoining State on a side of the sea-coast, or on a navigable river, shall, previous to the unloading of the part of the cargo of such ship or vessel, deliver to the collector, if the sea is be one, or if not, to the surveyor residing at the port of her arrival, or, there be no collector or surveyor residing at such port, then to a collector or surveyor, if there be any such officer, residing within five $d$-sized $l$ thereof, the manifest of the cargo, certified by the collector or surveyor, if the district from whence she sailed (if there be such manifest), and call, wise the duplicate manifests thereof, as is herein before directed, if the foreign truth of which, before such officer, he shall swear or affirm. If the latter, there have been taken on board such ship or vessel, any other $d$-sized $l$-sized goods, than are contained in such manifest or manifests, since her $d$-sized nearest to the port at which such a way on a board can go back ship or vessel may be, duplicate or goods, have a small so easily, and it there be a lot of interest to the store, or it the store, or a lot of interest to the store, or a growth or manufacture, or distilled spirits (if there be any, other than sea stores, on board such vessel) than is therein mentioned ; and if there be no such goods, he shall so swear or affirm ; and if there be no cargo on board, he shall produce the certificate of the collector or surveyor of the district from whence she last sealed, as aforesaid, that such is the case : Whereupon such collector or surveyor shall grant a permit for unloading the whole, or part of such cargo (if there be any) within his district, as the master may request; and where a part only of the goods, wares, and merchandise, of foreign growth or manufacture, or of distilled spirits, brought in such ship or vessel, is intended to be landed, the said collector or surveyor shall make an indorsement of such part, on the back of the manifest, specifying the articles to be landed ; and shall return such manifest to the master, indorsing also thereon, his permission for such ship or vessel to proceed to the place of her destination ; and if the master of such ship or vessel shall neglect or refuse to deliver the manifest (or if she has no cargo, the certificate), within the time herein directed, he shall forfeit one hundred dollars, and the goods, wares, and merchandise of foreign growth or manufacture, or distilled spirits, found on board, or landed from such ship or vessel, not being certified, as is herein required, shall be forfeited, and if the same shall amount to the value of eight hundred dollars, such ship or vessel, with her tackle, apparel, and furniture, shall be also forfeited.

Szc. 18. _And be it further enacted_, That nothing in this act contained shall be so construed, as to oblige the master or commander of any ship or vessel, licensed for carrying on the coasting-trade, bound from a district in one State, to a district in the same, or an adjoining State on the sea-coast, or on a navigable river, having on board goods, wares, or merchandise, of the growth, product, or manufactures of the United States only (except distilled spirits) or distilled spirits, not more than five hundred gallons, wine in casks not more than two hundred and fifty gallons, or in bottles not more than one hundred dozens, sugar in casks or boxes not more than three thousand pounds, tea in chests or boxes not more than five hundred pounds, coffee in casks or bags not more than one thousand pounds, or foreign merchandise in packages, as imported, of not more value than four hundred dollars, or goods, wares, or merchandise, consisting of such enumerated or other articles of foreign growth or manufacture, or of both, whose aggregate value shall be not more than eight hundred dollars, to deliveg a manifest thereof, or obtain a permit, previous to her departure, or on her arrival within such district, to make any report thereof; but such master shall be provided with a manifest, by him subscribed, of the lading, of what kind soever, which was on board such ship or vessel, at the time of his departure from the district from which she last sealed, and if the same, or any part of such lading,

## Appendix.

The _same_ ofwithin the time, and in the manner, herein directed, all such goods, wares, and merchandise, shall be subject to forfeiture ; and if the permit granted shall not be given up, within the time limited for making the said report, the person or persons to whom it was granted, neglecting or refusing to deliver it up, shall forfeit fifty dollars for every twenty-four hours it shall be withheld afterwards : _Provided,_ That where the goods, wares, and merchandise, to be transported in manner aforesaid, shall be of less value than eight hundred dollars, the said oath and permit shall not be deemed necessary, nor shall the owner or consignee be obliged to make report to the collector of the district where the said goods, wares, and merchandise shall arrive.

Sec. 20. _And be it further enacted,_ That when any ship or vessel of the United States, registered according to law, shall be employed in going from any one district in the United States, to any other district, such ship or vessel, and the master or commander thereof, with the goods she may have on board, previous to her departure from the district, where she may be, and also, upon her arrival in any other district, shall be subject (except as to the payment of fees) to the same regulations, provisions, penalties, and forfeitures, and the like duties are imposed on like officers, as is provided by the sixteenth and seventeenth sections of this act, for ships or vessels licensed for carrying on the coasting trade : _Provided, however,_ that nothing herein contained, shall be construed to extend to registered ships or vessels of the United States, having on board goods, wares, and merchandise of foreign growth or manufacture, brought into the United States in such ship or vessel from a foreign port, and on which the duties have not been paid or secured, according to law.

Sec. 21. _And be it further enacted,_ That when any ship or vessel, licensed for carrying on the fishery, shall be intended to touch and trade at any foreign port or place it shall be the duty .of the master, commander, or owner, to obtain permission for that purpose, from the collector of the district where such ship or vessel may be, previous to her departure, and the master or commander of every such ship or vessel, shall deliver like manifests, and make like entries, both of the ship or vessel, and of the goods, wares, or merchandise on board, within the same time, and under the same penalty, as by the laws of the United States, are provided for ships or vessels of the United States arriving from a foreign port. And if any ship or vessel, licensed for carrying on the fisheries, shall be found within three leagues of the coast, with goods, wares, or merchandise of foreign growth or manufacture, exceeding the value of five hundred dollars, without having such permission, as is herein directed, such ship or vessel, together with her goods, wares, or merchandise of foreign growth or manufacture imported therein, shall be subject to seizure and forfeiture.

## Appendix.

**Sec. 22**.: _And be it further enacted_**, That the master or commander of every ship or vessel, employed in the transportation of goods from district to district, that shall put into a port, other than the one to which she was bound, shall, within twenty-four hours of his arrival, if there be an officer residing at such port, and she continue there so long, make report of his arrival, to such officer, with the name of the place he came from, and to which he is bound, with an account of his lading ; and if the master of such ship or vessel shall neglect or refuse to do the same, he shall forfeit twenty dollars.**Sec. 23**.: _And be it further enacted_**, That if the master or commander of any ship or vessel, employed in the transportation of goods, from district to district, having on board goods, wares, or merchandise, of foreign growth or manufacture, or distilled spirits, shall, on his arrival at the port to which he was destined, have lost or mislaid the certified manifest of the same, or the permit which was given therefor, by the collector or surveyor of the district from whence he said, the collector of the district where he shall so arrive, shall take bond for the payment of the duties on such goods, wares, and merchandise of foreign growth or manufacture, or distilled spirits, within six months, in the same manner, as though they were imported from a foreign country : _Provided however_, such bond shall be cancelled, if the said master shall deliver, or cause to be delivered to the collector taking such bond, and within the term therein limited for payment, a certificate from the collector or surveyor of the district from whence he said, that such goods were legally exported in such ship or vessel, from such district.**Sec. 24**.: _And be it further enacted_\*\*, That the master or commander of every foreign ship or vessel, bound from a district in the United States, to any other district within the same, shall, in all cases, previous to her departure, from such district, deliver to the collector of such district, duplicate manifests of the lading on board such ship or vessel, if there be any, or if there be none, he shall declare that such is the case, and to the truth of such manifests or declaration, he shall swear or affirm, and also obtain a permit, from the said collector, authorizing him to proceed to the place of his destination. And the master or commander of every such ship or vessel, on his arrival within any district, from any other district, shall, in all cases, within forty-eight hours after his arrival, and previous to the unloading any goods from on board such ship or vessel, deliver to the collector of the district where he may have arrived, a manifest of the goods laden on board such ship or vessel, if any there be, or if in ballast only, he shall so declare, and to the truth of which manifest or declaration, he shall swear or affirm; and also, that such manifest contains an account of all the goods, wares, and merchandise which were on boardsuch ship or vessel, at the time, or have been, since her departure from the place from whence she shall be reported last to have sailed; and he shall also deliver to such collector the permit which was given him from the collector of the district from whence he sailed. And if the master or commander of any such ship or vessel shall neglect or refuse complying with any of the requirements herein made, he shall forfeit one hundred dollars: _Provided always_, That nothing herein contained shall be construed as affecting the payment of tonnage, or any other requirements which such ships or vessels are now subject to by the present existing laws of the United States.

Sec. 25. _And be it further enacted_, That in every case, where the collector is, by this act, directed to grant any enrolment, license, certificate, permit, or other document, the naval officer residing at the port (if there be one) shall sign the same, and every surveyor who shall certify a manifest, or grant a permit, or who shall receive any certified manifest, or a permit as is provided for in this act, shall make monthly returns thereof, or sooner, if it can conveniently be made, to the collector of the district where such surveyor may reside.

Sec. 26. _And be it further enacted_, That before any ship or vessel, of the burden of five tons, and less than twenty tons, shall be licensed, the same admeasurement shall be made of such ship or vessel, and the same provisions observed relative thereto, as are to be observed in case of admeasuring ships or vessels to be registered or enrolled; but in all cases, where such ship or vessel, or any other licensed ship or vessel, shall have been once admeasured, it shall not be necessary to measure such ship or vessel anew, for the purpose of obtaining another enrolment or license, except such ship or vessel shall have undergone some alteration as to her burden, subsequent to the time of her former license.

Sec. 27. _And be it further enacted_, That it shall be lawful for any officer of the revenue, to go on board of any ship or vessel, whether she shall be within or without his district, and the same to inspect, search, and examine, and if it shall appear, that any breach of the laws of the United States has been committed, whereby such ship or vessel, or the goods, wares, and merchandise on board, or any part thereof, is, or are liable to forfeiture, to make seizure of the same.

Sec. 28. _And be it further enacted_, That in every case where a forfeiture of any ship or vessel, or of any goods, wares, or merchandise, shall accrue, it shall be the duty of the collector, or other proper officer, who shall give notice of the seizure of such ship or vessel, or of such goods, wares, or merchandise, to insert in the same advertisement, the name or names, and the place or places of residence, of the person or

## Appendix A Appendix.

persons, to whom any such ship or vessel, goods, wares, and merchandise belonged, or were consigned, at the time of such seizure, if the same shall be known to him.

Sec. 29. _And be it further enacted_, That every collector, who shall knowingly make any record of enrolment or license of any ship or vessel, and every other officer, or person, appointed by, or under them, who shall make any record, or grant any certificate, or other document whatever, contrary to the true intent and meaning of this act, or shall take any other, or greater fees, than are by this act allowed, or shall receive, for any service performed pursuant to this act, any reward or gratuity, and every surveyor, or other person appointed to measure ships or vessels, who shall willfully deliver to any collector, or naval officer, a false description of any ship or vessel, to be enrolled or licensed, in pursuance of this act, shall, upon conviction of any such neglect or offence, forfeit to the United States five hundred dollars, and be rendered incapable of serving in any office of trust or profit, under the United States. And if any person, authorized and required by this act, in respect to his office, to perform any act or thing required by this act, shall willfully neglect or refuse to do and perform the same, according to the true intent and meaning of this act, such person, on being duly convicted thereof, if not hereby subject to the 'penalty and quasilifications' aforesaid, shall forfeit and pay the sum of five hundred dollars for the first offence, and a like sum for the second offence, and shall from thenceforward, be rendered incapable of holding any office of trust or profit under the United States.

Sec. 30. _And be it further enacted_, That if any person or persons shall swear, or affirm to any of the matters, herein required to be verified, knowing the same to be false, such person or persons shall suffer the like pains and penalties, as shall be incurred, by persons committing wiflal and corrupt perjury. And if any person or persons shall forge, counterfeit, erase, alter, or falsify any enrolment, license, certificate, permit, or other document, mentioned or required in this act, to be granted by any officer of the revenue, such person or persons, so offending, shall forfeit five hundred dollars.

Sec. 31. _And be it further enacted_, That if any person or persons shall assault, resist, obstruct, or hinder any officer in the execution of this act, or of any other act or law of the United States, herein mentioned, or of any of the powers or authorities vested in him by this act, or any other act or law, as aforesaid, all and every person and persons so offending, shall, for every such offence, for which no other penalty is particularly provided, forfeit five hundred dollars.

Sec. 32. _And be it further enacted_, That if any licensed ship or vessel shall be transferred, in whole or in part, to any person, who is not, at the536

then the aforesaid penalty shall not be incurred. And if such license shall be lost, destroyed, or unintentionally mislaid, as aforesaid, before the expiration of the time for which it was granted, upon the like cath or affirmation being made and subscribed by the master of such ship or vessel, the said collector is hereby authorized and required, upon application being made therefor, to license such ship or vessel anew.

Sec. 10. _And be it further enacted_, That it shall and may be lawful for the owner or owners of any licensed ship or vessel, to return such license to the collector who granted the same at any time within the year, for which it was granted, who shall thereupon, cancel the same and shall license such vessel anew, upon the application of the owner or owners, and upon the conditions hereinbefore required, being complied with ; and in case the term, for which the former license was granted, shall not be expired, an abatement of the tonnage of six cents per ton shall be made, in the proportion of the time so unexpired.

Sec. 11. _And be it further enacted_, That every licensed ship or vessel shall have her name, and the port to which she belongs, painted on her stern, in the manner as is provided for registered ships or vessels, and if any licensed ship or vessel be found, without such painting, the owner or owners thereof shall pay twenty dollars.

Sec. 12. _And be it further enacted_, That when the master of any licensed ship or vessel, ferry boats excepted, shall be changed, the new master, or, in case of his absence, the owner or one of the owners thereof, shall 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 ship or vessel may next arrive, who, upon the cath or affirmation of such new master, or in case of his absence, of the owner or one of the owners, that he is a citizen of the United States, and that such ship or vessel shall not, while such license continues in force, be employed in any manner, whereby the revenue of the United States may be defrauded, shall indorse such change on the license, with the name of the new master; and when any change shall happen, as aforesaid, and such change shall not be reported, and the indorsement made of such change, as is herein required, such ship or vessel, found carrying on the coasting trade or fisheries, shall be subject to pay the same fees and tonnage, as a vessel of the United States, having a register, and the said new master shall forfeit and pay the sum of ten dollars.

Sec. 13. _And be it further enacted_, That it shall be lawful, at all times, for any officer concerned in the collection of the revenue, to inspect the enrolment or license of any ship or vessel; and if the master of any such ship or vessel shall not exhibit the same, when thereunto required by such officer, he shall pay one hundred dollars.

Sec. 14. _And be it further enacted_, That the master or commander of APPENDIX.

every ship or vessel licensed for carrying on the coasting trade, destined from a district in one State, to a district in the same, or an adjoining State on the sea-coast, or on a navigable river, having on 'board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise in packages, as imported, exceeding in value four hundred dollars, or goods, wares, or merchandise, consisting of such enumerated or other articles of foreign growth or manufacture, or of both, whose aggregate value exceeds eight hundred dollars, shall, previous to the departure of such ship or vessel from the port where she may then be, make out and subscribe duplicate manifests of the whole of such cargo on board such ship or vessel, specifying in such manifests, the marks and numbers of every cask, bag, box, chest, or package containing the same, with the name and place of residence of every shipper and consignee, and the quantity shipped by and to each, and if there be a collector or surveyor, residing at such port, or within five miles thereof, he shall deliver such manifests to the collector, if there be one, otherwise to the surveyor, before whom he shall swear or affirm, to the best of his knowledge and belief, that the goods therein contained were legally imported, and the duties thereupon paid or secured, or if spirits distilled within the United States, that the duties thereupon have been paid or secured, whereupon the said collector or surveyor shall certify the same on the said manifests, one of which he shall return to the said master, with a permit, specifying thereon, generally, the lading on board such ship or vessel, and authorizing him to proceed to the port of his destination. And if any ship or vessel, being laden and destined, as aforesaid, shall depart from the port where she may then be, without the master or commander having first made out and subscribed duplicate manifests of the lading on board such ship or vessel, and in case there be a collector or surveyor residing at such port, or within five miles thereof, without having previously delivered the same to the said collector or surveyor, and obtaining a permit, in manner as is herein required, such master or commander shall pay one hundred dollars.

Sec. 15. _And be it further enacted,_ That the master or commander of every ship or vessel licensed for carrying on the coasting-trade, having on board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as described in Sec. 16. \_And the master or commander of every ship or vessel licensed for carrying on the coasting-trade, having on board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as described in Sec. 17. \_And the master or commander of every ship or vessel licensed for carrying on the coasting-trade, having on board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as described in Sec. 18. \_And the master or commander of every ship or vessel licensed for carrying on the coasting-trade, having on board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as described in Sec. 19. \_And the master or commander of every ship or vessel licensed for carrying on the coasting-trade, having on board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as described in Sec.

## Appendix

then the aforesaid penalty shall not be incurred. And if such license shall be lost, destroyed, or unintentionally mislaid, as aforesaid, before the expiration of the time for which it was granted, upon the like oath or affirmation being made and subscribed by the master of such ship or vessel, the said collector is hereby authorized and required, upon application being made therefor, to license such ship or vessel anew.

Sec. 10. _And be it further enacted,_ That it shall and may be lawful for the owner or owners of any licensed ship or vessel, to return such license to the collector who granted the same at any time within the year, for which it was granted, who shall thereupon, cancel the same and shall license such vessel anew, upon the application of the owner or owners, and upon the conditions hereinbefore required, being complied with; and in case the term, for which the former license was granted, shall not be expired, an abatement of the tonnage of six cents per ton shall be made, in the proportion of the time so unexpired.

Sec. 11. _And be it further enacted,_ That every licensed ship or vessel shall have her name, and the port to which she belongs, painted on her stern, in the manner as is provided for registered ships or vessels, and if any licensed ship or vessel be found, without such painting, the owner or owners thereof shall pay twenty dollars.

Sec. 12. _And be it further enacted,_ That when the master of any licensed ship or vessel, ferry boats excepted, shall be changed, the new master, or, in case of his absence, the owner or one of the owners thereof, shall 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 ship or vessel may next arrive, who, upon the oath or affirmation of such new master, or in case of his absence, of the owner or one of the owners, that he is a citizen of the United States, and that such ship or vessel shall not, while such license continues in force, be employed in any manner, whereby the revenue of the United States may be defrauded, shall indorse such change on the license, with the name of the new master; and when any change shall happen, as aforesaid, and such change shall not be reported, and the indorsement made of such change, as is herein required, such ship or vessel, found carrying on the coasting trade or fisheries, shall be subject to pay the same fees and tonnage, as a vessel of the United States, having a register, and the said new master shall forfeit and pay the sum of ten dollars.

Sec. 13. _And be it further enacted,_ That it shall be lawful, at all times, for any officer concerned in the collection of the revenue, to inspect the enrolment or license of any ship or vessel; and if the master of any such ship or vessel shall not exhibit the same, when thereuno required by such officer, he shall pay one hundred dollars.

Sec. 14. _And be it further enacted,_ That the master or commander of APPENDIX. 537

every ship or vessel licensed for carrying on the coasting trade, destined from a district in one State, to a district in the same, or an adjoining State on the sea-coast, or on a navigable river, having on 'board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise in packages, as imported, exceeding in value four hundred dollars, or goods, wares, or merchandise, consisting of such enumerated or other articles of foreign growth or manufacture, or of both, whose aggregate value exceeds eight hundred dollars, shall, previous to the departure of such ship or vessel from the port where she may then be, make out and subscribe duplicate manifests of the whole of such cargo on board such ship or vessel, specifying in such manifests, the marks and numbers of every cask, bag, box, chest, or package containing the same, with the name and place of residence of every shipper and consignee, and the quantity shipped by and to each, and if there be a collector or surveyor, residing at such port, or within five miles thereof, he shall deliver such manifests to the collector, if there be one, otherwise to the surveyor, before whom he shall swear or affirm, to the best of his knowledge and belief, that the goods therein contained were legally imported, and the duties thereupon paid or secured, or if spirits distilled within the United States, that the duties thereupon have been paid or secured, whereupon the said collector or surveyor shall certify the same on the said manifests, one of which he shall return to the said master, with a permit, specifying thereon, generally, the lading on board such ship or vessel, and authorizing him to proceed to the port of his destination. And if any ship or vessel, being laden and destined, as aforesaid, shall depart from the port where she may then be, without the master or commander having first made out and subscribed duplicate manifests of the lading on board such ship or vessel, and in case there be a collector or surveyor residing at such port, or within five miles thereof, without having previously delivered the same to the said collector or surveyor, and obtaining a permit, in manner as is herein required, such master or commander shall pay one hundred dollars.

Sec. 15. _And be it further enacted_, That the master or commander of every ship or vessel licensed for carrying on the coasting-trade, having on board, either distilled spirits in casks exceeding five hundred gallons, wine in casks exceeding two hundred and fifty gallons, or in bottles exceeding one hundred dozens, sugar in casks or boxes exceeding three thousand pounds, tea in chests or boxes exceeding five hundred pounds, coffee in casks or bags exceeding one thousand pounds, or foreign merchandise, as described in Sec. 16. \_And the master of the

## Appendix

Chandise in packages, as imported, exceeding in value four hundred dollars, or goods, wares, or merchandise, consisting of such enumerated or other articles of foreign growth or manufacture, or of both, whose aggregate value exceeds eight hundred dollars, and arriving from a district in one State, at a district in the same or an adjoining State on the sea-coast, or on a navigable river, shall, previous to the unloading of any part of the cargo of such ship or vessel, deliver to the collector, if there be one, or if not, to the surveyor residing at the port of her arrival, or if there be no collector or surveyor residing at such port, then to a collector or surveyor, if there be any such officer, residing within five miles thereof, the manifest of the cargo, certified by the collector or surveyor of the district from whence she sailed (if there be such manifest), otherwise the duplicate manifests thereof, as is herein before directed, to the truth of which, before such officer, he shall swear or affirm. And if there have been taken on board such ship or vessel, any other or more goods, than are contained in such manifest or manifests, since her departure from the port from whence she first sailed, or if any goods have been since landed, the said master or commander shall make known and particularize the same to the said collector or surveyor, or if no such goods have been so taken on board or landed, he shall so declare, to the truth of which he shall swear or affirm: Whereupon, the said collector or surveyor shall grant a permit for unloading a part, or the whole of such cargo, as the said master or commander may request. And if there be no collector or surveyor, residing at, or within five miles of the said port of her arrival, the master or commander of such ship or vessel may proceed to discharge the lading from on board such ship or vessel, but shall deliver to the collector or surveyor, residing at the first port, where he may next afterwards arrive, and within twenty-four hours of his arrival, the manifest or manifests aforesaid, noting thereon the times when, and places where, the goods therein mentioned have been unladen, to the truth of which, before the said last-mentioned collector or surveyor, he shall swear or affirm; and if the master or commander of any such ship or vessel, being laden as aforesaid, shall neglect or refuse to deliver the manifest or manifests, at the times, and in the manner, herein directed, he shall pay one hundred dollars.

Sec. 16. _And be it further enacted_, That the master or commander of every ship or vessel, licensed for carrying on the coasting-trade, and being destined from any district of the United States, to a district other than a district in the same, or an adjoining State, on the sea-coast, or on a navigable river, shall, previous to her departure, deliver to the collector residing at the port where such ship or vessel may be, if there is one, otherwise to the collector of the district comprehending such port, or to a surveyor within the district, as the one or the other may reside

## Appendix.

nearest to the port at which such ship or vessel may be, duplicate manifests of the whole cargo on board such ship or vessel, or if there be no cargo on board, he shall so certify, and if there be any distilled spirits, or goods, wares, and merchandise, of foreign growth or manufacture on board, other than what may, by the collector, be deemed sufficient for sea stores, he shall specify in such manifests, the marks and numbers of every cash, bag, box, chest, or package, containing the same, with the name, and place of residence, of every shipper and consignee of such distilled spirits, or goods of foreign growth or manufacture, and the quantity shipped by, and to each, to be by him subscribed, and to the truth of which he shall swear or affirm; and shall also swear or affirm before the said collector or surveyor, that such goods, wares, or merchandise, of foreign growth or manufacture, were, 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; upon the performance of which, and not before, the said collector or surveyor shall certify the same on the said manifests; one of which he shall return to the master, with a permit, thereto annexed, authorizing him to proceed to the port of his destination. And if any such ship or vessel shall depart from the port where she may then be, having distilled spirits, or goods, wares, or merchandise, of foreign growth or manufacture on board, without the several things herein required, being complied with, the master' thereof shall forfeit one hundred dollars; or if the lading be of goods, the growth or manufacture of the United States only, or if such ship or vessel have no cargo, and she depart, without the several things herein required, being complied with, the said master shall forfeit and pay fifty dollars.

Sec. 17. _And be it further enacted,_ That the master or commander of every ship or vessel, licensed to carry on the coasting trade, arriving at any district of the United States, from any district, other than a district in the same, or an adjoining State on the sea-coast, or on a navigable river, shall deliver to the collector residing at the port where she may arrive, if there be one, otherwise to the collector or surveyor in the district comprehending such port, as the one, or the other, may reside nearest thereto, if the collector or surveyor reside at a distance not exceeding five miles, within twenty-four hours, or if at a greater distance, within forty-eight hours next after his arrival; and previous to the unloading any of the goods brought in such ship or vessel, the manifest of the cargo (if there be any).certified by the collector or surveyor of the district from whence she last sailed, and shall make oath or affirmation, before the said collector or surveyor, that there was not when he sailed from the district where his manifest was certified, or has been since, or then is, any more, or other goods, wares, or merchandise of foreign

## Appendix.

growth or manufacture, or distilled spirits (if there be any, other than sea stores, on board such vessel) than is therein mentioned ; and if there be no such goods, he shall so swear or affirm ; and if there be no cargo on board, he shall produce the certificate of the collector or surveyor of the district from whence she last sailed, as aforesaid, that such is the case : Whereupon such collector or surveyor shall grant a permit for unloading the whole, or part of such cargo (if there be any) within his district, as the master may request ; and where a part only of the goods, wares, and merchandise, of foreign growth or manufacture, or of distilled spirits, brought in such ship or vessel, is intended to be landed, the said collector or surveyor shall make an indorsement of such part, on the back of the manifest, specifying the articles to be landed ; and shall return such manifest to the master, indorsing also thereon, his permission for such ship or vessel to proceed to the place of her destination ; and if the master of such ship or vessel shall neglect or refuse to deliver the manifest (or if she has no cargo, the certificate), within the time herein directed, he shall forfeit one hundred dollars, and the goods, wares, and merchandise of foreign growth or manufacture, or distilled spirits, found on board, or landed from such ship or vessel, not being certified, as is herein required, shall be forfeited, and if the same shall amount to the value of eight hundred dollars, such ship or vessel, with her tackle, apparel, and furniture, shall be also forfeited.

Sec. 18. _And be it further enacted_, That nothing in this act contained shall be so construed, as to oblige the master or commander of any ship or vessel, licensed for carrying on the coasting-trade, bound from a district in one State, to a district in the same, or an adjoining State on the sea-coast, or on a navigable river, having on board goods, wares, or merchandise, of the growth, product, or manufactures of the United States only (except distilled spirits) or distilled spirits, not more than five hundred gallons, wine in casks not more than two hundred and fifty gallons, or in bottles not more than one hundred dozens, sugar in casks or boxes not more than three thousand pounds, tea in chests or boxes not more than five hundred pounds, coffee in casks or bags not more than one thousand pounds, or foreign merchandise in packages, as imported, of not more value than four hundred dollars, or goods, wares, or merchandise, consisting of such enumerated or other articles of foreign growth or manufacture, or of both, whose aggregate value shall be not more than eight hundred dollars, to deliver a manifest thereof, or obtain a permit, previous to her departure, or on her arrival within such district, to make any report thereof; but such master shall be provided with a manifest, by him subscribed, of the lading, of what kind soever, which was on board such ship or vessel, at the time of his- departure from the district from which she last sailed, and if the same, or any part of such lading,

## Appendix

- consists of distilled spirits, or goods, wares, or merchandise, of foreign growth or manufacture, with the marks and numbers of each cash, bag, box, chest, or package, containing the same, with the name of the shipper and consignee of each ; which manifest shall be by him exhibited, for the inspection of any officer of the revenue, when, by such officer, thereunto required ; and shall also inform such officer, from whence such ship or vessel last sailed, and how long she has been in port, when by him so interrogated. And if the master of such ship or vessel shall not be provided, on his arrival within any such district, with a manifest, and exhibit the same, as is herein required, if the lading of such ship or vessel consist wholly of goods, the produce or manufacture of the United States (distilled spirits excepted) he shall forfeit twenty dollars, or if there be distilled spirits, or goods, wares, or merchandise, of foreign growth or manufacture, on board, excepting what may be sufficient for sea stores, he shall forfeit forty dollars ; or if he shall refuse to answer the interrogatories truly, as is herein required, he shall forfeit the sum of
- one hundred dollars. And if any of the goods laden on board such ship or vessel, shall be of foreign growth or manufacture, or of spirits distilled within the United States, so much of the same as may be found on board such ship or vessel, and which shall not be included in the manifest exhibited by such master, shall be forfeited. Sec. 19. _And be it further enacted,_ That it shall and may be lawful for the collector of the district of Pennsylvania, to grant permits for the transportation of goods, wares, or merchandise, of foreign growth or manufacture, across the State of New Jersey, to the district of New York, or across the State of Delaware, to any district in the State of Maryland or Virginia ; and for the collector of the district of New York, to grant like permits for the transportation across the State of New Jersey ; and for the collector of any district of Maryland or Virginia, to grant like permits for the transportation across the state of Delaware, to the district of Pennsylvania : _Provided,_ That every such permit shall express the name of the owner, or person sending such goods, and of the person or persons, to whom such goods shall be consigned, with the marks, numbers, and description of the packages, whether Dale, box, chest, or otherwise, and the kind of goods contained therein, and the date, when granted ; and the owner, or person sending such goods, shall swear or affirm, that they were legally imported, and the duties thereupon paid or secured : _And provided also,_ That the owner or consignee of all such goods, wares, and merchandise, shall, within twenty-four hours after the arrival thereof, at the place to which they were permitted to be transported, report the same, to the collector of the district where they shall so arrive, and shall deliver up the permit accompanying the same, and if the owner or consignee aforesaid, shall neglect or refuse to make due entry of such goods, VOL L 46
  within the time, and in the manner, herein directed, all such goods, wares, and merchandise, shall be subject to forfeiture ; and if the permit granted shall not be given up, within the time limited for making the said report, the person or persons to whom it was granted, neglecting or refusing to deliver it up, shall forfeit fifty dollars for every twenty-four hours it shall be withheld afterwards : _Provided,_ That where the goods, wares, and merchandise, to be transported in manner aforesaid, shall be of less value than eight hundred dollars, the said oath and permit shall not be deemed necessary, nor shall the owner or consignee be obliged to pake report to the collector of the district where the said goods, wares, and merchandise shall arrive.

Sec. 20. _And be it further enacted,_ That when any ship or vessel of the United States, registered according to law, shall be employed in going from any one district in the United States, to any other district, such ship or vessel, and the master or commander thereof, with the goods she may have on board, previous to her departure from the district, where she may be, and also, upon her arrival in any other district, shall be subject (except as to the payment of fees) to the same regulations, provisions, penalties, and forfeitures, and the like duties are imposed on like officers, as is provided by the sixteenth and seventeenth sections of this act, for ships or vessels licensed for carrying on the coasting trade : _Provided, however,_ that nothing herein contained, shall be construed to extend to registered ships or vessels of the United States, having on board goods, wares, and merchandise of foreign growth or manufacture, brought into the United States in such ship or vessel from a foreign port, and on which the duties have not been paid or secured, according to law.

Sec. 21. _And be it further enacted,_ That when any ship or vessel, licensed for carrying on the fishery, shall be intended to touch and trade at any foreign port or place it shall be the duty ,of the master, commander, or owner, to obtain permission for that purpose, from the collector of the district where such ship or vessel may be, previous to her departure, and the master or commander of every such ship or vessel, shall deliver like manifests, and make like entries, both of the ship or vessel, and of the goods, wares, or merchandise on board, within the same time, and under the same penalty, as by the laws of the United States, are provided for ships or vessels of the United States arriving from a foreign port. And if any ship or vessel, licensed for carrying on the fisheries, shall be found within three leagues of the coast, with goods, wares, or merchandise of foreign growth or manufacture, exceeding the value of five hundred dollars, without having such permission, as is herein directed, such ship or vessel, together with her goods, wares, or merchandise of foreign growth or manufacture imported therein, shall be subject to seizure and forfeiture.

## Appendix.

Sec. 22. _And be it further enacted_, That the master or commander of every ship or vessel, employed in the transportation of goods from district to district, that shall put into a port, other than the one to which she was bound, shall, within twenty-four hours of his arrival, if there be an officer residing at such port, and she continue there so long, make report of his arrival, to such officer, with the name of the place he came from, and to which he is bound, with an account of his lading; and if the master of such ship or vessel shall neglect or refuse to do the same, he shall forfeit twenty dollars.

Sec. 29. _And be it further enacted_, That if the master or commander of any ship or vessel, employed in the transportation of goods, from district to district, having on board goods, wares, or merchandise, of foreign growth or manufacture, or distilled spirits, shall, on his arrival at the port to which he was destined, have lost or mislaid the certified manifest of the same, or the permit which was given therefor, by the collector or surveyor of the district from whence he sailed, the collector of the district where he shall so arrive, shall take bond for the payment of the duties on such goods, wares, and merchandise of foreign growth or manufacture, or distilled spirits, within six months, in the same manner, as though they were imported from a foreign country: _Provided however_, such bond shall be cancelled, if the said master shall deliver, or cause to be delivered to the collector taking such bond, and within the term therein limited for payment, a certificate from the collector or surveyor of the district from whence he sailed, that such goods were legally exported in such ship or vessel, from such district.

Sec. 24. _And be it further enacted_, That the master or commander of every foreign ship or vessel, bound from a district in the United States, to any other district within the same, shall, in all cases, previous to her departure, from such district, deliver to the collector of such district, duplicate manifests of the lading on board such ship or vessel, if there be any, or if there be none, he shall declare that such is the case, and to the truth of such manifests or declaration, he shall swear or affirm, and also obtain a permit, from the said collector, authorizing him to proceed to the place of his destination. And the master or commander of every such ship or vessel, on his arrival within any district, from any other district, shall, in all cases, within forty-eight hours after his arrival, and previous to the unloading any goods from on board such ship or vessel, deliver to the collector of the district where he may have arrived, a manifest of the goods laden on board such ship or vessel, if any there be, or if in ballast only, he shall so declare, and to the truth of which manifest or declaration, he shall swear or affirm; and also, that such manifest contains an account of all the goods, wares, and merchandise which were on boardsuch ship or vessel, at the time, or have been, since her departure from the place from whence she shall be reported last to have sailed; and he shall also deliver to such collector the permit which was given him from the collector of the district from whence he sailed. And if the master or commander of any such ship or vessel shall neglect or refuse complying with any of the requirements herein made, he shall forfeit one hundred dollars: _Provided always,_ That nothing herein contained shall be construed as affecting the payment of tonnage, or any other requirements which such ships or vessels are now subject to by the present existing laws of the United States.

Sec. 25. _And be it further enacted,_ That in every case, where the collector is, by this act, directed to grant any enrolment, license, certificate, permit, or other document, the naval officer residing at the port (if there be one) shall sign the same, and every surveyor who shall certify a manifest, or grant a permit, or who shall receive any certified manifest, or a permit as is provided for in this act, shall make monthly returns thereof, or sooner, if it can conveniently be made, to the collector of the district where such surveyor may reside.

Sec. 26. _And be it further enacted,_ That before any ship or vessel, of the burden of five tons, and less than twenty tons, shall be licensed, the same admeasurement shall be made of such ship or vessel, and the same provisions observed relative thereto, as are to be observed in case of admeasuring ships or vessels to be registered or enrolled; but in all cases, where such ship or vessel, or any other licensed ship or vessel, shall have been once admeasured, it shall not be necessary to measure such ship or vessel anew, for the purpose of obtaining another enrolment or license, except such ship or vessel shall have undergone some alteration as to her burden, subsequent to the time of her former license.

Sec. 27. _And be it further enacted,_ That it shall be lawful for any officer of the revenue, to go on board of any ship or vessel, whether she shall be within or without his district, and the same to inspect, search, and examine, and if it shall appear, that any breach of the laws of the United States has been committed, whereby such ship or vessel, or the goods, wares, and merchandise on board, or any part thereof, is, or are liable to forfeiture, to make seizure of the same.

Sec. 28. _And be it further enacted,_ That in every case where a forfeiture of any ship or vessel, or of any goods, wares, or merchandise, shall accrue, it shall be the duty of the collector, or other proper officer, who shall give notice of the seizure of such ship or vessel, or of such goods, wares, or merchandise, to insert in the same advertisement, the name or names, and the place or places of residence, of the person or

## Appendix.

persons, to whom any such ship or vessel, goods, wares, and merchandise belonged, or were consigned, at the time of such seizure, if the same shall be known to him.

Sec. 29. _And be it further enacted,_ That every collector, who shall knowingly make any record of enrolment or license of any ship or vessel, and every other officer, or person, appointed by, or under them, who shall make any record, or grant any certificate, or other document whatever, contrary to the true intent and meaning of this act, or shall take any other, or greater fees, than are by this act allowed, or shall receive, for any service performed pursuant to this act, any reward or gratuity, and every surgery, or other person appointed to measure ships or vessels, who shall willfully deliver to any collector, or naval officer, a false description of any ship or vessel, to be enrolled or licensed, in pursuance of this act, shall, upon conviction of any such neglect or offence, forfeit to the United States five hundred dollars, and be rendered incapable of serving in any office of trust or profit, under the United States. And if any person, authorized and required by this act, in respect to his office, to perform any act or thing required by this act, shall willfully neglect or refuse to do and perform the same, according to the true intent and meaning of this act, such person, on being duly convicted thereof, if not hereby subject to the penalty and disqualification aforesaid, shall forfeit and pay the sum of five hundred dollars for the first offence, and a like sum for the second offence, and shall from thenceforward, be rendered incapable of holding any office of trust or profit under the United States.

Sec. 80. _And be it further enacted,_ That if any person or persons shall swear, or affirm to any of the matters, herein required to be verified, knowing the same to be false, such person or persons shall suffer the like pains and penalties, as shall be incurred, by persons committing wiful and corrupt perjury. And if any person or persons shall forge, counterfeit, erase, alter, or falsify any enrolment, license, certificate, permit, or other document, mentioned or required in this act, to be granted by any officer of the revenue, such person or persons, so offending, shall forfeit five hundred dollars.

Sec. 31. _And be it further enacted,_ That if any person or persons shall assault, resist, obstruct, or hinder any officer in the execution of this act, or of any other act or law of the United States, herein mentioned, or of any of the powers or authorities vested in him by this act, or any other act or law, as aforesaid, all and every person and persons so offending, shall, for every such offence, for which no other penalty is particularly provided, forfeit five hundred dollars.

Sec. 82. _And be it further enacted,_ That if any licensed ship or vessel shall be transferred, in whole or in part, to any person, who is not, at the 46act to explain and amend an act, intitled An act for registering and clearing vessels, regulating the coasting trade, and for other purposes," shall be repealed, and cease to operate, except as to the validity of the registers, records, enrolments, and licenses, with the certificates and documents, which shall have been done or granted, in pursuance of those acts, prior to the first day of June next, which shall continue to be of the like force and effect, as if the said acts were not repealed ; and except also, as to the prosecution, recovery, and distribution of, and for fines, penalties, and forfeitures, which may have been incurred prior to the first day of June next, for which purpose likewise, the said acts shall continue in force.

Sec. 37. _And be it further enacted,_ That nothing in this act, shall be construed to extend to any boat or lighter, not being masted, or if masted, and not decked, employed in the harbor of any town or city.

## ACT of 1796, Chapter XXXVI. (1 U. S. Stats. at Large, 477).

_An Act for the Relief and Protection of American Scanner._

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That the President of the United States, by and with the advice and consent of the Senate, be, and hereby is authorized to appoint two or more agents ; the one of whom shall reside in the kingdom of Great Britain, and the others at such foreign ports, as the President of the United States shall direct. That the duty of the said agents shall be, under the direction of the President of the United States, to inquire into the situation of such American citizens or others, sailing, conformably to the law of nations, under the protection of the American flag, as have been, or may hereafter be impressed or detained by any foreign power, to endeavor, by all legal means, to obtain the release of such American citizens or others, as aforesaid ; and to render an account of all impressions and detentions whatever, from American vessels, to the executive of the United States.

Sec. 2. _And be it further enacted,_ That if it should be expedient to employ an additional agent or agents, for the purposes authorized by this law, during the recess of the senate, the president alone be, and hereby is, authorized to appoint such agent or agents.

Sec. 3. _And be it further enacted,_ That the President of the United States be, and he is hereby authorized to draw, annually, out of the treasury of the United States, a sum not exceeding fifteen thousand dollars, not otherwise appropriated, to be applied by him in such proportions

## Appendix A Appendix

as he shall direct, to the payment of the compensation of the said agents, for their services, and the incidental expenses attending the performance of the duties imposed on them by this act.

Sec. 4. _And be it further enacted_, That the collector of every district shall keep a book or books, in which, at the request of any seaman, being a citizen of the United States of America, and producing proof of his citizenship, authenticated in the manner hereinafter directed, he shall enter the name of such seaman, and shall deliver to him a certificate, in the following form, that is to say: "I, A. B., collector of the district of D, do hereby certify, That E. F., an American seaman, aged years, or thereabouts, of the height of feet inches \[describing the said seaman as particularly as may be\], has, this day, produced to me proof in the manner directed in the act, intitled "An act for the relief and protection of American seamen;' and, pursuant to the said act, I do hereby certify, that the said E. F. is a citizen of the United States of America

In witness whereof, I have hereunto set my hand and seal of office, this day of ." And it shall be the duty of the collectors aforesaid, to file and preserve the proofs of citizenship produced, as aforesaid: And for each certificate delivered, as aforesaid, the said collectors shall be entitled to receive from the seamen applying for the same, the sum of twenty-five cents.

Sec. 5. And, in order that full and speedy information may be obtained of the seizure or detention, by any foreign power, of any seamen employed on board any ship or vessel of the United States, _Be it further enacted_, That it shall, and hereby is declared to be the duty of the master of every ship or vessel of the United States, any of the crew whereof shall have been impressed or detained by any foreign power, at the first port at which such ship or vessel shall arrive, if such impressment or detention happened on the high seas, or if the same happened within any foreign port, then in the port in which the same happened, immediately to make a protest, stating the manner of such impressment or detention, by whom made, together with the name and place of residence of the person impressed or detained; distinguishing also, whether he was an American citizen; and if not, to what nation he belonged. And it shall be the duty of such master, to transmit by post, or otherwise, every such protest made in a foreign country, to the nearest consult or agent, or to the minister of the United States resident in such country, if any such there be; preserving a duplicate of such protest, to be by him sent immediately after his arrival within the United States, to the secretary of state, together with information to whom the original protest was transmitted: And in case such protest shall be made within the United States, or in any foreign country, in which no consul, agent, or minister of the United States resides, the sameAppendix A The $\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{ \\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{ \\mathbf{}}}}}}{{ \\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{}}}}}}} \\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{}}}}} {\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{\\mathbf{}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}}{}}}{}{}}}}}}}{}}}{}\\}}\\}{ APPENDIX.

for which passport, the master of such ship or vessel, shall pay to the said collector, ten dollars, to be accounted for by him; and in order to be entitled to such passport, the master of every such ship or vessel shall be bound with sufficient sureties, to the treasurer of the United States, in the penalty of two thousand dollars, conditioned, that the said passport shall not be applied to the use or protection of any other ship or vessel, than the one described in the same; and that, in case of the loss or sale of any ship or vessel having such passport, the same shall, within three months, be delivered up 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 same shall happen at any place nearer than the Cape of Good Hope; and within eighteen months, if at a more distant place.

Sec. 8. _And be it further enacted,_ That there shall be paid on every ship and vessel of the United States sailing or trading to any foreign country, other than some port or place in America, for each and every voyage, the sum of four dollars, to be received and accounted for, by the collector, at the time of clearing outward, if such vessel be bound direct to such foreign country, from any port of the United States, or at the time of entry in the United States, if such ship or vessel shall have sailed to such foreign country, from any port or place in America, other than of the United States.

Sec. 4. _And be it further enacted,_ That if any ship or vessel of the United States, shall depart therefrom, after the first day of September next, and shall be bound to any foreign country, other than to some port or place in America, without such passport, the master of such ship or vessel shall forfeit and pay the sum of two hundred dollars for every such offence.

ACT OF 1797, CHAPTER VII. (1 U. S. Stats. at Large, 498).

_An Act, in addition to an Act, initially " An Act concerning the registering and recording of Slips or Vessels," and to an Act, initially " An Act for enrolling and licensing Slips and Vessels employed in the Coasting Trade and Fisheries, and for regulating the same."_

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That whenever it shall appear, by satisfactory proof, to the secretary of the treasury, that any ship or vessel hath been sold and transferred by process of law; and that the register, certificate of enrolment, or license, as the case may be, of such ship or vessel, is retained by the former owners, it shall be lawful for the said secretary, to order and direct the collector of the district to which such ship or vessel may belong, to grant a new register, certificate of en

## Appendix A

rolment, or license, as the case may be, on the owners, under such sale, complying with such terms and conditions, as are, by law, required for granting of such papers; excepting only the delivering up of the former certificate of registry, enrolment, or license, as the case may be :_Provided nevertheless,_ that nothing in this act contained, shall be construed to remove the liability of any person or persons to any penalty for not surrendering up the papers, belonging to any ship'or vessel, on a transfer or sale of the same.

ACT OF 1797, CHAPTER V. (1 U. S. Stats. at Large, 523).

_An Act in addition to an Act, initiated " An Act concerning the registering and recording of Skipe and Vessels."_

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That no ship or vessel which has been, or shall be registered, pursuant to any law of the United States, and which hereafter shall be seized, or captured and condemned, under the authority of any foreign power, or that shall by sale become the property of a foreigner or foreigners, shall, after the passing of this act, be entitled to, or capable of receiving, a new register, notwithstanding such ship or vessel should afterwards become American property ; but that all such ships and vessels shall be taken and considered, to all intents and purposes, as foreign vessels : _Provided,_ That nothing in this act contained, shall extend to, or be construed to affect the person or persons owning any ship or vessel, at the time of the seizure, or capture of the same, or shall prevent such owner, in case he regain a property in such ship or vessel, so condemned, by purchase or otherwise, from claiming and receiving a new register for the same, as he might or could have done, if this act had not been passed.

ACT OF 1798, CHAPTER LXXVII (1 U. S. Stats. at Large, 605).

_An Act for the relief of sick and disabled Sanner._

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That from and after the first day of September next, the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen,

## Appendix.

that shall have been employed on board such vessel since she was last entered at any port in the United States, -- and shall pay to the said collector, at the rate of twenty cents per month for every seaman so employed ; which sum he is hereby authorized to retain out of the wages of such seamen.

Sec. 2. _And be it further enacted_, That from and after the first day of September next, no collector shall grant to any ship or vessel whose enrolment or license for carrying on the coasting trade has expired, a new enrolment or license before the master of such ship or vessel shall first render a true account to the collector, of the number of seamen, and the time they have severally been employed on board such ship or vessel. during the continuance of the license which has so expired, and pay to such collector twenty cents per month for every month such seamen have been severally employed, as aforesaid ; which sum the said master is hereby authorized to retain out of the wages of such seamen. And if any such master shall render a false account of the number of men, and the length of time they have severally been employed, as is herein required.

Sec. 3. _And be it further enacted_, That it shall be the duty of the several.collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the secretary of the treasury ; and the President of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick or disabled seamen, in the hospitals or other proper institutions now established in the several ports of the United States, or, in ports where no such institutions exist, then in such other manner as he shall direct : _Provided_, that the moneys collected in any one district, shall be expended within the same.

Sec. 4. _And be it further enacted_, That if any surplus shall remain of the moneys to be collected by virtue of this act, after defraying the expense of such temporary relief and support, that the same, together with such private donations as may be made for that parpose (which the president is hereby authorized to receive) shall be invested in the stock of the United States, under the direction of the president ; and when, in his opinion, a sufficient fund shall be accumulated, he is hereby authorized to purchase or receive sessions or donations of ground or buildings, in the name of the United States, and to cause buildings, when necessary, to be erected as hospitals for the accommodation of sick and disabled seamen.

Sec. 5. _And be it further enacted_, That the President of the United States be, and he is hereby authorized to nominate and appoint, in such ports of the United States, as he may think proper, one or more persons, VOL. I. 47

## Appendix A Appendix.

to be called directors of the marine hospital of the United States, whose duty it shall be to direct the expenditure of the fund assigned for their respective ports, according to the third section of this act; to provide for the accommodation of sick and disabled seamen, under such general instructions as shall be given by the President of the United States, for that purpose, and also subject to the like general instructions, to direct and govern such hospitals as the president may direct to be built in the respective ports : and that the said directors shall hold their offices during the pleasure of the president, who is authorized to fill up all vacancies that may be occasioned by the death or removal of any of the persons so to be appointed. And the said directors shall render an account of the moneys received and expended by them, once in every quarter of a year, to the secretary of the treasury, or such other person as the president shall direct; but no other allowance or compensation shall be made to the said directors, except the payment of such expenses as they may incur in the actual discharge of the duties required by this act.

## Appendix A Appendix.

### An Act in addition to "An Act for the relief of sick and disabled Seamen."

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That the President of the United States shall be, and he hereby is authorized to direct the expenditure of any moneys which have been or shall be collected by virtue of an act, intitled "An act for the relief of sick and disabled seamen," to be made within the State wherein the same shall have been collected, or within the State next adjoining thereto, excepting what may be collected in the States of New Hampshire, Massachusetts, Rhode Island, and Connecticut; any thing in the said act contained to the contrary thereof, notwithstanding.

Sec. 2.\*\*_And be it further enacted_, That the secretary of the navy shall be, and he hereby is authorized and directed to deduct, after the first day of September next, from the pay thereafter to become due, of the officers, seamen, and marines of the navy of the United States, at the rate of twenty cents per month, for every such officer, seaman, and marine, and to pay the same quarter annually to the secretary of the treasury, to be applied to the same purposes, as the money collected by virtue of the above-mentioned act is appropriated.

Sec. 3.\*\*_And be it further enacted_, That the officers, seamen, and marines of the navy of the United States, shall be entitled to receive the APPENDIX.

same benefits and advantages, as by the act above mentioned are provided for the relief of the sick and disabled seamen of the merchant vessels of the United States.

ACT OF 1802, CHAPTER LI. (2 U. S. Stats. at Large, 191).

_An Act to amend an Act intitled " An Act for the relief of sick and disabled Seamen," and for other purposes._

Section 1. _Bo it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled,_ That the moneys heretofore collected in pursuance of the several acts " for the relief of sick and disabled seamen," and at present unexpended, together with the moneys hereafter to be collected by authority of the before-mentioned acts, shall constitute a general fund, which the President of the United States shall use and employ as circumstances shall require, for the benefit and convenience of sick and disabled American seamen : _Provided,_ that the sum of fifteen thousand dollars be, and the same is hereby appropriated for the erection of an hospital in the district of Massachusetts.

Sec. 2. _And be it further enacted,_ That it shall be lawful for the President of the United States to cause such measures to be taken as, in $\\cdot$ his opinion, may be expedient for providing convenient accommodations, medical assistance, necessary attendance, and supplies for the relief of sick or disabled seamen of the United States, who may be at or near the port of New Orleans, in case the same can be done with the assent of the government having jurisdiction over the port ; and for this purpose, to establish such regulations, and to authorize the employment of such persons as he may judge proper ; and that for defraying the expense thereof, a sum not exceeding three thousand dollars be paid out of any moneys arising from the said fund not otherwise appropriated.

Sec. 3. _And be it further enacted,_ That from and after the thirtieth day of June next, the master of every boat, raft, or flat, belonging to any citizen of the United States, which shall go down the Mississippi with intention to proceed to New Orleans, shall, on his arrival at Fort Adams, render to the collector or naval officer thereof, a true account of the number of persons employed on board such boat, raft, or flat, and the time that each person has been so employed, and shall pay to the said collector or naval officer at the rate of twenty eents per month, for every person so employed, which sum, he is hereby authorized to retain out of the wages of such person : and the said collector or naval officer shall not give a clearance for such boat, raft, or flat, to proceed on her voyage to New Orleans, until an account be rendered to him of the number of persons employed on board such boat, raft, or flat, and the money paid to him by the master or owner thereof: and if any such master shall render a false account of the number of persons, and the length of time they have severally been employed, as is herein required, he shall forfeit and pay fifty dollars, which shall be applied to, and shall make a part of, the said general fund for the purposes of this act: _Provided,_ that all persons employed in navigating any such boat, raft, or flat, shall be considered as seamen of the United States, and entitled to the relief extended by law to sick and disabled seamen.

Sec. 4. _And be it further enacted,_ That the President of the United States be, and he is hereby authorized to nominate and appoint for the port of New Orleans, a fit person to be director of the marine hospital of the United States, whose duties shall be in all instances the same as the directors of the marine hospitals of the United States, as directed and required by the act, intitled "An act for the relief of sick and disabled seamen." \[Act of July 16, 1798, chap. 76.\]

Sec. 5. _And be it further enacted,_ That each and every director of the marine hospitals within the United States, shall, if it can with convenience be done, admit into the hospital of which he is director, sick foreign seamen, on the application of the master or commander of any foreign vessel to which such sick seamen may belong; and each seaman so admitted shall be subject to a charge of seventy-five cents per day for each day he may remain in the hospital, the payment of which the master or commander of such foreign vessel shall make to the collector of the district in which such hospital is situated: and the collector shall not grant a clearance to any foreign vessel, until the money due from such master or commander, in manner and storm aforesaid, shall be paid;, and the director of each hospital is hereby directed, under the penalty of fifty dollars, to make out the accounts against each foreign seaman that may be placed in the hospital, under his direction, and render the same to the collector.

Sec. 6. _And be it further enacted,_ That the collectors shall pay the money collected, by virtue of this and the act to which this is an amendment, into the treasury of the United States, and be accountable therefor, and receive the same commission thereon, as for other money by them collected.

Sec. 7. _And be it further enacted,_ That each and every director of the marine hospitals shall be accountable at the treasury of the United States for the money by them received in the same manner as other receivers of public money, and for the sums by them expended shall be allowed a commission at the rate of one per cent.

## Appendix A ACT OF 1800, Chapter Xiv. (2 U. S. Stats. at Large, 16).

_An Act providing for Salvage in cases of Recapture._

**Section 1**.: _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That when any vessel other than a vessel of war or privateer, or when any goods which shall hereafter be taken as prize by any vessel, acting under authority from the government of the United States, shall appear to have before belonged to any person or persons, resident within or under the protection of the United States, and to have been taken by an enemy of the United States, or under authority, or pretence of authority, from any prince, government, or State, against which the United States have authorized, or shall authorize, defence or reprisals, such vessel or goods not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the former owner or owners thereof, he or they paying for and in lieu of salvage, if retaken by a public vessel of the United States, one eighth part, and if retaken by a private vessel of the United States, one sixth part, of the true value of the vessel or goods so to be restored, allowing and excepting all imposts and public duties to which the same may be liable. And if the vessel so retaken shall appear to have been set forth and armed as a vessel of war, before such capture or afterwards, and before the retaking thereof as aforesaid, the former owner or owners, on the restoration thereof, shall be adjudged to pay for and in lieu of salvage, one moiety of the true value of such vessel of war, or privateer.

**Sec. 2**.: _And be it further enacted,_ That when any vessel or goods, which shall hereafter be taken as prize, by any vessel acting under authority from the government of the United States, shall appear to have before belonged to the United States, and to have been taken by an enemy of the United States, or under authority, or pretence of authority from any prince, government, or State, against which the United States have authorized, or shall authorize, defence or reprisals, such public vessel not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the United States. And for and in lieu of salvage, there shall be paid from the treasury of the United States, pursuant to the final decree which shall be made in such case by any court of the United States, having competent jurisdiction thereof, to the parties who shall be thereby entitled to receive the same, for, the recapture as aforesaid, of an unarmed vessel, or any goods therein, one sixth part of the true value thereof, when made by a private vessel of the United States, and one twelfth part of such value when thepersons employed on board such boat, raft, or flat, and the money paid to him by the master or owner thereof: and if any such master shall render a false account of the number of persons, and the length of time they have severally been employed, as is herein required, he shall forfeit and pay fifty dollars, which shall be applied to, and shall make a part of, the said general fund for the purposes of this act: _Provided,_ that all persons employed in navigating any such boat, raft, or flat, shall be considered as seamen of the United States, and entitled to the relief extended by law to sick and disabled seamen.

Sec. 4. _And be it further enacted,_ That the President of the United States be, and he is hereby authorized to nominate and appoint for the port of New Orleans, a fit person to be director of the marine hospital of the United States, whose duties shall be in all instances the same as the directors of the marine hospitals of the United States, as directed and required by the act, intituled " An act for the relief of sick and disabled seamen." \[Act of July 16, 1798, chap. 76.\]

Sec. 5. _And be it further enacted,_ That each and every director of the marine hospitals within the United States, shall, if it can with convenience be done, admit into the hospital of which he is director, sick foreign seamen, on the application of the master or commander of any foreign vessel to which such sick seamen may belong; and each seamen so admitted shall be subject to a charge of seventy-five cents per day for each day he may remain in the hospital, the payment of which the master or commander of such foreign vessel shall make to the collector of the district in which such hospital is situated: and the collector shall not grant a clearance to any foreign vessel, until the money due from such master or commander, in manner and form aforesaid, shall be paid;, and the director of each hospital is hereby directed, under the penalty of fifty dollars, to make out the accounts against each foreign seaman that may be placed in the hospital, under his direction, and render the same to the collector.

Sec. 6. _And be it further enacted,_ That the collectors shall pay the money collected, by virtue of this and the act to which this is an amendment, into the treasury of the United States, and be accountable therefor, and receive the same commission thereon, as for other money by them collected.

Sec. 7. _And be it further enacted,_ That each and every director of the marine hospitals shall be accountable at the treasury of the United States for the money by them received in the same manner as other receivers of public money, and for the sums by them expended shall be allowed a commission at the rate of one per cent.

## Appendix.

ACT OF 1800, CHAPTER XIV. (2 U. S. Stats. at Large, 16).

_An Act providing for Salvage in cases of Recapture._

Section 1._Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That when any vessel other than a vessel of war or privateer, or when any goods which shall hereafter be taken as prize by any vessel, acting under authority from the government of the United States, shall appear to have before belonged to any person or persons, resident within or under the protection of the United States, and to have been taken by an enemy of the United States, or under authority, or pretence of authority, from any prince, government, or State, against which the United States have authorized, or shall authorize, defence or reprisals, such vessel or goods not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the former owner or owners thereof, he or they paying for and in lieu of salvage, if retaken by a public vessel of the United States, one eighth part, and if retaken by a private vessel of the United States, one sixth part, of the true value of the vessel or goods so to be restored, allowing and excepted all imposts and public duties to which the same may be liable. And if the vessel so retaken shall appear to have been set forth and armed as a vessel of war, before such capture or afterwards, and before the retaking thereof as aforesaid, the former owner or owners, on the restoration thereof, shall be adjudged to pay for and in lieu of salvage, one moiety of the true value of such vessel of war, or privateer.

Sec. 2._And be it further enacted,_ That when any vessel or goods, which shall hereafter be taken as prize, by any vessel acting under authority from the government of the United States, shall appear to have before belonged to the United States, and to have been taken by an enemy of the United States, or under authority, or pretence of authority from any prince, government, or State, against which the United States have authorized, or shall authorize, defence or reprisals, such public vessel not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the United States. And for and in lieu of salvage, there shall be paid from the treasury of the United States, pursuant to the final decree which shall be made in such case by any court of the United States, having competent jurisdiction thereof, to the parties who shall be thereby entitled to receive the same, for, the recapture as aforesaid, of an unarmed vessel, or any goods therein, one sixth part of the true value thereof, when made by a private vessel of the United States, and one twelfth part of such value when the568

APPENDIX. 559

there be ; and in case there be no such agreement, then to and among such persons, and in such proportions, as the court having jurisdiction thereof shall appoint.

Sec. 5. _And be it further enacted_, That such parts of any acts of Congress of the United States, as respect the salvage to be allowed in cases of recapture, shall be, and are hereby repealed, except as to cases of recapture made before the passing of this act.

ACT OF 1808, CHAPTER IX. (2 U. S. Stats. at Large#203).

_An Act supplementary to the "Act concerning Consula and Vice-Consula, and for the further protection of American Scamen."_

**Section 1**. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That before a clearance be granted to any vessel bound on a foreign voyage, the master thereof shall deliver to the collector of the customs, a list, containing the names, places of birth and residence, and a description of the persons who compose his ship's company, to which list the ooth or affirmation of the captain shall be annexed, that the said list contains the names of his crew, together with the places of their birth and residence, as far as he can ascertain them, and the said collector shall deliver him a certified copy thereof, for which the collector shall be entitled to receive the sum of twenty-five cents; and the said master shall moreover enter into bond with sufficient security, in the sum of four hundred dollars, that he shall exhibit the aforesaid certified copy of the list to the first boarding officer, at the first port in the United States, at which he shall arrive on his return thereto, and then and there also produce the persons named therein, to the said boarding officer, whose duty it shall be to examine the men with such list, and to report the same to the collector, and it shall be the duty of the collector at the said port of arrival (where the same is different from the port from which the vessel originally sailed), to transmit a copy of the list so reported to him, to the collector of the port from which said vessel originally sailed : _Provided_, that the said bond shall not be forfeited on account of the said master not producing to the first boarding officer, as aforesaid, any of the persons contained in the said list, who may be discharged in a foreign country with the consent of the consul, vice-consul, commercial agent, or vice-commercial agent there residing, signified in writing, under his hand and official seal, to be produced to the collector with the other persons composing the crew as aforesaid; nor on account of any such person dying or ascending, or being forcibly impressed into Appendix A Other service, of which satisfactory proof shall be then also exhibited to the collector.

Sec. 2. _And be it further enacted,_ That' it shall be the duty of every master or commander of a ship or vessel, belonging to citizens of the United States, who shall sail from any port of the United States, after the first day of May next, on his arrival at a foreign port, to deposit his register, sea letter, and Mediterranean passport with the consul, vice-con-sul, commercial agent, or vice-commercial agent (if any there be at such port); that in case of refusal or neglect of the said master or commander, to deposit the said papers as aforesaid, he shall forfeit and pay five hundred dollars, $\\omega$ be recovered by the said consul, vice-consul, commercial agent, or vice-commercial agent, in his own name, for the benefit of the United States, in any court of competent jurisdiction; and it shall be the duty of such consul, vice-consul, commercial agent, or vice-commercial agent, on such master or commander producing to him a clearance from the proper officer of the port, where his ship or vessel may be, to deliver to the said master or commander all of his said papers: _Provided,_ such master or commander shall have complied with the provisions contained in this act, and those of the act to which this is a supplement.

Sec. 3. _And be it further enacted,_ That whenever a ship or vessel belonging to a citizen of the United States, shall be sold in a foreign country, and her company discharged, or when a seaman or mariner, a citizen of the United States, shall, with his own consent, be discharged in a foreign country, it shall be the duty of the master or commander to produce to the consul, vice-consul, commercial agent, or vice-commercial agent, the list of his ship's company, certified as aforesaid; and to pay to such consul, vice-consul, commercial agent, or vice-commercial agent, for every seaman or mariner so discharged, being designated on such list as a citizen of the United States, three months pay, over and above the wages which may then be due to such mariner or seaman, two thirds thereof to be paid by such.consul, or commercial agent, to each seaman or mariner so discharged, upon his engagement on board of any vessel to return to the United States, and the other remaining third to be retained for the purpose of creating a fund for the payment of the passages of seamen or mariners, citizens of the United States, who may be desirous of returning to the United States, and for the maintenance of American seamen who may be desitute, and may be in such foreign port, and the several sums retained for such fund shall be accounted for with the treas-ury every six months by the persons receiving the same.

Sec. 4. _And be it further enacted,_ That it shall be the duty of the consuls, vice-consuls, commercial agents, vice-commercial agents of the United States, from time to time, to provide for the mariners and seamen of the APPENDIX. 561 United States, who may be found destitute within their districts respectively, sufficient subsistence and passages to some port in the United States, in the most reasonable manner, at the expense of the United States, subject to such instructions as the secretary of state shall give; and that all masters and commanders of vessels belonging to citizens of the United States, and bound to some port of the same, are hereby required and enjoined to take such mariners or seamen on board of their ships or vessels, at the request of the said consuls, vice-consuls, commercial agents, or vice-commercial agents respectively, and to transport them to the port in the United States to which such ships or vessels may be bound, on such terms, not exceeding ten dollars for each person, as may be agreed between the said master and consul, or commercial agent. And the said mariners or seamen shall, if able, be bound to do duty on board such ships or vessels according to their several abilities : _Provided_, that no master or captain of any ship or vessel shall be obliged to take a greater number than two men to every one hundred tons burden of the said ship or vessel, on any one voyage; and if any such captain or master shall refuse the same on the request or order of the consul, vice-consul, commercial agent, or vice-commercial agent, such captain or master shall forfeit and pay the sum of one hundred dollars for each mariner or seamen so refused, to be recovered for the benefit of the United States in any court of competent jurisdiction. And the certificate of any such consul or commercial agent, given under his hand and official seal, shall be _primd facie_ evidence of such refusal in any court of law having jurisdiction for the recovery of the penalty aforesaid.

Sec. 5. _And be it further enacted_, That the seventh and eighth sections of the act, inituled " An act concerning consuls and vice-consuls," (1792, c. 24,) be and the same are hereby repealed; and that the secretary of state be authorized to reimburse the consuls, vice-consuls, commercial agents, or vice-commercial agents, such reasonable sums as they may heretofore have advanced for the relief of seamen, though the same should exceed the rate of twelve cents a man per diem.

Sec. 6. _And be it further enacted_, That it shall and may be lawful for every consul, vice-consul, commercial agent, and vice-commercial agent of the United States, to take and receive for every certificate of discharge of any seaman or mariner in a foreign port fifty cents; and for commission on paying and receiving the amount of wages payable on the discharge of seamen in foreign ports, two and a half per centum.

Sec. 7. _And be it further enacted_, That if any consul, vice-consul, commercial agent, or vice-commercial agent, shall falsely and knowingly certify, that property belonging to foreigners is property belonging to citizens of the United States, he shall, on conviction thereof, in any court of competent jurisdiction, forfeit and pay a fine not exceeding ten thousand dol

## Appendix A

rolment, or license, as the case may be, on the owners, under such sale, complying with such terms and conditions, as are, by law, required for granting of such papers; excepting only the delivering up of the former certificate of registry, enrolment, or license, as the case may be ._Provided nevertheless_, that nothing in this act contained, shall be construed to remove the liability of any person or persons to any penalty for not surrendering up the papers, belonging to any ship or vessel, on a transfer or sale of the same.

ACT OF 1797, CHAFTER V. (1 U. S. Stats. at Large, 523).

_An Act in addition to an Act, intibted " An Act concerning the registering and recording of Ships and Vessels."_

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That no ship or vessel which has been, or shall be registered, pursuant to any law of the United States, and which hereafter shall be seized, or captured and condemned, under the authority of any foreign power, or that shall by sale become the property of a foreigner or foreigners, shall, after the passing of this act, be entitled to, or capable of receiving, a new register, notwithstanding such ship or vessel should afterwards become American property ; but that all such ships and vessels shall be taken and considered, to all intents and purposes, as foreign vessels : _Provided_, That nothing in this act contained, shall extend to, or be construed to affect the person or persons owning any ship or vessel, at the time of the seizure, or capture of the same, or shall prevent such owner, in case he regain a property in such ship or vessel, so condemned, by purchase or otherwise, from claiming and receiving a new register for the same, as he might or could have done, if this act had not been passed.

ACT OF 1798, CHAFTER LXXVII (1 U. S. Stats. at Large, 606).

_An Act for the relief of sick and disabled Samm._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That from and after the first day of September next, the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen,

## Appendix.

that shall have been employed on board such vessel since she was last entered at any port in the United States, -- and shall pay to the said collector, at the rate of twenty cents per month for every seaman so employed; which sum he is hereby authorized to retain out of the wages of such seamen.

Sec. 2. _And be it further enacted_, That from and after the first day of September next, no collector shall grant to any ship or vessel whose enrolment or license for carrying on the coasting trade has expired, a new enrolment or license before the master of such ship or vessel shall first render a true account to the collector, of the number of seamen, and the time they have severally been employed on board such ship or vessel, during the continuance of the license which has so expired, and pay to such collector twenty cents per month for every month such seamen have been severally employed, as aforesaid; which sum the said master is hereby authorized to retain out of the wages of such seamen. And if any such master shall render a false account of the number of men, and the length of time they have severally been employed, as is herein required. he shall forfeit and pay one hundred dollars.

Sec. 3. _And be it further enacted_, That it shall be the duty of the several.collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the secretary of the treasury; and the President of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick or disabled seamen, in the hospitals or other proper institutions now established in the several ports of the United States, or, in ports where no such institutions exist, then in such other manner as he shall direct: _Provided_, that the moneys collected in any one district, shall be expended within the same.

Sec. 4. _And be it further enacted_, That if any surplus shall remain of the moneys to be collected by virtue of this act, after defraying the expense of such temporary relief and support, that the same, together with such private donations as may be made for that purpose (which the president is hereby authorized to receive) shall be invested in the stock of the United States, under the direction of the president; and when, in his opinion, a sufficient fund shall be accumulated, he is hereby authorized to purchase or receive sessions or donations of ground or buildings, in the name of the United States, and to cause buildings, when necessary, to be erected as hospitals for the accommodation of sick and disabled seamen.

Sec. 5. _And be it further enacted_, That the President of the United States be, and he is hereby authorized to nominate and appoint, in such ports of the United States, as he may think proper, one or more persons, VOL. I. 47to be called directors of the marine hospital of the United States, whose duty it shall be to direct the expenditure of the fund assigned for their respective ports, according to the third section of this act; to provide for the accommodation of sick and disabled seamen, under such general instructions as shall be given by the President of the United States, for that purpose, and also subject to the like general instructions, to direct and govern such hospitals as the president may direct to be built in the respective ports : and that the said directors shall hold their offices during the pleasure of the president, who is authorized to fill up all vacancies that may be occasioned by the death or removal of any of the persons so to be appointed. And the said directors shall render an account of the moneys received and expended by them, once in every quarter of a year, to the secretary of the treasury, or such other person as the president shall direct; but no other allowance or compensation shall be made to the said directors, except the payment of such expenses as they may incur in the actual discharge of the duties required by this act.

APPENDIX.

same benefits and advantages, as by the act above mentioned are provided for the relief of the sick and disabled seamen of the merchant vessels of the United States.

**ACT OF 1802, CHAPTER LI. (2 U. S. Stats. at Large, 192).**

_An Act to amend an Act intituled " An Act for the relief of sick and disabled Seamen," and for other purposes._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled,_ That the moneys heretofore collected in pursuance of the several acts " for the relief of sick and disabled seamen," and at present unexpended, together with the moneys hereafter to be collected by authority of the before-mentioned acts, shall constitute a general fund, which the President of the United States shall use and employ as circumstances shall require, for the benefit and convenience of sick and disabled American seamen : _Provided,_ that the sum of fifteen thousand dollars be, and the same is hereby appropriated for the erection of an hospital in the district of Massachusetts.

Sec. 2.\*\*_And be it further enacted,_ That it shall be lawful for the President of the United States to cause such measures to be taken as, in -his opinion, may be expedient for providing convenient accommodations, medical assistance, necessary attendance, and supplies for the relief of sick or disabled seamen of the United States, who may be at or near the port of New Orleans, in case the same can be done with the assent of the government having jurisdiction over the port ; and for this purpose, to establish such regulations, and to authorize the employment of such persons as he may judge proper ; and that for defraying the expense thereof, a sum not exceeding three thousand dollars be paid out of any moneys arising from the said fund not otherwise appropriated.

Sec. 3.\*\*_And be it further enacted,_ That from and after the thirtieth day of June next, the master of every boat, raft, or flat, belonging to any citizen of the United States, which shall go down the Mississippi with intention to proceed to New Orleans, shall, on his arrival at Fort Adams, render to the collector or naval officer thereof, a true account of the number of persons employed on board such boat, raft, or flat, and the time that each person has been so employed, and shall pay to the said collector or naval officer at the rate of twenty cents per month, for every person so employed, which sum, he is hereby authorized to retain out of the wages of such person : and the said collector or naval officer shall not give a clearance for such boat, raft, or flat, to proceed on her voyage to New Orleans, until an account be rendered to him of the number of persons employed on board such boat, raft, or flat, and the money paid to him by the master or owner thereof: and if any such master shall render a false account of the number of persons, and the length of time they have severally been employed, as is herein required, he shall forfeit and pay fifty dollars, which shall be applied to, and shall make a part of, the said general fund for the purposes of this act: _Provided,_ that all persons employed in navigating any such boat, raft, or flat, shall be considered as seamen of the United States, and entitled to the relief extended by law to sick and disabled seamen.

Sec. 4. _And be it further enacted,_ That the President of the United States be, and he is hereby authorized to nominate and appoint for the port of New Orleans, a fit person to be director of the marine hospital of the United States, whose duties shall be in all instances the same as the directors of the marine hospitals of the United States, as directed and required by the act, intituled " An act for the relief of sick and disabled seamen." \[Act of July 16, 1798, chap. 76.\]

Sec. 5. _And be it further enacted,_ That each and every director of the marine hospitals within the United States, shall, if it can with convenience be done, admit into the hospital of which he is director, sick foreign seamen, on the application of the master or commander of any foreign vessel to which such sick seamen may belong; and each seamen so admitted shall be subject to a charge of seventy-five cents per day for each day he may remain in the hospital, the payment of which the master or commander of such foreign vessel shall make to the collector of the district in which such hospital is situated : and the collector shall not grant a clearance to any foreign vessel, until the money due from such master or commander, in manner and form aforesaid, shall be paid , and the director of each hospital is hereby directed, under the penalty of fifty dollars, to make out the accounts against each foreign seaman that may be placed in the hospital, under his direction, and render the same to the collector.

Sec. 6. _And be it further enacted,_ That the collectors shall pay the money collected, by virtue of this and the act to which this is an amendment, into the treasury of the United States, and be accountable therefor, and receive the same commission thereon, as for other money by them collected.

Sec. 7. _And be it further enacted,_ That each and every director of the marine hospitals shall be accountable at the treasury of the United States for the money by them received in the same manner as other receivers of public money, and for the sums by them expended shall be allowed a commission at the rate of one per cent.

APPENDIX.

ACT OF 1800, CHAPTER XIV. (2 U. S. Stats. at Large, 16).

An Act providing for Saleage in cases of Recapture.

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That when any vessel other than a vessel of war or privateer, or when any goods which shall hereafter be taken as prize by any vessel, acting under authority from the government of the United States, shall appear to have before belonged to any person or persons, resident within or under the protection of the United States, and to have been taken by an enemy of the United States, or under authority, or pretence of authority, from any prince, government, or State, against which the United States have authorized, or shall authorize, defence or reprisals, such vessel or goods not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the former owner or owners thereof, he or they paying for and in lieu of salvage, if retaken by a public vessel of the United States, one eighth part, and if retaken by a private vessel of the United States, one sixth part, of the true value of the vessel or goods so to be restored, allowing and excepting all imposts and public duties to which the same may be liable. And if the vessel so retaken shall appear to have been set forth and armed as a vessel of war, before such capture or afterwards, and before the retaking thereof as aforesaid, the former owner or owners, on the restoration thereof, shall be adjudged to pay for and in lieu of salvage, one moiety of the true value of such vessel of war, or privateer.

**Sec. 2.**_And be it further enacted,_ That when any vessel or goods, which shall hereafter be taken as prize, by any vessel acting under authority from the government of the United States, shall appear to have before belonged to the United States, and to have been taken by an enemy of the United States, or under authority, or pretence of authority from any prince, government, or State, against which the United States have authorized, or shall authorize, defence or reprisals, such public vessel not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the United States. And for and in lieu of salvage, there shall be paid from the treasury of the United States, pursuant to the final decree which shall be made in such case by any court of the United States, having competent jurisdiction thereof, to the parties who shall be thereby entitled to receive the same, for, the recapture as aforesaid, of an unarmed vessel, or any goods therein, one sixth part of the true value thereof, when made by a private vessel of the United States, and one twelfth part of such value when the 47 \*

## Appendix

recapture shall be made by a public armed vessel of the United States ; and for the recapture as aforesaid 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 such recapture shall be made by a public armed vessel of the United States.

Sec. 3. _And be it further enacted_, That when any vessel or goods which shall be taken as prize, as aforesaid, shall appear to have before belonged to any person or persons permanently resident within the territory, and under the protection of any foreign prince, government, or State, in amity with the United States, and to have been taken by an enemy of the United States, or by authority or pretence of authority from any prince, government, or State, against which the United States have authorized, or shall authorize, defence or reprisals, then such vessel or goods shall be adjuded to be restored to the former owner or owners thereof, he or they paying for and in lieu of salvage, such proportion of the true value of the vessel or goods so to be restored, as by the law or usage of such prince, government, or State, within whose territory such former owner or owners shall be so resident, shall be required on the restoration of any vessel or goods of a citizen of the United States, under like circumstances of recapture, made by the authority of such foreign prince, government, or State; and where no such law or usage shall be known, the same salvage shall be allowed as is provided by the first section of this act: _Provided_, that no such vessel or goods shall be adjuded to be restored to such former owner or owners, in any case where the same shall have been, before the recapture thereof, condemned as prize by competent authority, nor in any case where by the law or usage of the prince, government, or State, within whose territory such former owner or owners shall be resident as aforesaid, the vessel or goods of a citizen of the United States, under like circumstances of recapture, would not be restored to such citizen of the United States: _Provided also_, that nothing herein shall be construed to contravene or alter the terms of restoration in cases of recapture, which are or shall be agreed on in any treaty between the United States, and any foreign prince, government, or State.

Sec. 4. _And be it further enacted_, That all sums of money which may be paid for salvage, as aforesaid, when aceruing to any public armed vessel, shall be divided to and among the commanders, officers, and crew thereof, in such proportions as are or may be provided by law, respecting the distribution of prize money: and when aceruing to any private armed vessel, shall be distributed to and among the owners and company concerned in such recapture, according to their agreements, if any such APPENDIX.

there be; and in case there be no such agreement, then to and among such persons, and in such proportions, as the court having jurisdiction thereof shall appoint.

Sec. 5. _And be it further enacted_, That such parts of any acts of Congress of the United States, as respect the salvage to be allowed in cases of recapture, shall be, and are hereby repealed, except as to cases of recapture made before the passing of this act.

ACT OF 1808, CHAPTER IX. (2 U. S. Stats. at Large 203).

_An Act supplementary to the " Act concerning Consula and Vice-Conals, and for the further protection of American Scamen."_

**Section 1.**_Ba it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That before a clearance be granted to any vessel bound on a foreign voyage, the master thereof shall deliver to the collector of the customs, a list, containing the names, places of birth and residence, and a description of the persons who compose his ship's company, to which list the oath or affirmation of the captain shall be annexed, that the said list contains the names of his crew, together with the places of their birth and residence, as far as he can ascertain them, and the said collector shall deliver him a certified copy thereof, for which the collector shall be entitled to receive the sum of twenty-five cents; and the said master shall moreover enter into bond with sufficient security, in the sum of four hundred dollars, that he shall exhibit the aforesaid certified copy of the list to the first boarding officer, at the first port in the United States, at which he shall arrive on his return thereto, and then and there also produce the persons named therein, to the said boarding officer, whose duty it shall be to examine the men with such list, and to report the same to the collector, and it shall be the duty of the collector at the said port of arrival (where the same is different from the port from which the vessel originally sailed), to transmit a copy of the list so reported to him, to the collector of the port from which said vessel originally sailed: _Provided_, that the said bond shall not be forfeited on account of the said master not producing to the first boarding officer, as aforesaid, any of the persons contained in the said list, who may be discharged in a foreign country with the consent of the consul, vice-consul, commercial agent, or vice-commercial agent there residing, signified in writing, under his hand and official seal, to be produced to the collector with the other persons composing the crew as aforesaid; nor on account of any such person dying or ascending, or being forcibly impressed into other service, of which satisfactory proof shall be then also exhibited to the collector.

Sec. 2. _And be it further enacted,_ That 'it shall be the duty of every master or commander of a ship or vessel, belonging to citizens of the United States, who shall sail from any port of the United States, after the first day of May next, on his arrival at a foreign port, to deposit his register, sea letter, and Mediterranean passport with the consul, vice-con-sul, commercial agent, or vice-commercial agent (if any there be at such port); that in case of refusal or neglect of the said master or commander, to deposit the said papers as aforesaid, he shall forfeit and pay five hundred dollars, $\\varphi$ be recovered by the said consul, vice-consul, commercial agent, or vice-commercial agent, in his own name, for the benefit of the United States, in any court of competent jurisdiction; and it shall be the duty of such consul, vice-consul, commercial agent, or vice-commercial agent, on such master or commander producing to him a clearance from the proper officer of the port, where his ship or vessel may be, to deliver to the said master or commander all of his said papers : _Provided,_ such master or commander shall have complied with the provisions contained in this act, and those of the act to which this is a supplement.

Sec. 3. _And be it further enacted,_ That whenever a ship or vessel belonging to a citizen of the United States, shall be sold in a foreign country, and her company discharged, or when a seaman or mariner, a citizen of the United States, shall, with his own consent, be discharged in a foreign country, it shall be the duty of the master or commander to produce to the consul, vice-consul, commercial agent, or vice-commercial agent, the list of his ship's company, certified as aforesaid; and to pay to such consul, vice-consul, commercial agent, or vice-commercial agent, for every seaman or mariner so discharged, being designated on such list as a citizen of the United States, three months pay, over and above the wages which may then be due to such mariner or seaman, two thirds thereof to be paid by such.consul, or commercial agent, to each seaman or mariner so discharged, upon his engagement on board of any vessel to return to the United States, and the other remaining third to be retained for the purpose of creating a fund for the payment of the passages of seamen or mariners, citizens of the United States, who may be desirous of returning to the United States, and for the maintenance of American seamen who may be destitute, and may be in such foreign port, and the several sums retained for such fund shall be accounted for with the treas-ury every six months by the persons receiving the same.

Sec. 4. _And be it further enacted,_ That it shall be the duty of the consuls, vice-consuls, commercial agents, vice-commercial agents of the United States, from time to time, to provide for the mariners and seamen of the APPENDIX. 561 United States, who may be found destitute within their districts respectively, sufficient subsistence and passages to some port in the United States, in the most reasonable manner, at the expense of the United States, subject to such instructions as the secretary of state shall give; and that all masters and commanders of vessels belonging to citizens of the United States, and bound to some port of the same, are hereby required and enjoined to take such mariners or seamen on board of their ships or vessels, at the request of the said consuls, vice-consuls, commercial agents, or vice-commercial agents respectively, and to transport them to the port in the United States to which such ships or vessels may be bound, on such terms, not exceeding ten dollars for each person, as may be agreed between the said master and consul, or commercial agent. And the said mariners or seamen shall, if able, be bound to do duty on board such ships or vessels according to their several abilities: _Provided_, that no master or captain of any ship or vessel shall be obliged to take a greater number than two men to every one hundred tons burden of the said ship or vessel, on any one voyage; and if any such captain or master shall refuse the same on the request or order of the consul, vice-consul, commercial agent, or vice-commercial agent, such captain or master shall forfeit and pay the sum of one hundred dollars for each mariner or seamen so refused, to be recovered for the benefit of the United States in any court of competent jurisdiction. And the certificate of any such consul or commercial agent, given under his hand and official seal, shall be _primd facie_ evidence of such refusal in any court of law having jurisdiction for the recovery of the penalty aforesaid.

Sec. 5. _And be it further enacted_, That the seventh and eighth sections of the act, inituled " An act concerning consuls and vice-consuls," (1792, c. 24,) be and the same are hereby repealed; and that the secretary of state be authorized to reimburse the consuls, vice-consuls, commercial agents, or vice-commercial agents, such reasonable sums as they may heretofore have advanced for the relief of seamen, though the same should exceed the rate of twelve cents a man per diem.

Sec. 6. _And be it further enacted_, That it shall and may be lawful for every consul, vice-consul, commercial agent, and vice-commercial agent of the United States, to take and receive for every certificate of discharge of any seaman or mariner in a foreign port fifty cents; and for commission on paying and receiving the amount of wages payable on the discharge of seamen in foreign ports, two and a half per centum.

Sec. 7. _And be it further enacted_, That if any consul, vice-consul, commercial agent, or vice-commercial agent, shall falsely and knowingly certify, that property belonging to foreigners is property belonging to citizens of the United States, he shall, on conviction thereof, in any court of competent jurisdiction, forfeit and pay a fine not exceeding ten thousand dol

## Appendix A Appendix

lars, at the discretion of the court, and be imprisoned for any term not exceeding three years.

Sec. 8. _And be it further enacted_, That if any consul, vice-consul, commercial agent, or vice-commercial agent, shall grant a passport or other paper certifying that any alien, knowing him or her to be such, is a citizen of the United States, be shall, on conviction thereof, in any court of competent jurisdiction, forfeit and pay a fine not exceeding one thousand dollars.

ACT OF 1803, CHAPTER XVI. (2 U. S. Stats. at Large, 208).

_An Act supplementary to the Act, intituled " An Act providing passports for the Ships and Venable of the United States."_

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That every unregistered ship or vessel owned by a citizen or citizens of the United States, and sailing with a sea-letter, going to any foreign country, shall, before she departs from the United States, at the request of the master, be furnished by the collector of the district where such vessel may be, with a passport of the form prescribed and established by the act to which this is a supplement, for which the master shall pay to the collector ten dollars, and be subject to the rules and conditions prescribed in the said act, for ships and vessels of the United States.

Sec. 2. _And be it further enacted_, That there shall be paid on every such unregistered ship or vessel, sailing or trading to any foreign country, other than some port or place in America, for each and every voyage, the same sum at the time of clearing outwards, to be received and accounted for in the same manner as is by said act required in cases of ships and vessels of the United States.

## Appendix.

try, be shall forfeit and pay a sum not exceeding five thousand dollars, to be recovered by action of debt, in the name of the United States, in any court of competent jurisdiction ; and if an officer of the United States, he shall for ever thereafter be rendered incapable of holding any office of trust or profit, under the authority of the United States.

Sec. 2. _And be it further enacted_, That it shall be the duty of the controller of the treasury, to cause to be provided, blank certificates of registry, with such water and other secret marks as he may direct, which marks shall be made known only to the collectors and their deputies, and to the consuls or commercial agents of the United States ; and from and after the thirty-first day of December next, no certificate of registry shall be issued, except such as shall have- been provided and marked as aforesaid ; and the ships or vessels of the United States, which shall have been duly registered as such, shall be entitled to new certificates of registry (gratis) in exchange for their old certificates of registry ; and it shall be the duty of the respective collectors, on the departure of any such ship or vessel, after the said thirty-first day of December, from the district to which such ship or vessel shall belongs to issue a new certificate accordingly, and to retain and deface the former certificate.

Sec. 3. _And be it further enacted_, That when any ship or vessel, which has been, or which shall be registered pursuant to any law of the United States, shall, whilst such ship or vessel is without the limits of the United States, be sold or transferred in whole'or in part to a citizen or citizens of the said States, such ship or vessel, on her first arrival in the United States thereafter, shall be entitled to all the privileges and benefits of a ship or vessel of the United States : _Provided_, that all the requisites of law, in order to the registry of ships or vessels, shall be complied with, and a new certificate of registry obtained for such ship or vessel, within three days from the time at which the master or other person having the charge or command of such ship or vessel, is required to make his final report upon her first arrival afterwards as aforesaid, agreeably to the thirtieth section of the act, passed on the second day of March, one thousand seven hundred and ninety-nine, intitled "An act to regulate the collection of duties on imports and tonnage." And it shall be lawful to pay to the collector of the district within which such ship or vessel may arrive as aforesaid, the duties imposed by law on the tonnage of such ship or vessel, at any time within three days from the time at which the master or other person having the charge or command of such ship or vessel, is required to make his final report as aforesaid, any thing to the contrary in any former law notwithstanding : _Provided always_, that nothing herein contained shall be construed to repeal, or in anywise change the provisions, restrictions, or limitations of any former act or sets, excepting so far as the same shall be repugnant to the provisions of this act.

# Act of 1804, Chapter Li. (2 U. S. Stats. at Large, 296).

A Act of 1804, Chapter Li. (2 U. S. Stats. at Large, 296).

###### Abstract

The study of the _Critical State of America in Congress assembled_ is a new class of \_CriticalAPPENDIX. 565

of any ship or vessel before registered, in case of a _bond fide_ sale thereof to any citizen or citizens resident in the United States: _And provided also,_ that satisfactory proof of the citizenship of the person on whose account a vessel may be purchased, shall be first exhibited to the collector, before a new register shall be granted for such vessel.

Sec. 2. _And be it further enacted,_ That the proviso in the act, intitled " An act in addition to an act, intitled An act concerning the registering and recording of ships and vessels," passed the twenty-sevent of June, one thousand seven hundred and ninety-seven, shall be taken and deemed to extend to the executors or administrators of the owner or owners of vessels, in the said proviso described.

ACT OF 1805, CHAPTEB XXVIII (a U. S. Stats. at Large, 330).

_An Act to amend the Act, intitled " An Act for the government and regulation of Sannen in the Merchant' Service."_

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That all the provisions, regulations, and penalties which are contained in the eighth section of the act, intitled " An act for the government and regulation of seamen in the merchants' service," so far as relates to a chest of medicines to be provided for vessels of one hundred and fifty tons burden and upwards, shall be extended to all merchant vessels of the burden of seventy-five tons, or upwards, navigated with six persons or more, in the whole, and bound from the United States to any port or ports in the West Indies.\_

ACT OF 1810, CHAPTEB XIX. (a U. S. Stats. at Large, 568).

_An Act to prevent the issuing of Sea Letters except to certain Venets._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That from and after the thirtieth of June next, no sea letter or other document certifying or proving any ship or vessel to be the property of a citizen or citizens of the United States, shall be issued except to ships or vessels duly registered, or enrolled and licensed as ships or vessels of the United States, or to vessels which at that time shall be wholly owned by citizens of the United States, and furnished with or entitled to sea letters or other custom-house documents, any law or laws heretofore passed to the contrary notwithstanding.\_

VOL. I. 48

###### Abstract

The main goal of this paper is to develop a new approach to the study of the effects of the system on the system
**SEC. 4.** _And be it further enacted_\*\*, That the secretary of the navy be authorized and required to prepare the necessary rules and regulations for the government of the institution, and report the same to the next session of congress.

**SEC. 5.** _And be it further enacted_\*\*, That when any navy officer, sea- man, or marine, shall be admitted into a navy hospital, that the institution shall be allowed one ration per day during his continuance therein, to be deducted from the account of the United States with such officer, seaman, or marine; and in like manner, when any officer, seaman, or marine, entitled to a pension, shall be admitted into a navy hospital, such pension during his continuance' therein shall be paid to the commissioners of the navy hospitals, and deducted from the account of such pensioner.

ACT OF 1811, CHAPTER XXVIII. (2 U. S. Stats. at Large, 651).

_An Act in addition to the Act, initially " An Act supplementary to the Act concerning Con- walls and Yio-Consuli," and for the further protection of American Scann._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That in all cases where distressed mariners and seamen of the United States have been transported from foreign ports where there was no consul, vice-consul, commercial agent, or vice-commercial agent of the United States, to ports of the United States; and in all caseswhere they shall hereafter be so transported, there shall be allowed to the master or owner of each vessel, in which they shall or may have been transported, such reasonable compensation, in addition to the allowance now fixed by law, as shall be deemed equitable by the controller of the treasury. '

ACT OF 1812, CHAPTER XL. (2 U. S. Stats. at Large, 694).

_An Act respecting the Enrolling and Licensing of Standards._

**SECION 1.** _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That from and after the passing of this act, a steamboat employed, or intended to be employed only in a river or bay of the United States, owned wholly or in part by an alien, resident within the United States, may, and shall be enrolled and licensed, as if the same belonged to a citizen of the United States, according to, and subject to all the conditions, limitations, and provisions contained in the act, intituled "An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same," except that, in such case, no bath or affirmation shall be required that the said boat belongs to a citizen or citizens of the United States.

Sec. 2. _And be it further enacted_, That the owner or owners of such steamboat, upon application for enrolment or license, shall give bond to the collector of the district, to and for the use of the United States, in the penalty of one thousand dollars, with sufficient surety, conditioned, that the said boat shall not be employed in other waters than the rivers and bays of the United States.

## ACT of 1813, Chapter Xilin (9 U. S. Stats. at Large, 809).

_An Act for the Regulation of Saamen on board the Public and Private Vessels of the United States._

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled_, That from and after the termination of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ on board any of the public or private vessels of the United States any person or persons except citizens of the United States, or persons of color, natives of the United States.

Sec. 2. _And be it further enacted_, That from and after the time when this act shall take effect, it shall not be lawful to employ as aforesaid, any naturalized citizen of the United States, unless such citizen shall produce to the commander of the public vessel, if to be employed on board such vessel, or to a collector of the customs, a certified copy of the act by which he shall have been naturalized, setting forth such naturalization and the time thereof.

Sec. 3. _And be it further enacted_, That in all cases of private vessels of the United States sailing from a port in the United States to a foreign port, the list of the crew, made as heretofore directed by law, shall be examined by the collector for the district from which the vessel shall clear out, and, if approved of by him, shall be certified accordingly. And no person shall be admitted or employed as aforesaid, on board of any vessel aforesaid, unless his name shall have been entered in the list of the crew, approved and certified by the collector for the district from which the vessel shall clear out as aforesaid. And the said collector, before he delivers the list of the crew, approved and certified as aforesaid, to the captain, master, or proper officer of the vessel to which the

## Appendix

same belongs, shall cause the same to be recorded in a book by him for that purpose to be provided, and the said record shall be open for the inspection of all persons, and a certified copy thereof shall be admitted in evidence in any court in which any question may arise, under any of the provisions of this act.

Sec. 4. _And be it further enacted_, That the President of the United States be, and he hereby is authorized from time to time to make such further regulations, and to give such directions to the several commanders of public vessels, and to the several collectors, as may be proper and necessary respecting the proofs of citizenship, to be exhibited to the commanders or collectors aforesaid: _Provided_, That nothing contained in such regulations or directions shall be repugnant to any of the provisions of this act.

Sec. 5. _And be it further enacted_, That from and after the time when this act shall take effect, no seaman or other seafaring man, not being a citizen of the United States, shall be admitted or received as a passenger on board of any public or private vessel of the United States, in a foreign port, without permission in writing from the proper officers of the country of which such seaman or seafaring man may be subject or citizen.

Sec. 6. _And be it further enacted_, That from and after the time when this act shall take effect, the consuls or commercial agents of any nation at peace with the United States shall be admitted (under such regulations as may be prescribed by the President of the United States) to state their objections to the proper commander or collector as aforesaid, against the employment of any seaman' or sea-faring man on board of any public or private vessel of the United States, on account of his being a native subject or citizen of such nation, and not embraced within the description of persons who may be lawfully employed, according to the provisions of this act; and the said consuls or commercial agents shall also be admitted under the said regulations, to be present at the time when the proofs of citizenship of the persons against whom such objections may have been made, shall be investigated by such commander or collector.

Sec. 7. _And be it further enacted_, That if any commander of a public vessel of the United States, shall knowingly employ or permit to be employed, or shall admit or receive, or permit to be admitted or received, on board his vessel, any person whose employment or admission is prohibited by the provisions of this act, he shall on conviction thereof forfeit and pay the sum of one@thousand dollars for each person thus unlawfully employed or admitted on board such vessel.

Sec. 8. _And be it further enacted_, That if any person shall, contrary to the prohibitions of this act, be employed, or be received on board of 48570

APPENDIX.

any private vessel, the master or commander, and the owner or owners of such vessel, knowing thereof, shall respectively forfeit and pay five hundred dollars for each person thus unlawfully employed or received in any one voyage; which sum or sums shall be recovered, although such scan-man or person shall have been admitted and entered in the certified list of the crew aforesaid, by the collector for the district to which the vessel may belong : and all penalties and forfeitures, arising under or incurred by virtue of this act, may be sued for, prosecuted, and recovered, with costs of suit by action of debt, and shall accrue and be one moiety thereof to the use of the person who shall sue for the same, and the other moiety thereof to the use of the United States.

Sec. 9. _And be it further enacted_, That nothing in this act contained shall be construed to prohibit any commander or master of a public or private vessel of the United States, whilst in a foreign port or place, from receiving any American seamen in conformity to law, or supplying any deficiency of seamen on board such vessel, by employing American seamen, or subjects of such foreign country, the employment of whom shall not be prohibited by the laws thereof.

Sec. 10. _And be it further enacted_, That the provisions of this act shall have no effect or operation with respect to the employment as seamen of the subjects or citizens of any foreign nation which shall not, by treaty or special convention with the government of the United States, have prohibited on board of her public and private vessels the employment of native citizens of the United States, who have not become a citizen or subject of such nation.

Sec. 11. _And be it further enacted_, That nothing in this act contained shall be so construed as to prevent any arrangement between the United States and any foreign nation, which may take place under any treaty or convention, made and ratified in the manner prescribed by the constitution of the United States.

Sec. 12. _And be it further enacted_, That no person who shall arrive in the United States, from and after the time when this act shall take effect, shall be admitted to beome a citizen of the United States, who shall not for the continued term of five years next preceding his admission as aforesaid have resided within the United States, without being at any time during the said five years, out of the territory of the United States.

Sec. 13. _And be it further enacted_, That if any person shall falsely make, forge, or counterfeit, or cause, or procure to be falsely made, forged, or counterfeited, any certificate or eviden$&$ of citizenship referred to in this act; or shall pass, utter, or use as true, any false, forged, or counterfeited, certificate of citizenship, or shall make sale or dispose of any certificate of citizenship to any person other than the person for

## Appendix

- whom it was originally issued, and to whom it may of right belong, every such person shall be deemed and adjudged guilty of felony ; and on being thereof convicted by due course of law, shall be sentenced to be imprisoned and kept to hard labor for a period not less than three, or more than five years, or be fined in a sum not less than five hundred dollars, nor more than one thousand dollars, at the discretion of the court taking cognizance thereof.

- Sec. 14. _And be it further enacted,_ That no suit shall be brought for any forfeiture or penalty incurred under the provisions of this act, unless the suit be commenced within three years from the time of the forfeiture.

- ACT OF 1818, CHAPTER II. (3 U. S. Stats. at Large, 2).

_An Act for the government of Persons in certain Fisheries._

- Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That the master or skipper of any vessel of the burden of twenty tons or upwards, qualified according to 'law' for carrying on the bank and other cod fisheries, bound from a port of the United States to be employed in any such fishery, at sea, shall, before proceeding on such fishing voyage, make an agreement in writing or print with every fisherman who may be employed therein (except only an apprentice or servant of himself or owner), and, in addition to such terms of shipment as may be agreed on, shall in such agreement express whether the same is to continue for one voyage or for the fishing season, and shall also express, that the fish or the proceeds of such fishing .voyage or voyages, which may appertain to the fishermen, shall be divided among them in proportion to the quantities or number of said fish which they may respectively have caught; which agreement shall be indorsed or countersigned by the owner of such fishing vessel or his agent. And if any fisherman, having engaged himself for a voyage or for the fishing season, in any fishing vessel, and signed an agreement therefor as aforesaid, shall thereafter and while such agreement remains in force and to be performed, desert or absent himself from such vessel without leave of the master or skipper thefor, or of the owner or his agent, such de-serter shall be liable to the same penalties as deserting seamen or mariners are subject to in the merchant service, and may in the like manner, and upon the like complaint and proof, be apprehended and detained; and all costs of process and commitment, if paid by the master or owner, shall be deducted out of the share of fish, or proceeds of any fishing voyage to which such deserter had or shall become entitled. And any fisherman,man, having engaged himself as aforesaid, who shall during such fishing voyage refuse or neglect his proper duty on board the fishing vessel, being thereto ordered or required by the master or skipper thereof, or shall otherwise resist his just commands to the hinderance or detriment of such voyage, besides being answerable for all damages arising thereby, shall forfeit to the use of the owner of such vessel his share of any public allowance which may be paid upon such voyage.

Sko. 2. _And be it further enacted_, That where an agreement or contract shall be so made and signed for a fishing voyage or for the fishing season, and any fish which may have been caught on board such vessel during the same, shall be delivered to the owner or to his agent for cure, and shall be sold by said owner or agent, such vessel shall, for the term of six months after such sale, be liable and answerable for the skipper's and every other fisherman's share of such fish, and may be proceeded against in the same form and to the same effect as any other vessel is 'by law liable and may be proceeded against for the wages of seamen or mariners in the merchant service. And upon such process for the value of a share, or shares of the proceeds of fish delivered and sold as aforesaid, it shall be incumbent on the owner or his agent to produce a just account of the sales and division of such fish according to such agreement or contract; otherwise the said vessel shall be answerable upon such process for what may be the highest value of the share or shares demanded. But in all cases the owner of such vessel or his agent, appearing to answer to such process, may offer thereupon his account of general supplies made for such fishing voyage and of other supplies therefor made to either of the demandants, and shall be allowed to produce evidence thereof in answer to their demands respectively; and judgment shall be rendered upon such process for the respective balances which upon such an inquiry shall appear: _Provided always_, That when process shall be issued against any vessel liable as aforesaid, if the owner thereof, or his agent, will give bond to each fisherman in whose favor such process shall be instituted with sufficient security, to the satisfaction of two justices of the peace, one of whom shall be named by such owner or agent, and the other by the fisherman or fishermen pursuing such process, or if either party shall refuse, then the justice first appointed shall name his associate, with condition to answer and pay whatever sum shall be recovered by him or them on such process, there shall be an immediate discharge of such vessel: _Provided_, That nothing herein contained shall prevent any fisherman from having his action at common law for his share or shares of fish or the proceeds thereof as aforesaid.

APPENDIX.

ACT OF 1813, CHAPTER XXXV. (s U. S. Stats. at Large, 49).

_An Act laying a duty on imported Salt ; granting a county on Pickled Fish exported, and allowances to certain Veisals employed in the Fisheries._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That from and after the first day of January next, a duty of twenty cents per bushel shall be laid, imposed, and collected, upon all salt imported from any foreign port or place into the United States. In calculating the said duty, every fifty-six pounds of salt shall be computed as equal to one bushel. And the said duty shall be collected in the same manner, and under the same regulations as other duties laid on the importation of foreign goods, waves, and merchandise, into the United States: _Provided,_ That draw-back shall in no case be allowed, and the term of credit for the payment of duties shall be nine months.

**Sec. 2.**_And be it further enacted,_ That on all pickled fish of the fisheries of the United States, exported therefrom subsequent to the last day of December, one thousand eight hundred and fourteen, there shall be allowed and paid a bounty of twenty cents per barrel, to be paid by the collector of the district from which the same shall be so exported, without any deduction or abatement: _Provided always,_ That in order to entitle the exporter or exporters of such pickled fish to the benefit of such bounty or allowance, the said exporter or exporters shall make entry with the collector and naval officer of the district from whence the said pickled fish are intended to be exported; and shall specify in such entry the names of the master and vessel in which, and the place where such fish are intended to be exported, together with the particular quantity; and proof shall be made to the satisfaction of the collector of the district from which such pickled fish are intended to be exported, and of the naval officer thereof, if any, that the same are of the fisheries of the United States; and no entry shall be received as aforesaid, of any pickled fish which have not been inspected and marked pursuant to the inspection laws of the respective States where inspection laws are in force, in regard to any pickled fish, and the casks containing such fish shall be branded with the words "for bounty," with the name of the inspector or packer, the species and quality of the fish contained therein, and the name of the port of exportation; and the collector of such district shall, together with the naval officer, where there is one, grant an order or permit for an injector to examine the pickled fish as expressed in such entry, and if they correspond therewith, and the said officer is fully satisfied that they are of the fisheries of the United States, to lade the same agreeably to such entry, on board the ship or vessel therein expressed; which lading shall

### 574 APPENDIX.

be performed under the superintendence of the officer examining the same, who shall make returns of the quantity and quality of pickled fish so laden on board, in virtue of such order or permit, to the officer or officers granting the same. And the said-exporter or exporters, when the lading is completed, and after returns thereof have been made as above directed, shall make cath or affirmation, that the pickled fish expressed in such entry, and then actually laden on board the ship or vessel as therein expressed, are truly and _bond fide_ of the fisheries of the United States, that they are truly intended to be exported as therein specified, and are not intended to be related within the limits of the United States; and shall also give bond in double the amount of the bounty or allowance to be received, with one or more sureties to the satisfaction of the collector of the port or place from which the said pickled fish are intended to be exported, conditioned that the same shall be landed and left at some foreign port or place without the limits aforesaid; which bonds shall be cancelled at the same periods and in like manner as is provided in respect to bonds given on the exportation of goods, wares, and merchandise, entitled to drawback of duties: _Provided always_, That the said bounty or allowance shall not be paid until at least six months after the exportation of such pickled fish, to be computed from the date of the bond, and until the exporter or exporters thereof shall produce to the collector with whom such outward entry is made,'such certificates or other satisfactory proof of the landing of the same as aforesaid, as is made necessary for cancelling the bonds given on the exportation of goods entitled to drawback: _And provided also_, That the bounty or allowance as aforesaid, shall not be paid unless the same shall amount to ten dollars at least upon each entry.

Sec. 3. _And be it further enacted_, That no bounty, drawback, or allowance, shall be made under the authority of this act, unless it shall be proved to the satisfaction of the collector that the pickled fish for which the bounty, drawback, or allowance, shall be claimed, was wholly cured with foreign salt, and on which a duty shall have been secured or paid.

Sec. 4. _And be it further enacted_, That if any pickled fish shall be falsely or fraudulently entered with intent to obtain the bounty or allowance on their exportation as here provided, when the said fish are not entitled to the same, the said fish or the value thereof, to be recovered of the person making such false entry, shall be forfeited.

Sec. 5. _And be it further enacted_, That from and after the last day of December, one thousand eight hundred and fourteen, there shall be paid on the last day of December, annually, to the owner of every vessel or his agent, by the collector of the district where such vessel may belong, that shall be qualified agreeably to law for carrying on the bank and other cod fisheries, and that shall actually have been employed therein at sea

## Appendix.

for the term of four months, at the least, of the fishing season next preceding, which season is accounted to be from the last day of February to the last day of November in every year, for each and every ton of such vessel's burden according to her admeasurement as licensed or enrolled, if of twenty tons and not exceeding thirty tons, two dollars and forty cents; and if above thirty tons, four dollars; of which allowance aforesaid three eighth parts shall accure and belong to the owner of such fishing vessel, and the other five eighth thereof shall be divided by him, his agent, or lawful representative, to and among the several fishermen, who shall have been employed in such vessel during the season aforesaid, or a part thereof, as the case may be, in such proportions as the fish they shall respectively have taken may bear to the whole quantity of fish taken on board such vessel during such season : _Provided_, That the allowance aforesaid on any one vessel for one season, shall not exceed two hundred and seventy-two dollars.

Sec. 6. _And be it further enacted_, That from and after the last day of December, one thousand eight hundred and fourteen, there shall also be paid on the last day of December annually, to the owner of every fishing boat or vessel of more than five tons and less than twenty tons, or to his agent or lawful representative, by the collector of the district where such boat or vessel may belong, the sum of one dollar and sixty cents upon every ton admeasurement of such boat or vessel, which allowance shall be accounted for as part of the proceeds of the fares of said boat or vessel, and shall accordingly be so divided among all persons interested therein : _Provided_, _however_, That this allowance shall be made only to such boats or vessels as shall have been actually employed at sea in the cod fishery for the term of four months at the least of the preceding season : _And provided also_, That such boat or vessel shall have landed in the course of said preceding season, a quantity of fish not less than twelve quintalts for every ton of her admeasurement; the said quantity of fish to be ascertained when dried and cured fit for exportation, and according to the weight thereof as the same shall weigh at the time of delivery when actually sold, which account of the weight, with the original adjustment and settlement of the fare or fares among the owners and fishermen, together with a written account of the length, breadth, and depth of said boat or vessel, and the time she has actually been employed in the fishery in the preceding season, shall in all cases be produced and sworn or affirmed to before the said collector of the district, in order to entitle the owner, his agent, or lawful representative to receive the allowances aforesaid. And if at any time within one year after payment of such allowance it shall appear that any fraud or deceit has been practised in obtaining the same, the boat or vessel upon which such allowance shall have been paid, if found within the district aforesaid, shall be forfeited, other

## Appendix.

wise the owner or owners having practised such fraud or deceit, shall forfeit and pay one hundred dollars, to be sued for, recovered, and distributed in the same manner as forfeitures and penalties are to be sued for, recovered, and distributed for any breach of the act, intituled "An act to regulate the collection of duties on imports and tonnage."

Sec. 7. _And be it further enacted_, That the owner or owners of every fishing vessel of twenty tons and upwards, his or their agent or lawful representative, shall, previous to receiving the allowance made by this act, produce to the collector who is authorized to pay the same, the original agreement or agreements which may have been made with the fishermen employed on board such vessel as is herein before required, and also a certificate, to be by him or them subscribed, therein mentioning the particular days on which such vessel sailed and returned on the several voyages or fares she may have made in the preceding fishing season, to the truth of which he or they shall swear or affirm before the collector aforesaid.

Sec. 8. _And be it further enacted_, That no ship or vessel of twenty tons or upwards, employed as aforesaid, shall be entitled to the allowance granted by this act, unless the skipper or master thereof shall, before he proceeds on any fishing voyage, make an agreement in writing or in print, with every fisherman employed therein according to the provisions of the act, intituled "An act for the government of persons in certain fisheries."

Sec. 9. _And be it further enacted_, That any person who shall make any false declaration in any oath or affirmation required by this act, being duly convicted thereof in any court of the United States having jurisdiction of such offence, shall be deemed guilty of wilful and corrupt perjury and shall be punished accordingly.

Sec. 10. _And be it further enacted_, That this act shall continue in force until the termination of the war in which the United States are now engaged with the United Kingdom of Great Britain and Ireland, and the dependencies thereof, and for one year thereafter and no longer.

## Act of 1816, Chapter Xiv. (8 U. S. Stats. at Large, 254).

_An Act to continue in force "An Act entitled An Act, laying a duty on imported Sahl, granting a bounty on Pickled Fish exported, and allowances to certain Versals employed in the Fisheries."_

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That the act, entitled "An act laying a duty on imported salt, granting a boutny on pickled fish exported, and allowances to certain vessels employed in the fisheries," passed on theAPPENDIX. 677 twenty-ninth day of July, in the year one thousand eight hundred and thirteen, shall be, and the same is hereby continued in force, any thing in the said act to the contrary thereof in anywise notwithstanding.

ACT OF 1817, CHAPTER XXXI. (3 U. S. Stats. at Large, 351).

_As Act concerning the Navigation of the United States._

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That after the thirtieth day of September next, no goods, wares, or merchandise, shall be imported into the United States from any foreign port or place, except in vessels of the United States, or in such foreign vessels as truly and wholly belong to the citizens or subjects of that country, of which the goods are the growth, production, or manufacture; or from which such goods, wares, or merchandise, can only be, or most usually are, first shipped for transportation: _Provided, nevertheless,_ That this regulation shall not extend to the vessels of any foreign nation which has not adopted, and which shall not adopt a similar regulation.

Sec. 2. _And be it further enacted,_ That all goods, wares, or merchandise, imported into the United States contrary to the true intent and meaning of this act, and the ship or vessel wherein the same shall be imported, together with her cargo, tackle, apparel, and furniture, shall be forfeited to the United States; and such goods, wares, or merchandise, ship, or vessel, and cargo, shall be liable to be seized, prosecuted, and condemned, in like manner, and under the same regulations, restrictions, and provisions, as have been heretofore established for the recovery, collection, distribution, and remission of forfeitures to the United States by the several revenue laws.

Sec. 8. _And be it further enacted,_ That after the thirtieth day of September next, the bouncities and allowances now granted by law to the owners of boats or vessels engaged in the fisheries, shall be paid only on boats or vessels, the officers and at least three fourths of the crews of which shall be proved to the satisfaction of the collector of the district where such boat or vessel shall belong, to be citizens of the United States, or persons not the subjects of any foreign prince or State.

Sec. 4. _And be it further enacted,_ That no goods, wares, or merchandise, shall be imported, under penalty of forfeiture thereof, from one port of the United States to another port of the United States, in a vessel belonging wholly or in part to a subject of any foreign power; but this clause shall not be construed to prohibit the sailing of any foreign vessel from one to another port of the United States, provided no goods, VOL. L. 49 \*

-

wares, or merchandise, other than those imported in such vessel from some foreign port, and which shall not have been unladen, shall be carried from one port or place to another in the United States.
\*

Sec. 5. _And be it further enacted,_ That after the thirtieth day of September next, there shall be paid a duty of fifty cents per ton upon every ship or vessel of the United States, which shall be entered in a district in one State from a district in another State, except it be an adjoining State on the sea-coast, or on a navigable river or lake, and except also it be a coasting vessel going from Long Island, in the State of New York, to the State of Rhode Island, or from the State of Rhode Island to the said Long Island, having on board goods, wares, and merchandise, taken in one State, to be delivered in another State : _Provided,_ That it shall not be paid on any ship or vessel having a license to trade between the different districts of the United States, or to carry on the bank or whale fisheries, more than once a year ; _And provided also,_ That if the owner of any such vessel, or his agent, shall prove, to the satisfaction of the collector, that three fourths at least of the crew thereof are American citizens, or persons not the subjects of any foreign prince or State, the duty to be paid in such case shall be only at the rate of six cents per ton ; but nothing in this section shall be construed to repeal or affect any exemption from tonnage duty given by the eighth section of the act, entitled " An act to provide for the establishment of certain districts, and therein to amend an act, entitled An act to regulate the collection of duties on imports and tonnage, and for other purposes."
\*

Sec. 6. _And be it further enacted,_ That after the thirtieth day of September next, there shall be paid upon every ship or vessel of the United States, which shall be entered in the United States, from any foreign port or place, unless the officers, and at least two thirds of the crew thereof, shall be proved citizens of the United States, or persons not the subjects of any foreign prince or State, to the satisfaction of the collector, fifty cents per ton ; _And provided also,_ That this section shall not extend to ships or vessels of the United States which are now on foreign voyages, or which may depart from the United States prior to the first day of May next, until after their return to some port of the United States.
\*

Sec. 7. _And be it further enacted,_ That the several bounties and remissions, or abatements of duty, allowed by this act, in the case of vessels having a certain proportion of seamen who are American citizens, or persons not the subjects of any foreign power, shall be allowed only in the case of vessels having such proportion of American seamen during their whole voyage, unless in case of sickness, death, or desertion, or where the whole or part of the crew shall have been taken prisoners in the voyage.

APPENDIX.

ACT OF 1819, CHAPTER XLVILL (3 U. S. Stats. at Large, 492).

_An Act supplementary to the Acts concerning the Coasting Trade._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That for the more convenient regulation of the coasting trade, the sea-coast and navigable rivers of the United States be, and hereby are, divided into two great districts; the first, to include all the districts on the sea-coast and navigable rivers, between the eastern limits of the United States and the southern limits of Georgia, and the second, to include all the districts on the sea-coast and navigable rivers, between the river Perdido and the western limits of the United States.

Sec. 2._And be it further enacted,_ That every ship or vessel, of the burden of twenty tons or upwards, licensed to trade between the different districts of the United States, shall be, and is hereby authorized to carry on such trade between the districts included within the aforesaid 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 ships or 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, any thing in any law to the contrary, notwithstanding.

Sec. 3._And be it further enacted,_ That every ship or vessel, of the burden of twenty tons or upwards, licensed to trade as aforesaid, shall be, and is hereby, required, in trading from one to another great district, other than between a State in one, and an adjoining State in another, great district, to conform to and observe the regulations, that, at the time of passing this act, 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.

Sec. 4._And be it further enacted,_ That the trade between the districts not included in either of the two great districts aforesaid, shall continue to be carried on in the manner, and subject to the regulations, already provided for this purpose.

Sec. 5._And be it further enacted,_ That this act shall commence and be in force, from and after the thirtieth day of June next after the passing thereof.

ACT OF 1819, CHAPTER LXXVII. (3 U. S. Stats. at Large, 510).

_An Act to protect the Commerce of the United States, and punish the crime of Piray._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That the President of the United States be, and hereby is, authorized and requested to employ so many of the public armed vessels, as, in his judgment, the service may require, with suitable instructions to the commanders thereof, in protecting the merchant vessels of the United States and their crews from piratical aggressions and depredations.

Sec. 2.\*\*_And be it further enacted,_ That the President of the United States be, and hereby is, authorized to instruct the commanders of the public armed vessels of the United States to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States, or of the citizens thereof, or upon any other vessel ; and also to retake any vessel of the United States, or its citizens, which may have been unlawfully captured upon the high seas.

Sec. 3.\*\*_And be it further enacted,_ That the commander and crew of any merchant vessel of the United States, owned wholly, or in part, by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such vessel, or upon any other vessel owned as aforesaid by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States ; and may subdue and capture the same ; and may also retake any vessel, owned as aforesaid, which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States.

Sec. 4.\*\*_And be it further enacted,_ That whenever any vessel or boat, from which any piratical aggression, search, restraint, depredation, or seizure shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall and may be adjudged and condemned to their use, and that of the captors, after due process and trial, in any court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel shall be brought; and the same court shall thereupon order a sale and distribution thereof accordingly, and at their discretion.

Sec. 5.\*\*_And be it further enacted,_ That if any person or persons whatsoever, shall, on the high seas, commit the crime of piracy, as APPENDIX. 581

defined by the law of nations, and such offender or offenders, shall afterwards be brought into or found in the United States, every such offender or offenders shall, upon conviction thereof, before the circuit court of the United States for the district into which he or they may be brought, or in which he or they shall be found, be punished with death.

Sec. 6. _And be it further enacted_, That this act shall be in force until the end of the next session of congress.

ACT OF 1819, CHAPTER LXXXXIX. (3 U. S. Stats. at Large, 520).

_An Act in addition to, and alteration of an Act, entitled "An Act laying a Duty on Imported Salt, granting a Bounty on Pickled Fish exported, and allowances to certain Veads employed in the Fisheries."_

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That from and after the passing of this act, there shall be paid, on the last day of December, annually, to the owner of every fishing boat or vessel, or his agent, by the collector of the district where such boat or vessel may belong, that shall be qualified, agreeably to law, for carrying on the bank and other cod fisheries, and that shall actually have been employed therein, at sea, for the term of four months at least, of the fishing season next preceding, which season is accounted to be from the last day of February to the last day of November in every year, for each and every ton of such boats or vessels, burden according to her admeasurement as licensed or enrolled, if of more than five tons, and not exceeding thirty tons, three dollars and fifty cents; if above thirty tons, four dollars; and if above thirty tons, and having had a crew of not less than ten persons, and having been actually employed in the cod fishery, at sea, for the term of three and one half months, at the least, but less than four months, of the season aforesaid, three dollars and fifty cents: _Provided_, That the allowance aforesaid, on any one vessel, for one season, shall not exceed three hundred and sixty dollars.

Sec. 2. _And be it further enacted_, That such parts of the fifth and sixth sections of the act hereby amended, as are contrary to the provisions of this act, be, and the same are hereby repealed.

ACT OF 1890, CHAPTER XI. (3 U. S. Stats. at Large, 541).

_An Act to provide for obtaining accurate statements of the Foreign Commerce of the United States._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That the register of the treasury shall, under the direction of the secretary of the treasury, annually prepare statistical accounts of the commerce of the United States with foreign countries, for each preceding year; which accounts shall be laid before congress, by the secretary of the treasury, on the first Monday of December in every year, or as soon after as possible.

**Sec. 2.**_And be it further enacted_, That such accounts shall comprehend and state all goods, wares, and merchandise, exported from the United States to other countries; all goods, wares, and merchandise, imported into the United States from other countries; and all navigation employed in the foreign trade of the United States; which facts shall be stated according to the principles, and in the manner, hereby directed.

**Sec. 3.**_And be it further enacted_, That the kinds, quantities, and values, of all articles exported, and the kinds, quantities, and values, of all articles imported, shall be distinctly stated in such accounts; except in cases in which it may appear to the secretary of the treasury that separate statements of the species, quantities, or values, of any particular articles, would swell the annual statements without utility; and, in such cases, the kinds and total values of such articles shall be stated together, or in such classes as the secretary of the treasury may think fit.

**Sec. 4.**_And be it further enacted_, That the exports shall be so stated as to show the exports to each foreign country, and their values; and that the imports shall be so stated, as to show the imports from each foreign country, and their values.

**Sec. 5.**_And be it further enacted_, That the exports shall be so stated, as to show, separately, the exports of articles of. the production or manufacture of the United States, and their values; and the exports of articles of the production or manufacture of foreign countries, and their values.

**Sec. 6.**_And be it further enacted_, That the navigation, employed in the foreign trade of the United States, shall be stated in such manner, as to show the amount of the tonnage of all vessels departing from the United States for foreign countries; and, separately, the amount of such tonnage of vessels of the United States, and the amount of such tonnage of foreign vessels; and also the foreign nations to which such foreign tonnage belongs, and the amount of such tonnage belonging to each foreign nation; and in such manner as also to show the amount of the ton

## Appendix.

page of all vessels departing for every particular foreign country, with which the United States have any considerable commerce; and, separately, the amount of such tonnage of vessels of the United States, and the amount of such tonnage of foreign vessels; and, in such manner as to show the amount of the tonnage of all vessels arriving in the United States from foreign countries; and, separately, the amount of such tonnage of vessels of the United States, and the amount of such tonnage of foreign vessels; and, also, the foreign nations to which such foreign tonnage belongs, and the amount of such tonnage belonging to each foreign nation; and, in such manner, as also to show the amount of the tonnage of all vessels arriving from every particular foreign country, with which the United States have any considerable commerce; and, separately, the amount of such tonnage of vessels of the United States, and the amount of such tonnage of foreign vessels.

**Sec. 7**.: _And be it further enacted_, That the kinds and quantities of all imported articles free from duty shall be ascertained by entry, made upon oath or affirmation, by the owner, or by the consignee or agent of the importer; or by actual examination, where the collector shall think such examination necessary; and that the values of all such articles shall be ascertained in the same manner in which the values of imports subject to duties ad valorem are ascertained.

**Sec. 8**.: _And be it further enacted_, That the values of all imported articles subject to specific duties, shall be ascertained in the manner in which the values of imposts subject to duties ad valorem are ascertained.

**Sec. 9**.: _And be it further enacted_, That the collectors shall keep separate accounts of the kinds, quantities, and values, of such parts of the imports subject to duties ad valorem, as may be directed by the secretary of the treasury.

**Sec. 10**.: _And be it further enacted_, That all articles exported shall be valued at their actual cost, or the values which they may truly bear at the time of exportation, in the ports of the United States from which they are exported: and that all articles imported shall be valued at their actual cost, or the values which they may truly bear in the foreign ports from which they are exported for importation into the.United States, at the time of such exportation.

**Sec. 11**.: _And be it further enacted_, That before a clearance shall be granted for any vessel bound to a foreign place, the owners, shippers, or consignors, of the cargo on board of such vessel, shall deliver to the collector manifests of the cargo, or the parts thereof shipped by them respectively, and shall verify the same by oath or affirmation; and such manifests shall specify the kinds and quantities of the articles shipped by them respectively, and the value of the total quantity of each kind of

## Appendix A Note on the _The $\\alpha$-function_

The $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (1)

where $\\alpha(x)$ is the $\\alpha$-function.

The $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (2)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (3)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (4)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (5)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (6)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (7)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (8)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (9)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (10)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (11)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (12)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (13)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (14)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (15)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (16)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (17)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (18)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (19)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (20)

and the $\\alpha$-function is defined as

$$\\alpha(x)=\\frac{1}{2}\\sum\_{i=1}^{n}\\frac{\\alpha(x)}{\\alpha(x)}$$ (21)

and the $\\alpha$-function is APPENDIX. 685

States, and out of the jurisdiction of any particular State, shall commit the crime of willful murder, or rape, or shall, willfully and maliciously, strike, stab, wound, poison, or shoot at, any other person, of which striking, stabbing, wounding, poisoning, or shooting such person shall afterwards die, upon land, within or without the United States, every person so offending, his or her counsellors, aiders, or abetitors, shall be deemed guilty of colony, and shall, upon conviction thereof, suffer death.

Sec. 5. _And be it further enacted_, That if any offence shall be committed on board of any ship or vessel, belonging to any citizen or citizens of the United States, while lying in a port or place within the jurisdiction of any foreign State or sovereign, by any person belonging to the company of said ship, or any passenger, on any other person belonging to the company of said ship, or any other passenger, the same offence shall be cognizable and punishable by the proper circuit court of the United States, in the same way and manner, and under the same circumstances, as if said offence had been committed on board of such ship or vessel on the high seas, and without the jurisdiction of such foreign sovereign or State : _Provided, always_, That if such offender shall be tried for such offence, and acquitted or convicted thereof, in any competent court of such foreign State or sovereign, he shall not be subject to another trial in any court of the United States.

Sec. 6. _And be it further enacted_, That, if any person or persons, upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State, shall, by surprise or by open force or violence, maliciously attack, or set upon, any ship or vessel belonging in whole or part, to the United States, or to any citizen or citizens thereof, or to any other person whatsoever, with an intent unlawfully to plunder the same ship or vessel, or to despolip any owner or owners thereof of any moneys, goods, or merchandise, laden on board thereof, every person so offending, his or her counsellors, aiders, or abetors, shall be deemed guilty of colony ; and shall, on conviction thereof, be punished by fine, not exceeding five thousand dollars, and by imprisonment and confinement to hard labor, not exceeding ten years, according to the aggravation of the offence.

Sec. 7. _And be it further enacted_, That, if any person or persons, upon the high seas, or in any other of the places aforesaid, with intent to kill, rob, steal, commit a rape, or to do or perpetrate any other felony, shall break or enter any ship or vessel, boat or raft ; or if any person or persons shall, willfully and maliciously, cut, spoil, or destroy, any cordage, cable, buoys, buoy-rope, headfast, or other fast, fixed to any anchor or moneys, belonging to any ship, vessel, boat, or raft ; every person, so

## Appendix

offending, his or her counsellors, aiders, and abetors, shall be deemed guilty of felony, and shall, on conviction thereof, be punished by fine, not exceeding one thousand dollars, and by imprisonment and confinement to hard labor, not exceeding five years, according to the aggravation of the offence.

Sec. 8. _And be it further enacted_, That, if any person or persons, upon the high seas, or in any of the places aforesaid, shall buy, receive, or conceal, or aid in concealing any money, goods, bank-notes, or other effects or things which may be the subject of larceny, which have been feloniously taken or stolen, from any other person, knowing the same to have been taken or stolen, every person, so offending, shall be deemed guilty of a misdemeanor, and may be prosecuted therefor, although the principal offender chargeable, or charged with the larceny, shall not have been prosecuted or convicted thereof; and shall on conviction thereof, be punished by fine, not exceeding one thousand dollars, and imprisonment and confinement to hard labor, not exceeding three years, according to the aggravation of the offence.

Sec. 9. _And be it further enacted_, That, if any person or persons shall plunder, steal, or destroy, any money, goods, merchandise, or other effects, from or belonging to any ship or vessel, or boat or raft, which shall be in distress, or which shall be wrecked, lost, stranded, or cast away, upon the sea, or upon any reef, shoal, bank, or roks, of the sea, or in any other place within the admiralty and maritime jurisdiction of the United States, or if any person or persons shall wilfully obstruct the escape of any person endeavoring to save his or her life from such ship, or vessel, boat, or raft, or the wreck thereof, or, if any person or persons shall hold out or show any false light, or lights, or extinguish any true light, with intention to bring any ship or vessel, boat or raft, being or sailing upon the sea, into danger, or distress, or shipweck; every person, so offending, his or her counsellors, aiders, and abetors, shall be deemed guilty of colony, and shall, on conviction thereof, be punished by fine, not exceeding five thousand dollars, and imprisonment and confinement to hard labor, not exceeding ten years, according to the aggravation of the offence.

Sec. 10. _And be it further enacted_, That, if any master or commander of any ship or vessel, belonging, in whole, or in part, to any citizen or citizens of the United States, shall, during his being abroad, maliciously, and without justifiable cause, force any officer, or mariner of such ship or vessel, on shore, or leave him behind, in any foreign port or place, or refuse to bring home again, all such of the officers and mariners of such ship or vessel, whom he carried out with him, as are in a condition to return, and willing to return, when he shall be ready to proceed in his homeward voyage, every master or commander, so offending, shall, on conviction thereof, be punished by fine, not exceeding five hundred dollars, or by imprisonment, not exceeding six months, according to the aggravation of the office.

Sec. 11. _And be it further enacted_, That, if any person or persons, shall, willfully and maliciously, set on fire, or burn, or otherwise destroy or cause to be set on fire, or burnt, or otherwise destroyed, or aid, procure, abet, or assist in setting on fire, or burning, or otherwise destroying, any ship or vessel of war of the United States, afloat on the high seas, or in any arm of the sea, or in any river; haven, creek, basin, or bay within the admirality jurisdiction of the United States, and out of the jurisdiction of any particular State, every person so offending, shall be deemed guilty of felony, and shall, on conviction thereof, suffer death : _Provided_, That nothing herein contained shall be construed to take away or impair the right of any court martial to punish any offence, which, by the law of the United States, may be punishable by such court.

Sec. 22. _And be it further enacted_, That, if any person or persons, upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular State, on board any vessel belonging in whole or in part to the United States, or any citizen or citizens thereof, shall, with a dangerous weapon, or with intent to kill, rob, steal, or to commit a mayhem, or rape, or to perpetrate any other felony, commit an assault on another, such person shall, on conviction thereof, be punished by fine, not exceeding three thousand dollars, and by imprisonment and confinement to hard labor, not exceeding three years, according to the aggravation of the offence.

Sec. 28. _And be it further enacted_, That, if any person or persons shall, on the high seas, or within the United States, wilfully and corruptly conspire, combine, and confederate, with any other person or persons, such other person or persons being either within or without the United States, to cast away, burn, or otherwise destroy, any ship or vessel, or to procure the same to be done, with intent to injure any person, or body politic, that hath underwritten, or shall thereafterwards underwrite, any policy of insurance thereon, or on goods on board thereof, or with intent to injure any person, or body politic, that hath lent or advanced, or thereafter shall lend or advance, any money on such vessel, on bottomry or respondents, or shall, within the United States, build or fit out, or aid in building or fitting out, any ship or vessel, with intent that the same shall be cast away, burnt, or destroyed, for the purpose or with the design aforesaid, every person, so offending, shall, on conviction thereof, be deemed guilty of felony, and shall be punished by fine, not exceeding ten thousand dollars, and by imprisonment, and confinement to hard labor, not exceeding ten years.

## Appendix.

ACT OF 1825, CHAPTER XCIX. (4 U. S. Stats. at Large, 199).

_An Act to authorize the register or enrolment and license to be issued in the name of the President or Secretary of any incorporated Company owning a Steamboat or Vesel._

**Section 1**.: _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That enrolments and licenses for steamboats or vessels, owned by any incorporated company, may be issued in the name of the president or secretary of such company; and that such enrolments and licenses shall not be vacated or affected by a sale of any share or shares of any stockholder, or stockholders, in such company.

**Sec. 2**.: _And be it further enacted_, That registers for steamboats or vessels, owned by any incorporated company, may be issued in the name of the president or secretary of such company; and that such register shall not be vacated or affected by a sale of any share or shares of any stockholder or stockholders in such company.

**Sec. 3**.: _And be it further enacted_, That, upon the death, removal, or resignation, of the president or secretary of any incorporated company, owning any steamboat or vessel, a new register, or enrolment and license, as the case may be, shall be taken out for such steamboat or vessel.

**Sec. 4**.: _And be it further enacted_, That, previously to granting a register, or enrolment and license, for any steamboat or vessel, owned by any company, the president or secretary of such company shall swear, or affirm, as to the ownership of such steamboat or vessel, by such company, without designating the names of the persons composing such company; which oath, or affirmation, shall be deemed sufficient, without requiring the oath or affirmation of any other person interested or concerned in such steamboat or vessel.

**Sec. 5**.: _And be it further enacted_, That, before granting a register for any steamboat or vessel, so owned by any incorporated company, the president or secretary thereof shall swear, or affirm, that, to the best of his knowledge and belief, no part of such steamboat or vessel has been, or is then, owned by any foreigner or foreigners.

ACT OF 1828, CHAPTER CXIX. (4 U. S. Stats. at Large, 312).

_An Act to authorize the licensing of Vessels to be employed in the Mackerel Fishery._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That, from and after the passage of this act, it shall be the duty of the collector of the district to which any

## Appendix.

vessel may belong, on an application for that purpose by the master or owner thereof, to issue a license for carrying on "the mackerel fishery, to such vessel, in the form prescribed by the act, entitled "An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same," passed the eighteenth day of February, one thousand seven hundred and ninety-three : _Provided,_ That all the provisions of said act, respecting the licensing of ships or vessels for the coasting trade and fisheries, shall be deemed and taken to be applicable to licenses and to vessels licensed for carrying on the mackerel fishery.

ACT OF 1829, CHAPTER XLI. (4 U. S. Stats. at Large, 359).

_An Act to provide for the application and delivery of Desters from certain Foreign Panels in the ports of the United States._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That on application of a consult or vice-consul of any foreign government, having a treaty with the United States, stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such government while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship's roll, or other official document,'that the person named belonged, at the time of desertion, to the crew of said vessel, it shall be the duty of any court, judge, justice, or other magistrate, having competent power, to issue warrants to cause the said person to be arrested for examination ; and if "on examination, the facts stated are found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the said consul or vice-consul, to be sent back to the dominions of any such government, or, on the request, and at the expense, of the said consul or vice-consul, shall be retained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such government : _Provided nevertheless,_ That no person shall be detained more than two months after his arrest ; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause : _And provided further,_ That if any such deserter shall be found to have committed any crime or offence, his surrender may be delayed until the tribunal before which the case shall be depending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect.

VOL. I. 50
590

APPENDIX.

ACT OF 1830, CHAPTER XIV. (4 U. S. Stats. at Large, 372).

_As Act to authorize Surveys, under the direction of the Secretary of the Treasury, to call and license Stips or Vesels to be employed in the Coasting Trade and Fisheries._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That, after the passage of this act, the secretary of the treasury be, and he is hereby, invested with powers to authorize the surveyor of any port of delivery, under such regulations as he shall deem necessary, to enroll and license ships or vessels to be employed in the coasting trade and fisheries, in like manner as collectors of ports of entry are now authorized to do, under existing laws.

Sec. 2._And be it further enacted,_ That any surveyor who shall perform the duties directed to be performed by the first section of this act, shall be entitled to receive the same commissions and fees, as are now allowed by law to collectors for performing the same duties, and no more.

ACT OF 1881, CHAPTER XX. (4 U. S. Stats. at Large, 441).

_An Act to repeal the charges imposed on Pasports and Generons._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That, so much of the act of the first of June, one thousand seven hundred and ninety-six, entitled 4 An act providing passports for the ships and vessels of the United States," as imposes a charge of ten dollars for passports, and of four dollars for a clearance, to any ship by vessel bound on a voyage to any foreign country, be, and the same is hereby repealed, to take effect from and after the thirty-first day of March of the present year.

ACT OF 1831, CHAPTER XCVIII. (4 U. S. Stats. at Large, 487).

_An Act to regulate the Foreign and Coasting Trade on the Northern, North-Eastern, and North-Western frontiers of the United States, and for other purposes._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That, from and after the first day of April next, no custom-house fees shall be levied or collected on any raft, flat, boat, or vessel, of the United States, entering otherwise than by sea, at any port of the United States on the rivers and lakes on our northern, north-eastern, and north-western frontiers.

APPENDIX. 591

Sec. 2. _And be it further enacted_, That, from and after the first day of April next, the same and no higher tonnage duties and custom-house charges of any kind shall be levied and collected on any British colonial raft, flat, boat, or vessel, entering otherwise than by sea at any port of the United States on the rivers and lakes on our northern, north-eastern, and north-western frontiers, than may be levied and collected on any raft, flat, boat, or vessel, entering otherwise than by sea at any of the ports of the British possessions on our northern, north-eastern, and north-western frontiers : and that, from and after the first day of April next, no higher discriminating duty shall be levied or collected on merchandise imported into the United States in the ports aforesaid, and otherwise than by sea, than may be levied and collected on merchandise when imported in like manner otherwise than by sea, into the British possessions on our northern, north-eastern, and north-western frontiers from the United States.

Sec. 3. _And be it further enacted_, That, from and after the passage of this act, any boat, sloop, or other vessel, of the United States, navigating the waters on our northern, north-eastern, and north-western frontiers, otherwise than by sea, shall be enrolled and licensed in such form as may be prescribed by the secretary of the treasury ; which enrolment and license shall authorize any such boat, sloop, or other vessel, to be employed either in the coasting or foreign trade; and no certificate of registry shall be required for vessels so employed on said frontiers : _Provided_, That such boat, sloop, or vessel, shall be in every other respect liable to the rules, regulations, and penalties, now in force, relating to registered vessels on our northern, north-eastern, and north-western frontiers.

Sec. 4. _And be it further enacted_, That in lieu of the fees, enduments, salary, and commissions, now allowed by law to any collector or surveyor of any district on our northern, north-eastern, and north-western lakes and rivers, each collector or surveyor, as aforesaid, shall receive, annually, in full compensation for these services, an amount equal to the entire compensation received by such officer during the past year.

ACT OF 1831, CHAPTER CXV. (4 U. S. Stats. at Large, 492).

_An Act concerning Veessels employed in the Whole Fishery._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That all the provisions of the act, entitled " An act to authorize the register or enrolment, and license, to be issued in the name of the president or secretary of any incorporated company owning a steamboat or vessel," passed the third day of March,
592

## Appendix A Act of 1885, Chapter XL. (4 U. S. Stats. at Large, 775).

_As Act in amendment of the Acts for the punishment of affonso against the United States._

**Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That if any one or more of the crew of any American ship or vessel on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, shall unlawfully, wildly, and with force, or by fraud, threats, or other intimidations, usurp the copmand of such ship or vessel from the master or other lawful commanding officer thereof, or deprive him of his authority and command on board thereof, or resist or prevent him in the free and lawful exercise thereof, or transfer such authority and command to any other person not lawfully entitled thereto, every such person so offending, his aiders or abettors, shall be deemed guilty of a revolt or muting and felony ; and shall, on conviction thereof, be punished by fine not exceeding two thousand dollars; and by imprisonment and confinement to hard labor not exceeding ten years, according to the nature and aggravation of the offence. And the offence of making a revolt in a ship, which now is under and in virtue of the eighth section of the act of Congress, passed the thirtieth day of April, in the year of our Lord one thousand seven hundred 'and ninety, punishable as a capital offence, shall, from and after the passage of the present act, be no longer punishable as a capital offence, but shall be punished in the manner prescribed in the present act, and not otherwise.**

\*\*Sec. 2. _And be it further enacted,_ That if any one or more of the crew of any American ship or vessel on the high seas, or any other waters, within the admiralty and maritime jurisdiction of the United States, shall endeavor to make a revolt or muting on board such ship or vessel, or shall combine, conspire, or confederate with any other person or persons on board to make such revolt or muting, or shall solicit, incite, or stir up any other or others of the crew to disobey or resist the lawful orders of the master, or other officer of such ship or vessel, or to refuse or neglect their proper duty on board thereof, or to betray their proper trust therein, or shall assemble with others in a tumultuous and mutinous manner, or make a riot on board thereof, or shall unlawfully confine the master, or other commanding officer thereof, every such person so offending shall, on

## Appendix

The question of how to find a given _good_ (or, for example, the _good_), is that the _good_ under the provisions of "An act to authorize the licensing of vessels to be employed in the mackerel fishery," passed May twenty-fourth, one thousand eight hundred and twenty-eight, shall not be deemed or taken to be liable to the fortieures imposed by the fifth and thirty-second sections of the act of Congress, approved the eighteenth day of February, one thousand seven hundred and ninety-three, entitled " An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same," in consequence of any such vessel, whilst licensed as aforesaid, having been engaged in catching cod, or fish of any other description whatever, _Provided, however,_ That this act shall not be deemed or considered as authorizing or entilting the owner or owners of any vessel licensed for the mackerel fishery, to receive the bounty allowed by law to vessels employed in the cod fishery.

AOT OF 1887, CHAPTER XXI (5 U. S. Stats. at Large, 158),

An act to provide for the Enlistment of Boya for the Naval Service, and to extend the term of the Enlistment of Sonne.

Section 1.: _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That it shall be lawful to enlist boys for the navy, with the consent of their parents or guardians, not being under thirteen, nor over eighteen years of age, to serve until they shall arrive at the age of twenty-one years; and it shall be lawful to enlist other persons for the navy, to serve for a period not exceeding five years, unless sooner discharged by direction of the President of the United States; and so much of an act entitled "An act to amend the act entitled 'An act to amend the act authorizing the employment of an additional naval force," approved fifteenth May, one thousand eight hundred and twenty, as is inconsistent with the provisions of this act, shall be, and is hereby repealed.

Szc. 2. _And is it further enacted,_ That when the time of service of any person enlisted for the navy, shall expire, while he is on board any of the public vessels of the United States, employed on foreign_service, it shall be the duty of the commanding officer of the fleet, squadron, or vessel, in which such person may be, to send him to the United States in some public or other vessel, unless his detention shall be essential to the public interests, in which case the said officer may detain him until the vessel in which he shall be serving shall return to the United States; and it shall be the duty of said officer, immediately to make report to the navy department, of such detention and the causes thereof.

APPENDIX.

**Sac. 8.**_And be it further enacted_, That such persons as may be detained after the expiration of their enlistment, under the next preceding section of this act, shall be subject, in all respects, to the laws and regulations for the government of the navy, until their return to the United States, and all such persons as shall be so detained, and all such as shall voluntarily reenlist to serve until the return of the vessel in which they shall be serving, and their regular discharge therefrom in the United States, shall, while so detained and while so serving under their reenlistment, receive an addition of one fourth to their former pay.

ACT OF 1837, CHAPTER XXII. (5 U. S. Stat. at Large, 153).

_An Act concerning Pilots._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That it shall and may be lawful for the master or commander of any vessel coming into or going out of any port 'situate upon waters, which are the boundary between two States, to employ any pilot duly licensed or authorized by the laws of either of the States bounded on the said waters, to pilot said vessel to or from said port ; any law, usage, or custom, to the contrary notwithstanding.

ACT OF 1838, CHAPTER CXCI. (5 U. S. Stat. at Large, 304).

_An Act to provide for the better security of the Lives of Passengers on board of Vessels prolelled in whole or in part by Stam._

**Sacion 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That it shall be the duty of all owners of steamboats, or vessels propelled in whole or in part by steam, on or before the first day of October, one thousand eight hundred and thirty-eight, to make a new enrolment of the same, under the existing laws of the United States, and take out from the collector or surveyor of the port, as the case may be, where such vessel is enrolled, a new license, under such conditions as are now imposed by law, and as shall be imposed by this act.

**Sac. 2.**_And be it further enacted_, That it shall not be lawful for the owner, master, or captain of any steamboat or vessel propelled in whole or in part by steam, to transport any goods, wares, and merchandise, or passengers, in or upon the bays, lakes, rivers, or other navigable waters

**596**

**of the United States, from and after the said first day of October, one thousand eight hundred and thirty-eight; without having first obtained, from the proper officer, a license under the existing laws, and without having complied with the conditions imposed by this act; and for each and every violation of this section, the owner or owners of said vessel shall forfeit and pay to the United States the sum of five hundred dollars, one half for the use of the informer; and for which sum or sums the steamboat or vessel so engaged shall be liable, and may be seized and proceeded against summarily, by way of libel, in any district court of the United States having jurisdiction of the offence.**

**Sec. 3.**_And be it further enacted,_**That it shall be the duty of the district judge of the United States, within whose district any ports of entry or delivery may be, on the navigable waters, bays, lakes, and rivers of the United States, upon the application of the master or owner of any steamboat or vessel propelled in whole or in part by steam, to appoint, from time to time, one or more persons skilled and competent to make inspections of such boats and vessels, and of the boilers and machinery employed in the same, who shall not be interested in the manufacture of steam engines, steamboat boilers, or other machinery belonging to steam vessels, whose duty it shall be to make such inspection when called upon for that purpose, and to give to the owner or master of such boat or vessel duplicate certificates of such inspection; such persons, before entering upon the duties enjoined by this act, shall make and subscribe an oath or affirmation before said district judge, or other officer duly authorized to administer oaths, well, faithfully, and impartially to execute and perform the services herein required of them.**

**Sec. 4.**_And be it further enacted,_**That the person or persons who shall be called upon to inspect the hull of any steamboat or vessel, under the provisions of this act, shall, after a thorough examination of the same, give to the owner or master, as the case may be, a certificate, in which shall be stated the age of the said boat or vessel, when and where originally built, and the length of time the same has been running. And he or they shall also state whether, in his or their opinion, the said boat or vessel is sound, and in all respects sea-worthy, and fit to be used for the transportation of freight or passengers; for which service, so performed upon each and every boat or vessel, the inspectors shall each be paid and allowed by said master or owner applying for such inspection, the sum of five dollars.**

**Sec. 5.**_And be it further enacted,_\*\*That the person or persons who shall be called upon to inspect the boilers and machinery of any steamboat or vessel, under the provisions of this act, shall, after a thorough examination of the same, make a certificate, in which he or they shall state his or their opinion whether said boilers are sound and fit for use,

## Appendix.

together with the age of said boilers; and duplicates thereof shall be delivered to the owner or master of such vessel, one of which it shall be the duty of the said master and owner to deliver to the collector or surveyor of the port whenever he shall apply for a license, or for a renewal of a license; the other he shall cause to be posted up, and kept in some conspicuous part of said boat, for the information of the public; and for each and every inspection so made, each of the said inspectors shall be paid by the said master or owner applying, the sum of five dollars.

Sec. 6. _And be it further enacted_, That it shall be the duty of the owners and masters of steamboats to cause the inspection provided under the fourth section of this act to be made at least once in every twelve months; and the examination required by the fifth section, at least once in every six months; and deliver to the collector or surveyor of the port where his boat or vessel has been enrolled or licensed, the certificate of such inspection; and, on a failure thereof, he or they shall forfeit the license granted to such boat or vessel, and be subject to the same penalty as though he had run said boat or vessel without having obtained such license, to be recovered in like manner. And it shall be the duty of the owners and masters of the steamboats licensed in pursuance of the provisions of this act, to employ on board of their respective boats a competent number of experienced and skill engineers, and, in case of neglect to do so, the said, owners and masters shall be held responsible for all damages to the property of any passenger on board of any boat occasioned by an explosion of the boiler or any derangement of the engine or machinery of any boat.

Sec. 7. _And be it further enacted_, That whenever the master of any boat or vessel, or the person or persons charged with navigating said boat or vessel, which is propelled in whole or in part by steam, shall stop the motion or headway of said boat or vessel, or when said boat or vessel shall be stopped for the purpose of discharging or taking in cargo, fuel, or passengers, lie or they shall open the safety-valve, so as to keep the steam down in said boiler as near as practicable to what it is when the said boat or vessel is under headway, under the penalty of two hundred dollars for each and every offence.

Sec. 8. _And be it further enacted_, That it shall be the duty of the owner and master of every steam vessel engaged in the transportation of freight or passengers, at sea or on the lakes, Champlain, Ontario, Erie, Huron, Superior, and Michigan, the tonnage of which vessel shall not exceed two hundred tons, to provide and to carry with the said boat or vessel, upon each and every voyage, two long-boats or yawls, each of which shall be competent to carry at least twenty persons; and where the tonnage of said vessel shall exceed two hundred tons, it shall be the duty of the owner and master to provide and carry, as aforesaid, not less than 1000, and the amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total amount of the total total amount of the total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total amount of the total total total total amount of the total total total amount of the total total total total amount of the total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total total amount of the total total total total amount of the total total total total amount of the total total total total amount of the total total total total total amount of the total total total total amount of the total total total total total amount of the total total total total total amount of the total total total total total amount of the total total total total total amount of the total total total total total amount of the total total total total total amount of the total total

###### Abstract

We present a new method for finding the number of users in APPENDIX.

**ACT OF 1840, CHAPTER YI. (5 U. S. Stats. at Large, 370).**

_As Act to cancel the bondo given to secure duties upon Vesedo and their Cargoes, employed in the Whale Fisher, and to make registers, lawful papers for such Vesola._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That all vessels which have cleared, or hereafter may clear, with registers for the purpose of engaging in the whale fishery, shall be deemed to have lawful and sufficient papers for such voyages, securing the privileges and rights of registered vessels, and the privileges and exemptions of vessels enrolled and licensed for the fisheries; and all vessels which have been enrolled and licensed for like voyages shall have the same privileges and measure of protection as if they had sailed with registers if such voyages are completed or until they are completed.

**Sec. 2.**_And be it further enacted,_ That all the provisions of the first section of the act, entitled " An act supplementary to the act concerning consula and vice-consula, and for the further protection of American seamen," passed on the twenty-eighth day of February, Anno Domini eighteen hundred and three, shall hereafter apply and be in full force as to vessels engaged in the whale fishery in the same manner and to the same extent as the same is now in force and applies to vessels bound on a foreign voyage.

**Sec. 8.**_And be it further enacted,_ That all forfeitures, feces, duties, and charges of every description required of the crews of such vessels, or assessed upon the vessels or cargoes, being the produce of such fishery, because of a supposed insufficiency of a register to exempt them from such claims, are hereby remitted; and all bonds given for such cause are hereby cancelled, and the secretary of the treasury is hereby required to refund all such moneys as have been, or which may be, paid into the treasury, to the rightful claimants, out of the revenues in his hands.

**ACT OF 1840, CHAPTER XLVII. (5 U. S. Stats. at Large, 394).**

_As Act in addition to the several Acte regulating the Shipment and Discharge of Semen, and the duties of Consula._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ As follows:

First. The duplicate list of the crew of any vessel bound on a foreign voyage, made out pursuant to the act of February twenty-eighth, eighteen

## Appendix A Appendix.

hundred and three, shall be a fair copy in one uniform handwriting, without erasure or interlineation.

Second. It shall be the duty of the owners of every such vessel to obtain from the collector of the customs of the district from which the clearance is made, a true and certified copy of the shipping articles, containing the names of the crew, which shall be written in a uniform hand, without erasures or interlineations.

Third. These documents which shall be deemed to contain all the conditions of contract with the crew as to their service, pay, voyage, and all other things, shall be produced by the master, and laid before any consul, or other commercial agent of the United States, whenever he may deem their contents necessary to enable him to discharge the duties imposed upon him by law toward any mariner applying to him for his aid or assistance.

Fourth. All interlineations, erasures, or writing in a hand different from that in which such duplicates were originally made, shall be deemed fraudulent alterations, working no change in such papers, unless satisfactorily explained in a manner consistent with innocent purposes and the provisions of law which guard the rights of mariners.

Fifth. Any consul of the United States, and in case there is none resident at a foreign port, or he is unable to discharge his duties, then any commercial agent of the United States authorized to perform such duties, may, upon the application of both the master and any mariner of the vessel under his command, discharge such mariner, if he thinks it expedient, without requiring the payment of three months' wages, under the provisions of the act of the twenty-eighth of February, eighteen hundred and three, or any other sum of money.

Sixth. Any consul, or other commercial agent, may also, on such joint application, discharge any mariner on such terms as will, in his judgment, save the United States from the liability to support such mariner, if the master gives his voluntary assent to such terms, and conform thereto.

Seventh. When a mariner is so discharged, the officer discharging him shall make an official entry thereof upon the list of the crew and the shipping articles.

Eighth. Whenever any master shall ship a mariner in a foreign port, he shall forth withe the list of his crew and the duplicate of the shipping articles to the consul, or person, who discharges the duties of the office at that port, who shall make the proper entries thereon, setting forth the contract, and describing the person of the mariner; and thereupon the bond originally given for the return of the men shall embrace each person so shipped.

Ninth. When any mariner shall complain that the voyage is continuedAPPENDIX.

contrary to his agreement, or that he has fulfilled his contract, the consul, or other commercial agent performing like duties, may examine into the same by an inspection of the articles of agreement; and if on the face of them he finds the complaint to be well founded, he shall discharge the mariner, if he desires it, and require of the master an advance, beyond the lawful claims of such mariner, of three months' wages, as provided in the act of February twenty-eighth, eighteen hundred and three; and in case the lawful claims of such mariner are not paid upon his discharge, the arrears shall from that time bear an interest of twenty per century: _Provided_, _however_, If the consul or other commercial agent shall be satisfied the contract has expired, or the voyage been protracted by circumstances beyond the control of the master, and without any design on his part to violate the articles of shipment, then he may, if he deems it just, discharge the mariner without exacting the three months' additional pay.

Tenth. All shipments of seamen, made contrary to the provisions of this and other acts of Congress, shall be void; and any seaman so shipped may leave the service at any time, and demand the highest rate of wages paid to any seaman shipped for the voyage, or the sum agreed to be given him at his shipment.

Eleventh. It shall be the duty of consuls and commercial agents to reclaim deserters and discountance insubordination by every means within their power; and where the local authorities can be usefully employed for that purpose, to lend their aid and use their exertions to that end in the most effectual manner.

Twelfth. If the first officer, or any officer, and a majority of the crew of any vessel shall make complaint in writing that she is in an unsuitable condition to go to sea, because she is leaky, or insufficiently supplied with sails, rigging, anchors, or any other equipment, or that the crew is insufficient to man her, or that her provisions, stores, and supplies are not, or have not been, during the voyage, sufficient and wholesome, thereupon, in any of these or like cases, the consul or commercial agent who may discharge any duties of a consul shall appoint two disinterested, competent, practical men, acquainted with maritime affairs, to examine into the causes of complaint, who shall in their report state what defects and deficiencies, if any, they find to be well founded, as well as what, in their judgment, ought to be done to put the vessel in order for the continuance of her voyage.

Thirteenth. The inspectors so appointed shall have full power to examine the vessel and whatever is aboard of her, so far as is pertinent to their inquiry, and also to hear and receive any other proofs which the ends of justice may require, and if, upon a view of the whole proceedings, the consul, or other commercial agent shall be satisfied therewith, he may approve the whole or any part of the report, and shall certify VOL. L.

602APPENDIX.

such approval, and if he dissents, shall also certify his reasons for so dissenting.

Fourteenth. The inspectors in their report shall also state whether, in their opinion, the vessel was sent to sea unsuitably provided in any important or essential particular, by neglect or design, or through mistake or accident, and in case it was by neglect or design, and the consul or other commercial agent approves of such finding, he shall discharge such of the crew as require it, each of whom shall be entitled to three months' pay in addition to his wages to the time of discharge; but, if in the opinion of the inspectors the defects or deficiencies found to exist have been the result of mistake or accident, and could not, in the exercise of ordinary care, have been known and provided against before the sailing of the vessel, and the master shall, in a reasonable time, remove or remedy the causes of complaint, then the crew shall remain and discharge their duty; otherwise they shall, upon their request, be discharged, and receive each one month's wages in addition to the pay up to the time of discharge.

Fifteenth. The master shall pay all such reasonable charges in the premises as shall be officially certified to him under the hand of the consul or other commercial agent, but in case the inspectors report that the complaint is without any good and sufficient cause, the master may retain from the wages of the complainants, in proportion to the pay of each, the amount of such charges, with such reasonable damages for detention on that account as the consul or other commercial agent directing the inquiry may officially certify.

Sixteenth. The crew of any vessel shall have the fullest liberty to lay their complaints before the consul or commercial agent in any foreign port, and shall in no respect be restrained or hindered therein by the master or any officer, unless some sufficient and valid objection exist against their landing; in which case, if any mariner desire to see the consul or commercial agent, it shall be the duty of the master to acquaint him with it forthwith; stating the reason why the mariner is not permitted to land, and that he is desired to come on board; whereupon it shall be the duty of such consul or commercial agent to repair on board and inquire into the causes of the complaint, and to proceed thereon as this act directs.

Seventeenth. In all cases where deserters are apprehended, the consul or commercial agent shall inquire into the facts; and, if satisfied that the desertion was caused by unusual or cruel treatment, the mariner shall be discharged, and receive, in addition to his wages to the time of the discharge, three months' pay; and the officer discharging him shall enter upon the crew-list and shipping articles the cause of discharge, and the APPENDIX.

particulars in which the cruelty or unusual treatment consisted, and subscrib his name thereto officially.

**Eighteenth. If any consult or commercial agent shall neglect or omit to perform, seasonably, the duties hereby imposed upon him, or shall be guilty of any malversation or abuse of power, he shall be liable to any injured person for all damage occasioned thereby; and for all malversation and corrupt conduct in office, he shall be liable to indictment, and, on conviction by any court of competent jurisdiction, shall be fined not less than one nor more than ten thousand dollars, and be imprisoned not less than one nor more than five years.**

**Nineteenth. If any master of a vessel shall proceed on a foreign voyage without the documents herein required, or refuse to produce them when required, or to perform the duties imposed by this act, or shall violate the provisions thereof, he shall be liable to each and every individual injured thereby, in damages, and shall, in addition thereto, be liable to pay a fine of one hundred dollars for each and every offence, to be recovered by any person suing therefor in any court of the United States in the district where such delinquent may reside or be found.**

**Twentieth. It shall be the duty of the boarding officer to report all violations of this act to the collector of the port where any vessel may arrive, and the collector shall report the same to the secretary of the treasury and to the attorney of the United States in his district.**

**Twenty-first. This act shall be in force from and after the first day of October next; and shall not apply to vessels which shall have sailed from ports of the United States before that time.**

ACT OF 1842, CHAPTER CLXXXXVIII. (5 U. S. Stats. at Large, 516).

_An Act further supplementary to an Act, entitled " An Act to establish the Judicial Courts of the United States," passed the twenty-fourth of September, seventeen hundred and eightynine._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That the commissioners who now are, or hereafter may be, appointed by the circuit courts of the United States to take acknowledgments of bail and affidavits, and also to take depositions of witnesses in civil causes, shall and may exercise all the powers that any justice of the peace, or other magistrate, of any of the United States may now exercise in respect to offenders for any crime or offence against the United States, by arresting, imprisoning, or bailing the same, under and by virtue of the thirty-third section of the act 4606APPENDIX.

ACT OF 1843, CHAPTER XCIV. (5 U. S. Stats. at Large, 626).

_An Act to modify the Act entitled " An Act to provide for the better security of the Lines of Passengers on board of Vessels propelled in whole or in part by Steam," approved July seventh, eighteen hundred and thirty-eight._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That every boat or vessel which existing laws require to be registered, and which is propelled in whole or in part by steam, shall be provided with such additional apparatus or means as, in the opinion of the inspector of steam-boats, shall be requisite to steer the boat or vessel, to be located in such part of the boat or vessel as the inspector may deem best to enable the officers and crew to steer and control the boat or vessel, in case the pilot or man at the wheel is driven from the same by fire; and no boat or vessel, exclusively propelled by steam, shall be registered, after the passage of this act, unless the owner, master, or other proper person, shall file with the collector, or other proper officer, the certificate of the inspector, stating that suitable means have been provided to steer the boat or vessel, in case the pilot or man at the wheel is driven therefrom by fire.

Sec. 2.\*\*_And be it further enacted,_ That it shall be lawful in all vessels or boats propelled in whole or in part by steam, and which shall be provided with additional apparatus or means to steer the same, as required by the first section of this act, to use wheel or filler ropes, composed of hemp or other good and sufficient material around the barrel or axle of the wheel, and to a distance not exceeding twenty-two feet therefrom, and also in connecting the filler or rudder yoke with iron rods or chains used for working the rudder : _Provided,_ That no more rope for this purpose shall be used than is sufficient to extend from the connecting points of the filler or rudder yoke placed in any working position beyond the nearest blocks or rollers, and give sufficient play to work the ropes on such blocks or rollers : _And provided, further,_ That there shall be chains extending the whole distance of the ropes, so connected with the filler or rudder yoke, and attached or fastened to the filler or rudder yoke, and the iron chains or rods extending towards the wheel, in such manner as will take immediate effect, and work the rudder in case the ropes are burnt or otherwise rendered useless.

Sec. 3.\*\*_And be it further enacted,_ That the master and owner, and all others interested in vessels navigating Lakes Champlain, Ontario, Erie, Huron, Superior, and Michigan, or any of them, and which are propelled by.sails and Erickson's propeller, and used exclusively in car

## Appendix.

rying freight, shall from and after the passage of this act, be exempt from liability or fine for failing to provide, as a part of the necessary furniture of such vessel, a suction hose and fire engine and hose suitable to be worked on such vessel in case of fire, or more than one long boat or yawl.

**Sec. 4.**_And be it further enacted,_ That it shall be lawful for the court before which any suit, information, or indictment is or shall be pending for the violation, before the passage of this act, of so much of the ninth section of the act aforesaid as requires " that iron rods or chains shall be employed and used in the navigation of all steamboats, instead of wheel and filler ropes," to order such suit, information, or indictment to be discontinued, on such terms as to costs as the court shall judge to be just and reasonable : _Provided,_ That the defendant or defendants in such prosecution shall cause it to appear, by afflavit or otherwise, to the satisfaction of the court, that he or they had failed to use iron rods or chains in the navigation of his or their boat or boats, from a well-grounded apprehensation that such rods or chains could not be employed for the purpose aforesaid with safety.

**Sec. 5.**_And be it further enacted,_ That in execution of the authority vested in him by the second section of the joint resolution " authorizing experiments to be made for the purpose of testing Samuel Colt's submarine battery and for other purposes," approved August thirty-first, one thousand eight hundred and forty-two, the secretary of the navy shall appoint a board of examiners, consisting of three persons, of thorough knowledge as to the structure and use of the steam-engine, whose duty it shall be to make experimental trials of such inventions and plans designed to prevent the explosion of steam boilers and collapsing of flues as they may deem worthy of examination, and report the result of their experiments, with an expression of their opinion as to the relative merits and efficacy of such inventions and plans, which report the secretary shall cause to be laid before congress, at its next session. It shall also be the duty of said examiners to examine and report the relative strength of copper and iron boilers of equal thickness, and what amount of steam to the square inch each, when sound, is capable of working with safety; and whether hydrostatic pressure, or what other plan is best for testing the strength of boilers under the inspection laws; and what limitations as to the force or pressure of steam to the square inch, in proportion to the ascertained capacity of a boiler to resist, it would be proper to establish by law for the more certain prevention of explosions.

**Sec. 6.**_And be it further enacted,_ That so much of the act aforesaid as is inconsistent with the provisions of this act shall be, and the same is hereby, repealed.

## Appendix A Act of 1845, Chapter Xvii. (5 U. S. Stats. at Large, 725).

_An Act to amend the Act entitled " An Act to provide for the Enlistment of Boys for the Naval Service, and to Extend the Term of Enlistment of Scann."_

**Section 1**.: _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That, from and after the passage of this act, the provisions of the second and third sections of the act entitled " An act to provide for the enlistment of boys for the naval service, and to extend the term of the enlistment of seamen," approved March second, one thousand eight hundred and thirty-seven, which authorize and provide for the detention of any person enlisted for the navy, after the expiration of the enlistment, until the return of such person to the United States, shall be understood and construed to authorize and provide for the detention of such person until the arrival of the vessel in which he shall be so detained at a port of the United States, and until he shall have received his regular discharge by order of the secretary of the navy: _Provided,_ That such detention shall not exceed the term of thirty days from the time of the arrival of the said vessel in a port of the United States.

**Sec. 2**.: _And be it further enacted,_ That the commanding officer of any vessel, squadron, or fleet of the navy of the United States, when upon the high seas, or in any foreign port where there is no resident consul of the United States, shall be and is hereby authorized and empowered to exercise all the powers of a consul in relation to mariners of the United States.

## Appendix.

the cargoes, the marks, number of packages, by whom shipped, to whom consigned, at what port to be delivered; designating such goods as are entitled to drawback, or to the privilege of being placed in warehouse; and the masters of all such vessels shall, on their arrival at any port of the United States from any foreign port at which such vessel may have touched, as herein provided, conform to the laws providing for the delivery of manifests, of cargo, and passengers taken on board at such foreign port, and all other laws regulating the report and entry of vessels from foreign ports, and be subject to all the penalties therein prescribed.

Sec. 2. _And be it further enacted_, That all vessels, and their cargoes, engaged in the trade referred to in this act, shall become subject to the provisions of existing collection and revenue laws on arrival in any port in the United States: _Provided_, That any foreign goods, wares, or merchandise, taken in at one port of the United States, to be conveyed in said vessels to any other port within the same, either under the provisions of the warehousing act of sixth August, eighteen hundred and forty-six, or under the laws regulating the transportation coastwise of goods entitled to drawback, as well as any goods, wares, or merchandise not entitled to drawback, but on which the import duties chargeable by law shall have been duly paid, shall not become subject to any import duty by reason of the vessel in which they may arrive having touched at a foreign port during the voyage, in pursuance of the privilege given in this act.

## Act of 1848, Chapter CALL (0 U. S. Stats. at Large, 274).

_An Act to authorise the Secretary of the Treanury to license Yacults, and for other Purposes._

**Section 1**.: _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That the secretary of the treasury is hereby authorized to cause yachts used and employed exclusively as pleasure vessels, and designed as models of naval architecture, and now entitled to be enrolled,as American vessels, to be licensed on terms which will authorize them to proceed from port to port of the United States without entering or clearing at the custom-house. Such license shall be in such form as the secretary of the treasury may prescribe: _Provided_, Such vessels so enrolled and licensed shall not be allowed to transport merchandise or carry passengers for pay: _And provided further_, That the owner of any such vessel, before taking out such license, shall give a bond, in such form and for such amount as the secretary of the treasury shall prescribe, conditional that the said vessel shall not engage in any unlawful trade, nor in any way violate the revenuelaws of the United States, and shall comply with the laws in all other respects.

Sec. 2. _And be it further enacted_, That all such vessels shall, in all respects, except as above, be subject to the laws of the United States, and shall be liable to seizure and forfeiture for any violation of the provisions of this act.

Sec. 3. _And be it further enacted_, That all such licensed yachts shall use a signal of the form, size, and colors prescribed by the secretary of the navy, and the owners thereof shall at all times permit the naval architects in the employ of the United States to examine and copy the models of said yachts.

ACT OF 1849, CHAPTER CV. (9 U. S. Stats. at Large, 382).

_Regulations to be observed by Vessels, Steamboats, fe., navigating the Northern or North-western Lakes._

Sec. 5. _And be it further enacted_, That vessels, steamboats, and propellers, navigating the northern and western lakes, shall, from and after the thirtieth day of April next, comply with the following regulations, for the security of life and property, to wit: during the night, vessels on the starboard tack shall show a red light, vessels on the largboard tack a green light, and vessels going off large, or before the wind, or at anchor, a white light; steamboats and propellers shall carry on the stem, or as far forward as possible, a triangular light, at an angle of about sixty degrees with the horizon, and on the starboard side a light shaded green, and on the largboard side red; said lights shall be furnished with reflectors, &c., complete, and of a size to insure a good and sufficient light; and if loss or damage shall occur, the owner or owners of the vessel, steamboat, or propeller, neglecting to comply with these regulations, shall be liable to the injured party for all loss or damage resulting from such neglect; and the owner or owners of any vessel failing to comply with said regulations shall forfeit a penalty of one hundred dollars, which may be recovered in an action of debt, to be brought by the district attorney of the United States, in the name of the United States, in any court of competent jurisdiction.

ACT OF 1850, CHAPTER XXVII (9 U. S. Stats. at Large, 440).

_An Act to provide for recording the Consequences of Vessels, and for other Purposes._

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That no bill

## Appendix.

of sale, mortgage, hypotension, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypotension, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled : _Provided_, That the lien by bottomry on any vessel created during her voyage, by a loan of money or materials, necessary to repair or enable such vessel to prosecute a voyage, shall not lose its priority, or be in any way affected by the provisions of this act.

Sec. 2. _And be it further enacted_, That the collectors of the customs shall record all such bills of sale, mortgages, hypothecations, or conveyances, and, also, all certificates for discharging and cancelling any such conveyances, in a book or books to be kept for that purpose, in the order of their reception : noting in said book or books, and also on the bill of sale, mortgage, hypotension, or conveyance, the time when the same was received, and shall certify on the bill of sale, mortgage, hypotension, or conveyance, or certificate of discharge or cancellation, the number of the book and page where recorded ; and shall receive, for so recording such instrument of conveyance, or certificate of discharge, fifty cents.

Sec. 3. _And be it further enacted_, That the collectors of the customs shall keep an index of such records, inserting alphabetically the names of the vendor or mortgagor, and of the vendee or mortgage, and shall permit said index and books of, records to be inspected during office hours, under such reasonable regulations as they may establish, and shall, when required, furnish to any person a certificate, setting forth the names of the owners of any vessel registered or enrolled, the parts or proportions owned by each (if inserted in the register or enrolment), and also the material facts of any existing bill of sale, mortgage, hypotension, or other incumbrance upon such vessel, recorded since the issuing of the last register or enrolment, viz., the date, amount of such incumbrance, and from and to whom or in whose favor made ; the collector shall receive for each such certificate one dollar.

Sec. 4. _And be it further enacted_, That the collectors of the customs shall furnish certified copies of such records on the receipt of fifty cents for each bill of sale, mortgage, or other conveyance.

Sec. 5. _And be it further enacted_, That the owner, or agent of the owner of any vessel of the United States, applying to a collector of the customs for a register or enrolment of a vessel, shall, in addition to the oath now prescribed by law, set forth, in the oath of ownership, the part or proportion of such vessel belonging to each owner, and the same shall be 'inserted in the register or enrolment ; and that all bills of sale of vessels registered or enrolled shall set forth the part of the vessel ownedby each person selling, and the part conveyed to each person purchasing.

Sec. 6. _And be it further enacted_, That the twelfth clause or section of the act entitled " An act in addition to the several acts regulating the shipment and discharge of "seamen, and the duties of "consuls," approved July twentieth, eighteen hundred and forty, be so amended, as that all complaints in writing to the consuls or commercial agents as therein provided, that a vessel is unseaworthy, shall be signed by the first, or the second and third officers, and a majority of the crew, before the consul or commercial agent shall be authorized to notice such complaint, or proceed to appoint inspectors as therein provided.

Sec. 7. _And be it further enacted_, That any person, not being an owner, who shall, on the high seas, willfully, with intent to burn or destroy, set fire to any ship or other vessel, or otherwise attempt the destruction of such ship or other vessel, being the property of any citizen or citizens of the United States, or procure the same to be done, with the intent aforesaid, and being thereof lawfully convicted, shall suffer imprisonment to hard labor, for a term not exceeding ten years, nor less than three years, according to the aggravation of the offence.

Sec. 8. _And be it further enacted_, That this act shall be in force from and after the first day of October next ensuing.

ACT OF 1850, CHAPTER LXXXX. (9 U. S. Stats. at Large, 514).

_An Act making Appropriations for the Naval Service for the year ending the thirtieth of June, one thousand eight hundred and fifty-one, and abolishing flogging in the Navy and on board Vessels of Committee._

For transportation of the United States mail between New York and Liverpool, between New York and New Orleans, Havana and Chagres, and between Panama and some points in the Territory of Oregon, eight hundred and seventy-four thousand six hundred dollars: _Provided_, That no payment shall be made for said services, except in proportion to the mail service heretofore performed, or that may be hereafter performed; and that the secretary of the navy is hereby directed to make payment in said proportion only: _Provided_, That flogging in the navy, and on board vessels of commerce, be, and the same is hereby, abolished from and after the passage of this act.

APPENDIX.

ACT OF 1851, CHAPTER XLIII. (9 U. S. Stats. at Large, 635).

_An Act to limit the Liability of Ship-Owners, and for other Purposes._

**Section 1.**_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That no owner or owners of any ship or vessel shall be subject or liable to answer for or make good to any one or more person or persons any loss or damage which may happen to any goods or merchandise whatsoever, which shall be shipped, taken in, or put on board any such ship or vessel, by reason or by means of any fire happening to or on board the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners : _Provided,_ That nothing in this act contained shall prevent the parties from making such contract as they please, extending or limiting the liability of ship-owners.

Sec. 2. _And be it further enacted,_ That if any shipper or shippers of platina, gold, gold dust, silver, bullion, or other precious metals, coins, jewelry, bills of any bank or public body, diamonds or other precious stones, shall lade the same on board of any ship or vessel, without, at the time of such lading, giving to the master, agent, owner or owners of the ship or vessel receiving the same, a note in writing of the true character and value thereof, and have the same entered on the bill of lading therefore, the master and owner or owners of the said vessel shall not be liable, as carriers thereof, in any form or manner. Nor shall any such master or owners be liable for any such valuable goods beyond the value and according to the character thereof so notified and entered.

Sec. 8. _And be it further enacted,_ That the liability of the owner or owners of any ship or vessel, for any embezlement, loss, or destruction, by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or merchandise, shipped or put on board of such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively, in such ship or vessel, and her freight then pending.

Sec. 4. _And be it further enacted,_ That if any such embezzlement, loss, or destruction, shall be suffered by several freighters or owners of goods, wares, or merchandise, or any property whatever, on the same voyage, and the whole value of the ship or vessel, and her freight for the voyage, shall not be sufficient to make compensation to each of them, they shall receive compensation from the owner or owners of the ship or vessel, in proportion to their respective losses ; and for that purpose the said.

VOL. L

## Appendix A Appendix.

freighters and owners of the property, and the owner or owners of the ship or vessel, or any of them, may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner or owners of the ship or vessel may be liable amongst the parties entitled thereto. And it shall be deemed a sufficient compliance with the requirements of this act, on the part of such owner or owners, if he or they shall transfer his or their interest in such vessel and freight, for the benefit of such claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such trustee for the person or persons who may prove to be legally entitled thereto, from and after which transfer, all claims and proceedings against the owner or owners shall cease.

Sec. 5. _And be it further enacted_, That the chartrerer or charteres of any ship or vessel, in case he or they shall man, victual, and navigate such vessel at his or their own expense, or by his or their own procurement, shall be deemed the owner or owners of such vessel within the meaning of this act ; and such ship or vessel, when so chartered, shall be liable in the same manner as if navigated by the owner or owners thereof.

Sec. 6. _And be it further enacted_, That nothing in the preceding sections shall be construed to take away or affect the remedy to which any party may be entitled, against the master, officers, or mariners, for or on account of any embezzlement, injury, loss, or destruction of goods, wares, merchandise, or other property, put on board any ship or vessel, or on account of any negligence, fraud, or other malversation of such master, officers, or mariners, respectively, nor shall any thing herein contained lessen or take away any responsibility to which any master or mariner of any ship or vessel may now by law be liable, notwithstanding such master or mariner may be an owner or part owner of the ship or vessel.

Sec. 7. _And be it further enacted_, That any person or persons shipping oil of virtiol, unlacked lime, inflammable matches, or gunpowder, in a ship or vessel taking cargo for divers persons on freight, without delivering, at the time of shipment, a note in writing, expressing the nature and character of such merchandise, to the master, mate, officer, or person in charge of the lading of the ship or vessel, shall forfeit to the United States one thousand dollars.

This act shall not apply to the owner or owners of any canal boat, barge, or lighter, or to any vessel of any description whatsoerer, used in rivers or inland navigation.

APPENDIX.

ACT OF 185a, CHAPTER CYL (10 U. S. Stats. at Large, 61).

_An Act to amend on Act entitled " An Act to provide for the better security of the Lives of Passengers on board of Vessels propelled in whole or in part by Steam," and for other purposes._

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That no license, register, or enrolment, under the provisions of this or the act to which this is an amendment, shall be granted, or other papers issued by any collector, to any vessel propelled in whole or in part by steam, and carrying passengers, until he shall have satisfactory evidence that all the provisions of this act have been fully complied with; and if any such vessel shall be navigated, with passengers on board, without complying with the terms of this act, the owners thereof and the vessel itself shall be subject to the penalties contained in the second section of the act to which this is an amendment.

Sec. 2. _And be it further enacted_, That it shall be the duty of the inspectors of the hulls of steamers, and the inspectors of boilers and engines, appointed under the provisions of this act, to examine and see that suitable and safe provisions are made throughout such vessel to guard against loss or danger from fire; and no license or other papers, on any application, shall be granted, if the provisions of this act for preventing fires are not complied with, or if any combustible material liable to take fire from heated iron, or any other heat generated on board of such vessels in and about the boilers, pipes, or machinery, shall be placed at less than eighteen inches distant from such heated metal or other substance likely to cause ignition, unless a column of air or water intervenes between such heated surface and any wood or other combustible material so exposed, sufficient at all times, and under all circumstances, to prevent ignition, and further, when wood is so exposed to ignition, as an additional preventive, it shall be shielded by some incombustible material in such manner as to leave' the air to circulate freely between such material and the wood. _Provided, however,_ That when the structure of such steamers is such, or the arrangement of the boilers or machinery is such that the requirements aforesaid cannot, without serious inconvenience or sacrifice, be complied with, inspectors may vary therefrom, if in their judgment it can be done with safety.

Sec. 3. _And be it further enacted_, That every vessel so propelled by steam, and carrying passengers, shall have not less than three double-acting forcing pumps, with chamber at least four inches in diameter, two to be worked by hand and one by steam, if steam can be employed, otherwise by hand; one whereof shall be placed near the stern, one near

## Appendix.

the stem, and one amidship ; each having a suitable, well-fitted hose, of at least two thirds the length of the vessel, kept at all times in perfect order and ready for immediate use ; each of which pumps shall also be supplied with water by a pipe connected therewith, and passing through the side of the vessel, so low as to be at all times in the water when she is afloat : _Provided_, That, in steamers not exceeding two hundred tons measurement, two of said pumps may be dispensed with ; and in steamers of over two hundred tons, and not exceeding five hundred tons measurement, one of said pumps may be dispensed with.

Sec. 4. _And be it further enacted_, That every such vessel, carrying passengers, shall have at least two good and suitable boats, supplied with oars, in good condition at all times for service, one of which boats shall be a life-boat made of metal, fire-proof, and in all respects a good, substantial, safe sea boat, capable of sustaining, inside and outside, fifty persons, with life-lines attached to the gunwale, at suitable distances. And every such vessel of more than five hundred tons, and not exceeding eight hundred tons measurement, shall have three life-boats ; and every such vessel of more than eight hundred tons, and not exceeding fifteen hundred tons measurement, shall have four life-boats ; and every such vessel of more than fifteen hundred tons measurement, shall have six life-boats -- all of which boats shall be well furnished with oars and other necessary apparatus : _Provided_, _however_, The inspectors are hereby authorized to exempt steamers navigating rivers only, from the obligation to carry, of the life-boats herein provided for, more than one, the same being of suitable dimensions, made of metal and furnished with all necessary apparatus for use and safety -- such steamers having other suitable provisions for the preservation of life in case of fire or other disaster.

Sec. 5. _And be it further enacted_, That every such vessel, carrying passengers, shall also be provided with a good life-preserver, made of suitable material, or float well adapted to the purpose, for each and every passenger, which life-preservers and floats shall always be kept in convenient and accessible places in such vessel, and in readiness for the use of the passengers ; and every such vessel shall also keep twenty five buckets and five axes ; and ther shall be kept on board every such vessel exceeding five hundred tons measurement, buckets and axes after the rate of their tonnage ,as follows : on every vessel of six hundred tons measurement, five buckets and one axe for each one hundred tons measurement, decreasing this proportion as the tonnage of the vessel increases, so that any such vessel of thirty-five hundred tons, and all such vessels exceeding the same shall not be required to keep but three buckets for each one hundred tons of measurement, and but one axe for every five buckets.

## Appendix.

Sec. 6. _And be it further enacted,_ That every such vessel carrying passengers on the main or lower deck, shall be provided with sufficient means convenient to sub passengers for their escape to the upper deck in case of fire or other accident endangering life.

Sec. 7. _And be it further enacted,_ That no loose hemp shall be carried on board any such vessel ; nor shall baled hemp be carried on the deck or guards thereof, unless the bales are compactly pressed and well covered with bagging, or a similar fabric ; nor shall gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning fluids or materials which ignite by friction, be carried on board any such vessel, as freight, except in cases of special license for that purpose, as herein-after provided; and all such articles kept on board as stores, shall be secured in metallic vessels : and "every person who shall knowingly violate any of the provisions of this section, shall pay a penalty of one hundred dollars for each offence, to be recovered by action of debt in any court of competent jurisdiction.

Sec. 8. _And be it further enacted,_ That hereafter all gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning fluids, and materials which ignite by friction, when packed or put up for shipment on board of any such vessel, shall be securely packed or put up separately from each other and from all other articles, and the package, box, cask, or vessel containing the same, shall be distinctly marked on the outside with the name or description of the articles contained therein ; and every person who shall pack or put up, or cause to be packed or put up for shipment on board of any such vessel, any gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning fluids, or materials which ignite by friction, otherwise than as aforesaid, or shall ship the same, unless packed and marked as aforesaid, on board of any steam-vessel carrying passengers, shall be deemed guilty of a misdemeanor, and punished by a fine not exceeding one thousand dollars, or imprisonment not exceeding eighteen months, or both.

Sec. 9. _And be it further enacted,_ That instead of the existing provisions of law for the inspection of steamers and their equipment, and instead of the present system of pilotage of such vessels, and the present mode of employing engineers on board the same, the following regulations shall be observed, to wit : The collector or other chief officer of the customs, together with the supervising inspector for the district, and the judge of the district court of the United States for the district in each of the following collection districts, namely, New Orleans and St. Louis, on the Mississippi River ; Louisville, Cincinnati, Wheeling, and Pittsburg, on the Ohio River ; Buffalo and Cleaveland, on Lake Eric ; Detroit, upon Detroit River ; Nashville, upon the Cumberland River ; Chicago, on Lake Michigan ; Oswego, on Lake Ontario ; Burlington, in Vermont ;618 APPENDIXX.

Galveston, in Texas; Mobile, in Alabama; Savannah, in Georgia; Charleston, in South Carolina; Norfolk, in Virginia; Baltimore, in Maryland; Philadelphia, in Pennsylvania; New York, in New York; New London, in Connecticut; Boston, in Massachusetts; Portland, in Maine; and San Francisco, in California -- shall designate two inspectors, of good character and suitable qualifications to perform the services required of them by this act within the respective districts for which they shall be appointed, one of whom, from his practical knowledge of ship-building, and the uses of steam in navigation, shall be fully competent to make a reliable estimate of the strength, seaworthiness, and other qualities of the hulls of steamers and their equipment, deemed essential to safety of life, when such vessels are employed in the carriage of passengers, to be called the Inspector of Hulls; the other of whom, from his knowledge and experience of the duties of an engineer employed in navigating vessels by steam, and also in the construction and use of boilers, and the machinery and appurtenances therewith connected, shall be able to form a reliable opinion of the quality of the material, the strength, form, workmanship, and suitableness of such boilers and machinery to be employed in the carriage of passengers, without hazard to life, from imperfections in the material, workmanship, or arrangement of any part of such apparatus for steaming, to be called the Inspector of Boilers; and these two persons thus designated, if approved by the secretary of the treasury, shall be, from the time of such designation, inspectors, empowered and required to perform the duties herein specified, to wit:

_First_. Upon application in writing by the master or owner, they shall, once in every year at least, carefully inspect the hull of each steamer belonging to their respective districts and employed in the carriage of passengers, and shall satisfy themselves that every such vessel so submitted to their inspection is of a structure suitable for the service in which she is to be employed, has suitable accommodations for her crew and passengers, and is in a condition to warrant the belief that she may be used in navigation as a steamer, with safety to life, and that all the requirements of law in regard to fires, boats, pumps, hose, life-pre-servers, floats, and other things, are faithfully complied with; and if they deem it expedient, they may direct the vessel to be put in motion, and may adopt any other suitable means to test her sufficiency and that of her equipment.

_Second_. They shall also inspect the boilers of such steamers before the same shall be used, and once in every year thereafter, subjecting them to a hydrostatic pressure, the limit to which, not exceeding one hundred and sixty-five pounds to the square inch for high pressure boilers, may be prescribed by the owner or the master, and shall satisfy APPENDIX. 619 themselves by examination and experimental trials, that the boilers are well made of good and suitable material; that the openings for the passage of water and steam respectively, and all pipes and tubes exposed to heat are of proper dimensions, and free from obstruction; that the spaces between the flues are sufficient, and that the fire line of the furnace is below the prescribed water-line of the boilers; and that such boilers and the machinery and the appurtenances may be safely employed in the service proposed in the written application, without peril to life; and shall also satisfy themselves that the safety-valves are of suitable dimensions, sufficient in number, well arranged, and in good working order, (one, of which may, if necessary in the opinion of the inspectors, to secure safety, be taken wholly from the control of all persons engaged in navigating such vessel;) that there is a suitable number of gauge-cocks properly inserted, and a suitable water-gauge and steam-gauge indicating the height of the water and the pressure of the steam; that in or upon the outside flue of each outside high-pressure boiler, there is placed in a suitable manner alloyed metals, fusible by the heat of the boiler when raised to the highest working pressure allowed, and that in or upon the top of the flues of all other high-pressure boilers in the steamer, such alloyed metals are placed, as aforesaid, fusing at ten pounds greater pressure than said metals on the outside boilers, thereby, in each case, letting steam escape; and that adequate and certain provision is made for an ample supply of water to feed the boilers at all times, whether such vessel is in motion or not; so that, in high-pressure boilers, the water shall not be less than four inches above the flue: _Providad_, _however_, in steamers hereafter supplied with new high-pressure boilers, if the alloy fuses on the outer boilers at a pressure of ten pounds exceeding the working pressure allowed, and at twenty pounds above said pressure on the inner boilers, it shall be a sufficient compliance with this act.

_Third._ That in subjecting to the hydrostatic test aforesaid, boilers called and usually known under the designation of high-pressure boilers, the inspectors shall assume one hundred and ten pounds to the square inch as the maximum pressure allowable as a working power for a new boiler forty-two inches in diameter, made of inspected iron plates at least one fourth of an inch thick, in the best manner, and of the quality herein required, and shall rate the working power of all high-pressure boilers, whether of greater or less diameter, old or new, according to their strength compared with this standard: and in all cases the test applied shall exceed the working power allowed, in the ratio of one hundred and sixty-five to one hundred and ten, and no high-pressure boilers hereafter made shall be rated above this standard: and in subjecting to the test aforesaid, that class of boilers usually designated and known as low-pres 620

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are boilers, the said inspectors shall allow as a working power of each new boiler a pressure of only three 'fourths the number of 'pounds to the square inch to which it shall have been subjected by the hydrostatic test and found to be sufficient therefor, using the water in such tests at a temperature not exceeding sixty degree Fahrenheit; but should such inspectors be of the opinion, that said boiler by reason of its construction or material will not safely allow so high a working pressure, they may, for reasons to be stated specifically in their certificate, fix the working pressure of said boiler at less than three fourths of said test pressure, and no low-pressure boiler hereafter made shall be rated in its working pressure above the aforesaid standard : and provided \_that the same rules shall be observed in regard to boilers heretofore made, unless the proportion between such boilers and the cylinders or some other cause renders it manifest that its application would be unjust, in which cases the inspectors may depart from these rules, if it can be done with safety ; but in no case shall' the working pressure allowed exceed the hydrostatic test, and no valve under any circumstances shall be leaded or so managed in any way as to subject a boiler to a greater pressure than the amount allowed by the inspectors, nor shall any boiler or pipe be approved which is made in whole or in part of bad material, or is unsafe in its form, or dangerous from defective workmanship, age, use, or any other cause.

_Fourth._ That when the inspection in detail is completed, and the inspectors approve of the vessel and her equipment throughout, they shall make and subscribe a certificate to the collector of the district, substantially as follows :--

State of

District of

Application having been made in writing by

to the subscribers, inspectors for said district, to examine the steamer

of

whereof

are owners, and

is master, we having performed that service, now, on this

day of

A. D.

do certify, that she was built in the year

, is in all respects staunch, sea-worthy, and in good condition for navigation, having suitable means of escape in case of accident from the main to the upper deck, that she is provided with (here insert the number of state-rooms, the number of berths therein, the number of other permanent berths for cabin passengers, the number of berths for deck or other classes of passengers, the number of passengers of each class for whom she has suitable accommodations, and in case of steamers sailing to of from any European port, or to or from any port on the Atlantic or the Pacific, a distance of one thousand miles or upwards, the number of each she is permitted to carry, -- and in case of a steamer sailing to any other port, a distance of five hundred miles or upwards, the number of deck passengers she is permitted to carry, also the number of boilers, and the APPENDIX.

form, dimensions, and material of which each boiler is made, the thick,ness of the metal, and when made.-- if made after this act takes effect, and of iron, whether they are such in all respects as the act requires, whether each boiler has been tried by hydrostatic test, the amount of pressure to the square inch in pounds applied to it, whether the amount allowed as the maximum working power was determined by the rule prescribed by this act, if not, the reason for a departure from it; also the number of safety-valves required, their capacity, the load prescribed for each valve, how many are left to the control of the persons navigating the vessel, whether one is withdrawn, and the manner of securing it against interference, also the number and dimensions of supply pipes, and whether they and the other means provided are sufficient at all times and under all circumstances, when in good order, to keep the water up four inches at least above the top of the flue; also the number and dimensions of the steam-pipes, the number and kind of engines, the dimensions of their cylinders, the number and capacity of the forcing-pumps, and how worked, the number and kind of gauge-cocks, water and steam gauges, where situate, and how secured; also the manner of using alloyed metals, and the pressure at which they are known by the inspectors to fuse; the equipments for the extinguishment of fires, including hose, fire-buckets, and axes; the provisions for saving life in case of accident, including boats, life-preserves, and substitutes therefor, where kept, and all other provisions made on board for the security of the lives of passen-gers). And we further certify, that the equipment of the vessel throughout, including pipes, pumps, and other means to keep the water up to the point aforesaid, hose, boats, life-preserves, and other things, is in conformity with the provisions of law; and that we declare it to be our deliberate conviction, founded upon the inspection which we have made, that the vessel may be employed as a steamer upon the waters named in the application, without peril to life, from any imperfection of form, materials, workmanship, or arrangement of the several parts, or from age or use. And we further certify, that said vessel is to run within the following limits, fb wit: from to and back, touching at intermediate places.

And which certificate shall be verified by the oaths of the inspectors signing it, before a person competent by law to administer oaths. And in case the said inspectors do not grant a certificate of approval, they shall state, in writing, and sign the same, their reasons for their disappearal.

_Fyth._ Upon the application of the master or owner of any steamer employed in the carriage of passengers, for a license to carry gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning fluids, and materials which ignite by friction, or either of them, the inspectors shall examine such vessel, and if they find that she is provided with chests or safes composed of metal, or entirely lined therewith, or one or more apartments thoroughly lined with metal at a secure distance from any fire, they may grant a certificate to that effect, authorizing such vessel to carry as freight any of the articles aforesaid, those of each description to be secured in such chest, safe, or apartment, containing no other article, and carried at a distance from any fire to be specified in the certificate : _Provided_, That any such certificate may be revoked or annulled at any time by the inspectors, upon proof that either of the said articles have been carried on board said vessel, at a place or in a manner not authorized by such certificate, or that any of the provisions of this act in relation thereto have been violated.

_Sixth._ The said inspectors shall keep a regular record of certificates of inspections of vessels, their boilers, engines, and machinery, whether of approval or disapproval, and when recorded, the original shall be delivered to the collector of the district ; they shall keep a like record of certificates, authorizing gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning fluids and materials which ignite by friction, or either of them, to be carried as freight, by any such vessel ; and when recorded deliver the originals to said collector ; they shall keep a like record of all licenses to pilots and engineers, and all revocations thereof, and shall from time to time report to the supervising inspector of their respective districts, in writing, their decisions on all applications for such licenses, or proceedings for the revocation thereof, and all testimony received by them in such proceedings.

_Seventh._ The inspectors shall license and classify all engineers and pilots of steamers carrying passengers.

_Eighth._ Whenever any person claiming to be qualified to perform the duty of engineer upon steamers carrying passengers, shall apply for a certificate, the board of inspectors shall examine the applicant, and the proofs which he produces in support of his claim ; and if, upon full consideration, they are satisfied that his character, habits of life, knowledge, and experience in the duties of an engineer, are all-such as to authorize the belief that the applicant is a suitable and safe person to be intrusted with the powers and duties of such a station, they shall give him a certificate to that effect, for one year, signed by them, in which certificate they shall state the time of the examination, and shall assign the appointee to the appropriate class of engineers,

_Ninth._ Whenever any person claiming to be a skilful pilot for any such vessel shall offer himself for a license, the said board shall make diligent inquiry as to his character and merits ; and if satisfied that he possesses the requisite skill, and is trustworthy and faithful, they shall give him a certificate to that effect, licensing him for one year to be a
APPENDIX.

623

pilot a any such vessels within the limit prescribed in the certificate; but the license of any such engineer or pilot may be revoked upon proof of negligence, unskillfulness, or instention to the duties of the station: _Provided, however_, If in cases of refusal to license engineers or pilots, and in cases of the revocation of any license by the local board of inspectors, any engineer or pilot deeming himself wronged by such refusal or revocation, may, within thirty days after notice thereof, on application to a supervising inspector, have his case examined anew by such supervising inspector, upon producing a certified copy of the reasons assigned by the local board for their doings in the premises; and such supervising inspector may revoke the decision of such local board of inspectors and license such pilot or engineer; and like proceedings, upon the same conditions may be had by the master or owner of any such vessel, or of any steamboat-boiler, for which the said local board shall have refused, upon inspection, to give a certificate of approval, or shall have notified such master or owner of any repairs necessary after such certificate has been granted.

_Tenth._ It shall be unlawful for any person to employ, or any person to serve as engineer or pilot, on any such vessel, who is not licensed by the inspectors; and any one so "offending shall forfeit one hundred dollars for each office: _Provided, however_, That if a vessel leaves her port with a complement of engineers and pilots, and on her voyage is deprived of their services, or the services of any of them, without the consult, fault, or collusion of the master, owner, or any one interested in the vessel, the deficiency may be temporarily supplied, until others, licensed, can be obtained.

_Eleventh._ In addition to the annual inspection, it shall be the duty of said board to examine, seasonally, steamers arriving and departing, so often as to enable them to detect any neglect to comply with the requirements of law, and also any defects or imperfections becoming apparent after the inspection aforesaid, and tending to render the navigation of the vessel unsafe, which service may be performed by one of the board; and if he shall discover an omission to comply with the law or that repairs have become necessary to make the vessel safe, he shall at once notify the master, stating in the notice what is required; and if the master deems the requirements unreasonable or unnecessary, he may take the opinion of the board thereon, and if dissatisfied with the decision of such board may apply for a reexamination of the case to the supervising@n-sector as is hereinbefore provided; and if he shall refuse or neglect to comply with the requirements of the local board, and shall, contrary thereto, and while the same remains unreversed by the supervising inspector, employ the vessel by navigating her, the master and owner shall be liable for any damage to the passengers and their baggage which
APPENDIX. 625

_Fifteenth._ That it shall at all times be the duty of all engineers and pilots licensed under this act, and all mates, to assist the inspectors in the examination of any such vessels to which any such engineer, mate, or pilot belongs, and to point out all defects and imperfections in the hull or apparatus for steaming, and also to make known to them at the earliest opportunity, all accidents occasioning serious injury to the vessel or her equipment, whereby life may be in danger, and in default thereof the license of any such engineer or pilot shall be revoked.

Sec. 10. _And be it further enacted,_ That in those cases where the number of passengers is limited by the inspector's certificate, it shall not be lawful to take on board of any steamer a greater number of passengers than is certified by the inspectors in the certificate ; and the master and owners, or either of them, shall be liable, to any person suing for the same, to forfeit the amount of passage money and ten dollars for each passenger beyond the number allowed. And moreover, in all cases of an express or implied undertaking to transport passengers, or to supply them with food and lodging, from place to place, and suitable provision is not made of a full and adequate supply of good and wholesome food and water, and of suitable lodging for all such passengers, or where barges, or other craft, impeding the progress, are taken in tow, for a distance exceeding five hundred miles, without previous and seasonable notice to such passengers, in all such cases the owners and the vessel shall be liable to refund all the money paid for the passage, and to pay also the damage sustained by such default or delay : _Provided, however,_ That if in any such case a satisfactory bond is given to the marshal for the benefit of the plaintiff, to secure the satisfaction of such judgment as he may recover, the vessel shall be released.

Sec. 11. _And be it further enacted,_ That if the master of a steamer, or any other person, whether acting under orders or not, shall intentionally load or obstruct, or cause to be loaded or obstructed, in any way or manner, the safety valve or valves of a boiler, or shall employ any other means or device whereby the boiler shall be subjected to a greater pressure than the amount allowed by the certificate of the inspectors, or shall be exposed to a greater pressure, or shall intentionally derange or hinder the operation of any machinery or device employed to denote the state of the water or steam in any boiler, or to give warning of approaching danger, it shall, in any such case, be a misdemeanor, and any and every person concerned therein, directly or indirectly, shall forfeit two hundred dollars, and may, at the discretion of the court, be in addition thereto imprisoned not exceeding eighteen months.

Sec. 12. _And be it further enacted,_ That if at any time there be a deficiency of water in a boiler, by suffering it to fall below three inches above the flue as prescribed in this act, unless the same happens through VOL. I.

## Appendix

- inevitable accident, the master, if it be by his order, asent, or connuisance, and also the engineer, or other person, whose duty it is to keep up the supply, shall be guilty of an offence for which they shall severally be fined one hundred dollars each ; and if an explosion or collapse happens in consequence of such deficiency, they, or any of them, may be further punished by imprisonment, for a period of not less than six nor more than eighteen months.

Sec. 13. _And be it further enacted,_ That hereafter all boilers of steam-boats made of iron, shall be constructed of plates which have been stamped according to the provisions of this act.

Sec. 14. _And be it further enacted,_ That it shall be the duty of such inspectors to ascertain the quality of the material of which the boiler-plates of any such boiler so submitted to their inspection are made ; and to satisfy themselves by any suitable means, whether the mode of manufacturing has been such as to produce iron equal to good iron made with charcoal, such as in their judgment may be used for generating steam-power without hazard to life ; and no such boiler shall be approved which is made of unsuitable material, or of which the manufacture is imperfect, or is not in their opinion, of suitable strength, or whose plates are less than one fourth of an inch in thickness, for a high-pressure boiler of forty-two inches in diameter, and in that proportion of strength according to the maximum of working pressure allowed for high-pressure boilers of greater or less diameter, or which 'is made of any but wrought iron of a quality equal to good iron made with charcoal.

Sec. 15. _And be it further enacted,_ That all plates of boiler iron shall be distinctly and permanently stamped in such manner as the secretary of the treasury shall prescribe, and if practicable, in such place or places that the mark shall be left visible after the plates are worked into boilers ; with the name of the manufacturer, the quality of the iron, and whether or not hammer, and the place where the same is manufactured.

Sec. 16. _And be it further enacted,_ That it shall be unlawful to use in such vessels for generating steam for power, a boiler, or steam-pipe connecting the boilers made after the passage of this act, of any iron unless it has been stamped by the manufacturer as herein provided ; and if any person shall make for use in any such vessel, a boiler of iron not so stamped, intended to generate steam for power, he shall, for any such offence, forfeit five hundred dollars, to be recovered in an action of debt by any person suing for the same ; and any person using or causing to be used in any such vessel such a boiler to generate steam for power, shall forfeit a like sum for each offence.

Sec. 17. _And be it further enacted,_ That if any person shall counterfeit the marks and stamps required by this act, or shall falsely stamp any

## Appendix.

boiler iron, and be convicted thereof, he shall be fined not exceeding five hundred dollars and imprisoned not exceeding two years. And if any person or persons shall stamp or mark plates with the name or marks of another with intent to mislead, deceive, or defraud, such person or persons shall be liable to any one injured thereby, for all damage occasioned by such fraud or deception.

Sec. 18. _And be it further enacted,_ That in order to carry this act fully into execution, the President of the United States shall, with the advice of the senate, appoint nine supervising inspectors, who shall be selected for their knowledge, skill, and experience in the uses of steam for navigation, and who are competent judges not only of the character of vessels but of all parts of the machinery employed in steaming, who shall assemble together at such places as they may agree upon once in each year at least, for joint consultation and the establishment of rules and regulations for their own conduct and that of the several boards of inspectors within the districts, and also to assign to each of the said nine inspectors the limits of territory within which he shall perform his duties. And the said supervising inspectors shall each be paid for his services after the rate of fifteen hundred dollars a year, and in addition thereto, his actual reasonable travelling expenses, incurred in the necessary performance of his duty when away from the principal port in his district, and certified and sworn to by him under such instructions as shall be given by the secretary of the treasury, who is hereby authorized to pay such salaries, and also such travelling expenses, and the actual reasonable expenses (both to them and other inspectors) of transporting from place to place the instruments used in inspections, which expenses shall be proved to his satisfaction.

Sec. 19. _And be it further enacted,_ That the supervising inspectors shall watch over all parts of the territory assigned them, shall visit, confer with, and examine into the doings of the several boards of inspectors, and shall, whenever they think it expedient, visit such vessels, licensed, and examine into their condition, for the purpose of ascertaining whether the provisions of this act have been observed and complied with, both by the board of inspectors and the master and owners; and it shall be the duty of all masters, engineers, and pilots of such vessels, to answer all reasonable inquiries and to give all the information in their power, in regard to any such vessel so visited, and her machinery for steaming, and the manner of managing both.

Sec. 20. _And be it further enacted,_ That whenever a supervising inspector ascertains to his satisfaction that the master, engineer, pilot, or owner of any such vessel fail to perform their duties according to the provisions of this act, he shall report the facts in writing to the board in the district where the vessel belongs, and, if need be, cause the negligentor offending parties to be prosecuted ; and if he has good reason to believe there has been, through negligence, or from any other cause, a failure of the board who inspected the vessel to do its duty, he shall report the facts in writing to the secretary of the treasury, who shall cause immediate investigation into the truth of the complaint, and if he deems the cause sufficient, shall remove the delinquent.

Sec. 21. _And be it further enacted_, That it shall be the duty of such supervising inspectors to see that the said several boards within their respective collection districts execute their duties faithfully, promptly, and, as far as possible, uniformly, in all places, by following out the provisions of this act, according to the true intent and meaning thereof; and they shall, as far as practicable by their established rules, harmonize differences of opinion when they exist in different.boards.

Sec. 22. _And be it further enacted_, That the said supervising inspectors shall also visit collection districts in which there are no boards of inspectors, if there be any where steamers are owned or employed, and each one shall have full power to inspect any such steamer or boilers of each steamer in any such district, or in any other district where, from distance or other cause, it is inconvenient to resort to the local board, and to grant certificates of approval according to the provisions of this act, and to do and perform in such districts all the duties imposed upon boards in the districts where they exist : _Provided_, That no supervising or other inspector shall be deemed competent to inspect in any case where he is directly or indirectly personally interested, or is associated in business with any person who is so interested, but in all such cases the duty shall be performed by disinterested inspectors, and inspection made in violation of this rule shall be void and of no effect.

Sec. 23. _And be it further enacted_, That it shall be the duty of each of the collectors or other chief officer of the customs for the districts aforesaid, except San Francisco, to make known without delay, to the collectors of all the said districts, except San Francisco, the names of all persons licensed as engineers or pilots for such vessels, and the names of all persons from whom upon application, licenses have been withheld, and the names of all whose licenses have been revoked or suspended, and also the names of all such vessels which neglect or refuse to make such repairs as may be ordered under the provisions of this act, and the names of all for which license has been, on application, refused.

Sec. 24. _And be it further enacted_, That it shall be the duty of the collectors or other chief officers of the customs and of the inspectors aforesaid, within the said several districts, to enforce the provisions of law against all such steamers arriving and departing; and upon proof that any collector or other chief officer of the customs, or inspector, has negligently or intentionally omitted his duty in this particular, such delinquent

## Appendix.

shall be removed from office, and shall also be subject to a penalty of one hundred dollars for each offence, to be sued for in an action of debt before any court of competent jurisdiction.

Sec. 25. _And be it further enacted_, That the collector or other chief officer of the customs, shall retain on file all original certificates of the inspectors required by this act to be delivered to him, and shall give to the master or owner of the vessel therein named, two certified copies thereof, one of which shall be placed by such master or owner in some conspicuous place in the vessel, where it will be most likely to be observed by passengers and others, and there kept at all times; the other shall be retained by such master or owner as evidence of the authority thereby conferred; and if any person shall receive or carry any passenger on board any such steamer not having a certified copy of the certificate of approval as required by this act, placed and kept as aforesaid; or who shall receive or carry any gunpowder, oil of turpentine, oil of vitriol, camphene, or other explosive burning fluids, or materials which ignite by friction, as freight, on board any steamer carrying passengers, not having a certificate authorizing the same, and a certified copy thereof placed and kept as aforesaid; or who shall stow or carry any of said articles, at a place or in a manner not authorized by such certificate, shall forfeit and pay for each offence one hundred dollars, to be recovered by action of debt in any court of competent jurisdiction.

Sec. 26. _And be it further enacted_, That every inspector who shall willfully certify falsely touching any such vessel propelled in whole or in part by steam, and carrying passengers, her hull accommodations, boilers, engines, machinery, or their appurtenances, or any of her equipments, or a any matter or thing contained in any certificate signed and sworn to by him, shall on conviction thereof, be punished by fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or both.

Sec. 27. _And be it further enacted_, That if any such vessel carrying passengers, having a license and certificate, as required by this act, shall be navigated without having her hull, accommodations, boilers, engines, machinery, and their appurtenances, and all equipments, in all things conformable to such certificate, the master or commander by whom she shall be so navigated, having knowledge of such defect, shall be punished by fine not exceeding one hundred dollars, or imprisonment not exceeding two months, or both : _Provided_, That such master or commander shall not be liable for loss or deficiency occasioned by the dangers of navigation, if such loss or deficiency shall be supplied as soon as practicable.

Sec. 28. _And be it further enacted_, That on any such steamers navigating rivers only, when from darkness, fog, or other cause, the pilot on watch shall be of opinion that the navigation is unsafe, or from accident to, or derangement of the machinery of the boat, the engineer on watch

## Appendix.

shall be of opinion that the further navigation of the vessel is unsafe, the vessel shall be brought to anchor, or moored, as soon as it prudently can be done : _Provided_, That if the person in command shall, after being so admonished by either of such officers, elect to pursue such voyage, he may do the same ; but in such case both he and the owners of such steamer shall be answerable for all damages which shall arise to the person of any passenger and his baggage from said causes in so pursuing the voyage, and no degree of care or diligence shall in such case be held to justify or excuse the person in command, or said owners.

Sec. 29. _And be it further enacted_, That it shall be the duty of the supervising inspectors to establish such rules and regulations to be observed by all such vessels in passing each other, as they shall from time to time deem necessary for safety ; two printed copies of which rules and regulations, signed by said inspectors, shall be furnished to each of such vessels, and shall at all times be kept up in conspicuous places on such vessels, which rules shall be observed both night and day. Should any pilot, engineer, or master of any such vessel neglect or wildfully refuse to observe the foregoing regulations, any delinquent so neglecting or refusing, shall be liable to a penalty of thirty dollars, and to all damage done to any passenger, in his person or baggage, by such neglect or refusal; and no such vessel shall be justified in coming into collision with another if it can be avoided.

Sec. 30. _And be it further enacted_, That whenever damage is sustained by any passenger or his baggage, from explosion, fire, collision, or other cause, the master and the owner of such vessel, or either of them, and the vessel, shall be liable to each and every person so injured, to the full amount of damage, if it happens through any neglect to comply with the provisions of law herein prescribed, or through known defects or imperfections of the steaming apparatus, or of the hull; and any person sustaining loss or injury through the carelessness, negligence, or wilful mis-conduct of an engineer or pilot, or their neglect or refusal to obey the provisions of law herein prescribed as to navigating such steamers, may sue such engineer or pilot, and recover damages for any such injury caused as aforesaid by any such engineer or pilot.

Sec. 31. _And be it further enacted_, That before issuing the annual license to any such steamer, the collector or other chief officer of the customs for the port or district, shall demand and receive from the owner or owners of the steamer, as a compensation for the inspections and examinations made for the year, the following sums, in addition to the fees for issuing enrolments and licenses, now allowed by law, according to the ton-nage of the vessel, to wit : for each vessel of a thousand tons and over, thirty-five dollars; for each of five hundred tons and over, but less than one thousand' tons, thirty dollars; and for each under five hundred tonsAPPENDIX.

and over one hundred and twenty-five tons, twenty-five dollars ; and for each under one hundred and twenty-five tons, twenty dollars, at the time of obtaining registry, and once in each year thereafter, pay according to the rate of tonnage before mentioned, the sum of money herein fixed. And each engineer and pilot licensed as herein provided, shall pay for the first certificate granted by any inspector or inspectors, the sum of five dollars, and for each subsequent certificate one dollar, to such inspector or inspectors, to be accounted for and paid over to the collector or other chief officer of the customs; and the sums derived from all the sources above specified shall be quarterly accounted for and paid over to the United States in the same manner as other revenue.

Sec. 32. _And be it further enacted_, That each inspector shall keep an accurate account of every such steamer boarded by him during the year, and of all his official acts and doings, which in the form of a report he shall communicate to the collector or other chief officer of the customs, on the first days of May and November, in each year.

Sec. 88. _And be it further enacted_, That the inspectors in the following districts shall each be allowed annually, the following compensation, to be paid under the direction of the secretary of the treasury, in the manner officers of the revenue are paid, to wit:

For the district of Portland, in Maine, three hundred dollars.

For the district of Boston and Charlestown, in Massachusetts, eight hundred dollars.

For the district of New London, in Connecticut, three hundred dollars.

For the district of New York, two thousand dollars.

For the district of Philadelphia, in Pennsylvania, one thousand dollars.

For the district of Baltimore, in Maryland, one thousand dollars.

For the district of Norfolk, in Virginia, three hundred dollars.

For the district of Charleston, in South Carolina, four hundred dollars.

For the district of Savannah, in Georgia, four hundred dollars.

For the district of Mobile, in Alabama, one thousand dollars.

For the district of New Orleans, or in which New Orleans is the port of entry, in Louisiana, two thousand dollars.

For the district of Galveston, in Texas, three hundred dollars.

For the district of St. Louis, in Missouri, fifteen hundred dollars.

For the district of Nashville, in Tennessee, four hundred dollars.

For the district of Louisville, in Kentucky, twelve hundred dollars.

For the district of Cincinnati, Ohio, fifteen hundred dollars.

For the district of Wheeling, Virginia, five hundred dollars.

## Appendix.

For the district of Pittsburgh, Pennsylvania, fifteen hundred dollars.

For the district of Chicago, Illinois, five hundred dollars,

For the district of Detroit, Michigan, eight hundred dollars.

For the district of Cleveland, Ohio, five hundred dollars.

For the district of Buffalo, New York, twelve hundred dollars.

For the district of Oswego, or of which Oswego is the port of entry,

New York, three hundred dollars.

For the district of Vermont, two hundred dollars.

For the district of San Francisco, California, fifteen hundred dollars.

Sec. 34. _And be it further enacted,_ That the secretary of the treasury shall provide the inspectors with a suitable number of instruments, of uniform construction, so as to give uniform results to test the strength of boilers.

Sec. 35. _And be it further enacted,_ That it shall be the duty of the master of any such steamer to cause to be kept a correct list of all the passengers received and delivered from day to day, noting the places where received and where landed, which record shall be open to the inspection of the inspectors and officers of the customs at all times ; and in case of default, through negligence or design, the said master shall forfeit one hundred dollars, which penalty, as well as that for excess of passengers, shall be a lien upon the vessel : _Provided,_ however, a bond may, as provided for in other cases, be given to secure the satisfaction of the judgment.

Sec. 86. _And be it further enacted,_ That every master or commander of any such steamer, shall keep on board of such steamer, at least two copies of this act to be furnished to him by the secretary of the treasury; and if the master or commander neglects or refuses so to do, or shall unreasonably refuse to exhibit a copy of the same to any passenger who shall ask it, he shall forfeit twenty dollars.

Sec. 87. _And be it further enacted,_ That any inspector who shall, upon any pretence, receive any fee or reward for his services rendered under this act, except what is herein allowed to him, shall forfeit his office ; and if found guilty, on indictment, be otherwise punished, according to the aggravation of the offence, by fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or both.

Sec. 88. _And be it further enacted,_ That all engineers and pilots of any such vessel shall, before entering upon their duties, make solemn oath before one of the inspectors herein provided for, to be recorded with the certificate, that he will faithfully and honestly, according to his best skill and judgment, perform all the duties required of him by this act, without concealment or reservation ; and if any such engineer, pilot, or any witness summoned under this act as a witness, shall, when under exami

## Appendix.

**nation on oath, knowingly and intentionally falsify the truth, such person shall be deemed guilty of perjury, and if convicted be punished accordingly.**

Ssc. 39. _And be it further enacted,_ That the supervising inspectors appointed under the provisions of this act, shall, within their respective districts, under the direction of the secretary of the treasury, take the examination, or receive the statements in writing, of persons of practical knowledge and experience in the navigation of steam vessels, the construction and use of boilers, engines, machinery, and equipments, touching the form, material, and construction of engines and their appurtenances; the causes of the explosion of boilers and collapse of flues and the means of prevention; the kind and description of safety-valves, water and steam gauges or indicators; equipments for the extinguishment of fires, and for the preservation of life in case of accident, on board of such vessels, and all other means in use or proper to be adopted, for the better security of the lives of persons on board vessels propelled in whole or in part by steam; the advantages and disadvantages of the different descriptions of boilers, engines, and their appurtenances, safety-valves, water and steam gauges or indicators, equipments for the prevention or extinguishment of fires, and the preservation of life in case of accident, in use on board such vessels; whether any, and what further legislation is necessary or proper for the better security of the lives of persons on board such steam vessels; which examination and statements so taken and received shall be transmitted to the secretary of the treasury, at such time as he shall prescribe.\*\*

Ssc. 40. _And be it further enacted,_ That it shall be the duty of the secretary of the treasury to causb such interrogatories to be prepared and published as in his opinion may be proper to elicit the information contemplated by the preceding section, and upon the receipt of the examination and statements taken by the inspectors shall report the same to Congress, together with the recommendation of such further provisions as he may deem proper to be made for the better security of the lives of persons on board steam vessels.\*\*

Ssc. 41. _And be it further enacted,_ That all penalties imposed by this act may be recovered in an action of debt by any person who will sue therefor in any court of the United States.\*\*

Ssc. 42. _And be it further enacted,_ That this act shall not apply to public vessels of the United States or vessels of other countries; nor to steamers used as ferry-boats, tug-boats, towing-boats, nor to steamers not exceeding one hundred and fifty tons burden and used in whole or in part for navigating canals. The inspection and certificate required by this act shall in all cases of ocean steamers constructed under contract with the United States for the purpose, if desired, of being converted into warsteamers, be made by a chief engineer of the navy, to be detailed for that service by the secretary of the navy, and he shall report both to said secretary and to the supervising inspector of the district where he shall make any inspection.

Sec. 43. _And be it further enacted,_ That all such parts of this act as authorize the appointment and qualification of inspectors, and the licensing of engineers and pilots, shall take effect upon the passage thereof, and that all other parts of this act shall go into effect at the times and places as follows : In the districts of New Orleans, St. Louis, Louisville, Cincinnati, Wheeling, Pittsburgh, Nashville, Mobile, and Galveston, on the first day of January next, and in all other districts on the first day of March next.

Sec. 44. _And be it further enacted,_ That all parts of laws heretofore made, which are suspended by or are inconsistent with this act, are hereby repealed.

## ACT of 1852, Chapter Cxill (10 U. S. Stats. at Large, 140).

_An Act to establish certain Post-roads, and for other Purposes._

Sec. 5. _And be it further enacted,_ That no collector or other officer of the customs, shall permit any ship or vessel, arriving within any port or collection district of the United States, to make entry or break bulk until all letters on board the same shall be delivered into the post-office at or nearest said port or place, nor until the captain or commander of such ship or vessel shall have signed and sworn to a declaration before such collector or officer of the customs, in the form and to the effect following, that is to say :

"I, A. B., commander of the (state the name of the ship or vessel) arriving from (state the place), and now lying in the port of (state the name of the port), do, as required by law, solemnly swear (or affirm, as the case may be) that I have, to the best of my knowledge or belief, delivered or caused to be delivered into the post-office at or nearest said port, every letter and every bag, parcel, or package of letters that were on board the (state the name of the ship or vessel) during her last voyage, and that I have so delivered or caused to be delivered all such letters, bags, parcels, and packages as were in my possession or under my power or control."

And the collector and every officer of the customs at every port, without special instructions, and every special agent of the post-office department, when instructed by the postmaster-general to make examinations and seizures, shall carefully search every vessel for letters which may be

## Appendix A Appendix

on board, or have been carried or transported contrary to law ; and each and every of such officers and agents, and every marshal of the United States and his deputies, shall at all times have power to seize all letters, and packages, and parcels, containing letters which shall have been sent or conveyed contrary to law on board any ship or vessel, or on or over any post-route of the United States, and to convey such letters to the nearest post-office ; or may, if the postmaster-general and the secretary of the treasury shall so direct, detain the said letters, or any part thereof, until two months after the trial and final determination of all suits and proceedings which may at any time, within six months after such seizure, be brought against any person for sending, or carrying, or transporting any such letters contrary to any provisions of any act of Congress ; and one half of any penalties that may be recovered for the illegal sending, carrying, or transportation of any such letters shall be paid to the officer so seizing, and the other half to the use of the post-office department; and every package or parcel so seized, in which any letter shall be concealed, shall be forfeited to the United States, and the same proceedings may be had to enforce such forfeiture as are authorized in respect to good\[s\], wares, and merchandise forfeited by reason of any violation of the revenue laws of the United States ; and all laws for the benefit and protection of officers of the customs seizing goods, wares, or merchandise, for a violation of any revenue law of the United States, shall apply to the officers and agents making seizures by virtue of this act.

## A Appendix of 1859, Chapter IV. (10 U. S. Stats. at Large, 149).

_An Act authoring the Secretary of the Treasury to issue Registers to Vesels in certain cases._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That the secretary of the treasury be, and he hereby is, authorized to issue a register or enrolment for any vessel built in a foreign country, whenever such vessel may have been or shall hereafter be wrecked in the United States, and have been, or shall hereafter be, purchased and repaired by a citizen or citizens thereof: Provided,\_ That it shall be proved to the satisfaction of the secretary of the treasury that the repairs put upon such vessel shall be equal to three fourths of the cost of said vessel when so repaired.

APPENDIX.

ACT OF 1853, CHAPTER LXXX. (10 U. S. Stats. at Large, 168).

_Compensation to Seamen sent home as Witnesses._

There shall be paid to such seaman or other person as has been or shall be sent to the United States from any foreign port, station, sea, or ocean, by any United States minister, charge d'affaires, consul, commander, or captain, to give testimony in any criminal case which has been or may be depending in any court of the United States, such compensation as the court which had or shall have cognizance of the crime, shall adjudge to be right and proper, not to exceed one dollar for each day the said seaman or person has been or shall be necessarily on the voyage, and arriving at the place of examination or trial, exclusive of sustenance and transportation; the court to take into consideration, in fixing said compensation, the condition of said seaman or witness; whether his voyage has been broken up, to his injury, by his being sent to the United States, or not.

If the said seaman or person has been or shall be transported in an armed vessel of the United States, no charge for sustenance or transportation shall be made; if in any other vessel, the court may adjudge what compensation shall be paid to the captain of said vessel, and the same shall be paid accordingly: _Provided_, That in no case shall transportation and subsistence be allowed at a rate exceeding fifty cents per diem.

ACT OF 1853, CHAPTER XCVI. (10 U. S. Stats. at Large, 182).

_An Act to Supply Deficiencies in the Appropriations for the Service of the Fixed Year ending the district of June, one thousand eight hundred and fifty-three._

For expenses which may be incurred in acknowledging the services of the masters and crews of foreign vessels in rescuing American citizens and American vessels from shipwreck, two thousand dollars: _Provided_, That the money shall be expended under the direction of the President of the United States.

ACT OF 1855, CHAPTER CXXXIII. (10 U. S. Stats. at Large, 634).

_An Act to Remodel the Diplomatic and Consultar Systems of the United States._

Sec. 15. _And be it further enacted_, That no consul or commercial agent of the United States shall discharge any mariner, being a citizen

## Appendix.

of the United States, in a foreign port, without requiring the payment of the two months' wages to which said mariner is entitled under the provisions of the act of February twenty-eight, eighteen hundred and three, unless, upon due investigation into the circumstances under which the master and mariner have jointly applied for such discharge, and on a private examination of such mariner by the consul or commercial agent, separate and apart from all officers of the vessel, the consul or commercial agent shall be satisfied that it is for the interest and welfare of such mariner to be so discharged; nor shall any consul or commercial agent discharge any mariner as aforesaid without requiring the full amount of three months' wages, as provided by the above-named act, unless under such circumstances as will, in his judgment, secure the United States from all liability to expense on account of such mariner: _Provided_, That in the cases of stranded vessels, or vessels condemned as unfit for service, no payment of extra wages shall be required; and where any mariner, after his discharge, shall have incurred expense at the port of discharge before shipping again, such expense shall be paid out of the two months' wages aforesaid, and the balance only delivered to him.

Sec. 16. _And be it further enacted_, That every consul and commercial agent of the United States shall keep a detailed list of all mariners discharged by them respectively, specifying their names and the names of the vessels from which they were discharged, and the payments, if any,

- afterwards made on account of each, and shall make official returns of said lists half-yearly to the treasury department.

Sec. 17. _And be it further enacted_, That every consul and commercial agent of the United States shall make an official entry of every discharge which they may grant, respectively, on the list of the crew and shipping articles of the vessel from which such discharge shall be made, specifying the payment, if any, which has been required in each case; and if they shall have remitted the payment of the two months' wages to which the mariner is entitled, they shall also certify on said shipping list and articles that they have allowed the remission, upon the joint application of the master and mariner therefor, after a separate examination of the mariner, after a due investigation of all the circumstances, and after being satisfied that the discharge so allowed, without said payment, is for the interest and welfare of the mariner; and if they shall have remitted the payment of the one month's wages to which the United States is entitled, they shall certify that they have allowed the remission, after a due investigation of all the circumstances, and after being satisfied that they are such as will, in their judgment, secure the United States from all liability to expense on account of such mariner; and a copy of all such entries and certificates shall be annually transmitted to the treasury de-

VOL. I. 54partment by the proper officers of the customs in the several ports of the United States.

Sec. 18. _And be it further enacted_, That if any consul or commercial agent of the United States, upon discharging a mariner without requiring the payment of the one month's wages to which the United States is entitled, shall neglect to certify in the manner required in such case by the preceding section of this act, he shall be accountable to the treasury department for the sum so remitted. And in any action brought by a mariner to recover the extra wages to which he is entitled under the act of February twenty-eighth, eighteen hundred and three, the defence that the payment of such wages was duly remitted shall not be sustained without the production of the certificate in such case required by this act, or, when its non-production is accounted for, by the production of a certified copy thereof; and the truth of the facts certified to, and the propriety of the remission, shall be still open to investigation.

Sec. 19. _And be it further enacted_, That if, upon the application of any mariner, it shall appear to the consul or commercial agent that he is entitled to his discharge under any act of Congress, or according to the general principles of the maritime law as recognized in the United States, he shall discharge such mariner, and shall require of the master the payment of three months' wages, as provided in the act of February twenty-eighth, eighteen hundred and three, and shall not remit the same, or any part thereof, except in the cases mentioned in the proviso of the ninth clause of the first section of the act of July twentieth, eighteen hundred and forty, to the following effect : " If the consul or other commercial agent shall be satisfied the contract has expired, or the voyage been protracted by circumstances beyond the control of the master, and without any design on his part to violate the articles of shipment, then he may, if he deems it just, discharge the mariner without exacting the three months' additional pay."

Sec. 20. _And be it further enacted_, That every consul and commercial agent, for any neglect to perform the duties enjoined upon him by this act, shall be liable to any injured person for all damages occasioned thereby; and, for any violation of the provisions of the fifteenth and nineteenth sections of this act, shall also be liable to indictment, and to a penalty in the manner provided by the eighteenth clause of the first section of the act of July twentieth, eighteen hundred and forty.

APPENDIX.

ACT OF 1855, CHAPTER CCXIII. (10 U. S. Stats. at Large, 715).

_An Act to Regulate the Carriage of Passengers in Steambies and other Vessels._

Section 1. _Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That no "master of any vessel owned in whole or in part by a citizen of the United States, or by a citizen of any foreign country, shall take on board such vessel, at any foreign port or place other than foreign contiguous territory of the United States, a greater number of passengers than in proportion of one to every two tons of such vessel, not including children under the age of one year in the computation, and computing two children over one and under eight years of age as one passenger. That the spaces appropriated for the use of such passengers, and which shall not be occupied by stores or other goods, not the personal baggage of such passengers, shall be in the following proportions, viz.: On the main and pop ofocks or platforms, and in the deck houses, if there be any, one passenger for each sixteen clear superficial feet of deck, if the height or distance between the decks or platform shall not be less than six feet; and on the lower deck (not being an orlop deck), if any, one passenger for eighteen such clear superficial feet, if the height or distance between the decks or platforms shall not be less than six feet, but so as that no passenger shall be carried on any other deck or platform, nor upon any deck where the height or distance between decks is less than six feet, with intent to bring such passenger to the United States, and shall leave such port or place and bring the same, or any number thereof, within the jurisdiction of the United States; or if any such master of any vessel shall take on board his vessel, at any port or place within the jurisdiction of the United States, any greater number of passengers than in the proportion aforesaid, to the space aforesaid, or to the tonnage aforesaid, with intent to carry the same to any foreign port or place other than foreign contiguous territory as aforesaid, every such master shall be deemed guilty of a misdemeanor, and, upon conviction thereof, before any circuit or district court of the United States, shall, for each passenger taken on board beyond the limit aforesaid, or the space aforesaid, be lined in the sum of fifty dollars, and may also be imprisoned, at the discretion of the judge before whom the penalty shall be recovered, not exceeding six months; but should it be necessary, for the safety or convenience of the vessel, that any portion of her${}^{\\bullet}$ cargo, or any other articles or article, should be placed on, or stored in, any of the decks, cabins, or other places appropriated to the use of passengers, the same may be placed in lockers or enclosures prepared for the purpose, on an exterior surface impervious to the wave, capable of being cleansed in like manner as the decks or platforms of the

## Appendix.

**vessel.** In no case, however, shall the places thus provided be deemed to be a part of the space allowable for the use of passengers, but the same shall be deducted therefrom, and in all cases where prepared or used, the upper surface of said lockers on enclosed spaces shall be deemed and taken to be the deck or platform from which measurement shall be made for all the purposes of this act. It is also provided, that one hospital, in the spaces appropriated to passengers, and separate therefrom by an appropriate partition, and furnished as its purposes require, may be prepared, and, when used, may be included in the space allowable for passengers, but the same shall not occupy more than one hundred superficial feet of deck or platform : _Provided,_ That on board two-deck ships, where the height between the decks is seven and one half feet or more, fourteen clear superficial feet of deck shall be the proportion required for each passenger.

**Sec. 2.**_And be it further enacted,_ That no such vessel shall have more than two tiers of berths, and the interval, between the lowest part thereof and the deck or platform beneath, shall not be less than nine inches, and the berths shall be well constructed, parallel with the sides of the vessel, and separated from each other 'by partitions, as berths ordinarily are separated, and shall be at least six feet in length, and at least two feet in width, and each berth shall be occupied by no more than one passenger ; but double berths of twice the above width may be constructed, each berth to be occupied by no more, and by no other, than two women, or by one woman and two children under the age of eight years, or by husband and wife, or by a man and two of his own children under the age of eight years, or by two men, members of the same family ; and if there shall be any violation of this section in any of its provisions, then the master of the vessel, and the owners thereof, shall severally forfeit and pay the sum of five dollars for each passenger on board of said vessel on such voyage, to be recovered by the United States in any port, where such vessel may arrive or depart.

**Sec. 3.**_And be it further enacted,_ That all vessels, whether of the United States or any foreign country, having sufficient capacity or space, according to law, for fifty or more passengers (other than cabin passengers), shall, when employed in transporting such passengers between the United States and Europe, have, on the upper deck, for the use of such passengers, a house over the passage-way leading to the apartments allotted to such passengers below deck, firmly secured to the deck or combings of the hatch, with two doors, the sills of which shall be at least one foot above the deck, so constructed, that one door or window in such house may at all times be left 'open for ventilation; and all vessels so employed, and having the capacity to carry one hundred and fifty such passengers or more, shall have two such houses ; and the stairs or ladder,APPENDIX.

leading down to the aforesaid department, shall be furnished with a handrail of wood or strong rope; but booby hatches may be substituted for such houses.

Sec. 4. _And be it further enacted,_ That every such vessel so employed, and having the legal capacity for more than one hundred such passengers, shall have at least two ventilators to purify the apartment or apartments occupied by such passengers; one of wflich shall be inserted in the after part of the apartment or apartments, and the other shall be placed in the forward portion of the apartment or apartments, and one of them shall have an exhausting cap to carry off the foul air, and the other a receiving cap to carry down the fresh air; which said ventilators shall have a capacity proportioned to the size of the apartment or apartments to be purified, namely: if the apartment or apartments will lawfully authorize the reception of two hundred such passengers, the capacity of such ventilators shall each be equal to a tube of twelve inches diameter in the clear, and in proportion for larger or smaller apartments; and all said ventilators shall rise at least four feet six inches above the upper deck of any such vessel, and be of the most approved form and construction; but if it shall appear, from the report, to be made and approved, as hereinafter provided, that such vessel is equally well ventilated by any other means, such other means of ventilation shall be deemed and held to be a compliance with the provisions of this section.

Sec. 5. _And be it further enacted,_ That every vessel carrying more than fifty such passengers, shall have for their use on deck, housed and conveniently arranged, at least one camboose or cooking range, the dimensions of which shall be equal to four feet long and one foot six inches wide for every two hundred passengers; and provision shall be made in the manner aforesaid, in this ratio, for a greater or less number of passengers; but nothing herein contained shall take away the right to make such arrangements for cooking between decks, if that shall be deemed desirable.

Sec. 6. _And be it further enacted,_ That all vessels employed as aforesaid, shall have on board, for the use of such passengers, at the time of leaving the last port whence such vessel shall sail, well secured under deck, for each passenger, at least twenty pounds of good navy bread, fifteen pounds of rice, fifteen pounds of oatmeal, ten pounds of wheat flour, fifteen pounds of peas and beans, twenty pounds of potatoes, one pint of vinegar, sixty gallons of fresh water, ten pounds of salted pork, and ten pounds of salt beef, free of bone, all to be of good quality; but at places where either rice, oatmeal, wheat flour, or peas and beans cannot be procured, of good quality and on reasonable terms, the quantity of either or any of the other last-named articles may be increased and sub-64

## Appendix.

cause the deck, occupied by such passengers, to be cleansed with chloride of lime, or some other equally efficient disinfecting agent, and also at such other times as said captain may deem necessary.

Sec. 8. _And be it further enacted_, That the master and owner or owners of any such vessel so employed, which shall not be provided with the house or houses over the passage-ways, as prescribed in the third section of this chapter, or with ventilators as prescribed in the fourth section of this chapter, or with the cambooses or cooking ranges, with the houses over them, as prescribed in the fifth section of this chapter, shall severally forfeit and pay to the United States the sum of two hundred dollars for each and every violation of, or neglect to conform to, the provisions of each of said sections, and fifty dollars for each and every neglect or violation of any of the provisions of the seventh section of this chapter, to be recovered by suit in any circuit or district court of the United States within the jurisdiction of which the said vessel may arrive, or from which she may be about to depart, or at any place within the jurisdiction of such courts, wherever the owner or owners, or captain of such vessel may be found.

Sec. 9. _And be it further enacted_, That the collector of the customs at any port of the United States, at which any vessel so employed shall arrive, or from which any such vessel shall be about to depart, shall appoint and direct one or more of the inspectors of the customs for such port, to examine such vessel, and report in writing to such collector, whether the requirements of law have been complied with in respect to such vessel; and if such report shall state such compliance, and shall be approved by such collector, it shall be deemed and held as _primal facie_ evidence thereof.

Sec. 10. _And be it further enacted_, That the provisions, requisitions, penalties, and liens of this act, relating to the space in vessels appropriated to the use of passengers, are hereby extended and made applicable to all spaces appropriated to the use of steerage passengers in vessels propelled 'in whole or in part by steam, and navigating from, to, and between the ports, and in manner as in this act named, and to such vessels and to the masters thereof; and so much of the act entitled " An act to amend an act entitled an act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam, and for other purposes," approved August thirtieth, eighteen hundred and fifty-two, as conflicts with this act, is hereby repealed; and the space appropriated to the use of steerage passengers in vessels so as above propelled and navigated, is hereby subject to the supervision and inspection of the collector of the customs at any port of the United States at which any such vessel shall arrive, or from which she shall be about to depart; and the same shall be examined and reported in the same manner and
APPENDIX.

by the same officers by the next preceding section directed to examine and report.

Sec. 11. _And be it further enacted_, That the vessels bound from any port in the United States to any port or place in the Pacific Ocean, or on its tributaries, or from any such port or place to any port in the United States on the Atlantic or its tributaries, shall be subject to the foregoing provisions regulating the carriage of passengers in merchant vessels, except so much as relates to provisions and water; but the owners and masters of all such vessels shall in all cases furnish to each passenger the daily supply of water therein mentioned; and they shall furnish a sufficient supply of good and wholesome food, properly cooked; and in case they shall fail so to do, or shall provide unwholesome or unsuitable provisions, they shall be subject to the penalty provided in the sixth section of this chapter, in case the passengers are put on short allowance of water or provisions.

Sec. 12. _And be it further enacted_, That the captain or master of any ship or vessel arriving in the United States, or any of the territories thereof, from any foreign place whatever, at the same time that he delivers a manifest of the cargo, and if there be no cargo, then at the time of making report or entry of the ship or vessel, pursuant to law, shall also deliver and report to the collector of the district in which such ship or vessel shall arrive, a list or manifest of all the passengers taken on board of the said ship or vessel at any foreign port or place; in which list or manifest it shall be the duty of the said master to designate particularly the age, sex, and occupation of the said passengers respectively, the part of the vessel occupied by each during the voyage, the country to which they severally belong, and that of which it is their intention to become inhabitants; and shall further set forth whether any and what number have died on the voyage; which list or manifest shall be sworn to by the said master, in the same manner as directed by law in relation to the manifest of the cargo; and the refusal or neglect of the master aforesaid to comply with the provisions of this section, or any part thereof, shall incur the same penalties, disabilities, and forfeitures as are provided for a refusal or neglect to report and deliver a manifest of the cargo aforesaid.

Sec. 13. _And be it further enacted_, That each and every collector of the customs, to whom such manifest or list of passengers as aforesaid shall be delivered, shall quarter-yearly return copies thereof to the secretary of state of the United States, by whom statements of the same shall be laid before congress at each and every session.

Sec. 14. _And be it further enacted_, That in case there shall have occur-red on board any ship or vessel arriving at any port or place within the United States or its territories, any death or deaths among the passengers APPENDIX. 645 (other than cabin passengers), the master, or captain, or owner, or consignee of such ship or vessel, shall, within twenty-four hours after the time within which the report and list or manifest of passengers mentioned in section twelve of this act, is required to be delivered to the collector of the customs, pay to the said collector the sum of ten dollars for each and every passenger above the age of eight years, who shall have died on the voyage by natural disease; and the said collector shall pay the money thus received, at such times and in such manner as the secretary of the treasury, by general rules, shall direct, to any board or commission appointed by and acting under the authority of the State within which the port where such ship or vessel arrived is situated, for the care and protection of sick, indigent, or destitute emigrants, to be applied to the objects of their appointment; and if there be more than one board or commission who shall claim such payment, the secretary of the treasury, for the time being, shall determine which is entitled to receive the same, and his decision in the premises shall be final and without appeal: _Provided_, That the payment shall, in no case, be awarded or made to any board, or commission, or association, formed for the protection or advancement of any particular class of emigrants, or emigrants of any particular nation or creed; and if the master, captain, owner, or consignee of any ship or vessel, refuse or neglect to pay to the collector the sum and sums of money required, and within the time prescribed by this section, he or they shall severally forfeit and pay the sum of fifty dollars, in addition to such sum of ten dollars, for each and every passenger upon whose death the same has become payable, to be recovered by the United States, in any circuit or district court of the United States where such vessel may arrive, or such master, captain, owner, or consignee may reside; and when recovered, the said money shall be disposed of in the same manner as is directed with respect to the sum and sums required to be paid to the collector of customs.

Sec. 15. _And be it further enacted_, That the amount of the several penalties imposed by the foregoing provisions regulating the carriage of passengers in merchant vessels, shall be liens on the vessel or vessels violating those provisions, and such vessel or vessels shall be libelled therefore in any circuit or district court of the United States, where such vessel or vessels shall arrive.

Sec. 16. _And be it further enacted_, That all and every vessel or vessels which shall or may be employed by the American Colonization Society or the colonization society of any State, to transport, and which shall actually transport, from any port or ports of the United States to any colony or colonies on the west coast of Africa, colored emigrants, to reside there, shall be, and the same are hereby, subjected to the operation of the by the same officers by the next preceding section directed to examine and report.

Sec. 11. _And be it further enacted_, That the vessels bound from any port in the United States to any port or place in the Pacific Ocean, or on its tributaries, or from any such port or place to any port in the United States on the Atlantic or its tributaries, shall be subject to the foregoing provisions regulating the carriage of passengers in merchant vessels, except so much as relates to provisions and water; but the owners and masters of all such vessels shall in all cases furnish to each passenger the daily supply of water therein mentioned; and they shall furnish a sufficient supply of good and wholesome food, properly cooked; and in case they shall fail so to do, or shall provide unwholesome or unsuitable provisions, they shall be subject to the penalty provided in the sixth section of this chapter, in case the passengers are put on short allowance of water or provisions.

Sec. 12. _And be it further enacted_, That the captain or master of any ship or vessel arriving in the United States, or any of the territories thereof, from any foreign place whatever, at the same time that he delivers a manifest of the cargo, and if there be no cargo, then at the time of making report or entry of the ship or vessel, pursuant to law, shall also deliver and report to the collector of the district in which such ship or vessel shall arrive, a list or manifest of all the passengers taken on board of the said ship or vessel at any foreign port or place; in which list or manifest it shall be the duty of the said master to designate particularly the age, sex, and occupation of the said passengers respectively, the part of the vessel occupied by each during the voyage, the country to which they severally belong, and that of which it is their intention to become inhabitants; and shall further set forth whether any and what number have died on the voyage; which list or manifest shall be sworn to by the said master, in the same manner as directed by law in relation to the manifest of the cargo; and the refusal or neglect of the master aforesaid to comply with the provisions of this section, or any part thereof, shall incur the same penalties, disabilities, and forfeitures as are provided for a refusal or neglect to report and deliver a manifest of the cargo aforesaid.

Sec. 13. _And be it further enacted_, That each and every collector of the customs, to whom such manifest or list of passengers as aforesaid shall be delivered, shall quarter-yearly return copies thereof to the secretary of state of the United States, by whom statements of the same shall be laid before congress at each and every session.

Sec. 14. _And be it further enacted_, That in case there shall have occurred on board any ship or vessel arriving at any port or place within the United States or its territories, any death or deaths among the passengers APPENDIX. 645 (other than cabin passengers), the master, or captain, or owner, or consignee of such ship or vessel, shall, within twenty-four hours after the time within which the report and list or manifest of passengers mentioned in section twelve of this act, is required to be delivered to the collector of the customs, pay to the said collector the sum of ten dollars for each and every passenger above the age of eight years, who shall have died on the voyage by natural disease; and the said collector shall pay the money thus received, at such times and in such manner as the secretary of the treasury, by general rules, shall direct, to any board or commission appointed by and acting under the authority of the State within which the port where such ship or vessel arrived is situated, for the care and protection of sick, indigent, or destitute emigrants, to be applied to the objects of their appointment; and if there be more than one board or commission who shall claim such payment, the secretary of the treasury, for the time being, shall determine which is entitled to receive the same, and his decision in the premises shall be final and without appeal: _Provided_, That the payment shall, in no case, be awarded or made to any board, or commission, or association, formed for the protection or advancement of any particular class of emigrants, or emigrants of any particular nation or cred; and if the master, captain, owner, or consignee of any ship or vessel, refuse or neglect to pay to the collector the sum and sums of money required, and within the time prescribed by this section, he or they shall severally forfeit and pay the sum of fifty dollars, in addition to such sum of ten dollars, for each and every passenger upon whose death the same has become payable, to be recovered by the United States, in any circuit or district court of the United States where such vessel may arrive, or such master, captain, owner, or consignee may reside; and when recovered, the said money shall be disposed of in the same manner as is directed with respect to the sum and sums required to be paid to the collector of customs. Sec. 15. _And be it further enacted_, That the amount of the several penalties imposed by the foregoing provisions regulating the carriage of passengers in merchant vessels, shall be liens on the vessel or vessels violating those provisions, and such vessel or vessels shall be libelled therefore in any circuit or district court of the United States, where such vessel or vessels shall arrive. Sec. 16. _And be it further enacted_, That all and every vessel or vessels which shall or may be employed by the American Colonization Society or the colonization society of any State, to transport, and which shall actually transport, from any port or ports of the United States to any colony or colonies on the west coast of Africa, colored emigrants, to reside there, shall be, and the same are hereby, subjected to the operation of the foregoing provisions, regulating the carriage of passengers in merchant vessels.

Sec. 17. _And be it further enacted_, That the collector of the customs shall examine each emigrant ship or vessel, on its arrival at his port, and ascertain and report to the secretary of the treasury the time of sailing, the length of the voyage, the ventilation, the number of passengers, their space on board, their food, the native country of the emigrants, the number of deaths, the age and sex of those who died during the voyage; together with his opinion of the cause of the mortality, if any, on board, and, if none, what precautionary measures, arrangements, or habits are supposed to have had any, and what agency in causing the exemption.

Sec. 18. _And be it further enacted_, That this act shall take effect, with respect to vessels sailing from ports in the United States on the eastern side of the continent, within thirty days from the time of its approval; and with respect to vessels sailing from ports in the United States on the western side of the continent, and from ports in Europe, within sixty days from the time of its approval; and with respect to vessels sailing from ports in other parts of the world, within six months from the time of its approval.

And it is hereby made the duty of the secretary of state to give notice, in the ports of Europe, and elsewhere, of this act, in such manner as he shall deem proper.

Sec. 19. _And be it further enacted_, That from atd after the time that this act shall take effect with respect to any vessels, then, in respect to such vessels, the act of second March, eighteen hundred and nineteen, entitled " An act regulating passenger ships and vessels," the act of twenty-second of February, eighteen hundred and forty-seven, entitled " An act to regulate the carriage of passengers in merchant vessels;" the act of second March, eighteen hundred and forty-seven, entitled " An act to amend an act entitled " An act to regulate the carriage of passengers in merchant vessels,' and to determine the time when said act shall take effect;" the act of thirty-first January, eighteen hundred and forty-eight, entitled " An act exempting vessels employed by the American Colonization Society in transporting colored emigrants from the United States to the coast of Africa from the provisions of the acts of the twenty-second February and second of March, eighteen hundred and forty-seven, regulating the carriage of passengers in merchant vessels;" the act of seventeenth May, eighteen hundred and forty-eight, entitled " An act to provide for the ventilation of passenger vessels, and for other purposes;" and the act of third March, eighteen hundred and forty-nine, entitled " An act to extend the provisions of all laws now in force relating to the carriage of passengers in merchant vessels, and the regulation thereof," are hereby APPENDIX. 647

repeled. But nothing in this act contained shall in anywise obstruct or prevent the prosecution, recovery, distribution, or remission of any fines, penalties, or forfeitures, which may have been incurred in respect to any vessels prior to the day this act goes into effect, in respect to such vessels, under the laws hereby repealed, for which purpose the said laws shall continue in force.

But the secretary of the treasury may, in his discretion, and upon such conditions as he shall think proper, discontinue any such prosecutions, or remit or modify such penalties.

ACT OF 1856, CHAPTER BY. (11 U. S. Stats. at Large, 1).

_An Act authorizing the Secretary of the Treasury to change the Names of Vesels in certain Causes._

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,_ That the secretary of the treasury be, and hereby is, authorized to permit the owner or owners of any vessel to change the name of the same, when, in his opinion, there shall be sufficient cause for so doing; and he may establish such rules and regulations as he shall deem proper for that purpose.\_

ACT OF 1856, CHAPTER CXXVII. (11 U. S. Stats. at Large, 59).

_An Act to Regulate the Diplomatic and Consult Systems of the United States, and to provide for the Discharge and Description of Season._

Sec. 20. _And be it further enacted,_ That the compensation provided by this act shall be in full for all the services and personal expenses which shall be rendered or incurred by the officers or persons respectively for whom such compensation is provided, of whatever nature or kind such services or personal expenses may be, or by whatever treaty, law, or instructions such services or personal expenses so rendered or incurred are or shall be required; and no allowance, other than such as is provided by this act, shall be made in any case for the outfit or return home of any such officer or person; and no consumer officer shall, nor shall any person under any consular officer, make any charge or receive, directly or indirectly, any compensation, by way of commission or otherwise, for receiving or disbursing the wages or extra wages to which any seaman or mariner shall be entitled who shall be discharged in any foreign country, or for any money advanced to any such seaman or mariner who shall seek relief from any consulate or commercial agency; nor shall any consular officer, or any person under any consular officer, be interested, directly or indi

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rectly, in any profit derived from clothing, boarding, or otherwise supplying or sending home any such seaman or mariner: _Provided_, That such prohibition as to profit shall not be construed to relieve or prevent any such officer who shall be the owner or otherwise interested in any ship or vessel of the United States, from transporting in such ship or vessel any such seaman or mariner, or from receiving or being interested in such reasonable allowance as may be made for such transportation, under and by virtue of the fourth section of the act, entitled " An act supplementary to the act concerning consuls and vice-consuls, and for the further protection of American seamen," approved February twenty-eighth, eighteen hundred and three.

Sec. 25. _And be it further enacted_, That whenever any seaman or mariner of any vessel of the United States shall desert such vessel, the master or commander of such vessel' shall note the fact and date of such description on the list of the crew, and the same shall be officially authenticated at the port or place of the consulate or commercial agency first visited by such vessel after such desertion, if such desertion shall have occurred in a foreign country, or if in such case such vessel shall not visit any place where there shall be any consulate or commercial agency before her return to the United States, or the desertion shall have occurred in this country, the fact and time of such desertion shall be officially authenticated before a notary-public immediately at the first port or place where such vessel shall arrive after such desertion; and all wages that may be due to such seaman or mariner, and whatever interest he may have in the cargo of such vessel, shall be forfeited to and become the property of the United States, and paid over for their use to the collector of the port where the crew of such vessel are accounted for as soon as the same can be ascertained; first deducting therefrom any expense which may necessarily have been incurred on account of such vessel in consequence of such desertion; and in settling the account of such wages or interest no allowance or deduction shall be made except for moneys actually paid, or goods at a fair price supplied, or expenses incurred to, or for such seaman or mariner, any receipt or voucher from, or arrangement with such seaman or mariner, to the contrary notwithstanding.

Sec. 26. _And be it further enacted_, That upon the application of any seaman or mariner for a discharge, if it shall appear to the consular officer that he is entitled to his discharge under any act of Congress, or according to the general principles or usages of maritime law, as recognized in the United States, he shall discharge such seaman or mariner, and shall require from the master or commander of the ship or vessel from which such discharge shall be made, the payment of three months' extra wages, as provided by the act hereinbefore mentioned, approved February twenty-eight, eighteen hundred and three; and it shall be the duty ofAPPENDIX. 649

such master or commander to pay the same, and no such payment or any part thereof shall be remitted in any case, except such as are mentioned in the proviso of the ninth clause of the act, entitled " An act in addition to the several acts regulating the shipment and discharge of seamen and the duties of consuls," approved July twentieth, eighteen hundred and forty, and as hereinafter provided, and the extra wages required to be paid by the said ninth clause of the last hereinbefore mentioned act, and by this section, shall be applicable to the same purposes and in the same manner as is directed by the said act approved .February twenty-eight, eighteen hundred and three, in regard to the extra wages required to be paid thereby ; and if any consular officer, when discharging any seaman or mariner, shall neglect to require the payment of and collect the extra wages required to be paid in the case of the discharge of any seaman or mariner, by either of the said acts, as far as they shall remain in force under this act or by this act, he shall be accountable to the United States for the full amount of their share of such wages, and to such seaman or mariner to the full amount of his share thereof; and if any seaman or mariner shall, after his discharge, have incurred any expense for board or other necessaries at the port or place of his discharge before shipping again, such expense shall be paid out of the share of the three months' wages to which he shall be entitled, which shall be retained for that purpose, and the balance only paid over to him : _Provided, however,_ That in cases of wrecked or stranded ships or vessels, or ships or vessels con-demed as unfit for service, no payment of extra wages shall be required.

Sec. 27. _And be it further enacted,_ That every consular officer shall keep a detailed list of all seamen and marinners shipped and discharged by him, specifying their names and the names of the vessels on and from which they shall be shipped and discharged, and the payments, if any, made on account of each so discharged, and also of the number of the vessels arrived and departed, and the amounts of their registered tonnage, and the number of their seamen and mariners, and of those who are protected, and whether citizens of the United States or not, and as nearly as possible the nature and value of their cargoes, and where produced, and make returns of the same, with their accounts and other returns, to the secretary of the treasury ; and no consular officer shall certify any invoice unless he shall be satisfied that the person making the oath or affirmation thereto is the person he represents himself to be, that he is a credible person, and that the statements made under such oath or affirmation are true ; and he shall, thereupon, by his certificate, state that he was so satisfied; and it shall be the duty of every consular officer to furnish to the secretary of the treasury, as often as shall be required, the prices current of all articles of merchandise usually exported to the United States from the port or place in which he shall be located.

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\*\*SEC. 4. Upon the expiration of the term of office of any commissioner or commissioners, or within thirty days prior thereto, and upon any vacancy occurring by death, resignation, removal from the State, or other cause, another election for the term of two years shall be made by the same class of persons, or authority, as that which made the election to the office so expiring or becoming vacant.\*\*SEC. 5. Each commissioner, before entering upon the duties of his office, shall take the usual oath of office before an officer authorized to administer oaths, which oath or affirmation shall be filed without delay in the office of the clerk of the city and county of New York.\*\*SEC. 6. The commissioners shall appoint a secretary, who shall take a like oath, to be filed in like manner as provided in section five, and they may remove him at any time and appoint another, and shall prescribe his duties and compensation.\*\*SEC. 7. The board shall establish an office in some convenient and proper place in the city of New York, where the commissioners shall meet on the first Tuesday of every month, and as much offener by adjournment, or upon a notice given by any one of them, or by the secretary, as circumstances may require.\*\*SEC. 8. The commissioners shall require their secretary in person, or by deputy, to be in daily attendance at their office on all ordinary business days, during the reasonable office hours, and shall cause to be kept by him a proper book or books, in which shall be written all the rules and regulations made by them, and all their official transactions and proceedings, and whatever else may be deemed by them proper and useful, and immediately pertaining to their duties or to the pilot service. They shall cause to be kept, by their secretary, a register of the names and places of residence of all the pilots who may be licensed by virtue of this act, with the dates of their licenses respectively, and such books may be inspected by any person interested.\*\*SEC. 9. The commissioners, or a majority of them, shall, with all convenient speed, proceed to license for such term as they may think proper, so many pilots as they may deem necessary for the port of New York; and such commissioners may specify in such licenses, different degrees of qualifications, appropriate to different parts or branches of duty, according to the competency of the applicant. No license shall be granted to any person holding any license or authority from or under the authority or laws of any other State; and the said commissioners, or a majority of them, shall have the power and authority to revoke and annul the license of any person so licensed by them to act as a pilot, who shall not be attached to a boat approved by said board, or who shall be guilty of any intoxication or other misconoduct while on duty.\*\*SEC. 10. It shall be the duty of the said commissioners, before theyAPPENDIX. 653 shall grant a license to any person applying therefor, to act as a pilot in pursuance of this act, within one week thereafter, to call such applicant before them, and in presence of one or more of the pilots of the said port, licensed to pilot vessels to and from the said port by the way of Sandy Hook, who shall be notified to attend for the purpose, and who are hereby required to attend and assist in such examination ; or in case of the non-attendance of the pilot or pilots who shall be so notified to attend for that purpose, then without the presence or assistance of any licensed pilot, to examine or cause to be examined, such applicant, touching his qualifications for the office of a pilot, and in particular touching his knowledge of the sailing and management of a square rigged vessel, and also touching his knowledge of the tides, soundings, bearing and distance of the several shoals, rocks, bars, and points of land, and night lights in the navigation for which he applies for a license to act as a pilot, and touching any other matter relating thereto, which the said commissioners may think proper. And if, upon examination, the person so applying shall be found to be of good moral character and temperate habits, and to be possessed of sufficient ability, skill, and experience to act as a pilot, and not otherwise, the said commissioners may grant him a license for piloting vessels to and from the port of New York by way of Sandy Hook.

Sec. 11. The commissioners, before granting licenses, shall require all pilots to enter into recognizance to the people of this State, with two sureties, to be approved by such commissioners, or a majority of them, each in a penalty not exceeding five hundred dollars, conditioned that the pilot shall diligently and faithfully perform his duties as pilot, and observe the rules and regulations and decisions of the board ; and every such recognizance shall be prosecuted in the name of the people of the State of New York, by or in behalf of the commissioners, provided a majority of them shall so instruct, and if any amount be collected in such suit, it shall be paid to the said commissioners, and they may direct the same to be applied for purposes as expressed in section twenty-two.

Sec. 12. The said commissioners shall have the power to regulate the stationing of pilot boats, for the purpose of receiving pilots from outward bound vessels; and may alter or amend any existing regulations for pilots, and make and duly promulgate and enforce new rules or regulations, not inconsistent with the laws of this State or of the United States, which shall be binding and effectual upon all pilots licensed by them, and upon all parties employing such pilots. They may declare and enforce for-features of pilotage upon any mismanagement or neglect of duty by the pilots licensed by them ; they may declare and impose and collect fines and penalties not exceeding two hundred and fifty dollars, for each offence ; to prevent any of the pilots licensed by them from combining injuriously 55 \*

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with each other, or with other persons, and to prevent any person licensed by them from acting as a pilot during his suspension, or after his license may be revoked : and the said commissioners may establish and enforce all other needful rules and regulations for the conduct and government of the pilots licensed by them, and the parties employing them ; and they may enforce and receive accounts of all moneys collected for pilotage, by the pilots licensed by them, and may impose and collect from such pilots a sum not exceeding three per cent on the amount thereof, to defray their necessary expenses, including clerk hire and office rent.

Sec. 13. The fees for pilotage are hereby established as follows :

For every merchant vessel, inward bound, and not exempted from pilotage by virtue of these regulations, drawing less than fourteen feet of water, two dollars and forty-four cents per foot.

For every,vessel drawing fourteen feet, and less than eighteen feet of water, three dollars and six and one-quarter cents per foot.

For every vessel drawing eighteen feet, and, under twenty-one feet of water, three dollars and thirty-nine cents per foot.

For every vessel drawing twenty-one feet of water, and upwards, four dollars and thirty-one and a quarter cents per foot.

If the masters or owners of any vessel shall request the pilot to moor said vessel at any place within Sandy Hook, and not to be taken to the what or harbor of New York, or the vessel to be detained at quarantine, the same pilotage shall be allowed, and the pilot entitled to his discharge.

For piloting national armed vessels of the United States, and also those of foreign nations, five dollars per foot.

When any ship or vessel, bound to the port of New York, and boarded by any pilot appointed by this board, at such distance to the southward or eastward of Sandy Hook lighthouse, as that said lighthouse could not be seen from the deck of such ship or vessel in the daytime, and in fair weather, the addition of one fourth to the rates of pilotage herein before mentioned shall be allowed to such pilot.

Sec. 14. The pilotage on merchant vessels, outward, shall be as follows :

For every vessel drawing less than fourteen feet of water, one dollar and eighty-one cents per foot.

For every vessel drawing fourteen feet, and less than eighteen feet of water, two dollars and twelve and a half cents per foot.

For every vessel drawing eighteen feet, and less than twenty-one feet of water, two dollars and seventy-five cents per foot.

For every vessel drawing twenty-one feet and upwards, three dollars .and eighteen and three fourth cents per foot.

Sec. 15. The rates of pilotage for any intermediate distance, shall beAPPENDIX. 655

determined by the board of commissioners, and promulgated in their rules and regulations for the government of pilots.

Szc. 16. Between the first day of November and the first day of April inclusive, four dollars shall be added to the full pilotage of every vessel coming into or going out of the port of New York.

Szc. 17. For every day of detention in the harbor of an outward bound vessel, after the services of a pilot have been required and given, except detention shall be caused by such adverse winds and weather that the vessel cannot get to sea; and for every day of detention of an inward bound vessel by ice longer than two days for passage from sea to wharf, three dollars shall be added to the pilotage. If any pilot shall be detained at quarantine, or elsewhere, by the health officer, for being or having been on board a sickly vessel, as pilot, the master, owner, or agent, or consignee of such vessel shall pay to such pilot all necessary expenses of living, and three dollars per day for each and every day of such detention.

Szc. 18. The pilotage shall be payable by the master, owner, consignee, or agent entering or clearing the vessel at the port of New York, who shall be jointly and severally liable therefor.

Szc. 19. A pilot who is carried to sea when a boat is attending to receive him, shall receive at the rate of one hundred dollars a month during his necessary absence.

Szc. 20. Masters of vessels shall give an account to the pilot when boarding, of the draught of such vessels, and in case the draught given is less than the actual draught, he shall forfeit the sum of twenty-five dollars, which may be sued for and recovered by the commissioners, as is hereinafter provided in section twenty-seven, in respect to other fines and penalties.

Szc. 21. For services rendered by pilots in moving or transporting vessels in the harbor of New York, the following shall be the fees :

For moving from North to East River, or _vice versa_, if a seventy-four gun ship, twenty dollars; if a sloop of war, ten dollars; if a merchant vessel, five dollars, except such vessel shall have arrived from sea, or is ready for and bound to sea, on the day such services for transportation are rendered; but if the services are rendered thereafter, such payment shall be made.

For moving any vessel from the quarantine to the city of New York, one quarter of the sum that would be due for the inward pilotage of such vessel.

For hauling any vessel from the river to a wharf, or from a wharf into the river, three dollars, except on the day of arrival or departure of such vessel.

Szc. 22. It shall be the duty of the commissioners, out of any funds 656 APPENDIX.

which may be obtained, to provide rewards, to encourage the prompt relief of disabled vessels, and the speedy report of the same, and generally to encourage not only the energetic performance of duty, but benevolent and praiseworthy efforts to relieve vessels and passengers from distress or suffering.

Sec. 28. The commissioners shall have power and authority, at any time, to suspend any pilot so licensed, for any period they may think proper, and also to revoke and annual any license which shall have been granted, upon satisfactory proof of negligence or carelessness on the part of such pilot, or of wilful dereliction of duty, or of wilful disobedience of any lawful rule or regulation duly made and promulgated by said commissioners; but the pilot or pilots so suspended may, at any time, upon due notice, appeal to the commissioners for a rehearing of their case; and the commissioners shall have power to confirm or reverse the previous act or decision of the said board.

Sec. 24. It shall be the duty of the commissioners to hear and examine all complaints duly made in writing against any pilot licensed by them, or against any person connected with a boat of such pilot, for any misbehavior or neglect of duty, or breach of their rules or regulations, that shall appear to them material to be investigated; and also all complaints made in like manner by any licensed pilot against any master, owner, or seaman of a vessel, for any misbehavior towards such pilot in the performance of his duty, or any breach of such rules or regulations.

Sec. 25. Before any person shall be proceeded against on any complaint, and before any pilot be suspended longer than for one month, or be removed, such person or pilot shall be notified in writing, signed by the secretary, to appear before the commissioners, specifying the nature and substance of such complaint, which notice shall be served personally, at least five days before the time fixed for appearance, and the commissioners, for just cause, shall postpone or adjourn the hearing from time to time; a certificate of such commissioners, or of a majority of them, with proof of such service or notice, shall be _prind facie,_ but not conclusive evidence that the party upon whom the notice was served, and a fine or penalty thereupon imposed, is liable to pay such fine or penalty.

Sec. 26. The secretary, under the supervision of the commissioners, shall, at the instance either of the complaining or defending party, issue subpenas for compelling the attendance of witnesses to testify before the commissioners, in all cases in which the power to hear and examine is conferred by this act; and it shall be the duty of the commissioners to examine all such witnesses on oath, to be administered by them, as shall appear to them to give material testimony, and each person subpenased as a witness, shall be entitled to the like compensation from the party re APPENDIX. 657

quiring his attendance, and be subject to the like penalties and punishments for disobedience, or for false swearing, as in civil suit at law in the court of record.

'Sec. 27. All pecuniary fines or penalties imposed by the said commissioners, by virtue of this act, may be \_s_ued for in the name of the "Board of Commissioners of Pilots," and the notice and certificate given as afore-said, may be set forth in pleading, without setting forth other facts or circumstances. The decision of a majority of the commissioners shall be conclusive upon all questions arising under this act, except as herein before provided. In case of an omission to fill any vacancy in the board of commissioners for one month, the remaining two or three commissioners (as the case may be) shall have authority to perform all the duties of the commissioners for the time being.

Sec. 28. It shall be the duty of the secretary and his clerks, if any, when not employed under the foregoing provisions of this act, to aid the licensed pilots in keeping their accounts of pilotage, and in collecting the same, if desired, and in keeping a register of calls for pilots.

Sec. 29. No master of a vessel under three hundred tons burden, belonging to a citizen of the United States, and licensed and employed in the coasting trade by the way of Sandy Hook, shall be required to employ a licensed pilot, but in case the services of a pilot shall have been given, the pilot shall be entitled to the rates established. If the master of any vessel above three hundred tons burden, and owned by a citizen of the United States, and sailing under a coasting license to or from the port of New York by the way of Sandy Hook, shall be desirous of piloting his own vessel, he shall first obtain a license for such purpose from the commissioners of pilots, who are hereby authorized and required to grant the same, if such master shall, after an examination had by said commissioners, be deemed competent; which said license shall be and continue in force one year from the date thereof, or until the termination of any voyage, during which the license may expire. For such license, the master, to whom it shall be granted, shall pay to the said commissioners four cents per ton. All masters of foreign vessels and vessels from a foreign port, and all vessels sailing under register, bound to or from the port of New York by the way of Sandy Hook, shall take a licensed pilot; or, in case of refusal to take such pilot; shall himself, owners, or consignees, pay the said pilotage as if one had been employed; and such pilotage shall be paid to the pilot first speaking or offering his services as pilot to such vessel.

Any person not holding a license as pilot under this act, or under the laws of the State of New Jersey, who shall pilot or offer to pilot any ship or vessel to or from the port of New York by the way of Sandy Hook, except such as are exempt by virtue of this act, or any master or person
658

APPENDIX.

on board a steam tug or tow boat, who shall tow such vessel or vessels, without such licensed pilot on board such vessel or vessels, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding one hundred dollars, or imprisonment not exceeding sixty days; and all persons employing a person to act as pilot not holding a license under this act, or under the laws of the State of New Jersey, shall forfeit and pay to the board of commissioners of pilots the sum of one hundred dollars.

The provisions of this act shall not apply to vessels propelled wholly or in part by steam, owned or belonging to citizens of the United States, and licensed and engaged in the coasting trade.

Sec. 30. This act shall not repeal, or in any way affect, the provisions of an act entitled "An act concerning the pilots of the channel of the East River, commonly called 'Hell Gate,' passed April 15, 1847.

Sec. 31. All laws now in force, and which are inconsistent with the provisions of this act, are hereby repealed.

April 24, 1857.

B Y - LAWS.

1st. The officers of the board shall be a president and secretary, to be chosen annually on the first Tuesday in August.

2d. The president shall preside at the meetings of the board, and his duties shall be to conduct the examination of candidates for the office of pilot, sign licenses when granted, and exercise a general supervision over the office. In the absence of the president, a chairman _pro tem._ shall be appointed, whose duties shall be the same.

3d. The duties of the secretary shall be as provided for in sections 8 and 28.

4th. The meetings shall be as provided for in section 7.

5th. The charge for licenses shall be one dollar for the first issue, and twenty-five cents for renewal.

6th. The pilots shall pay two and a half per cent. on the gross amount of pilotage, which sum shall be paid to the secretary of the board within one month from the time said pilotage was earned -- and any pilot not so paying shall forfeit his license.

7th: The pilots shall report to the secretary, either verbally or in writing, as soon as practicable, all vessels piloted by them, with the amount received for their services, under a penalty of ten dollars for each offence.

8th. The boats shall keep station at or near the Hook, alternately, for four days each, and in accordance with a list to be made out by the sec APPENDIX. 659

retary. When on station the boat shall have a conspicuous signal at the masthead. It shall be the duty of the boat on station to render every necessary aid for taking out and receiving pilots from outward bound vessels, and give every facility for sending said pilots to the city of New York or quarantine.

In case a pilot is carried off to sea in consequence of the non-attendance of the station boat, except by unavoidable accident, the company of said boat shall pay to him at the rate of one hundred dollars per month during his necessary absence.

The boat on station shall remain until relieved; and any boat not being in time to take her station, shall pay to the boat not relieved twenty-five dollars per day, and shall likewise have added to her station the time she is absent.

Signal -- Jack at the foremost head.

9th. All boats shall have conspicuous numbers in their sails -- said numbers to be designated by the commissioners.

10th. No pilot shall, by any unfair means, take a vessel from another pilot.

11th. No boat shall put a boy or other person than a licensed pilot on board a vessel, for the purpose of piloting said vessel, under a penalty of fifty dollars and the amount of pilotage -- said sum to be paid by the owners of the boat to the commissioners, and to be applied as directed in section 22. This shall not apply to vessels in distress, providing the masters of such vessels are willing to employ the services of such boy or person.

12th. All matters in relation to apprentices shall be left to the commissioners, both as to their number, time of service, &c., &c.

13th. There shall be a register kept in the office of all boat keepers. Boat keepers serving the longest time in one boat shall, when an appointment is to be made, have the preference -- said time not to be less than three years. Any boat keeper leaving one boat and going to another, without good and sufficient cause, shall lose all the privileges he may have of becoming a pilot.

14th. The names of all persons applying for license to pilot, shall be posted up in some conspicuous place in the office of the commissioners, at least thirty days before any examination shall be had. And any person having any complaint to make against an applicant, shall make the same in writing, giving his reasons therefor, the same to be open to inspection.

15th. Pilots are required to board the nearest, vessel having a signal flying for a pilot, except in case there should be a vessel in sight with a signal of distress, under a penalty of fifty dollars.

16th. Every licensed pilot shall be attached to a pilot boat; no pilot shall remain unattached for more than thirty days, without permission from the commissioners. Any pilot neglecting or refusing to join a pilot

## Appendix

**boat within ten days after due notice shall have been given him to join a boat, shall, unless satisfactory reasons are given for the non-compliance of the order, be find the sum of ten dollars, or be suspended for such time as the commissioners shall deem proper, or have their licenses revoked, at the option of the commissioners.**

**17th. Pilots are required to transport a vessel to any part of the port of New York, when applied to, under a penalty of twenty-five dollars, such service to be paid for as per section 21 of the law.**

**18th. No master of a pilot boat shall carry to sea on her station, or be in any way aiding or assisting in putting on board any ship or vessel, for the purpose of piloting or conducting her, any person not licensed, or whose license, as a pilot, shall have been suspended or withdrawn by the commissioners, or shall not have been renewed. If any such person shall be received on board a pilot boat, the pilot or pilots receiving him on board shall, for every offence, forfeit and pay the sum of twenty-five dollars each; and for a second or subsequent offence, the pilot or pilots shall be liable to suspension or forfeiture of his or their license or licenses, at the discretion of the commissioners.**

**19th. The pilotage ground of the port of New York shall be deemed to be west of a line drawn in the shortest direction from Fire Island light to that of Barnegat light, which line will run S. W. 1 1 S., and N. E. 1 1 N., and that west of that line vessels subject to pilotage must take the first pilot offering his services, or pay the pilotage.**

**20th. A pilot, whilst on his business as a pilot, found guilty of using abusive or insulting language, or guilty of threatening conduct, shall be suspended, or have his license revoked, as the commissioners may adjudge.**

**21st. Pilotage for taking vessels from the old to the new quarantine: For vessels having had death or sickness on board, double outward pilotage.**

**For vessels from sickly ports, but having had no sickness on board, single outward pilotage.**

**Pilotage of vessels from new quarantine to New York, half inward pilotage.**

**22d. Vessels from sea, boarded inside of the outer buoy of the Bar, and any intermediate distance below the narrows shall pay half pilotage. If boarded above the narrows, one quarter pilotage.**

**This section has no reference to section 21.**

\*\*22d. No pilotage except the regular inward pilotage shall be allowed when vessels are detained from the non-visiting of the health officer.\*\*APPENDIX.

RATES OF PILOTAGE FROM APRIL 1st TO NOVEMBER 1st.

InvARD.

Off

Opr-

Total.

WARD.

Opr-

Total.

WARD.

6 h. o in.

64 64 83 66 68 18 30 86 16 h. o in.

549 00 51 25 56 25 834 00
6 6 15 86 3 96 19 82 11 76 16 6 50 53 12 63 63 16 35 06
7 0 17 04 47 21 35 12 67 17 0 52 06 13 01 65 07 36 12
7 6 18 30 4 57 29 87 13 58 17 6 53 59 13 40 66 99 37 19
8 0 19 52 4 88 24 40 14 48 18 0 6 64 2 16 60 83 02 49 50
8\. 6 20 74 5 18 25 92 15 38 18 6 6 68 26 17 60 85 32 50 88
9 0 21 96 5 49 27 45 16 29 19 0 70 11 17 53 87 64 52 25
9 6 23 18 5 79 28 97 17 19 6 7 19 89 89 54 53 62
10 0 24 40 6 10 30 50 18 10 20 0 73 80 18 45 92 25 55 00
11 0 25 62 6 40 32 02 19 0 20 6 75 64 18 91 94 55 56 57
11 0 26 84 6 71 33 55 19 91 21 0 90 56 22 64 113 20 66 94
12 0 29 28 7 32 36 60 21 22 0 94 87 23 72 118 89 70 12
12 6 30 50 7 62 38 12 22 62 2 6 97 03 24 26 121 29 71 71
13 0 31 72 7 93 39 65 23 53 23 0 99 19 24 80 123 99 73 31
14 6 32 94 8 28 41 17 24 44 23 6 9 101 34 25 38 126 67 14 90
14 0 48 38 10 72 53 60 29 75 24 0 103 50 25 87 129 37 76 50
14 6 44 41 11 55 51 30 81 24 6 105 66 26 41 132 07 78 09
15 0 45 94 11 48 57 42 31 88 25 0 107 81 26 95 134 76 79 69
15 6 47 47 11 87 59 34 32 94
662 APPERDIT.

GENERAL REGULATIONS

FOR PILOTAGE IN THE COMMONwealth OF MASSachusettsSETTS.

_The following are the Rules and Regulations for Pilotage in the State of Massachusetts, Reported by the Commissioners of Plots, and Approved by the Governor and Council :--_

1. No person not holding a commission as pilot (excepting those actually employed on board of the vessel for the voyage), shall in any case exercise the duties of a pilot on board of any vessel within the waters of this Commonwealth, whether said vessel is liable to compulsory pilotage or not, provided a commissioned pilot offers his services, or can be obtained at a reasonable time, under a penalty of not less than twenty, and not exceeding fifty dollars for each and every offence. All commissions shall be revocable at the pleasure of the commissioners.

1. If at any time the bond of any pilot shall appear to be insufficient, a new one will be required by the commissioners.

1. No vessel shall be liable to pilotage in or out of any port other than her ports of departure and destination. But if the aid of a pilot be required, the pilot shall be bound to do the duty, and entitled to the regular compensation therefor.

1. Every vessel inward bound, excepting the vessels provided for in section nineteenth, shall receive the first pilot holding a commission, for her port of destination that may offer his services, and shall be holden to pay to such pilot, the regular fees for pilotage, whether his services be accepted or not. Outward bound vessels in all cases are requested to give a preference to the pilot, who may have brought said vessel into port, or to a pilot from the same boat.

1. It shall be the duty of every pilot to first board vessels (irrespective of size) having signals set for a pilot. When there are no signals to be seen, then the pilots are to offer their services to the first vessel which they can board ; and in case any vessel liable to pilotage should refuse to take a pilot, it shall be the duty of the pilot to inform said vessel that she will be holden to pay the regular fees for pilotage, whether his services are accepted or not.

1. Every pilot shall exhibit his commission when required, to the master of any vessel of which he may take charge.

APPENDIX. 669

7. No pilot shall take charge of any vessel drawing more water than his commission authorizes, under penalty of suspension or dismission.

1. Every pilot shall be liable, together with his bondsmen, for all damages that may accrere from his negligence, unskilfulness, or unfaithfulness.

1. Every pilot shall make out and forward to the commissioners his quarterly return, within the first fifteen days of October, January, April, and July ; any neglect of said returns and the settlement thereof, will be ground for suspension or dismission.

1. The period during which winter rates of pilotage shall be allowed, shall be uniformly from November 1 to April 80 inclusive; summer rates from May 1 to October 81 inclusive, for all the ports of the Commonwealth.

1. The hull and appurtenances of every vessel shall be liable for all legal claims on account of pilotage, either rendered or offered, for the space of sixty days.

1. All pilots shall anchor vessels carrying alien passengers, or vessels subject to quarantine at the places assigned for such purpose by the proper authorities, under penalty of suspension or dismission, as well as of the fines by law provided for neglect thereof.

1. All disputes between pilots in relation to their rights, privileges, and duties with each other, shall be referred to, and settled by three master pilots, to be chosen by the parties for that purpose, to be adjusted and settled according to the regulations and the laws, subject, nevertheless, to reversal or modification by the commissioners.

1. Whenever any vessel shall be anchored, under the regulations for quarantine, or alien passengers, for twelve. hours or over, the pilot in charge shall be entitled to twenty-five per cent. in addition to the ordinary fees, by afterwards piloting the vessel to her port of destination.

1. Any pilot who shall be unable to leave a vessel under his charge and be carried to sea, without any negligence or fault of his own, or his associates, shall be entitled to two dollars per day, while necessarily absent from home.

1. All passenger steam vessels, regulated by the laws of the United States, and carrying a pilot commissioned by United States commissioners, are exempt from the compulsory payment of pilotage.

1. All national vessels, both inward and outward, shall pay in all ports in the Commonwealth when they shall employ a pilot, four dollars per foot for fifteen feet or less draught of water, and five dollars per foot for over fifteen feet draught of water.

1. Every regularly appointed pilot is authorized and directed to take charge of any vessels within the limits of his commission, except fishing

### 664 APPENDIX.

vessels (not including whaling vessels), all single-decked vessels of three hundred and fifty tons or under, sailing under a coasting license, and all other vessels bound from a port within this State, to another port within this State, unless such vessel shall be in the completion of a voyage from a port or place without the State, and steam vessels as per regulation, No. 17.1

Footnote 1: The regulation referred to should be No. 16, which was numbered 17 in the old rules.

19. Vessels of two hundred tons burden and under and liable to pay pilotage, declining the services of a pilot, shall henceforth be liable only for one half of the regular pilotage fees. And, also, vessels of less than seven feet draught of water shall be exempt from compulsory pilotage, in all ports in the Commonwealth.

01. The regulations and rates of pilotage, for all ports, not named in the following port regulations, shall be such as the commissioners may prescribe. .

01. It shall be the duty of all pilots to give immediate information to the pilot commissioners, of the decease or insolvency of any person who may be surety on their bond, under a penalty of two hundred dollars.

01. The statute of 1855, chapter 421, section 5, provides that in all cases, six per cent. upon the amount of all pilotage fees shall be collected by pilots and paid over to the commissioners. Pilots and masters or agents of vessels will govern themselves accordingly.

## 7 Regulations

FOR THE PHOTAGE OF THE HEAROR OF BOSTON, AND ALL PLACES OR LANDINGS ACCENNELL TO VESSESS FROM SEL, INCLUD WITH THIS THIS OF ALIGHT ROCK ON THE NORTH, AND POST ALDEARYON ON THE SOUTEL.

There shall be not less than six pilot boats constantly employed by the Boston pilots; each boat shall have a number, which shall be painted in black figures of not less than forty-eight inches in length, in the minimal and jib; the numbers of boats and crews of said boats to be regulated by the commissioners.

Each boat shall have a first and second master, who are required to see that all the pilot regulations are strictly conformed to; any non-performance of duty, or insubordination on the part of any pilot, upon the complaint of any master, will receive prompt investigation by the commissioners.

Each one of the pilot boats employed for the harbor of Boston, inAPPENDIX.

alternate weeks, and in the order of their numbers, commencing with No. 1 on Monday, 13th December, 1858, at 12 o'clock, noon; shall cruise on a station at the entrance of Boston harbor, outside of Boston light, and within the limits of a line drawn from Minot's Ledge to Nahant Head; and the boat on said station shall at all times show the established pilot boat signal, and shall by day and by night, at all times, remain on said station whenever the weather does not-render it impracticable, and be on the lookout for vessels approaching Boston harbor, and shall at all times be furnished with pilots without leaving her station, and shall offer the services of a pilot to all vessels entering said harbor in accordance with the fifth general regulation, and she shall receive on board pilots from outward bound vessels, and render to them all the facilities for their return to the city of Boston, which is consistent with their duty. The station boat shall not leave said station until relieved by another boat, and if the boat next in turn for said station shall at any time be unnecessarily absent from said station, the pilots on board of said boat at the time shall collectively be liable to a penalty not exceeding two hundred dollars, the amount and apportionment of which shall be decided by the commissioners, and the pilot or pilots so offending shall be liable to immediate suspension or dismissal from the pilot service at the discretion of the commissioners, but in case of accident or casualty rendering it impossible for said boat to be on her station, the fact shall be immediately reported to the commissioners, who may order any other boat to take said station, and remain until relieved, said boat being subject to the same liabilities after receiving said order, as though it was her regular turn. In case of a want of pilots at any time on board of the station boat to supply the demand of inward bound vessels, pilots taken on board from outward bound vessels may with the consent of the master of the station boat go on board of inward bound vessels, but no pilot shall board an inward bound vessel except from the boat to which he belongs without such permission.

It shall be the duty of every pilot, after having brought a vessel to the inner harbor of Boston, to have such vessel 'properly moored in the stream, or secured to a wharf (below the bridges), at the option of the master, within twenty-four hours-after arrival, weather and tide permitting, without extra charge.

If any vessel outward bound, having a pilot on board, should anchor in Nantasket Roads, it shall be the duty of the pilot to remain on board said vessel, if requested by the master, until the next high-water, and if obtained after that time, he shall be entitled to receive three dollars per day for each and every day so detained.

No pilot shall leave a vessel outward bound, until to the eastward of George's Island, without permission of the master of said vessel.

APPENDIX.

Every pilot is required to perform his full share of the duties of an inward, as well as outward pilot, unless prevented by sickness, or causes satisfactory to the commissioners.

RATES OF PILOTAGE OUTWARD, FOR THE POTY OF BOSTOR.

From November 1 to April 80, inclusive.

From May 1 to October 81, inclusive.

7 feet per foot 95 cts. 7 feet per foot 80 cts.

8 " " " " 8 " " " 80

24 " " 4 25 24 " " 5 50

25 " " " 5 00 25 " " " 4 00

All national vessels of 15 feet or less dranght of water, $4 pea foot.

" " " " over 15 " " " " " 85 " -

RATES OF PILOTAGE INWARD, FOR THE POTY OF BOSTOR.

From November 1 to April 80 inclusive.

From May 1 to October 81, inclusive.

7 feet per foot 81 50 7 feet per foot 81 20

8 " " " 1 50 8 " " 1 20

9 " " " 1 55 9 " " 1 30

10 " " 1 60 10 " " 1 35

11 " " 1 75 11 " " 1 40

12 " " 1 80 12 " " 1 45

13 " " 1 85 13 " " 1 50

14 " " 1 90 14 " 1 155

All national vessels of 15 feet or less dranght of water, $4 pea foot.

" " " " over 15 " " " " " " 85 "

Any commissioned pilot that shall offer his services to any vessel bound into the harbor of Boston, without or eastward of a line drawn from Monument Land, Plymouth, to Thatcher's Island, Cape Ann, from the first day of November to the thirtieth day of April inclusive, shall be entitled to receive twenty per cent. in addition to the foregoing rates.

APPENDIX. 667

The fees for hauling a vessel from the stream to a wharf (below the bridges), after the expiration of twenty-four hours from arrival, shall be four dollars; and for hauling a vessel from the wharf to the stream, provided the vessel does not proceed to sea within twenty-four hours from the time of anchoring, four dollars.

If any commissioned pilot offers himself to any inward bound vessel liable to take a pilot, outside of a line drawn from Harding's Rocks to the Graves and Bass Point, and the master of the vessel should refuse to take such pilot on board, the master or owner of such vessel or either of them, shall be liable to such pilot for the regular pilotage, as if his services had been accepted.

Not less than three pilot boats shall at all times cruise in Boston Bay outside of the limits prescribed for the station-boat.

Every commissioned pilot for Boston Bay shall be attached to a pilot boat, and no pilot shall remain unattached for more than thirty days, without permission from the commissioners. Any pilot neglecting or refusing to join a pilot boat for ten days after being duly notified to join one, unless satisfactory reasons are given for noneompliance shall be liable to suspension, or to have his commission revoked at the option of the commissioners.

No pilot shall take charge of any vessel of a larger draught of water than his commission authorizes, nor shall any other person, not having a commission, be put on board of any vessel from either of the pilot boats, in the capacity of pilot. But in the event of the master of any vessel taking on board an unauthorized person to assist him in going into port, the person so taken shall state the circumstances to the master of said vessel, and keep the usual signal flying for a pilot until within a line from the Harding's Rocks to the Graves and Bass Point, and shall give the vessel up to any authorized pilot who may offer himself.

Any vessel inward bound, requiring the services of a pilot when inside of a line drawn from Boston Light-house to Point Alderton in the 'Light-house Channel, or when abreast of or inside of the outer Brewster Island, in Broad Sound, shall be liable only to two thirds of the established rates of pilotage, and if outward bound from Nantasket or President Roads, half pilotage rates only.

Any commissioned pilot for the harbor of Boston, that may be found mating or combining, or in any way interested with any other pilot in the business of pilotage, except with those 'pilots belonging to the same boat with himself, shall be liable to forfeit his commission:

The established pilot signal by day, is a white and blue flag, white next to the mast, and in the night a red light.

In the division of earnings of any pilot boat among the crew, the following allowance shall be made to those pilots holding a commission for a limited draught of water:
**APPENDIX.**

**For a commission for 10 feet drangth of water 1 of a share.**

_"_ _"_ _"_ _"_ _"_ _"_"\_ APPENDIX. 669

Point to Noman's Land, to the ports herein named, shall be as follows, namely: Into Tarpaulin Cove, one dollar and fifty cents per foot, Wood's Hole, Falmouth Port, and Holmes' Hole, one dollar and seventy-five cents per foot. Into Edgartown and Hyannis, two dollars per foot; and to the Bar of Nantucket harbor, two dollars and twenty-five cents per foot. And into any other ports on the south coast of Barnstable county or on the Vineyard Sound, one dollar and seventy-five cents per foot.

The outward rates of pilotage from all the above-named ports and from the Bar of Nantucket harbor, if taken westward past Gay Head, shall be three fourths of the above, and the outward and inward rates shall be increased by twenty per cent. for all piloting done between the first day of November and the thirtieth day of April inclusive.

The rates for piloting vessels into any of the above-named ports, and to the Bar of Nantucket harbor, from any point east of a line drawn from Saugkonnet Point to Noman's Land, and between said line and a line drawn due south from Tarpaulin Cove Light-house, shall be twenty-five per cent. less than the above-named rates; and if said pilot is taken east of a line drawn due south from Tarpaulin Cove Light-house, fifty per cent. shall be deducted from said specified rates; and in case the master then declines taking a pilot, said pilot offering shall be entitled to one quarter pilotage, agreeably to these regulations; and if no pilot shall have offered his services before passing a line drawn from the West Chop Light-house to the Nobaka Light-house, there shall be no obligation on the part of the master or owner to pay pilotage, if the master shall then decline receiving a pilot.

The rates of pilotage for vessels coming from the eastward bound to the aforesaid ports, shall be from east of a line drawn due north from Nantucket Great Point Light-house to the Bar of Nantucket, one dollar and fifty cents per foot of said vessel's dranght. Into Edgartown and Hyannis, one dollar and seventy-five cents per foot. Into Holmes' Hole, Falmouth Port, and Wood's Hole, two dollars per foot; and into all other ports on the south coast of Barnstable county or on the Vineyard Sound, one dollar and seventy-five cents per foot; and from west of said line drawn due north from Great Point Light-house, twenty-five per cent. less than the foregoing. The outward rates, when passing to sea to eastward of Nantucket Shoals, shall be three fourths of the inward rates, and both outward and inward rates shall be increased by twenty-five per cent. for all pilotage done between the first of November and the thirtieth of April, inclusive.

The rates of pilotage from one port to another on the Vineyard Sound, including the south coast of Barnstable county, and from the said ports to the Bar of Nantucket harbor, and _vice versa_, shall be uniformly one dollar and twenty-five cents per foot, and twenty-five per cent. additional for all pilotage done between the first day of November and the thirtieth day of April, inclusive. And for pilotage inward or outward over the Bar of Nantucket harbor only, at all seasons of the year, one dollar per foot.

Any person holding a commission as pilot for Nantucket Shoals, is authorized to pilot vessels from any part of the Vineyard Sound, Nantucket Shoals, and ports bordering on the waters of the same, to the harbor pilots' limits of any port in Buzzard's Bay or ports west of said bay, at the following rates of pilotage : From any point east of a line drawn due north from Cape Poge, at two dollars per foot of such vessel's draught, and if taken westward of said line, drawn due north from Cape Poge, one dollar and fifty cents per foot ; and if no port pilot offers his services, with the consent of the master, they may proceed with said vessel to her destination, and claim the whole amount of pilotage. Provided, however, that no vessel passing through the waters of the Vineyard Sound, or over the Nantucket Shoals to ports beyond them, shall be holden to pay compulsor,? pilotage. But in no case shall an unauthorized pilot take charge of any vessel when a commissioned pilot can be obtained at a proper time. Pilots holding commissions for Vineyard Sound and Nantucket Shoals, who may have piloted a vessel over said shoals, whose destination is a port in Barnstable or Boston Bay, or eastward thereof, on arrival at the port of her destination, and no harbor pilot offering his services, may with the consent of the master (but not otherwise) pilot such vessel into her port of destination, and receive the regular port pilot fees therefor.

Pilots especially commissioned for the purpose, shall be authorized to pilot vessels from sea, which are bound into the ports of New Bedford and Fairhaven to abreast of Clark's Point Light-house, and to the port pilot limits of other ports in Buzzard's Bay (or westward thereof), and if no port pilot offers his services, they may, with the consent of the master or owner, proceed with such vessel to her port of destination, and claim the full amount of pilotage.

The rates of pilotage from sea for vessels bound into the ports of New Bedford and Fairhaven to abreast of Clark's Point Light-house, shall be one dollar and ninety cents per foot, and from abreast of Clark's Point Light-house to the inner harbors of New Bedford and Fairhaven, thirty-five cents per foot, and twenty per cent. additional to the sea or bay pilotage, from the first day of November to the thirtieth day of April, when a pilot offers his services or is taken west of a line drawn from Saugkonnet Point to the south point of Noman's Land.

The outward rates of pilotage, from the ports of New Bedford and Fairhaven, to abreast of Clark's Point Light-house, shall be thirty-five cents per foot from abreast of Clark's Point Light-house, to sea, one dollar and fifty cents per foot.

## Appendix.

Vessels bound into other ports (than New Bedford and Fairhaven) in Buzzard's Bay, and ports west of said bay, are exempt from paying compulsory bay pilotage, when coming from sea from westward to the port pilot limits of the several ports, but if a pilot is employed, he shall be entitled to receive two dollars per foot, and if no port pilot offers his services, he may, with the consent of the master or owner, conduct said vessel to the port of her destination, and claim the whole amount of pilotage.

The rates of port or harbor pilotage for all the different ports bordering on Buzzard's Bay, and to the westward thereof, excepting New Bedford and Fairhaven, shall be for vessels inward bound drawing less than twelve feet of water, one dollar per foot, for those drawing from twelve to fifteen feet of water inclusive, one dollar and thirty cents per foot, for those drawing more than fifteen, and not more than eighteen feet of water, two dollars per foot, and for those drawing over eighteen feet of water, two dollars and fifty cents per foot, and the rates of pilotage for vessels outward bound from said ports, shall be three quarters of said inward rates, and both outward and inward rates shall be increased by twenty per cent. for all pilotage done between the first day of November and the thirtieth day of April inclusive.

## REGULATIONS and FES

Of PHOIAG, APPICARLE TO THE FOLLOWING HARROAS, MAXELT: PROVINGETOVN, PLIMOUTN, NEWWURTROT, GLOCRESTER, ROCKT, LANE's COVE, ANNIGQAN, SALEM AND BEVERLY, MARBLSHEAD, TAURON RIVER, AND MERHACK RIVER AND HARROAS, DOREGETERER AND NEKONNET, HINGHAM, WEYNOUTE AND QUINGT, LYN, MISTIC AND CHARLES RIVERS.

The rates of pilotage, for all vessels liable to pay pilotage, bound into the harbor of Provincetown, if taken south of a line drawn due west from Race Point Light-house, or between that and a line drawn due south from Wood End Bar, shall be for vessels drawing less than twelve feet of water, one dollar per foot, for those drawing from twelve to fifteen feet of water, inclusive, one dollar and thirty cents per foot, for those drawing more than fifteen feet, and not more than eighteen feet of water, two dollars per foot, for those drawing more than eighteen feet and not more than twenty-one feet of water, two dollars and fifty cents per foot, for those drawing more than twenty-one feet, and not more than twenty-five feet of water, three dollars and fifty cents per foot, and no more. But no vessel shall be liable to pay compulsory pilotage, if the services of a pilot are refused after passing a line drawn due south from Wood End

**672**APPENDIX.

**Bar. And the outward rates of pilotage shall be three fourths the amount of said inward rates.**

PLTMOUTH.

**The rates of pilotage for vessels liable to pay pilotage bound into the harbor of Plymouth, shall be one dollar per foot. Vessels arriving inside of the Gurnet, and no pilot previously offering his services, are exempt from compulsory pilotage, if a pilot's services are then refused. Rate of pilotage outward seventy-five cents per foot.**

NEWBUTRPORT.

**The rates of pilotage for vessels liable to pay pilotage bound into or out of the harbor of Newburyport, shall be for outward bound vessels, from .seven to twelve feet draught of water, sixty-five cents per foot; from twelve to fifteen feet, inclusive, eighty-five cents per foot; upwards of fifteen feet, one dollar and five cents per foot. The summer rates of pilotage for inward bound vessels drawing from seven to under twelve feet, ninety-five cents per foot; from twelve to fifteen feet inclusive, one dollar and fourty-five cents per foot; over fifteen feet, one dollar and sixty cents per foot. The winter rates of pilotage for inward bound vessels drawing from seven to twelve feet of water, one dollar and twenty-five cents per foot; from twelve to fifteen feet, inclusive, one dollar and sixty-five cents per foot; over fifteen feet, two dollars and ten cents per foot.**

**The district limits of the port of Newburyport, shall be from Chebacco Bar on the south, to the Isle of Shoals on the north. Vessels not spoken until within the bar, shall pay only half pilotage; if not spoken until and within the Black Rocks, shall pay no compulsory pilotage.**

**The pilots of Newburyport will be required to keep one or more good decked boats, and one boat shall be upon the cruising ground at all times when the weather will permit.**

ROCKPORT, LAKE's COVE, AND ANNISQUAM.

**The rates of pilotage shall be for vessels under twelve feet draught of water, seventy-five cents per foot; of twelve to fifteen feet inclusive, one dollar per foot; over fifteen feet, one dollar and fifty cents per foot.**

**The inward and outward rates shall be the same.**

GLOUCESTER.

\*\*The rates of pilotage, for vessels liable to pay pilotage, bound into the harbor of Gloucester, shall be for vessels drawing less than twelve feet of water, one dollar per foot, for those drawing from twelve to fifteen feetAPPENDIX.

of water, inclusive, one dollar and thirty cents per foot, for those drawing more than fifteen feet, and not more than eighteen feet of water, two dollars per foot, for those drawing more than eighteen feet, and not more than twenty-one feet of water, two dollars and fifty cents per foot ; for those drawing more than twenty-one feet, and not more than twenty-five feet of water, three dollars and fifty cents per foot, and no more. The harbor line shall be a line drawn from Norman's Weo to Dog Bar Buoy, off Eastern Point, within which line there shall be no compulsory inward pilotage. The pilots of Gloucester will be required to keep at least one decked boat, and said boat or boats shall be upon the cruising ground at all times when the weather will permit. The pilotage on vessels outward bound, shall be three fourths of the inward rates.

SALEMAND BEYERLT.

The pilots for the ports of Salem and Beverly, shall keep one or more good decked boats, and shall cruise for the purpose of bringing vessels into said ports, whenever the weather does not render it impracticable.

The harbor lines of the port of Salem and Beverly, shall be a line running north by east from Halfway Rock to the northern shore, and a line running north-westerly from Halfway Rock to Marblehead Fort, within which lines there shall be no compulsory inward pilotage. The rates for pilotage both for inward and outward bound vessels shall be as follows, namely : for vessels drawing less than nine feet of water, ninety-five cents per foot ; for nine feet and less than eleven feet, one dollar and ten cents per foot ; for eleven feet and less than thirteen feet, one dollar and thirty cents per foot ; for thirteen feet and less than fifteen feet, one dollar and fifty cents per foot ; for fifteen feet and less than seventeen feet, one dollar and seventy-five cents per foot ; for seventeen feet and upwards, one dollar and ninety-five cents per foot.

Any Salem and Beverly pilot having brought a vessel in, shall have such vessel properly moored in the harbor, or secured at the wharf, at the option of master, within twelve hours after the arrival of said vessel, if the weather permits, without extra charge. But if called upon after the expiration of the twelve hours, to haul any vessel into the wharf, the pilot shall be entitled to receive two dollars for his services, and the same sum for taking a vessel from the wharf into the harbor, if said vessel shall not proceed to sea within twelve hours from the time of her being anchored in the harbor. The signal for the pilot boats for the ports of Salem and Beverly shall be their accustomed signal by day, namely : a red flag with a white P, and a black ball painted on the upper part of mainsail and jib, and by night a green light.

VOL. L. 57

**APPENDIX.**

**MABBLEBARD.**

The rates of pilotage for vessels 'liable to pay pilotage, bound into the harbor of Marblehead, shall be for vessels drawing from seven to eleven feet of water, sixty-seven cents per foot; from twelve to fourteen feet, ninety cents per foot; from fifteen to seventeen feet, one dollar and twenty cents per foot; eighteen feet and upwards, one dollar and sixty cents per foot.

The harbor limits of Marblehead shall be bounded by a line drawn from the south point of the Neck to Marblehead Rock, thence to Cat Island Rock, and thence westerly to Gerry's Island. Within this line there shall be no compulsory inward pilotage. The outward rates shall be the same as the inward.

**TAUTONRIVER.**

The pilotage for Taunton River shall not be compulsory. When the services of a pilot are required, the rates of pilotage on all vessels piloted from Fall River to Somerset, drawing not over twenty feet of water, two dollars. From Fall River to Dighton, on vessels drawing twelve feet of water, seven dollars; eleven feet, six dollars and fifty cents; ten feet, six dollars; nine feet, five dollars and fifty cents; eight feet, five dollars; under eight feet, four dollars. From Somerset to Dighton and Berkley, fifty cents per foot for vessels drawing from eight to twelve feet of water; under eight feet, three dollars per vessel. The downward pilotage from the aforesaid places, shall be one half of the upward rates.

**MEERIMACKIVER AND HARBOKS.**

The pilotage on the Merrimack River, between Newburryport and Haverhill shall not be compulsory. When the services of a pilot are required, the rates of pilotage authorized by the commissioners shall be between Newburryport and ship yards at Bellville, thirty cents per foot; between Newburryport and Salisbury, fifty cents per foot; between Newburryport and Amesbury, sixty-two and one half cents per foot; between Newburryport and Groveland, eighty-seven and one half cents per foot; between Newburryport and Haverhill, one dollar per foot.

**DOREISTER AND NEPONSET.**

The pilotage for the several landing-places in the towns of Dorchester and Neponset, shall not be compulsory. When the services of a pilot are required, and are offered outside of a line drawn from the wharf on Thompson's Island in a direct line to Dorchester Point, the rates of pilotage authorized by the commissioners shall be, namely, to CommercialAPPENDIX. 675

Point, thirty cents per foot; to Neponset, forty cents per foot. The inward and outward rates to be the same.

HINGHAX, WETMOUTH, AND QUINCY.

The pilotage for the several landing-places in the towns of Hingham, Weymouth, and Quincy, below the bridges, shall not be compulsory. When the services of a pilot are required, and are offered outside of a line drawn from Nantasket Point to the east point of Pettick's Island, from thence a line drawn to the north-west point of said Petitick's Island, from thence in a line to Sunk Island, from Sunk Island in a direct line to Hangman's Island. The rates of pilotage authorized by the commissioners shall be, namely, to Hingham fifty cents per foot, for vessels . drawing ten feet and under, eleven and twelve feet, sixty cents per foot. To Weymouth, or Braintree to Quincy Point, ten feet and under, fifty cents per foot; eleven and twelve feet, sixty cents per foot; thirteen feet, seventy-five cents per foot; fourteen feet, one dollar per foot; fifteen .feet, one dollar and ten cents per foot; sixteen feet, one dollar and twenty-five cents per foot; to East Weymouth, ten feet and under, sixty cents per foot; eleven feet, sixty-five cents per foot; twelve feet, seventy cents per foot; thirteen feet, eighty-five cents per foot; fourteen feet, one dollar and twenty-five cents per foot. The inward and outward rates to be the same.

LTNN.

The pilotage for the harbor of Lynn, shall not be compulsory. When the services of a pilot are required, the rates of pilotage authorized by the commissioners shall be, namely : To Lynn, on vessels drawing twelve feet or less of water, three dollars per vessel; to West Lynn, three dollars per vessel. Up the river through bridges, four dollars per vessel. The outward rates shall be one half of said inward rates.

MSTSTO RIVER.

The pilotage for Mystic River shall not be compulsory. When the services of a pilot are required, the rates of pilotage authorized by the commissioners shall be, namely : From outside of Chelsea Bridge in Boston Harbor to Charlestown Neck or Malden Bridge, thirty-five cents per foot; to South Malden, fifty cents per foot ; from Malden Bridge or either of the Railroad Bridges to Medford, Malden, or Edgeworth, five dollars per vessel. The upward and downward rates to be the same.

CHARLES RIVER.

The pilotage on the Charles River, from outside of Charlestown

## Appendix

bridge, in Boston harbor, shall not be compulsory. When the services of a pilot are required, the rates of pilotage authorized by the commissioners shall be,

_From outside of Charlestown Bridge, in Boston Harbor to Fitchberg Railroad Wharf, namely :_

10 feet and under . .

APPENDIX. 677

RULES AND REGULATIONS FOR THE GOVERnment OF PILOTS.

REVISED AND ADDITED BY THE ROARD OF SUPERVISING INSPROTS, OCTOBER 17 187; AND TO TAKE NEFRET FROM AND AITER JANUARY 1, 1868.

In compliance with the provisions of the 29th section of Act of Congress, entitled " As Act to amend an Act entitled an Act to provide for the better security of the Lions of Passengers on board of Veessels propelled in whole or in part by Steam, and for other purposes," ap: proved August 30, 1852.

All Pilots of Steamers navigating Seas, Gulfs, Lakes, Bays, or Rivers (except rivers emptying into the Gulf of Mexico, and their tributaries), when meeting or approaching each other, whether by day or by night, and as soon as within sight and fully within sound of the steam-whistle, shall observe and comply with the following

REGULATIONS.

Rule 1. When steamers meet "head and head," it shall be the duty of each to pass to the right or on the larboard side of the other. And either pilot, upon determining to pursue this course, shall give as a signal of his intention _one_ short and distinct blast of his steam-whistle, which the other shall answer promptly by a similar blast of the whistle. But if the course of each steamer is so far on the starboard of the other as not to be considered by the rules as meeting "head and head," or if the vessels are approaching in such a manner, that passing to the right (as above directed) is deemed unsafe, or contrary to rule, by the pilot of either vessel, the pilot so deciding shall immediately give _two_ short and distinct blasts of his steam-whistle, which the other pilot shall answer promptly by _two_ similar blasts of his whistle, and they shall pass to the left, or on the starboard side of each other. Note. -- _In the night_, steamers will be considered meeting "head and head " so long as both the colored lights of each are in view of the other. _In the day_, a similar position will also be considered "head and head."

Rule 2. When steamers are approaching each other in an oblique 57 " direction (as shown in diagram of fifth situation), they will pass to the right, as if meeting " head and head," and the signal by whistle shall be given and answered promptly, as in that case specified. Rule 8. If, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from the signals being given or answered erroneously, or from other cause, the pilot so in doubt shall immediately signify the same by giving several short and rapid blasts of the steam-whistle, and if the vessels shall have approached within half a mile of each other, both shall be immediately slowed to a speed barely sufficient for steerage way, until the proper signals are given, answered, and understood, or until the vessels -shall have passed each other. Rule 4. When steamers are running in a fog, or thick weather, it shall be the duty of the pilot to cause a _long_ blast of the steam-whistle to be sounded at intervals not exceeding two minutes. And no steamer shall, in any case, be justified in coming into collision with another vessel if it be possible to avoid it. Rule 5. Whenever a steamer is nearing a short bend or curve in the channel, where, from the height of the banks or other cause, a steamer approaching from the opposite direction cannot be seen for a distance of half a mile, the pilot of such steamer, when he shall have arrived within half a mile of such curve or bend, shall give a signal by _one_ long blast of the steam-whistle, which signal shall be answered by a similar blast given by the pilot of any approaching steamer that may be within hearing. Should such signal be so answered by a steamer upon the further side of such bend, then the usual signals for meeting and passing shall immediately be given and answered. But if the _first_ alarm signal of such pilot be not answered, he is to consider the channel clear and govern himself accordingly. Rule 6. The signals by blowing of the steam-whistle shall be given and answered by pilots in compliance with these rules, not only when meeting " head and head," or nearly so, but at all times, when passing or meeting, at a distance within half a mile of each other, and whether passing to the starboard or harboard. N. B. The foregoing rules are to be complied with in all cases, except when steamers are navigating in a crowded channel or in the vicinity of wharves,-- under these circumstances steamers must be run and managed with great caution, sounding the whistle as may be necessary to guard against collision or other accidents.

APPENDIX.

STEAMER'S LIGHTS, TO PREVENT COLLISION AT NIGHT.

RULE SEYENTH.

When under Weigh.All steamers rigged for carrying sail must carry a bright white light at the foremost head, and all other steamers must carry a bright white light on the _stem_ or near the bow, and another on a mast near the stern, or on the flag-staff at the _stern_, the last-named being at an elevation of at least twenty feet above all other lights upon the steamer. All steamers must carry a green light upon the starboard side, and a red light on the port side.

Note.--Steamers, although rigged for carrying sail, instead of the foremost head light, may adopt the forward and stern lights provided for steamers _not_ rigged for carrying sail; provided said lights are so arranged and placed on the vessel as to secure the contemplated objects.

When at Anchor.A bright white light at least twenty feet above the surface of the water.The lantern so constructed and placed as to show a good light all around the horizon.

First.The masthead light of steamers rigged for carrying sail to be visible at a distance of at least five miles in a clear dark night, and the lantern to be so constructed as to show a uniform and unbroken light over an arc of the horizon of the horizon of twenty points of the compass, namely: from right ahead to two points abaft the beam on either side of the ship, and that the stern light shall show a uniform light all around the horizon.

Third.The colored side lights to be visible at a distance of at least two miles in a clear dark night, and the lanterns to be so constructed as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, namely: from right ahead to two points beam on their respective sides.

Fourth.The side lights are to be fitted with inboard screens of at least _six feet_ in length (clear of the lantern), to prevent them from being seen across the bow.The screens to be placed in a fore and aft line with the inner edge of the side lights, and in contact therewith.

Note FIRST.The object of carrying the bright white light at the foremost head of steamers rigged fer carrying sail is merely to intimate to other vessels the approach or presence of such steamer.

## Appendix A Appendix.

Note second. The object of the colored lights required to be carried on _all_ steamers is to indicate to other vessels the course or direction such steamers may be steering.

Note third. The object of requiring steamers not rigged for carrying sail to carry a white stern light in connection with a white light on the stem or near the bow, is to provide (when the vessel's rig will admit of it) a method of determining, by a central range of lights, more correctly the course that such vessel is running.

## References

- \[1\]D. A. G. Ams. The following diagrams are intended to illustrate the working of the above system, of colored lights, and are to be used by pilots in connection with the rules, as sailing directions on meeting or nearing other steamers :--

FIRSTSTUTATION.

In this situation the steamer A will only see the _red light_ of the steamer B, in whichsoever of the three positions the latter may happen to be, because the _green light_ will be hiding from view. A will be assured that the largboard side of B is towards him, and that the latter is therefore crossing the bows of A _in some direction to port._ A will therefore (if so near as to fear collision) port his helm with confidence, and pass clear. On the other hand, the steamer B, in either of the three positions will see both the _red_ and _green_ lights of A, by which the former will know that a steamer is approaching _directly_ towards him. B will act accordingly, and keep away if necessary.

APPENDIX. 681

SECOND SITUATION.

Here A will see B's _green light_ only, which will clearly indicate to the former that B is crossing to starboard. Again, both the colored lights of A being visible to B, will apprise the latter that a steamer is steering _directly_ towards him. If necessary, A shall starboard his helm, and if so near as to fear collision, the boat shall be slowed and stopped.

THEIRD SITUATION.

A and B will see each other's _red light_ only, the screens preventing the _green lights_ from being seen. Both vessels are evidently passing to _port_, which is raleable in this situation, each pilot having previously signified his intention by _one_ blast of the steam-whistle.

$\\underline{\\alpha}$

APPENDIX.

PIFTH SITUATION.

This is a situation requiring great caution. The _red_ light of B in view to A, and the _green_ light of A in view to B, will inform both that they are approaching each other in an oblique direction. A should put his helm to _port_, according to the standing rule mentioned in the next, or sixth situation, and pass asteran of B, while B should continue on his course, or keep away if necessary to avoid collision; each having previously given _one_ blast of the steam-whistle, as required by the rule when passing to the right.

BIXTH SITUATION.

Here the _two_ colored lights, visible to each, will indicate their _direct_ approach (" head and head ") towards each other. In this situation it is a _standing rule_ that both shall put their helms to _port_ and pass to the right, each having previously given _one_ blast of the steam-whistle. But when, _for good reason_, a pilot finds it necessary to deviate from the _standing rule_ just stated, he shall give early notice of such intention to the pilot of the other steamer by giving _two_ blasts of the steam-whistle, and the pilot of the other vessel shall answer promptly with _two_ blasts of his whistle, and both boats shall pass to the _left_, as shown in the fourth situation.

The manner of fixing the colored lights should be particularly attended to. They will require to be fitted, each, with a _screen_ of wood or canvas, on the _inboard_ side, and close to the light, in order to prevent _both_ being seen at the same moment from any direction but that of _right-ahead_.

This is important, for without the _screen_ any plan of bow lights would be ineffectual as a means of indicating the _direction of steering_.

## Appendix.

This will be readily understood by a reference to the preceding illustrations, where it will appear evident, that in any situation in which two vessels may approach each other in the dark, the colored lights will instantly indicate to both the _relative course of each_,-- that is, each will know whether the other is approaching directly, or crossing the bows, either to _starboard_ or _port_.

This intimation, with the signals by whistle, as provided, is all that is required to enable vessels to pass each other in the darkest night, with almost equal safety as in broad day, and for want of which so many lamentable accidents have occurred.

(It might prove of infinite service, combined with the above plan of steamers' lights, if all sailing vessels were provided with a _green_ and _red lantern_, to be shown by hand on the starboard or port bow, according to the side on which the vessel might be approaching. _If at anchor_, all vessels without distinction should exhibit a _bright white light_, at least twenty feet above the surface of the water.)

_Extract from Steambout Act, approved August_ 80, 1852.

Section 29. Should any pilot, engineer, or master of any such vessel neglect or willfully refuse to observe the foregoing regulations, any delinquent so neglecting or refusing, shall be liable to a penalty of thirty dollars and to all the damage done to any passenger or his person or bag-gage by such neglect or refusal, and no such vessel shall be justified in coming into collision with another, if it can be avoided.

Section 9. _Ninth Clause_. The license of any such engineer or pilot may be revoked upon proof of negligence, unskiffulness, or inattention to the duties of the station.

**NOTE.**

**Wz had intended adding to this Appendix a number of the most important mercantile Forms; but have concluded to omit them in this volume for several reasons. One is, that we have thought it desirable to place in this Appendix a complete collection of all the statutes, and the principal rules made under statutory provisions, in the United States, in relation to commercial and maritime matters, as no such collection exists elsewhere, to our knowledge. And this has extended the Appendix so far as to leave no room for more in this volume.**

**Another reason is, that we have found that in all our commercial cities, most if not all of these forms are sold by stationers, and are thus made easily accessible to the profession (by mail, if necessary) almost everywhere.**

\*\*We have therefore concluded to omit these Forms here. It will be necessary to give in the Appendix to the second volume some forms of process in Admiralty, which cannot readily be found elsewhere; and some other forms may there be added, and some advantage may that be derived from placing all our Forms, whether of Contract or of Practice, together.\*\*I N D E X.

Note.-- Under the following heads will be found a complete analytical index of the whole volume :

Ch. 1.

History and Origin of the Laws of Shipping pp. 8-34

Ch. 2.

Registrict and Navigation Laws
25-46

Ch. 3.

SALE of Ship
47-81

Ch. 4.

Part-Owares
82-110

Ch. 5.

Ownares
111-117

Ch. 6.

Bottomard and Respondentia
118-120,406-440

Ch. 11, $\\lx@sectionsign$4.

Ch. 7, $\\lx@sectionsign$1-6,

8 and 9.

CARIAGE or Goods
121-186,919-298

Ch. 7, $\\lx@sectionsign$7.

Collision
187-211

Ch. 8.

Charter-Party
229-283

Ch. 9.

General Averaage
284-334

Ch. 10.

Stoppage in Transitu
335-317

Ch. 11, $\\lx@sectionsign$1-3. Master

378-406

Ch. 12.

Szamei
441-478

Ch. 13.

Pilots
479-488

Ch. 14.

Material-Mix
489-502

A.

ABANDONMENT, sale by foreign court after, 68.

none upon bottomy bond, 422.

under the statutes limiting the liability of the owners for acts of master and

seamen, 395-404.

ACTIONS, trover for conversion of ship by one part-owner, 84, 85, n. 1.

whether ship's husband can bring, 49.

by and against part-owners, 101-110. See Part-Owares, VIL

joinder of part-owners in, for tort and on contract, 103, 106.

VOL. L. 68
686
INDEX.

ACTIONS -- Continued.

non-joinder and mis-joinder, how taken advantage of, 103-106.

between part-owners for contribution, 105.

against vessels by name, 106, 109. See _Part-Owners_, VIL

by one part-owner in name of vessel, 108, n.

trespas against steamboats by name, 108, n.

assumpist for freight between part-owners, 104, n. 1.

assumpist for wages upon shipping articles signed by one party, 447, and n. 2.

ACT OF CONGRESS. See _Sletute_.

"ACT OF GOD," exception of perils by, in bills of lading, 180, 189, 183.

ADJUSTMENT, in general average. See _General Average_.

ADMIRALTY, salo of ship under decree of, 65-69. See _Sale of Ship_, IV.

care of semen in. See _Samen_.

ADMISIONS, of one part-owner do not bind others, 103.

AFFRESHTMENT, contacts of, under Missouri statute allowing suit against steamboat by name, 108, n.

AGENCY, rules of, as applied to sale of ship, 69-71. See _Sale of Ship_, V.

as governing the liability of part-owners, 94.

the lians of part-owners, 83, 96, and n., 97, n., 101, 102.

the liability of owners, charteres, mortgagors, and mortgages.

See _Owners_.

of ship's husband, 97.

when agent-must use name of principal in order to bind him ; distinction between contracts under seal and those not, 231, n.

proper signature of agent, 231, n.

whether bottomy bond may be given to an agent, 485-488, and notes.

of master, 59-65, 69 231, 417, 434, and n.; 876-440. See _Sale of Ship_.

III.; V., 1; _Master_; and _Bottomy and Respondentia_.

AGREEMENT. See _Contract_.

ALLENS, rights of, under registry laws, 25-46, 65-69. See _Registry and Navigation Laws ; Sale of Ship_, IV.

ALLOWANCE, 452-454. See _Samen_, III.

ALTERATION, of charter-party, effect of, 229, 230.

in shipping articles, 450, 451;

APAPAPREL, of ship, what included in the term, 71.

APPURTENANCES, of ship, 71-74. See _Sale of Ship_, V.

ARREST, of ship or master, bottomy bond given to avoid, 483, and n., 494, and n.

ARKANSAS, statute of, allowing actions against vessels by name, 106, n. See _Part-Owners_, VII.

ASSETS, marshalling of, to satisfy several bottomy bonds, 430, 431, and n.

marshalling of different, to satisfy one bottomy bond, 439.

ASSUMPSIT. See _Adions_.

AVERAGE, 284-335. See _General Average_.

accustomed, 311, 312.

B.

BALLAST, whether term _fruinve_ includes, 71, n. 3.

when to be applied by ship-owner, 243.

BANKBUPTCY. See _Isoloseny_.

INDEX:

BARGE, necessary to steamboat, hire of, lien as material, 477.

BILLS IN EQUITY, filed on account of profits, who must be parties to, 88.

between part-owners for adjustment of accounts, 103.

BILLS OF EXCHANGE AND PROMISSORY OFTERS, origin of, 6.

if none of one part-owner is dishonored other part-owners liable, except, 92,

93.

when payment, 93, n. 1, 256.

BILLS OF LADING, 182-148. See _Carriage of Goods, IL._ ; V.

usually given notwithstanding charter-party, 240, 241.

effect of, when so given, 241.

if master sign, stipulating to carry goods at less rate of freight than that contained in charter-party, 241, and n.

effect of, upon the right of isoppage in transitin, 358-366. See _Stoppage in Transitits_.

indorsement and delivery of, as collateral to respondents bond, 437.

BILLS OF 8ALE, 56-59, 74-78. See _Sale of Ship_, IL ; V. S.

what recital mastin contain, 31.

none necessary independent of statute, 51-55, 56, n.

when may be executed, 56, n.

grand, 56, 57, 77.

miscretical of certificate in, 57, n.

pard evidence to vary, 69, 70, n. 1.

BLOCKADE, responds or amuil contracts for carriage of goods, 976, 277.

all citizens to take notice of, 977.

intended blockade, rights of parties, 278.

actual, what constitutes, rights and duties of parties, 278, and n.

breach of, 278, 879.

sailing to blockaded port, with the intention of entering, 279, 280, 435.

seismar for breach of, 435.

how far act of master in attempting to enter blockaded port is act of owners,

435.

BOATS, as apparentant to ship, 72, n.

BOND, registration, 32.

bototomy. See _Botomy and Respondentia_.

BOTTORY AND RESPONDENTIA, 118-120, 406-440.

I. HHOHOTETEATION BY BOTTORY, 118-120.

how analogous to mortgage, 118.

what is, 118.

distinguished from pledge, 118.

possession necessary to pledge, 118.

not to hypotheothecation, 118.

jurisdiction of admiralty in, 119.

validity of, made at home port, 119.

enforcement of, by common law process, 119.

effect of U. S. Statute of 1850, and of State statutes, requiring registration,

upon unrecorded bottomary bond, 120.

II. THE COMPACTOR OF BOTTORY AND OF RESPONDENTIA, 406-440.

A. _The purpose of a Bottomary Bond_, 406-410.

master's power to make, 406.

ship hypothecated for payment of borrowed money by, 406.

contract of, why so called, 406, n.

688INDEX:

BOTOTOMRY AND RESPONDENTIA -- Continued.

bond, its essentials, 406.

binds the ship if it arrive in safety, 406.

of no force if ship loq, 407.

what words sufficient's create, 407, n.

as " one month after the ship arrives at her port," 407, n.

and " after my arrival," 407, n.

to make ship liable " whether she do or do not arrive at London," 407, n.

reason for allowing maritime interest, 407, and n.

whether may provide for common interest, 407, 408, and n.

and for payment by owner, whether ship safe or lost, 407.

permitted by law-merchant, 408.

if none given, tender has lien on ship in addition to common law remedy, 408.

owner liable for money borrowed, if necessity is caused by fault of master, 408, n.

bond with simple interest, binding ship, to be paid at all events, 409, n.

payable not alone when ship-arrives safely, 409.

but when voyage is broken up by third party, 409.

by owner, 409.

by master, 409.

by deviation, 409.

but not from necessity, 409.

by a sale, 409.

by intended wreck, 409, and n.

not necessary to say in, that ship is not to be put to any other uses or purports, for the law implies this, 410.

lien of tender on, free from laches, good against a _bond fide_ purchaser, without notice, 410.

maritime interest, if requisite, may be presumed to be included in principal sum, 410.

should describe risk assumed by lender, 410.

what sufficient to indicate this, 410.

risk such as to justify maritime interest, 410.

debt on, survives with maritime interest if ship is lost by peril or cause not enumerated, 410.

if lost through misconduct of owner or master, 410.

B. _Of Bottomy and Respondentia Bonds made by the owner, 410, 411._

in home ports, 410, and n.

if owner also master, 410, n.

no necessity requisite, 440, 411.

owner may make, hypothesating ship before sailing on her first vq:

age, 411.

when they are legal loans for various interest, 411.

if colorable and for purposes of getting various interest, 411.

question for jury, 411.

marine interest, no limit or measure to, 411, 439.

abroad, generally payable next voyage, 411.

jo be described with reasonable accuracy, 411.

if under control of government not invalid if voyage not described, 411.

INDEX. 689

BOTOTOMARY AND RESPONDENTIA -- Continued.

C. When the Master may make Bottony Bonds, 412-418.

only abroad, 412.

this power analogous to his power to sell, 412.

requires a less necessity, 412, 386.

any person lawfully master, however appointed, 412.

if appointed by underwriters, 412, n.

by consignees of cargo, 412.

by foreign merchant, 412.

by charterter, 412.

by consul, 387, n.

master of transport hired by government, 412.

of belligerent ship in foreign port by virtue of a cartel, 412.

upon belligerent ship, is discharged by its capture, 412.

and will not be enforced in courts of captors, 412.

master, if _intcuts afficio_, cannot give, 413.

if ship captured and restored to owners, not a loss of ship, 413, and n.

condemed and sold, and proceeds restored to owner by decree, loss of ship, 418.

and owner holds proceeds free from bondholder's claim on the bond, 413.

how bondholder may enforce his claim, 413, and n.

necessity must be real and a sufficient one, 413.

cannot make, for money borrowed for his own use, 413, and n.

nor so pledge the freight, 413.

otherwise if he is both master and mortgagor in possession, 414.

must be a necessity of the ship, 414.

cannot make, of ship for freight or cargo, 414.

what a sufficient necessity, 414.

In foreign port to enable him to return home, 414.

if owner can act, master may not judge of the necessity, 414.

whether master may bottom in one State, if home port in another, 414.

if in British provinces, and owner in Maine, 414.

must be a foreign port in sense of distant port, 414.

may, where impossible to communicate with the owners though residing in

same country, 414, n.

also pledge credit of owners, 414, n.

but not if delay would work no injury, 414, n.

what places are foreign ports, 415, n.

Charleston, S. C., as to New York, 415, n.

New York, as to St. Johns, N. B., 415, n.

if telegraph is between the places, 415,n.

given by consent of owners on ship, freight, and cargo, if owners of cargo

refuse to advance money, 415, n.

master must at least attempt to communicate with owners, 415, n.

where fact of advertisement for loan is known to owner of cargo but he has

no direct communication, 415, n.

master no power, if he has funds of owner within his reach, 415.

or if he can borrow on owner's personal credit, 415.

or if consignees with funds of owner, or agent there, 415.

or perhaps if master have funds of his own, 416.

certainly if funds of owner on board, 416, n.

or if master have goods on board and can also procure money at port of dis-

tress, 416, n.

690 INDEX.

BOTTOMRY AND RESPONDENTIA -- Continued.

but if latter element wanting, 416, n.

what owner must do if necessity for supplies, &c. once made out, 416, n.

non-existence of, and inability to get, funds, equal to distress, 416, n.

whether he can make to himself, 416.

or charge more than legal interest for use of his own money 416.

not bound, and perhaps has no right to take money on board belonging to

shippers, 416, 417.

reasonable discretion must exercise in this, that there may be the least sacrifice,

417, n.

if part-owner, or agent of part-owner, present, 417.

whether to the agent himself, 417, n.

to secure former debts of owner, 417, and n., 418.

if given by owner, merges other debts, 418.

master may give to a consali in a foreign country, when, 418.

duty of master to raise money upon, to avoid selling ship, 63.

D. _Duty and Obligation of Lander on Bottomy_, 418-420.

lender must see that necessity exists, 418, 428, n.

what can never be presumed in such cases, by, 418, n.

what diapits necessary by, 418, n.

not bound to imagine into the expediency of incurring expense of

repairs with reference to owner's interest, 418, n.

in an action on bond, production, and proof of execution, will not entitle

holder to a decree, 418, n.

must prove necessity and exhibit account of items, 418, n.

if mistaken, as to necessity after due inquiry, 419.

if he convince at any fraud of master, this avoids bond, 419.

and he loses his lion on ship for money advanced, 419.

if not consonant of master's fraud, 419.

not bound to see that master applies funds to ship's necessities, 419.

if owner resists payment on account of fraud, burden of proof, 419.

proper inquiries presumed, 419.

master not competent witness for libellant to prove necessity of repairs, and

why, 419.

if lender in debt to ship-owner, must apply debt to ship's necessities, 419.

and cannot, by advancing, bind ship with maritime interest, 419.

if convince with master to send ship on new voyage, avoids bond, 420.

master may thus raise money to perform what voyages, 420, and n.

**E.**: _When additional Security may be given Lander, 420-422._

lender may take, when disedge of bond discharges the security, 420.

repsyment more certain if ship arrives, 420.

gives no claim if ship lost, 420.

property mortgaged to secure a bond, mortgage defeated by whatever avoids

the bond, 420, n.

: bottomy bond, when gives any claim against owners personally, 420, and n., 421.

written so as to confine lender to ship, 421.

right of owner to abandon to lender, on ship's arrival, and exempt

himself from responsibility, 421.

whether parties might make different bargain, 421.

by rule 18, of Supreme Court of U. S., confined to claim on property

and suits _in ren,_ except, 421, and n.

in case of fraud of master, 421, n.

INDEX. 691

BOTOTOMARY AND RESPONDENTIA -- Continued.

if ship prevented from arriving by wrong of master or owner, remedy

against them personally, 491, n.

or if master or owner destroys the ship, 421.

or if by their fault, lender lost the security of ship, 421.

under this rule, must be distinctly for owner's wrong doing, to sustain

action against him, 421, n.

emforced against proceeds of ship, the cargo which had been sold, and that

transshipped, 422, n.

owner by abandonment may make total loss to insurer, 422.

but not against bottomary bond holder, 429.

no salvage or average upon bottomy bond, 422.

except by special contract, 422.

and then contributes only on value of property hypothecated without maritime

interest, and is entitled to contribution and salvage, 429.

F. _Of a Botowary Bond for Supplies and Repair,_ 422-424.

if a go given, good when supplies originally intended to be furnished on credit of

ship, 422.

not good when advances made on personal credit of master or owner, 429, n.

if advances made without any original understanding or contract, presumption that bond contemplated, 429, n.

valid, if given to cover sums advanced with no contemplation of, and for

other sums with such contemplation, 423, n.

given for expenses of investigating a mutiny and restoring master to his command, when the vessel arrived in distress, and the crew in a state of mutiny

and no mention made of bond at outset; valid, 423, n.

invalid, if original purpose to furnish on personal credit of master or owner,

or both, 423.

if no other way of liberating ship from such debt in a foreign port, valid, if

made in good faith, 423.

presumption in favor of, and against personal credit, if lien on ship by law

of country where bond given, 424, n.

master not justified in giving, upon a more threat to arrest ship for prekristing debt, 424, n.

whether he can hypothesate, in any case, where vessel is or might be arrested ;

424, n.

made by master to release vessel, and lender knowing to be so used, held

invalid when, 424, n.

cannot be given to release master from arrest; 424, n.

though arrested for debt contracted for ship, as master, 424, n.

invalid, if attaching creditor is obligee, when given to release ship, 424.

the reasons theref, 424, n.

G. _Of a second Botowary Bond,_ 425.

funds necessary to pay first may enter into, 425.

holders of, stand as assignees of first, 425.

how far good, if first bad, 425.

given to discharge a prior loan, 425, n.

application of loan as by borrower, does not affect the lender, in good faith,

425, n.

by owner, to secure an old debt, how regarded, 425, n.

by second master, of a sum equal to amount borrowed by first master,

425, n.

692.

INDEX.

BOTOTOMRY AND RESPONDENTIA -- Continued.

**H.**: _To whom a Bottomy Bond may be mode,_ 425-428.

whether to consignee, or to one holding to ship-owner relation of agent, 425

and 426, n.

If consignee has funds of owner, cannot lend his own on, 425, n.

property of consignee taking, 426, n.

not bound to risk his property without taking, 426, n.

given to consignee of cargo and agent of charterter, 426, n.

when an agent may take, 426, n.

when consignee acts fraudulently, 427, n.

given to consignee, what care and vigilance necessary, 426, 427.

what must be shown, 427.

consignee held to strict accountability of an agent, 427.

to agent, no right to ship his own property, which might be dangerous, and

when it became so charge owner for re-laading, 427, n.

given to agent, his duty, 427, n.

all transactions connected with the giving, how viewed by court, 428, n.

lender on, bound to see that necessity exists, 428, n.

See ants, D.

given to consignee by master appointed by him, 428.

to charter, same rules as above, 428.

to a part-owner attempting to bind other owners to pay extra interest for re-

pairs not valid, 428.

**I.**: _A Bond may be good in part and void in part,_ 428, 429.

given for sums of money in items, some lawful, others not, 428.

count will analyze claims, and require proof of each, 428.

and decree in favor of those only properly substantiated, 428.

where the larger sum not properly subject of bond, 429, n.

whether courts of law have this power, 429.

J.\*\*: _Of the hypothesis of the Freight,_ 429.

hypothecation of ship not necessarily hypotension of freight, 429.

master may hypotothecation freight as he may under same circumstances theship, 429.

general hypotension of freight in foreign port construed to include what, 429.

whether earned or not, 429.

if it has not been paid to master or owner, 429.

of subsequent voyage, held liable, 429, n.

liable to contribute _pro rata_ with ship, 429, n.

freight earned by sub-shippers, 429, n.

**K.**: _Of the construction of a Bottomy Bond,_ 429-438.

preferred to any other lien, 429, 410, n.

except prior claims for damage, when, 430, n.

and lien for seaman's wages, 430.

wages earned before a salvage service not entitled to a priority,

430, n.

on outward voyage before bond, 430, n.

on several voyages, lien extends to all, 430, n.

and liens of material-men, for repairs indispensable to ship's safety, 430.

reason of rule giving priority, 430.

exceptions to rule, 430.

several given, last takes precedence of former, 430.

if at same place and on same voyage and risk, 430, n.

if of several bonds, some are on ship, some on freight, and some on cargo

marshalling of assets, 430, n., 431, n.

INDEX. 693

BOTTORRY AND RESPONDENTIA -- Continued.
privilege of priority confined to bonds given under necessity in a foreign port, 431, n.

holder of, discharging demand of seamen for wages, becomes assignee of their'

claims and takes their places, 431.

has a right to pay them and so stand, 431, n.

cannot exact of them formal assignment, 431, n.

nor payment of his proctor's fees, 431, n.

not upon offer to pay wages require them to defer prosecn-

tion, 431, n.

whether owner's ascent required, or some security, 431.

what lender on, may include in his claim, 431.

advances made for indispensable repairs and supplies, 431.

from reason that it saved the ship, contract liberally, 431.

intention of parties, if possible carried into effect, 431.

necessity of in mercantile affairs, 431, n.

creature of necessity and distress, 438.

lender acting in good faith protected from technical objection, 432.

owner, against oppression, 433.

" of a high and sered character," meaning of phrase discussed, 433, n.

principles of equity applied to, by admirality courts, 432.

no limits to maritime interest, 432, 411.

court of admirality will reduce it when, 432.

practice in England to refer items of bond and premium to registrar and moral

chants, 432, n.

power of court upon their return, 432, n.

when legal interest only is allowed, 433.

when lender should enforce and realize his line, 433.

permitting ship to voyage about with lien unrecorded, 433.

does not create an absolute interest in ship, 433.

nor give indisolable lien, 433.

if lender delays enforcing lien unreasonable time, 433.

third party acquiring vessel without knowledge of lien, 438.

lender will be held to have waived and lost lien, 433.

suit on, commenced and abandoned, and another suit on same bond, 433.

when ship arrested and damages pronounced for, and second action subseq-

quently commenced for subsequently discovered damage, 433, n.

L. _Of the power of the Master over Cargo,_ 438-436.

different relation of master to ship and to cargo, 438.

master bound to receive cargo, store it properly, care for it during voyage,

carry it directly, and deliver it safely, 433, 434.

may be consignee or supercargo, 434.

unites but does not combine these several offices, 434.

on the voyage regarded only in the character of master, 434.

when ship and cargo reached their destination, in character of supercargo and

consignee, 434.

functions may be contemporaneous, 434.

at port of destination, when master and when consignee, 434.

if he cannot sell cargo may leave it with merchant, 434, n.

when a common carrier and when a factor, 434, n.

for acts of, in selling, owner liable, and why, 434, n.

owner liable for proceeds of sale as well as for safe transportation, 434, n.

### 694 Index

BOTOTOMARY AND RESPONDENTIA -- Continued.

recoiling commission for selling goods, how considered, 434, n.

owner of ship then responsible for what, 434, n.

power to sell when goods conigned to him, not revoked by owner's selling while vessel at sea, 434, n.

if he takes goods on shore with intent to embexile, barratry, 434.

if he contracts with shipper so as to give a line on ship, he does it as master, 434.

no power to hypothesate ship when necessity has arisen through his wrongful act, 435.

while exercising his duty as, stranger to cargo, between lading and unloading, 435.

may become supercargo, or consigues through necessity, 435.

must use all his power, in case of capture, to procure restoration of cargo, 435.

sufficient, if what he does is done in good faith, 435, n.

and is not bound to act fraudulently, 435.

in seizure of ship and cargo for breach of blockade, how far act of, in attempting to enter, act of owner of cargo, 435.

If vessel sails with full knowledge that port of destination is blockaded, 435.

if blockade proclaimed after vessel sailed, 435.

may sell cargo, when, 435.

if voyage broken up, cannot sell at intermediate port, 435, n.

sale, without necessity, by, gives purchasers no right, 435, n.

cannot sell to pay debt of owner, 435, n.

when duty to transship, and if goods perishable, 435, n.

may sell part of cargo to finish voyage, 435, 436.

must first exhaust other means of raising the money, 436.

for such sale, there must be actual and urgent necessity, 436.

acts of, in such cases, when held valid, 436.

not sufficient to act _bond fide_, if no necessity exists, 436.

may sell at once if cargo belongs to ship-owner, 436, n.

when justified as an act for the common benefit, 436.

if ship profit most by such sale, 436.

M. _Of a Respondentia Bond_, 436-438.

master may hypothesate part or whole of cargo, 436.

only a part can be sold to raise funds, and reason thereof, 436.

hypothecation effected by a respondents bond, 437.

usual form, 437.

same to goods as bottomy bond to ship, 437.

master no authority to give bond on cargo alone, 437, n.

if he does, ship and freight first liable, 437, n.

may be made by owner of goods at home without any necessity, 437.

so made as to take up former bond, 437.

not necessary that money so raised should be expended for or about the goods, 437.

if made by master, can be only from necessity, 437.

loan on, is a loan on maritime interest, 437.

and gives lender no claim if goods lost, 437.

where difference between amount lent on, and goods on board, 437, n.

obligee in, holds goods as collateral and as transferred by indINDEX. 695

BOTTOMRY AND RESPONDENTIA -- Continued.

andhas constructive possession thereby, 437.

contract gives no lieen upon cargo, if the cargo is to be sold free of lien and proceeds returned, 437, n.

return cargo not in existence at time of giving, cannot be subjected to a lien, 437, n.

bottometry bond on " the ship and freight " binds only them, and excludes cargo, 438.

even if master compelled to take up the money on " said schooner, her cargo

and freight," 438.

whether if portion of cargo is pledged there is a right of contribution, as.

against ship-owners and other shippers, 438.

when ship would be responsible in first place, 438.

rest of cargo would contribute when ship could not be made to pay, 438.

shippers contributing, to recover from the ship, 438.

owner of goods sold not entitled to recover what they would have realized,

at port of delivery unless ship arrives, 439, n.

it is necessary therefore to aver ship's arrival, 439, n.

N. Some special Rules in regard to Bottomy Bonds, 439, 440.

In payment of, assets to be marshalled, 439.

ship-owner's property first applied, 439.

money of master, next, 439.

and then goods of shipper, 439.

both ship and freight liable before cargo, though bond given on

cargo alone, 439, n., 440, n.

what constitutes the principal in making up decree, 439.

legal interest added thereto from what time, 439.

interest allowed in England only on bond, and not on bond and

interest, 439, n.

after judgment, interest allowed when, 439, n.

when legal holders reside out of the country and no agent, 439, n.

when several concurrent bonds given if property will not pay all, 440.

will be paid _pro rata_, though different bonds bear different dates, 440.

in admiralty generally regarded as negotiable instrument, and payment enforced by holder, 440.

but guaranty of payment by indorstement does not extend to maritime

interest, 440, n.

on ships in service of foreigners, trading within limits of East India Compa-

ny's charter, void, 440.

belonging to English subjects, require to be made only on ship and cargo, 440.

jurisdiction exercised over, in England, by equity and admiralty courts, 440.

obtained from master by duress, void, 440.

that master was under a duress at time, no proof of bond being so given, 440.

if it contain clauses proper to mortgages, not prevented from being bond, 440.

sale of ship to pay, 65.

**BRACTON, 5.**

**BRITTON, 5.**

\*\*BROKEB, has lien on ship for what services, 489, 490.

**BROOKE, 5.**

**BUILDER, sale of ship by, 74, 78.** See _Sale of Ship, V._, 3.

right of, to complete after sale; 75, 78, n.

certificate of, 74, 78.

BULLION, contributory value of, in general average, 333.

limitation of carrier's liability for loss of, 404, 405. 4

BURDEN OF PROOF. See _Evidence_.

C.

CANAL BOATS, when common carriers, 176, h.

material-men have no lion upon, 494.

CAPTAIN. See _Master_.

CAPTURE, by foreigners, when vessel cannot be registered after, 34,

when discharges bottomy bond, 412, 413.

duty of master upon, 435.

delay by, whether gives ground for demurrage, 963, 364.

charterter liable for time lost by, 266.

when suspends and when annuls contract for carriage of goods, 280, 281.

ransom when an average loss, 298, 299.

expense incurred after capture when an average loss, 301, 208.

CABGO, not appartenant to ship, 73, n.

partenership in, and part-ownership in vessel, 83, 96, n., 97, n.

ship's husband no power to purchase, 98.

carriage of. See _Carriage of Goods_.

injured by collision, 190, 191.

damages for liability to carry full cargo, 242.

what constitutes a full cargo, 244, and n.

contributory value of, in general average, 322.

power of master over, 433-436. See _Bototomy and Respondentia_, **L**.

respondentia of. See _Botomy and Respondentia_.

CARRIGAGE OF GOODS, 121-186, 212-228.

I. CARRIGAGE OF GOODS or FRIGHT, 121-131.

ship, importance of, 121.

public policy in regard to, 121.

system of liens, how affected by this policy, 121.

freight, meaning of ; compensation for carriage of owner's goods, for carriage

of goods belonging to others, and for hire of ship, 121, 122.

reciprocal rights and liens of ship and cargo, 122. See also, _Charter-Party_, III.

ship owner undertakes :

how to carry goods, 122.

that ship is sea-worthy, 122.

See 65, 66, 98, and also _Seeman_, IV.

and sufficiently manned, 122.

how to lade and deliver goods, 122.

to avoid delay and deviation, 122.

upon deviation, insurer's risk upon cargo ceases, and ship-owner liable

as insurer, 123, n.

even if loss does not arise from deviation, 123, n.

the rule of damages for injury to shipper by deviation, 133, n.

intention to deviate, 123, n.

usage to deviate, 123, n.

if goods are laden on deck, 124, n.

See also _Deck_.

goods sent by ship not specified, 124, n.

when shipper may proceed against ship-owner or ship, 123, 124, and n. I.

whether against ship, if owner not liable, 124, n.

INDEX. 697 CARRIGAGE OF GOODS -- Continued. power of master to bind ship and owner by contract of affheightment, 124, n. 1. ship-owner's lien, on goods properly transported, 125-128, 242, 143, 145, and n., 146, and n. conflicting views as to the origin and nature of, 125, n. 1, 126, n., 127, n.; 145, and n., 146, and n. the same, whether the goods are sent under a charter-party, or by bill of lading, 125, n. 1. nature of, as distinguished from that on ship, 126, n.; 145, n., 146, n. distinguished from common law lines requiring possession of the property, 126, n., 127, n. distinguished from that of common carrier, 127, n. delivery of goods procured by fraud, does not avoid, 137, n. election of ship-owner to proceed against goods or shipper, 127, n. loss or waiver of, 127, n. none for dead freight, that is, freight on unoccupied portion of ship, 127, n., 128, n.; 244. right to carry goods once on board, 126-128, and n. 1, 158, 159, 167, n. 1, 918, 277, n. damages, if shipper removes goods once on board, or breaks contract to carry, 128, and n. 1, and 129, n. if master re-demands goods after lading, 128, n. 1. law of freight consists of what, 129. difficulties in enforcement of lien of cargo on ship, at common law and in equity, 129. enforced in admiarity by process in rem, 129, 130. when enforced, as against third parties, 130. " general ship," what, 130. how advertised for freight and sailing, 130. when so offered, how far owner bound ; warranty, 131, and n. notice of change, 131, n. II. Bill of Lading, 132-148. See also _post_, V. when reception of goods by owner, or master, or their agent, binds ship to safe carriage and delivery, 132, and n. who considered their agent, 132, and n., 133, and n. reception by any person on board, 133, and n. where sometimes signed and delivered, and by whom, 133. signed by clerk of owners, when master thereby bound, 138. written receipt, _primal facie_ evidence of reception, 133, 134. who signs receipt, 134. its ambiguity, 134. its universality, 134. used by rail-road companies and common carriers, 134. property a sea document, 134. equal force in shipping and land carriage, 134. what are the essential elements of, 134. by whom it must be signed, 134, n. what held not to constitute, 134, n. not to be signed and delivered until goods are actually received, 135. if only signed and not _delivered_, of no force, 135. VOL. I.

698 INDEX.

CARRIGAGE OF GOODS -- Continued.

statements of, must be accurate, 135.

if signed before goods are on board, when it may apply to goods shipped at:

terward, 135.

when, only, master has authority to sign, 135.

binding effect of, upon owners, when signed before goods are received, 135.

agreement for, 135, n. 1.

_primal facie_ evidence of condition of goods therein described, at that time, 135.

See 171.

ship-owner discharged from liability for injury to goods in, by proof of intrinsic defect or principle of decay, 135, 136; 216, n. 2.

but master must do all in his power to prevent defect or decay from developing itself, 136, n. 1.

and ship-owner's contract may assume this risk, 136.

ship-owner may contradict statement in bill of lading that goods are in

good order, 136, n.

loss or damage of goods in, presumption of law, carrier's fault, 136, n.

burden of proof on him to show otherwise, 136, n.

when ship-owner unable to rely upon intrinsic defect against indorsee of, who

parchased upon faith of, 137.

not conclusive between ship-owner and shipper, 137, n. 2, 143.

if it has changed situation of parties trusting to it, when ship-owner, and when

inocent party, to suffer, 137, and n. 2.

its twofold character,as receipt and contract, 137, n. 2.

as receipt, open to explanation, 137, n. 2; 136, n., 143, n.

as contract, not altered or explained by parol, 137, n.

as between shipper and ship-owner as a receipt may be explained,

137, n.

as between ship-owner and assignee for value, not to be explained,

137, n.

who consignor in, 137.

who consignee in, 138.

a _quasi_ negotiable instrument, 138, 141, n. 2.

word " assigns " in, 138.

transferable by indorsement, how far, 138.

indorsement of, with delivery, _primal facie_ evidence of transfer of goods, 138.

indorsee of, cannot use on, in his own name, except, 139, and n.; 236, n. 1.

but may one for detention or conversion when, 139, n.

when ship bound to deliver goods to indorsee of, 139.

when indorsement and delivery of, binding, 139.

right of consignor in, to stop in _transiti_, 139, 141, 142.

indorsement of, as security of a preexisting debt of consignee, 139.

indorsee of, for no consideration, no right as against a subsequent _load file_

transfere or attaching creditor, 139.

when agreement to assign a, is an assignment, 140.

property in goods covered by, how transferred without indorsement and de-

livery, 140.

transfer of goods shipped without, 140, n. 2.

effect of a condition in, or a condition in the indorsement, 140, 143.

signed in sets of three, 140.

disposition of the sets, 140, 142.

consignee in, when his title is complete, 141.

INDEX. 699

CARRIGAGE OF GOODS -- Continued.

goods at the risk of, 141.

divested, by what, 141.

when indorsee of, same as consignee, 141.

_bond fide_ indorsee of, for value, without notice, holds property as against party

who has paid value, on the faith of a contract to purchase, 141, n. 2.

sent to a third party, without indorsement, gives no rights to third party, but

simply a notice, 141.

consigner in, what risk he takes by making vendee, consignee, 142.

constructive delivery, 142.

stringent obligations on master, to deliver goods according to, 142.

evidence against master or owner, of what, 143.

how goods described in, 143.

" contents unknown," " said to contain," effect of in, 143.

if words " containing, etc." added, master and ship held to deliver what, 143.

right of lien reserved in, 143.

wavived expressaly or by implication in, 144 and n.

master bound to deliver goods, when, 143.

See III. post.

shipper or consignee bound to pay freight, when, 143.

construction of, as to master's, or owner's, lien, 144, and n.

charter-party, construction of, 144, n. See _Charter-Party_.

Iien by, when lost, when waived, when retained, 143-147. See _Charter-Party_, III.

waived expressaly, and by implication, 144, and n. 1.

waiver of lien, by stipulation that freight shall be paid subsequent to

delivery of goods, 144, and n. 1.

of ship on goods, maritime, or common law ! 145, n., and 146, n. ;

125, n. 1 ; 126, n., and 127, n.

if delivery is induced by fraud, 147.

consignee in, right to goods detained wrongfully by third person, 147.

unusual stipulations in, 147, and n., 170.

to disposal of goods and their proceeds, 147.

freight, contract for, entire, when, 148. See _post_, **IV**.

exceptions thereto, 148.

as to quantity of goods, 148, 151.

completion of voyage, 148.

(for the construction of various phrases in bills of lading, see _post_, **V**.)

III. DELIVERY OF THE GOODS, 149-158.

consignee must pay freight for what is delivered, when, 149.

if part delivered, and accepted, of entire cargo, when freight of that part to

be paid, 149.

when consignor not bound to pay _pro rata_ freight, 149.

freight due for what is _shipped_, 150, and n. 1 ; 149, n. 3.

delivery of part, and payment for rest by owner, entities him to whole fraight,

when, 150.

shipper's claim for goods not delivered, 150.

when ship-owner not responsible for full value of goods not delivered, 150.

if goods lost or injured, burden of proof upon ship-owner to show how loss

occurred, 150, and n. 4.

when this shown, burden on shipper to show what, 151.

if shipper is paid full value of goods, ship-owner may deduct what, 151.

owner's lien for freight did value of goods, 151, n. 2.

**INDEX.** **701**

CARRIGAGE OF GOODS -- _Continued._

neglect of consignee to remove delivered portion of entire shipment, when releases carrier's liability therfor, 167.

at port of destination, necessary, 158.

at intermediate port, to be forwarded by another boat, 158.

duty of master of vessel on river Thames, as to goods forwarded in a lighter, 158.

duty of master as to goods in a lighter generally, 158, n. 2.

IV. Forwarding or THE GOODS IN other VISSELS, 158-178.

before voyage completed, ship-owner has no claim for freight, 158; 148, n. 3, 151.

and no lien on cargo for payment of freight, 158.

but has lien on cargo, for _right to earn freight_, either by completing voyage in same ship; or, in certain cases, by forwarding goods in another ship, 158, 159; 158-188, and n. 1; 166, n. 1; 342.

when and how he may forward the goods in another ship:

shipper has right to reclaim, by paying full freight, 159.

master's right to give up goods at intermediate port, and demand full freight, 159, n. 2.

freight, 159, n. 2.

whether obliged to give them up, upon tender of full freight, 159, n. 2.

what ship-owner may do to earn freight, 160, 161.

when he may transship, 161.

when bound to, 161.

must use reasonable endeavors to obtain another ship, 163.

duty as to bill of lading, when he sends goods on, 162.

expenses of forwarding, to whom chargeable, 162.

owner of goods transshipped, chargeable with excess over freight, 162, 163.

how far insurer of cargo liable for this excess of freight, 163, n. 1.

master agent of both parties; of owner to save his freight, of shipper to save his goods and forward them, 163.

custom of charging lightrange in addition to freight, 163, 164.

wifful neglect to transship, gives shipper right to his goods, without paying freight, 164, 215.

master's or ship-owner's interest in, or lien on goods arises from earning of freight, 164, 215.

effect of tender of goods at intermediate port, 165. See 215.

shipper on acceptance, must pay freight _pro rata_, 165; 342.

what acceptance creates obligation to pay _pro rata_ freight, 165, 166.

must be voluntary, 165.

what is not a voluntary acceptance, 166, 167, 169.

if _obliged_ to take them to relieve from capture or otherwise, 165, 166.

when under no obligation to pay any freight, 166, 167.

if ship never breaks ground, 167, n. 1, 128, n. 1, 218.

master's authority to accept cargo at intermediate port, 167.

abandonment of goods to underwriter after voyage broken up, _pro rata_ freight, 167.

no freight _pro rata_ recoverable on original. contract, 168; 167, n. 1; 166, n. 1.

how claim for, sustained, 168.

where part lost by peril of sea, and part delivered under charter-party, 168.

how proportion of _pro rata_ freight due is calculated, 168.

two ways: geographical, or commercial (pecuninary) parts, 168.

**702**

**INDEX.** 763

**CARRIGAGE OF GOODS -- Continued.**

" the king's enemies " does not include mob, riot, civil commotion, or embezzlement by crew, but does include pirates, 181.

**Iiability continues if vessel wrecked, unless, 181.**

but under U. S. Statute of 1851, 181, n. 5:

vessel striking beam at low tide, 181, n. 6.

if iron vessel runs on shore from influence on compass, 182, n.

common carrier, when responsible for goods burned in his wagon, 182.

vessel moored at wharf, destroyed by fire, when owner responsible to shipper

for loss, 182.

exceptions against fire in bill of lading, 183.

fire, not an " act of God," 182, n. 2.

fire is not a " peril of sea," as between ship-owner and shipper, 183.

how under Eng. Stat. 26 Geo. 3 and U. S. Stat, of 1851, 183, n.

whether these statutes apply to unladen goods, or goods on board of

lighter, 183, n.

designed obstruction of channel, " peril of seas," 183, 184.

" dangers of the seas," what it includes, 184.

ship-owner not responsible if loss occurs from independent causes,

though master or owner negligent, 184.

where human default cooperates, ship responsible, 185.

duty of master, as to stowage, 184, 185, 170.

if goods badly stowed, and damage results, when responsible, 185.

goods on deck, joticened, cannot claim contribution in general average, 185. See General Aerogels.

if so carried by agreement, shipper must suffer the loss, 185, 186.

if without his consent, otherwise, 186.

burden of proof of such agreement on ship-owner, 186.

if goods stowed on deck, and injury results from other cause, 186,

n. 3.

**VL 187-211. See Collision.**

**VII. Damaes for Non-delivery of Goods, or Isparty to TREM, 212-219.**

who entitled to claim damages, consignor or consignee, 212.

whether master liable to holder of indorsed bill of lading for delivering goods

to holder of unindorsed bill, 212.

whether holder of unindorsed bill also liable, 212.

liability of master for delivery to one of two hold of indorsed bills, 212.

trover by one such consignee against the other, 212.

action, when to be brought in consignor's, and when in consignee's name,

213.

if the consignee act as agent of the consignor, 213.

if the consignor act as agent of the consignee, 213, n.

right of property and possession, criterion, 213, n., 214, n.

master should rigidly adhere to stipulations in bill of lading, 214.

refusal of shipper to accept goods at port other than that of original destination, 214, 215 ; 164-167.

refusal to accept at intermediate port not abandonment, and ship-

owner still liable for goods, 215.

when master justified in selling goods and accounting for pro-

coeds, 215.

\*\*if goods arrive at port of destination damaged, whether owner may abandon

to master and pay no freight, 215, 216, n.\*\*704 INDEX.

CARRIAGE OF GOODS--Continued.

if the cargo remains in specie, 215, 216, n. ; 151, 173.

if barrels or boxes arrive, but contents disappear, 216, 217.

freight of animals, if some die on the voyage :

if freight to be paid for lading, 217.

if for transporting, 217.

carriage of passengers or animals whether freight, and by what rules governed, 217, 218.

provisions in bill of lading, that ship-owner may re-ship goods by another vessel, 218.

duty of master, 218.

if ship does not break ground, 218 ; 128, 167.

VIII. This LIABILITY FOR FRIGHT, 219-228.

reception of goods, evidence of obligation to pay freight and denumrage, 219.

whether legal presumption thence arises, or merely evidence for the jury, 219, n. 2.

liability of consignee for denumrage, 220, n., 268.

liability of consignee, his indorace or assignee, party not owner, agent, and party to whom another's goods are consigned, for freight, 220.

if indorace of bill of lading obtains goods in another way, 220.

if indorace once liable, continues so, 221.

these remarks applicable in absence of charter-party only, 221.

implied agreement for freight, by delivery and reception of goods, 221, 253.

liability of consignee, when bill of lading stipulates that consignee shall pay

freight, 221 ; 254, 255.

recovery of freight money paid in advance, when voyage not performed, 222-224, and n.

recovery of passage-money, for breach of contract to carry, 223, n. ;

228.

question of fact, to determine intent of parties, 223.

authority of master to take freight-money in advance, 234.

recovery by consignee of excess above legal freight, paid to obtain goods, 224.

reasonable freight, if amount not stipulated, 225.

none earned by illegal voyage, 225.

smugging or contraband, 225.

sailing under license from enemy, 225.

violation of foreign law does not render illegal, 225.

question of freight, as between vendor and vendee of ship with cargo on board, 225, 226.

liability of shipper to vendee for freight, 235, 226.

liability of vendor to vendee for freight, 225, 226.

in whose name suit to be brought, 226, n. I ; 138, n. 3.

morigage not in possession, not entitled to freight, unless, 226.

right of captor to freight, 226, 227.

injury to property by captor, 227.

if shipper has advanced money on credit of freight, master may

claim this as against captor, 227.

contract for the carriage of passengers, 227, 228.

passage-money sometimes master's perquilite, 227.

if so, and he dies, rights of his personal representatives and of his heirs, 227, 228.

**INDEX.** **705**

**CARRIAGE OF GOODS -- Continued.**

if passage-money is paid in advance and voyage never begins; or

beginning, is interrupted and not finished, 223, n., 298.

**CARRIER.** See _Common Carrier_.

**CASAREGIS, 13.**

**CAVEAT EMPTOR, as applied to sale of ship, 69.**

**CERTIFICATE, of registry, change of title to be indorsed upon, 48, 56, n., 57, n.**

**mirectical of, in bill of sale, 57, n.**

**of builder, 74, 78.**

**CHARTRERERE.** See _Charter-Party_.

**CHARTRERE-PARTY, 229-268.**

**I. WEAY consortiumites, 229-239.**

**object of, 229.**

**form of, 229.**

**not necessarily a written document, 229.**

**avoided by alteration or addition, 229, 230.**

**written, parol not admissible to vary, 230.**

**alteration of, by third party, 230, and n.**

**parol, afterwards reduced to writing, rights of third persons not affected**

**230.**

**stipulations not inserted considered waived, 280, n.**

**act of 1850, not applicable to, and need not be recorded, 231.**

**sealing of, unnecessary, 231.**

**by master or agent, 231, n.**

**agreement for future, how binding, 231, 232, and n.**

**II. GENERAL PROVISIONS or, 232-250.**

**reasel to be manned and provided by owner, 233, 233.**

**by charterter, 233, 233.**

**distinction important as determining whether owner or charterter is in**

**possession, so as to have the rights, and incur the liabilities, of possession, 233, 234, n.**

**periciples which determine such possession, 233-236.**

**if owners have agent on board chartered ship, 234, 235.**

**what holding out of the owners will render them liable, 235.**

**when master is charterter, 235.**

**when part-owner is charterter, 235, 236.**

**to master on shares gives him full possession of the ship, 236.**

**division of profits of vessel on shares, 235, 236.**

**liabilities of owners while paying crew and officers, 236.**

**how terminated, 237.**

**provisions and stipulations of, 237-240.**

**as to burden of vessel, 237.**

**effect, if erroneous or fraudulent, 237, and n.**

**as to national character, 238.**

**effect, if erroneous or fraudulent, 238, and n.**

**as to rank of ship, as "A. I.," 238.**

**contininance of this warranty, 238.**

**as to condition of ship and repairs, 238.**

**implied, if not expressed, 238.**

**of sea-worthiness, not condition precedent; therefore charter-**

**money payable when, although breach, 239.**

**See post, VI.**

**(different from stipulation of sea-worthiness by party obtaining**

**INDEX.**

**CHARTTER-PARTY -- Continued.**

insurance, which is condition precedent to policy attaching,

239, n.)

indemnity for unseworthiness, 239, n., 240, n.

instances of unsuccessfulness, 239, n., 240, n.

extends to latest defect, 239, n.

relates to the particular voyage, 240, n.

by reason of injurious articles on board, 240, n.

chartered ship, disabled when taking in cargo, 240, n.

when and where owner must repair, 240, n.

offset by shipper of damages, in suit by owner for freight, 340, n.;

172, n. 3.

that charterr shall man and victual ship, 239.

implied, if not expressed, 239.

usual for master to give bills of lading, notwithstanding, 240.

but they cannot impair ship-owner's rights or lien for full amount

of freight, although stipulating for less, 940, 341. See 259, n. 3.

when charterr liable for full amount of charter-money, although ship cannot

carry fall load, 248 ; 158, 159 ; 126-128, and n. 1; 166, n. 1.

obligations of charterr to trim and ballast vessel, 243.

of parties respecting assortment and stowing of cargo, 348.

overloading vessel, 243.

goods must be in usual merchantable form, 244.

averaging freight in assorted cargo, 244.

carriage of goods by charterr for other parties, 244.

at what rates, 244.

no lien for " dead freight," 244 ; 128, n.

cargo may be paid for by a gross sum, or by the ton, or package, 245.

if by ton, nothing less payable for, 245.

standard for ton, 245.

if by ton, and part or whole of cargo is lost; liability of charterr,

245.

if by a gross sum, and whole cargo not delivered, liability of charterr, 245, 246, n.

right of charterter to take goods of other parties, 246.

right and duty of master to take goods of other parties, 246, 247.

if muller thus earns excess over stipulated freight, which party

entitled to it, 248, 250.

if owner lets part of a chartered ship usually occupied by the crow,

249.

III. LIEN OF Charterer SHIP ON CARGO FOR THE FRIGHT, 250-255.

See 123-128, and n., 143-147.

question stated : whether owner of ship let upon charter-party has lien on

cargo for his freight ; possession of the ship-owner as ground of

lien, 250 ; 238.

the case of Hutton $v$. Bragg, 250.

the question of possession as ground of lien considered, 250-259.

when charterr becomes quasi owner, so that general owner has no

lien, 251.

although charterr is an infant, 251.

when charterr carrying goods for others, has, as quasi owner, lien

for freight, 251.

INDEX. 707 .

CHARTER-PARTT -- Continued.

when payment of freight by shipper to charterer, no defence to action

by ship-owner, and vice versa, 251, 255.

owner's line extends only to amount due from shipper to charterer,

when, 255, and n. 2.

vessel let on shares to master, owner cannot maintain action for freight, 255.

and not liable for wages of crew, 255.

implied obligations of parties to every contract of affieightment, 255 ; 124,

125 ; 221.

stipulations of parties as to lien, 255, 254, and n.

delivery of goods without payment of freight; whether master can fill back

on shipper, 254, 255 ; 251, and n. 3.

IV. THE PAATHENTY A CHARE

**INDEX.**

**CHARTER-PARTY -- Continued.**

when lay-days begin to count, if delay occurs, 365.

" working days," " running days," 265, 266.

stipulations for delay after expiration of lay-days, 266.

damages, and rate of payment for delay, after lay-days, 266.

charter on time, charteror liable for time lost by what detections, 266, 267.

agreement of charteror as to payment in case of capture and condemation, 267, n.

**VI**: Construction of Charter-Partizes, 267-273.

question of law ; intention of parties to govern, 267.

whether covenants in, are conditions precedent ; independent and dependent

covenants, 268-272.

general principles which determine this question, 268, 269.

hardships thereof, 273.

ship-owner contracting to carry full cargo, sailing with part ; whether

freight recoverable, 268, 269.

stipulations as to sea-worthiness, whether condition precedent and

freight recoverable ; damages for breach, 269, and n. 1, 239, and n.

waiver of conditions precedent, 270, n., 271.

ship made sea-worthy before loss or damage, 270, n.

stipulations to sail with first convoy ; to load in season for first convoy ; to sail with first wind ; to load certain goods; as to time of

being at, or leaving, certain point, 270, 271.

mercantile usage as affecting, 273.

usage only in questions of contract, 273, n. 1; 156.

express provisions, 373, 273.
**VII**: Dissolution or Charter-Party, OR OF ITS ODIIGATIONS, 273-283.

by agreement, 373.

by its becoming illegal, 373.

by breaking out of war, 274.

embargo, 274.

act of non-intercourse, 274.

special prohibition, 274.

war annuls : embargo, etc., suspend, 274, 275.

in latter case, obligation of each party to complete their side of

the contract as soon as they can, 374, 375, and n.

lowness of water suspends contract, 275, n. 2.

if restraint likely to continue a long time, or if goods perishable, contract

nulled, 276.

unlawful seizure of vessel by stranger, 277.

citizens to take notice of blockade, formally notified to nation, 377.

blockade _de facto_ and by notification, 277, n.

public and private notification of blockade, 277, n.

blockade only in intention or by decree, right and duty of ship to enter ; must

be maintained by sufficient force, 378, and n.

what warrants condemation for breach of blockade, 378, n. 1.

ship not bound to incur danger-in attempting to break imperfect blockade,

278.

nor if blockading squadron is driven off by accident, storm, change of

wind, etc., 278, n. 2.

nor if squadron is absent chasing-suspicious vessels, 278, n. 2.

if vessel is warned off, and returns again, 278.

INDEX. 709

CHARTTER-PARTY -- Continued. #

if vessel sails for blockaded port, with hope of finding blockade terminated, or intention of waiting, 279.

if vessel sails directly for blockaded port; American ship sailing to English blockaded port, and vice versa, 279, n.

whether shipper can require ship-owner to proceed thus to blockaded port, 280.

if both parties knew of blockade, when making contract to send ship to blockaded port, 280.

ship and cargo captured and afterward restored to owner; suspension or disso-

lution of contract, 280, 281.

provisions in charter-party exempting from loss occasioned by peril of sea, 281.

liability without such provision, 281.

pleading in action involving question thus occurring, 281, n.

stipulation that voyage shall terminate upon vessel's entering certain port, 282.

construction of various phrase in charter-party; "sailing and departure of

vessel; " questions in regard to, 282.

risk " during the voyage " not in force when ship is in port, 282.

vessel to proceed with " all convenient speed," 282, 283.

if certain ports are "shut," 288.

pcal clause in charter-party, whether damages limited to, 283.

VIII. In order Reserve:

whether charter may accept bottomry bond, 428.

pro ruta compensation recoverable for carriage of goods covered by, when,

168, and n. i. ; 399; 268.

CHARTEL. See Personal Property.

CHROOMETER, whether apurpunant to ship, 73, n.

CIVIL LAW, conformity of, to modern law, 7.

value of, 7, 8; 5.

CLEIRAC, 19.

CODES, principal foreign, treating of shipping, 8-17.

COKE, 5.

COLLISION, 187-211.

the party in fault suffers, 187.

if neither in fault, loss rests where it falls, 187.

injury by vessel doing salvage services, generally considered unavoidable.

,

able, 187, n.

if both in fault, loss rests where it falls at common law, 188.

not so in admiralty, 189.

except when both are willfully in fault, 189.

if fault uncertain, loss how divided, 188, 189.

when vessel, by no voluntary act of her, contributed to produce, 190.

when vessel in charge of pilot

vessel employed by government

iable for, in England, when, 190.

when under lock-master's di

to what amount ship is any

England, 190.

So also, Master, III.

in United States, 190

so, Master, III.

losses by; not adjusted by

of general average, 311.

if cargo injured by, more

: master, shipper entitled to damages,

when, 190, 191.

caused by irresisiti

de or storm, 190.

VOL. L.

**LIDEX.**

COLLISION -- Continued.

wholly through fault of another vessel, whether bill of lading, or not, 190, 191, 198.

when neither party at fault, if no bill of lading is given, 191.

as between underwriter and owner of ship, who liable for loss in case of, 191.

whether such owner responsible to shipper of goods, 191.

when one vessel guilty of some negligence, burden of proof upon her to prove that this is not the cause, 191.

plaintiff must prove his caro, and defendant's want of caro, 192.

previous precautions, 192.

when a ship bound to show a light, 193, 193, n., 194, n., and 195, n.

**states of United States as to lights on steamboats, 198, and n. 1.**

as to steamboats and sailing vessels on Northern Lakes, 193, and n. 1.

as to lights on canal-boats and steamboats by Stat. of New York, 194, 195,

and n. 1.

want of such light evidence of negligence, 194.

when sailing vessels should keep watch or look-out on deck, 195, 198, 199,

n. 1.

one vessel going " free," another " closehanded," 195.

if both " closehanded," 195.

if both going same way, 196.

provisions of the merchant shipping act, 17 & 18 Viet. as to vessels passing

each other, 196, n.

steamboats going in the same direction, 197, n.

two vessels approaching with wind free, 197.

two steamboats approaching each other, 197.

steamboats considered vessels with free wind, 198.

whether speed excessive, or not, question of fact, 198.

what considered in determining 19, 198.

what not an excuse for excessive speed, 198.

well caused by, and vessel thereby sunk, owners liable, 198; 190.

steamer hailed in a fog, to reverse engines and stop, 198.

same rule when vessel seen, but course doubtful, 198.

what is sufficient look-out, 198.

See 195.

steamer meeting sailing vessel, rule, 199, 800.

when vessel closehanded, 199.

must on a usual route keep customary track, 200.

to avoid sailing vessel drifting with current, 200.

between two steamers leaving same slip, both at fault, 200.

if one starts first, other to wait, 200.

if running in opposition, 200.

evidence of racing, to show negligence, 201.

raft driven by wind into stream, 201.

vessels entering harbor, bound to great care and diligence, 201.

meeting pilot-boats, bound by rules of navigation, 201.

ferry-boat, lying on navigable river, bound to what, 201.

ship at anchor and one in motion, presumption latter at fault, 201.

if vessel anchored at improper place, 201.

if vessel aground, same presumption, 202.

if vessel sunk in navigable river, duty of owner, 202.

if possession abandoned, for what owner is liable, 202.

.established rules and known usages to be followed, in general, 202, 203, n.

INDEX. 711

COLLISION -- Continued.

when deviation from, justifiable, 202, 203, n.

disabling ship to render assistance, 203.

between two American vessels in foreign port, what law to govern, 203.

measure of damaging in, 204, 205, and notes.

damage for detection of injured vessel while undergoing repairs,

304, 305, n.

sum which vessel would otherwise have earned, 205, n.

sum paid to other vessel to complete voyage, 205, n.

damages in the nature of denurrange, 206, n.

how far the insurance rule, one third of, new for old, applies, 205,

when the cause of loss sufficiently near to be responsible; when too remote, 206.

costs in case of, 206.

general rule in admiralty and common law same, 206.

equitable power in admiralty, 206.

when damages occur from inevitable accident, 206.

line of injured, upon injuring ship for the damages, 207.

duration of, 207.

when vessel is being towed by scanner, which reponsible, 206, 209, n.

if vessel is the immediate cause of damage, 208, n.

difference between ship towed aside and astorn, 208, n., 209, n.

rules of evidence in cases of, 209, 210.

of all persons on board, unless interested, 209, 210.

admissions of master, 210.

of mate and crew, 210.

effect of action for, at common law, upon jurisdiction of the admiralty, 210.

in cases occurring on river forming boundary between two States, which State

has jurisdiction, 210.

if vessel sunk by, whether colliding vessel may raise and tender her back, and

claim to pay for partial loss only, 210.

owner not bound to take unrepaired, 210.

whether when repaired, 210.

law of abandonment how applicable to, 210, n. 5.

no defence to action for, that injury would not have resulted, if injured vessel

had been stronger, 211.

rights of vessel to obstruct navigable stream by warp, 211.

duty of vessel approaching, and of vessel using warp, 211.

statutes regulating the passing of steamboats, 211.

usage of river, and local usages relating to this, 211.

liability of owners for, 391, 392.

COMMERCE, English, early history and growth of, 8-5.

adaptation of common law and law-merchant to, 8-5.

COMMSISON, of master, 879, 380.

COMM CARRERE, ship as, 173-186. See _Carrage of Goods_, V.

rights and duties of carrier, as affecting, and affected by, stoppage in transitn.

See _Stoppage in Transitn_.

by deviating from his undertaking becomes insure for absolute delivery of goods, 124, n.

line of, distinguished from that of ship-own

use of bill of lading by, 184.

master acting in capacity of, 434, n.

**LAR**:

COMMON LAW, insufficient alone to meet wants of commerce, 3.

flexibility of, 4.

how affected by law-merchant, 4.

superiority of law-merchant over, 5.

fountains of, 5.

CONDEMNATION, by foreigner, when vessel cannot be registered after, 34.

CONDITIONS PRECEDENT, in charter-party. See _Charter-Party_, II., **VI**:

CONDOMATION, of deseration, 471, 472.

CONGRESS, acts of. See _Skatules_.

constitutional powers of, respecting vessels, 48-50, 51, 55, 57, 58.

CONSIGNEE. See _Carriage of Goods_, II.

whether consignee may accept bottomry bond, 425-428, and n.

master acting in the capacity of, 434.

CONSOLATO DEL MARE, 6, 8, 9.

CONSTITUTIONALITY, of American statutes regulating shipping. See _Congress_.

CONSUL, as judge in admiralty, 68.

botomyr bond given by, 387, n.

taking botomry bond for services, 418.

dates of, in regard to seamen discharged in foreign port, 458-460, and n.

may authorize the discharge of seamen in foreign port for certain cases, 461.

power and duty of, as to imprisonment of seamen, 467, n.

duty of, to hear complaint of seamen, and to visit ship for that purpose, 470,

n. 1.

in case of deseration, 473, n.

CONTRABAND SHIP, sale of, 65.

CONTRACT, executory to sell, 58, n.

to sell, distinguished from sale, 75, n. 1, 77, n.

CONTRIBUTION. See _General Average_.

actions between part-owners for, 105.

by crew, for embexlement by one of their number, 468, n. 4.

CONVERSION, of ship by one part-owner, remedy, 84, 85, n. 1.

CONVEVANCE. See _Sale of Ship_.

COOK, may be called upon to do seamen's work, when in port, 448, n.

CORDAGE, as apprutennant to ship, 72, n.

COSTS, in collision cases, 206.

COURT, in admiralty, constitution of, 68.

sale of ship by order of, 65-69. See _Sale of Ship_, **IV**:

CREIDIT, of ship, when master may borrow on, 59, n.

CUSTOM, of merchants, 3-5.

of loading ship, to govern, 244.

CUSTOM-HOUSE, stoppage in transitu of goods lodged in, 351, 352.

\*\*D. DAMAGES, rule of, for injury to shipper by deviation, 123, n.

measure of, in collision, 190, 204, 205, 206, n.

for non-delivery of goods or injury to them, 219-219. See _Carriage of Goods_,

**VII**:

by fire, by river, by lake, of water, of navigation, by king's enemies, by act of

God; construction of phrases excepting, in bills of lading, 173-186. See

_Carriage of Goods_, **V**:\* \[1\] **INDEX.** **713**

- \[2\] **EIGHT, no lien for, 127, n., 128, n., 244.**

- \[3\] **ing of goods on, 184, n., 185, 186, n. 3, 307, 806, 322.**

- \[4\] **to be contributed for, but to contribute, in general average, 185, 186, 307,**

- \[5\] **308, 322.**

- \[6\] **OF ADMIRALTY, sale under, 65-68.** _See Sale of Ship, IV._

- \[7\] **, intrinsic, in goods covered by bill of lading, 139-149.** _See Curriage of I._

- \[8\] **JATION, of officers and seamen, 449, 450.**

- \[9\] **RY, of ship, 78-81.** _See Sale of Ship, V._

- \[10\] **of goods, 149-158 ; 254, 255 ; 835-879.** _See Curriage of Goods, III._ ; and\*\*

- \[11\] \*\*Soporing in Transiti.\_

- \[12\] **RAGE, 260-467.** _See Clarute-Party, V._

- \[13\] **action for, how affected by deviation, 122, n.**

- \[14\] **TION, 470-478.** _See Seamen, VIII._

- \[15\] **promise of higher wages, upon threat of, void, 448, n.**

- \[16\] **CLEURUS, 832.**

- \[17\] **TION.** _See Curriage of Goods, I._

- \[18\] **loss occasioned by, effect upon bottomry bond, 409, 410.**

- \[19\] **ARGE, of seamen in foreign port, 458-463.** _See Selmen, VI._

- \[20\] **TING.** _See Degradation._

- \[21\] **LEDENCE, of seamen, 463-470.** _See Seamen, VII._

- \[22\] **CIL, of vessel, 492, n. 3, 498, n.** _See also, Registry and Navigation Laws._

- \[23\] **SS, 440.**

- \[24\] **IAGE, master's duty as to, 378..**

- \[25\] **E.**

- \[26\] **T INDIES, productions of, transported in British vessels, 89.**

- \[27\] **ARGO, whether gives ground to claim demurrage, 263, 264.**

- \[28\] **character likely to rise to less by, 266.**

- \[29\] **suspends contract for carrying goods, 274, 375.**

- \[30\] **detention by, wages and provisions not subject to average, 300.**

- \[31\] **32**\_ZELEMENT, by master or crew, 468.\*\*

- \[32\] **OLMENT.** _See Registry and Navigation Laws._

- \[33\] **JITABLE INTERESTS, disclosure of, to obtain registration or enrolment, 32,**

- \[34\] **41, 42, n.**

- \[35\] **UITY, jurisdiction of, over bottmory bonds, 440.**

- \[36\] **ASURE.** _See Allocation._

- \[37\] **IDENCE, of national character, from register, 41, 46.** _See Registry and Navigation Laws, IV._

- \[38\] **of ownership, from register, 39, 40-46.** _See Registry and Navigation Laws, IV._

- \[39\] **of continuation of ownership, 43, 44.** _See Registry and Navigation Laws, IV._

- \[40\] **proof of inflections of registry laws, 38.**

- \[41\] **rules of, as applied to the sale of ship, 69-71.** _See Sale of Ship, V._

- \[42\] **burden of proof to show how loss or injury to goods shipped under bill of lading occurred, 150, and n. 4, 151.**

- \[43\] **in collision cases, 191, 193, n. 1, 904, n. 1.**

- \[44\] **as to ability of master to obtain a second cargo, when character refuses to take first, 247.**

- \[45\] **of necessity, authorizing bottomry, 418-420.**

- \[46\] **of fraud in p:** \_ig_bottomry, 419, 420.\*\*
  EVIDENCE -- Continued.

on owners to fix fault upon pilot in charge of vessel, in order to relieve themselves from liability, 485.

rules of, in collision cases, 192, 209, 210.

speed of steamer, question of fact, 198.

of shipping articles, 443.

parol, to vary character-party, 230.

to contradict bill of lading, 185-187, n.

to supply omission in, or to vary, shipping articles, 450-452.

to show false inducements, held out to seamen to sign shipping articles,

451.

to contradict log-book, 474, n. 1.

F.

FACTOR, purchase from, of goods in transit, effect upon consignor's right of stop- page in transit, 863-865.

FAULTS, sale of ship " with all her faults," 69, 70.

FEMALE, serving on board ship has rights and disabilities of sailor, 478.

FERRY-BOATS, when common carriers, 176, n.

bound to what rules of navigation, 201.

FIRE, accidental, ship-owners liable for damage to goods by, when, 183, n., 408.

FISHING, lines and stores, as appartenant to ships, 72, n.

voyage on shares, 266.

master's power to hire seamen, 883, and n.

hiring sailors in, upon shares, 477.

FITZHERBERT, 5.

FLAT-BOATS, when common carriers, 176, n.

FLETA, 5.

FLOGGING, of seamen, 463-470. See Semen, VIL

FOREIGNERS, rights of, under registry laws. See _Registry and Navigation Laws ; Sale of Ship_, IV.

FOREIGN DECREE, effect of, 65, 66.

FOREIGN PORT, agency of master at. See _Master_.

authorizing master to make bottomary bond, 411, 412-418. See _Bettomy and Respondonia_, II., C.

FOREIGN VESSELS. See _Registry and Navigation Laws_.

Ilieen on, of material-men, different from lien on domestic vessels, 499-494.

FOREIGN VOYAGE. See _Registry and Navigation Laws_.

FOREIFUTE, what subjects to. See _Registry and Navigation Laws_.

effect of, 56, n., 57, n.

**INDEX.**

**FREIGHT -- Continued.**

_pro rata._ See _Carriage of Goods_, III., IV. See _Charter-Party_, II., IV., VL conditions precedent to action for, 151.

hypothecation of, 429.

as determining possession, 234, n.

what freight is to be paid upon certain goods, for the carriage of which no rates are specified, sent with other goods, to which rates are fixed, 244.

the rule that goods carried without, not subject to average, 329.

to be deducted from the value of goods contributed for in general average, 327.

contributory value of, in general average, 328, 339.

what freight to be contributed, for, 329.

upon stoppage in transit, vendor to indemarily vendee for, 377.

master's right to certain portion of, 379.

limitation of ship-owner's liability in certain cases to value of ship and freight,

395-405.

the mother of wages, 452.

portion of, given to sailors as wages, 477.

**FRAUD**, as impeacching sale, 68, n. 4, 70, n. 1.

of one part-owner against others, 110.

in obtaining delivery of goods, as affecting lien of ship-owner, 127, n.

as avoiding botherny bond. See _Boluntary and Respondentia_.

in representations as to burden of vessel, 237.

of party buying goods from consignee as against consignor, 369.

**FURNITURE**, of ship, what included by term, 71.

G.

**GENERAL AVERAGE**, 284-384.

I. Ontario and Foundation of the Law of General Ayerado, 284-288.

general average, particular average, and partial loss, meanings to be carefully discriminated, 284.

general average loss falls upon all interests at risk, 284.

partial loss tests where it falls, 284.

particular average, generally usadas synonymous with partial loss, 284.

inaccuracy of such use, 284.

first, because partial loss gives rise to no average, 284.

views of the phrase by different writers, 284, n.

secondly, because there may be particular average, 284.

when such an average would occur, 285.

why such a term more applicable than partial loss, 285.

jettison of kegs of money, taken from ship into a boat to be carried on

shore, whether ship and cargo liable, 285, n.

law of, rests upon obvious reasons, 286.

its antiquity, 286.

only part of code of Rhodes preserved, 986.

to what it was this distinction 988

when into

property jetise

saved, und'

this is found

all else rul716 INDEX. GENERAL AVERAGE -- Continued.

justice of, obvious, 386,

some reasons for, drawn from expediency, 386.

whose property to be sacrificed, 286.

difficulty of establishing rules, 387.

design and purpose of, 387.

property sacrificed becomes the property, and the loss of all benefited, 287.

what necessary to taking effect of rule, 287.

illustration of rule, 387.

how the loss apportioned, 287.

three essentials :

first, sacrifice must be voluntary, 886, and n.

second, must be necessary, 386, and n.

third, must be successful, 388, and n.

II. Sacrific MUST BE Voluttant, and FOR THE BASENT OF OTHER PROBERT, 288-310.

reason for this rule, 288.

sacrific must be _voluntary_, 289.

usually occurs by ignition of cargo, 889.

jetation of masats, sails, and rigging, 289.

if masats on fire, 889, n.

when boat cat away from davits, 289.

if from fault of ship-owner or master, 289.

of anchor and cable, or either, by cutting the cable, 289, and n., 290, n.

of loss from vessel anchoring in an unusually dangerous place, to avoid

a greater peril, 290.

whether a voluntary loss, or one from usual wear and tear, 290.

why not a voluntary sacrifice, 290.

if bulvarks, standions, bulkheads, or dooks cut away, 890.

whether standing voluntary, 290, 291, and n. ; 305, n.

if ship must inevitably go ashore, 291.

If master has valuable and substantial chance of saving vessel, and

throws away chance of saving cargo, 291.

cases illustrating voluntary standing, 291.

whether contribution, if ship totally lost by stranding, 299, n.

ultimate loss of ship, no effect upon liability of ship-owners to contribute, 292, n.

accidental standing and expensive and successful endeavorn to save

property, 292.

difficulty of determining when, and to what extent, expenses constitute average loss, 293.

when ship compelled to go into port, out of her way, for repairs, loss

on ship, 289.

except where made necessary by injury voluntarily inflicted to

save property, 293, and n.

or where temporary repairs are made, 293.

or where excess of expense caused, 293.

repairs generally, when the subject of general average, 293, n.

expense of paying and maintaining crew while making repairs or seeking port to make them, whether average loss, 294-296.

in France law not settled, 394, and n.

difference of English law from ours, 294.

INDEX. 717

GENERAL AVERAGE -- Continued.

in England, if masts cut away to save ship and she changed her

course, whether, 294.

if masts blown away, and under same necessity changed course,

whether, 294.

damages for unavoidable collision, for what expenses contribution allowed, 295, n.

damages from tempest, what not allowed, 295, n.

upon what ground allowed in the first case, 295, n.

the two cases distinguished by Lord Ellenborough, 295, n.

distinction doubted, 295, n.

if the injury itself is a subject of general average, then wages of

crew and provisions and other expenses are, 295, n.

if crew discharged, and hired as common labcrors, wages sub-

ject of, 294, 295.

in this country, whether loss itself is average or partial, wages

and provisions subject to average, 295.

masts blown or cut away, for benefit of vessel to proceed, 295.

from what time wages regarded as an average loss, 296.

although direct cost of repairs rests on ship-owner, 296.

expense incurred in consequence of a direct peril of the sea, 296, n.

wages of crew, insured on time policy when vessel stranded on

a rock, 296, n.

when ship purposely run shadow, 296, n.

English rule in South Carolina, 296, n.

when the owner received his goods at an intermediate port, paying

_pro rata_ freight, 296, n.

repairs at the port of delivery, 297, n.

voyage abandoned from necessity, 297, n.

other expenses of getting ship into port after meeting a peril, subject to

average, 297.

tourge into port, 297, n.

**when one vessel accompanied another into port, 297, n.**

expense of taking goods into lighters, 297.

when such expense was incurred, when vessel stranded near port of

delivery, 297.

grounds of such decision, 297.

upon general grounds how construed, 297.

if goods lost or injured while in lighters, subject of, 297.

if put in another ship, which was captured, 297, n.

if partly taken out and ship and balance lost, goods in the lighter saved do

not contribute, 297.

so expense of taking out, storing/

sturning goods, 298, 314, n.

same rule in England

n.

so if goods damaged in consequ

sech removal, 298.

when cargo removed for repairs

perat destroyed by fire, 298, n removal of cargo of perishable

response of pumping out ship,

of hiring men to assist crew in

the oil caused decay, 298, n.

, etc. 298.

of hiring men to assist crew in

hip off, that has gone ashore, 298, n.

**INDEX.**

**GENERAL AVERAGE -- Continued.**

**expense of hostage during his detection, 298, n.**

**wages, when ship** **ransomed by owners, recoverable in full, subject to** **contribution, 399, n.**

**right to take a ransom not founded on a vested title, 299, n.**

**if rancom from pirates, English law same, 299.**

**ransom to an enemy prohibited by English state, 399.**

**if master so ransoms ship, owner not liable to repay what he expended,**

**299.**

**nor what he borrowed for that purpose, 299.**

**nor master liable to lender for the debt, 299.**

**delay and detention subject of, only when voyage began, 300.**

**ship detained by embargo, 300.**

**delay produced " by the mind and agency of man," 300, n.**

**distinction between capture and embargo, 301, n.**

**origin in the intervention of a** _vis major_**, 301, n.**

**construction to be given to contract of** **affrightments in case of embargo or of**

**capture, 301, n.**

**delay by quarantine, 300.**

**while waiting for convoy, 301.**

**from being frozen up during voyage, 301.**

**when expenditure before voyage begins is an average loss, 301.**

**expenses incurred after capture, in defending the property, preventing condemnation, obtaining a release, or escaping, are average expenses, 301, 302.**

**of reclaiming and procuring restoration of ship, 302, n.**

**wages and provisions of crew when voluntarily detained, from rational possibility of release, 302.**

**though there be no release, 303.**

**when funds raised for the common benefit, 302.**

**of all losses necessarily incurred in raising the funds, damages, premiums, extra interest, 303.**

**goods sold for such purposes, same as goods jettioned, 303.**

**sale of part equivalent to hypothesation of the whole, 302, n.**

**so if sold to release ship seized for non-payment of** " sound dues," 302, n.\*\*

**whether loss be by sacrifice on sea, or shore, 302, n.**

**sold to pay expenses of getting off and repairing vessel driven on shore, 302, n.**

**sale by master to supply necessities of ship, 302, n.**

**of specie shipped to purchase return cargo, 302, n.**

**if goods hypothecated by respondents are lost, no contribution, 302.**

**if saved and applied to payment of bond, whether contribution, 303, and n.**

**expense of forwarding goods, when shipwrecked, 303.**

**when property sacrificed not at risk, or owned by any one having an interest in ship, cargo, or freight, 303,**

**destruction of property to save ship and cargo from fire, while lying at what/, 303.**

**sinking a ship next to one on fire to save others, 804, n.**

**injury inflicted upon common property, expense of enforcing claim to be borne by all, 304.**

**right to contribution does not extend beyond those voluntarily embarking in common adventure, 804.**
INDEX.

GENERAL AVERAGE -- Continued.

cutting cable to avoid collision, no claim on the other vessel for contribution

for loss of anchor and cable, 304.

what enters into and forms part of sacrifice; unintended direct consequences,

804.

value, how ascertained, 304.

where corn is damaged by cutting away mast, and getting wet thereby, 304, n.

expected and intended consequences, 304, n.

burden on owner of cargo to show that damage occasioned, 305, n.

damage from water in the prevention of fire occurring without the fault of

crew, 305, n.

loss must be voluntary, _and intended_, and _for the benefit of other property_, 305-310.

whether payment to re-capitors voluntary, 305, n.

dollars jertiosos to prevent enemy from obtaining them, not for bene-

fi of other property, 305.

so if sails blown away, or mast, rigging, or cables lost by violence of

wind or sea, 805.

or if sails or sparse lost in extraordinary emergency, to escape capture

or wreck, 305, and n.

otherwise if cable cat, anchor lost, or goods jertiosos to escape from

an enemy, 306.

or if lost be lowered, with mast and sail and lantern at mashed, to

desive an enemy, and effect escape of ship, 306, n.

expense of hiring convory, or other protection for common benefit,

306.

If vessel compelled to go into port, and another vessel accompanies her

for common good, 306, n.

if cable cut or slipped, to sail with convory, 306, n.

if armed ship attacks a pursuing enemy, and beats her off, loss sustained in battle, 306, and n.

if masts overboard, and hanging by ship, embarrass and endanger her,

and are cut away, 306, and 307, n.

gratuities to sailors to stimulate theme to greater exertion, 307.

extra urges, paid through mistake of law, 307 ; 446, 447.

goods carried on deck jertiosos, no claim for contribution, 307 ; 446,

447.

reasons therefor, 307.

on deck of a propeller, not within rule, 307, n.

if placed on deck without consent or knowledge of shipper, he may

claim whole loss from ship, 308.

if so placed by consent of shipper, no claim, and why, 308.

if on deck in conformity to an established and well-known usage, 308.

if shipper pays full freight, unsettled, 308.

why law-merchant would give no claim in such case, 309.

usage would give claim on ship, 309.

horges carried on deck according to custom, and jertiososed, owner en-

titled to contribution, 309, n.

copper stored on deck, as by usage of 40 years, 309, n.

curbors of vitirol, 309, n.

effect of notice where custom exists, 309, n.

**720 INDEX.**

GENERAL AVERAGE -- Continued.

owners of vdesels collecting contributory shares entitled to commission, 310.

usage in Boston not allowed to contravene the law-merchant, $10, n.

III. Some Expenses on Changes usually settled as Greek AYD

aOE, $10, $12.

salvage so settled, $10.

two meanings of this word, $10.

what is saved from the wreck, $11.

amount paid to those saving maritime property endangered or abandoned, $11.

such persons called salvors, $11.

amount decreed in admixtures, as a certain percentage on property saved, $11.

may be a gross sum, $11.

usually settled as, and under the name of, $11.

damages by collision not so settled, $11.

expenses arising therefrom may be, $11.

" primage and average accustomed," in bills of lading, $11.

towage, light money, dockage, wharge, hire of anchors, cables, and bots, for temporary purposes ; persons to guard ship, quarantine expense, citing away through the ice, and like expenses, so assessed, $12.

IV. That THE SACHIFIC MUST BE JUSTIFIED BY NECESESITY, $13-$14.

this is the second essential of general average, $12.

obviousness of the rule, $12.

character of sacrifice without necessity ; who responsible, $12.

character of necessity authorizing jet fusion, $12, n.

direction of master, $12, n.

jetfusion, as a precaution against a future, but not impending danger, $13, n.

where boat runs on a known obstruction or shore, which proper skill might have avoided, jetfusion then not justifiable, though the only way to get bots off, $13, n.

jetfusion caused by unseworthiness of vessel, $13, n.

care of law-merchant formerly, against wanton and unnecessary jetfusion, $13.

.requiring master to consult with officers and crew, $13.

plenary power of master, $13.

not required to consult crew, $13.

crew no authority to make a jetfusion without his order, $13, n.

master consulting with crew suggests the probability of fraud, $14.

consultation no proof of necessity of jetfusion, $14, n.

V. That THE SACHIFIC MUST BE SUCCESESITY, $14, $15.

this the third essential, $14.

obviousness of the rule, $14.

vessel temporarily saved by sacrifice, $14, n., $20.

where same peril causes sacrifice, and renders it useless, $14, a.

when delay or deviation for repairs does not enable the ship to resume her roy-age, whether wages, provisions, necessary expenses or repairs, constitute a claim for general average, $14.

how, if expenses incurred with view to decide whether voyage shall be resumed, $14, n.

vessel scutled to save cargo from fire, and cargo then taken out, $14, n., $28.

ground of contribution that the vessel may carry cargo to its destination, $15.

INDEX. 721 GENERAL AVERAGE -- Continued. if a capture, and crew rescue and bring off the ship, whether a contribution, 315. if portion of cargo rescued with ship and brought home to owners, contribution by cargo, 315. what constitutes breaking up of voyage, so as to extinguish claim for contribution, 315. questions settled on principles of general average, more properly determined as questions of agency, 315. in such case contribution, though voyage broken up, 315, difference between claim for restitution and for recompense, 315, n. part sacrificed and remainder lost, all lost, 316, n. expenses incurred under an implied obligation of indemnity on all parties, 316, n. VIWER THE THINGS SACHIFIC COULD NOT HAVE REIN SAYED, 316-318. no claim for contribution in such case, 316. reason there, 316. claim only where substantial chance of saving ship, 316. goods to be contributed for only at their value at time of sacrifice, 316, n. musta cut away when the rigging and upper spars of a vessel lying at the what on fire, 317, n. when cargo on fire accidentally, goods injured by water used to extinguish fire contributed for, 317, and n. when not the precise thing, but that, or some other, must be lost, 317. Bencek's theory, no sacrifice of a thing, which, by reason of the peril, has ceased to have any value, 317. fallacy of this position; it rests on mistake or misstatement; such rule would. exclude most cases of average, 317, 318. practical application of the rule; illustration, 317. if thing which could not possibly be saved is destroyed for benefit of others, no average, 318. if number of things together sure to perish, unless some one is voluntarily destroyed, none are exposed to inevitable destruction, 318. VIIWhether the PROPERT in fertile and rescued must be saved by the SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACHIFIC SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH SACH S SACH SACH SACH SACH S SACH SACH S SACH SACH S SACH S SACH S SACH S SACH S SACH S SACH S SACH S SACH S SACH S S SACH S

**GENERAL AVERAGE -- Continued.**

contributory maritime interests are, either the ship, the cargo, or the freight, 320.

_The Ship,_ no uniformity of practice in regard to contributory value of, 320.

ancient rules as to, fallen into disease, 320.

contributes for whole value at time to which apportionment refers, 320.

what this time is, 320, 321. See _post_, IX.

time of loss, 320.

time of safe arrival in port, 320.

adjustment, where made, 320, n.

difficulty of applying above principle, as to value, 321.

rule founded upon average of cases, 321.

one fifth of value at time of sailing deducted_321.

not applied where value can be ascertained more exactly, 321.

actual sale of, whether determines contributor value, 321. See 327.

value of, ascertained by best means available, 321.

allowance for, and proof of wear and tear, 321, n.

impossibility of abating a fixed portion, 321, n.

value in a policy of insurance, 321.

what must first be deducted from all contributory values, and why, 322.

Cargo, what contributes and contributory value of, 323.

if goods would certainly have arrived in a damaged state and with

value diminished, such value to be taken, 322.

but only where such value is certain, 322.

where only a probability of it, what value to be taken, 322.

goods on deck if served by average loss must contribute, 322. See 124,

n.; 185, 186, n. 3.

goods jettisoned and afterward recovered; what is to be contributed

for, 322, and n.

still belong to owner, 322.

finder acquires no title, but IEE for salvage, 322.

goods paying no freight pay no average, 322.

such rule obsolete now, and unreasonable, 322.

probable meaning of it, 322.

clothing, baggree, and or emanating of passengers do not contribute, 322.

otherwise by Roman law, 322, n.

want of reason in such rule, 323.

opinion of Emerigon, 323.

jewels jetistioned through ignorance, 323.

when ignorance should make no difference, 323.

why full value should not be contributed for, 323.

probable application of ancient rule, that only the value which the

master might well suppose property to have should be contributed

for, 322.

jewels and bullion always contribute in proportion to their value, 323.

so bank-bills, 323.

unless not properly actual property, but evidence of demands

and distinguishable from specio, 323, n.

bills of exchange saved from week into liable for salvage, 324, n.

nor to contribute in general average, 324, n.

government property one exempt from contribution, 324.

never in England and not now here, 324.

INDEX.

GENERAL AVERAGE--_Continued_.

provisions, unless a part of cargo, exempt, 334.

shipped for convicts, 324, n.

if supplied by ship-owner for crew or passengers; if by shipper

for passengers, or animals transported by him; distinction,
324, n.

slares formerly contributed for, according to value, 324.

not if accompanying master as domestic, 324, n.

jedition of them not new sanctioned, 324.

by the civil law _things_, not _moderndies_, 324, n.

yet if saved as property, held to contribute, 324.

passenger or crew not called upon to contribute for personal safety,

324.

nor wages of mariner, 325.

exception of ransom from a pirate, no foundation in practice

or reason, 325.

only property endangered called to contribute, 325.

expense incurred for a particular interest, without benefiting the rest, to

be charged to that interest alone, 325.

capture of neutral ship solely on account of cargo, 325, n.

if part of the cargo is separated from the common peril, and

placed in safety, and a sacrifice or expense to save the re-

majorder is afterwards incurred, what contributes, 325, 326, n.

cargo gradually saved, parcel by parcel, by continuous efforts,

causing continuous expense, when all should contribute, 325.

conflict of authorities, 325, n., 326, n.

cargo not to be charged with any expenses incurred with respect

to it, after, voyage broken up and abandoned, 326, n.

services or expenditures for care of cargo after connection with

vessel for purposes of the voyage ceased, 326, n.

how contributory value of goods estimated, 326.

want of uniformity of practice, 326.

convenient and reasonable rule to take the net proceeds of the

goods at the place of adjustment if actually sold there, or their

net value for sale as estimated, 326, 327.

goods damaged and sold while in port, 327, n.

by such rule, shipper sometimes makes a profit and sometimes

loses, 327.

these consequences to be set off against each other, 327.

actual sale at port of adjustment as determining the value of the

goods, 327. See

sale at an internelli

destination, 327,

freight paid or nava

reasons thereof

if vessel arri'

what gen

New York.

**724**

**INDEX.**

**GENERAL AVERAGE -- Continued.**

old rule, to take the price at port of discharge if half of voyage

performed, if not, the cost price, 328.

if vessel arrives at port of destination what value to be taken,

328, n.

if' levision occur near port of departure, 328, n.

when goods are insured, valuation in the policy generally con-

clusive, at home port, 328.

profits, under that name do not contribute, 328.

when and how, in fact, they are included, 328.

_Freight_, valuation of, not settled by law or practice, 328.

only freight earned, pays, 328.

and if only _pro ratio_ freight, that only contributes, 328.

all necessary expenses for earning it should be deducted, 328.

freight lost by jetusion of goods, or any sacrifice, to be contributed for,

329.

if ship voluntarily stranded to save cargo and being lost, and

unable to carry it on and earn freight, this freight is part of

the sacrifice, 329, and n.

freight lost, not to be contributed for, when voyage broken up

not in consequence of voluntary sacrifice, 329.

when entitled to contribution, the value is the gross freight lost

by the sacrifice, 329.

net freight on goods saved and carried, 329.

difficulty of determining what is net freight, 329.

usually reached by deducting certain part, one third, etc.,

329, and n.

rule in Massachusetts, 329, n.

if there is charter-party, and freight is to be paid for the round

voyage, 329, n.

little embarrassment in practice, 329.

in most commercial ports, rules sanctioned by usage, 329.

an adjustment made at proper place, and according to its law,

binding upon all parties and interests, 329.

freight paid in advance and not to be repaid in any event, not

to contribute, 330.

master, by civil law, required to collect all the contributions, and hold them

for losing parties, 330.

same provision in the ordonnance of Louis XIV., 330.

doubted by **Valin**, 830.

not settled law or usage in England, 830, and n.

American practice in conformity to civil law, 330.

master agent of all concerned ; has line on goods for contributions ; duty to

refuse to deliver them until contributions satisfied, 330, 331.

shipper entitled to contribution, and, losing it by neglect of master, owners

responsible, 330.

sustained by practice, 330.

if master parts with the goods without contributory payment, and pays over

the contribution to losing party, he has an implied assumpist against the

deliveree of the goods, 331.

owner of the goods also liable, 331.

shipper paying all general average expenses, has right of action against his

joint shipper, for his proportion, 331.

**INDEX.**

_Continued._

India Companypatipulation that there shall be no claim

general average, 331.

wn in American contracts, 331.

of General Average Loss, and Contribution,

nent is port of final destination, 331 ; 320, 321.

ty not to deliver any contributory goods, until, 330, 331.

as, 331.

of any of the interests concerned, 332.

de by those who make it a special business, 332.

the continent, 332.

insurance brokers, 332.

ce, binding on all interests embraced in it, 333.

| average as a maritime usage, 332, n.

as assent to adjustment at the usual and proper place,

the law and usage of that place, 332, n.

e of adjustment, as regards original owners, 332.

rest and representations of the master does not pre-
nowing negligence or want of skill, and therefore'no

whether binding on insurers, 332, and $\\overline{\\rm n}$.

r property insured or not, 333.

r contribution against subjects liable to contribute,

cribution, and suit by him, 333, 334 ; 330.

lie in admiralty, 333.

of the U. S., 333.

corner to bring action _in_ regainst goods bound,

"li lie, of lien, 333.

" contribution, 334, n.

" against vessel in admiralty by shipper entitled.

ainst each shipper, 334.

ners, 334.

claim general average, 185.

"endentia, on sale of portion of cargo, 438..

a of, 404, 405.

**INDEX.**

**HISTORY AND ORIGIN OF THE LAW OF SHIPPING -- Continued.**

therefore common law does not meet exigencies of commerce, 3.

usage of merchants early taken as guides, 3.

law-merchant sprang from these usages, 4.

flexibility of common law, 4.

law-merchant became part of i, 4.

and exerted reciprocal influence upon i, 4.

wherein mercantile usage has modified common law, 4.

meaning of term "custom of merchants," 4, 5.

fountains of the common law, -Satham, Fitzhebert, Glanville, Brooke,

Braceton, Flets, Britton, Rolle, Sheppard, Coke, -- the Reports, 5.

the law-merchant founded in mach greater antiquity, 5, 6.

advantages and superiority of the law-merchant over the common law, 5.

a universal law, 5.

more equitable, 5.

fountains of the law-merchant, -- the books of the civil law, Consolato del

Marc, Laws of Oberon, Laws of Wisbury, Le Guidon, Marine Ordonance

of Louis XIV, Yalin, Pothier, 6.

origin of negotiable paper and insurance, 6.

aniquity of the law of shipping, 6.

**Thomian laws, 6, 7.**

Yinnius, 6.

rubries of the civil law, provisions of, and conformity to modern law, 7.

study and value of the civil law, 7, 8; 5.

the Consolato del Mare, 8, 9.

the Laws of Oberon, 9, 10.

the Laws of Wisbay, 10.

the Laws of the Laws of Wisbay relating to insurance, 10.

Le Guidon, 11.

the Ordonance of Louis XIV, 11.

Yalin's Commentary, 11.

Cleirez, Roccus, Casargis, Pothier, 12-14.

Lord Mansfield created the English commercial jurisprudence, 15, 16.

Mr. Justice Story created the American, 16, 17.

the different admiarity jurisdictions of England and the United

States, 16, 17.

**II. ENOLISH ADJUDICATION WHICH CREATED OR DEFINED THIS LAW, 18-24.**

**ancient respect for the " customs of merchants," 18.**

**provisions of Magna Charts respecting them, 18.**

**whether the courts judicially took notice of them, 18-29.**

introduction of witnesses to prove them, 19-22 ; 16.

whether they applied between all parties or merchants only, 19.

states favoring merchants, 18:

by what steps the law-merchant became incorporated into the law of England, 18-22.

part of the _jus genium_, 22-24 ; 20.

importance of this principle, 22-24.

importance, hopes, and claims of commerce, 23, 24.

HISTORY, of registry laws. See _Registry and Navigation Lane_,

HOSPITALS, marine hospital fund, 456.

HOSTAGE, promise of compensation to sailor for becoming, valid, 449, n.

INDEX.

- 727

HOYMAN, delivery to, 152, n. 5.

HYPOTHEACTION. See _Bottomy and Respondentia_.

I.

ILLINOIS, statate of, allowing actions against vessels by name, 107, n. See _Partonners_, VII.

IMPRISONMENT of seamen, 466, 467, and n.

INDLIANA, statate of, allowing actions against vessels by name, 107, n. See _Partonners_, VII.

INDORSEMENT; of bill of lading, 138, 141, n. 2, 359. See _Carriage of Goods_, IL.

of dock warrants, 344, n.

of bottornory bond, 440.

INZANT, shipment, desertion, and wages of, 473, n. 1.

INSOLVENCY, of one part-owner, rights of the other, 95, 96.

what insolveny gives the right of stoppage in transitu, 369-373. See _Stoppage in Transitu_, V.

INSTALMENTS, sale of ship to be paid for by, 74-78. See _Sale of Ship_, V. 8.

INSURANCE, origin of, 6.

different insurers liable _pro rata_, when, 93.

ship's husband, no power to effect, 98.

cases upon deviation, 123, n.

of cargo, how far it covers excess of freight caused by transshipment, 161, n. 1.

liability of insurers for loss arising from collision, 191.

party obtaining insurance upon, but having no other interest in, materials furnished, has no claim as material-man, 495, 496.

INTERREST, maritime. See _Bottomy and Respondentia_.

on bottornory bonds. See _Bottomy and Respondentia_.

upon maritime interest, 439, and n.

INTERLINEATION. See _Attention_.

INTERPLEADER, under Missouri statute, 108, n.

" **INTERRINSIC DEFECT**," in goods covered by bill of lading. See _Carriage of Goods_, IL.

IBONS, punishment by. See _Seamen_, VII.

J.

JETTISON. See _General Aerospace_.

JEWELS, contributory value of, in general average, 823.

limitation of carrier's liability for loss of, 405.

JOINDER. See _Actions_.

JOINT-TENATS. See _Tamats in Common_.

JURISDICTION, admitarity, English how differs from American, 16, 17.

JUS AD REM, 835-338.

JUS IN RE, 385-338.

E.

KEEL, conveyance of, 77, n.

KENTLEDGE, whether part of ship's furniture, 71, n. 3.

" **KING'S ENEMIES**," exception of damage by, in bill of lading, 180-183.

**T28** **INDEX.**

**L.**

**LACHES, of purchaser, in taking possession, 78-81. See** _Sale of Ship_**, V. 4.**

**LAY DAYS, 260-267. See** _Charter-Party_**, V.**

**LAW-MERCHANT, origin and nature of, 3-6,**

**superiority of, to common law, 5.**

**antiquality of, 5, 6.**

**universality of, 5.**

**LE GUIDON, 6, 11.**

**LICENSE. See** _Registry and Navigation Laws_**.**

**LIEN. See** _Stoppage in Transition_**.**

**sale of ship to satisfy, 65, 107, n., 109, n.**

**of builder, 75, 78, n.**

**of part-owners and partners. See** _Part-Owners_**.**

**of ship's husband, 99, 100.**

**under Ohio statute allowing actions against vessel by name, 106, n.**

**under Michigan statute, 107, n.**

**under Indiana statute, 107, n.**

**under Illinois statute, 107, n.**

**under Missouri statute, 107, n.**

**for services under Missouri statute, 108, n.**

**effect of sale under Missouri statute to direct other lines, 109, n.**

**reciprocal, of ship and cargo. See** _Carriage of Goods_**, I.**

**of a chartered ship, on her cargo for the freight, 250-255. See** _Charter-Party_**,**

**III.**

**at common law, 126, n., 127, n.**

**of common carrier, 127, n.**

**under bill of lading, 143-147. See** _Carriage of Goods_**, II.**

**_Stoppage in Transition_**, III.\*\*

**by mere deposit of bill of lading, 365.**

**for freight, and for right to earn freight, before voyage is completed, see** _Carriage of Goods_**, IV.**

**of injured, on injuring, ship, for damages in collision, 207.**

**by bottomary and respondents. See** _Botomy and Respondentia_**.**

**of master on ship and freight for his wages, disbursements, and other dues,**

**256, 257 ; 389, 390.**

**of master as agent of the parties interested, to enforce contribution in general average, 833.**

**of seanem for wages, 452.**

**of material-men, 489-502. See** _Material-Men_**.**

**of party pending money for the use of a foreign ship, 489.**

**LIGHT, duty of ship to show. See** _Collision_**.**

**LIGHTER, delivery of goods in, 158.**

**charge for delivering goods by, 163, 164.**

**if goods on board of, are burned, whether peril of the sea, 183, n.**

**service of, whether subject of general average. See** _General Average_**.**

**LIMITATION, of owner's liability for acts of master and mariner, 375.**

**LOANS, ship's husband no power to effect, 98, 99, n.**

**LOG-BOOK, entry upon, of desertation, 473, n. 1, 474, n. 1.**

**LOOK-OUT, duty of ship to keep. See** _Collision_**.**

**master's duty in regard to, when pilot is on board, 483, n.**

\*\*LOUS XIV., marine ordonance of, 6, 11.\*\*INDEX. **729**

M.

MANAGING OWNER, 97-101. See _Part-Oomer_, VI.

MANSFIELD, LORD, created English commercial law, 15, 16.

MARINE HOSTITAL, funds, 456.

MASTER, DUTIES AND POWERS OF, 378-440.

I. Foundation and Nature of the Master's Authority, 378-384.

his peculiarly responsible position, 378.

reciprocal obligations of master and owner, 378.

competence of, necessary to make ship sea-worthy, 378.

duty as to lading goods, 378.

dunnage and stowago, 378.

hull of ship, rigging, provisions, and supplies, 378.

ship's papers, 378.

his own conduct, 378.

when ship wrecked, in peril, arrested, or captured, 378.

"last man to leave the ship," 378.

custom and usage and the nature of duties best guide of requirements, 379.

privileges by usage, varied by bargain, 379.

of carrying goods for himself or others, 379.

certain tonnage, 379.

primage and average, 379, and n.

whether owners liable to, for all wages and privileges previously stipulated
for, when they change the voyage, 379, and n.

receiving a certain sum as wages and a commission, not allowed to traffic for
himself, 380.

powers, better defined than duties, 380.

agent for the owners, in all matters fairly within the scope of his appointment,
380\.

but no more authority to bind the owners than any agent to bind prim-
cipal, 380, n.

not the general agent, 380, n.

authority as agent, defined by law of agency, 380; 417.

his agency, founded on necessity, ceases when owner present, 380.

not applicable to owner _pro Lac vice_, in command, 380, n.

may sell ship, when sufficient necessity, 380. See also, _Sale of Ship_, III.

no such necessity when owner so near us to give instructions, 381.

specially empowered to sell in a particular manner, 381.

may do abroad what he cannot at home, 381.

raise money on bottomy, charter ship, or repair, or supply her

extremity, 381.

but not borrow money to pay for work already done, 381, n.

party furnishing necessaries must prove him agent of the owner,

381, n.

vendee of ship not liable for money previously borrowed to furnish necessaries

of ship in foreign port, 382, n.

no power to create a lien in foreign port as security for repairs and supplies,

except by bottomy bend, 382, n.

if part-owner, authority to settle claim for demurrage, 382.

possibly so if not,

power, when not determy

_place_, 382.

780 INDEX.

MASTER, DUTIES AND POWERS OF -- Continued.

when contracts by, in home port, bind owner, 382, and n., 383.

contracts of affie INDEX.

STER, DUTIES AND POWERS OF -- Continued.

appointed abroad by consult, same power, 387.

may give bottomary bond, 387, n.

of steamboat or privateer, similar power, 387.

owners of privateer labile for torus committed by, 387, n.

it seems also for his contracts, 387, n.

how contracts within scope of authority, may be ratified by owners, 388,

and n.

cannot annual, or materially vary contract made by owners, 388.

nor bind the owner by a contract neither necessary nor beneficial,

388.

may bind ship, if a custom to carry certain passengers free, or seamen's goods, 388, n.

liability of master and owner controlled by rule, that a party giving

credit to one, when he might to another, cannot afterward resort to

the other, 388.

contract exclusively with, or exclusively with owner, 388.

proof of exclusive credit given to either, 388.

mere entry on books charging either, doubtful, 389.

custom to charge vessel "and all concerned in her," 389.

or ship "and owners," 389.

owner responsible as such, though name not on ship's papers or registered, 389.

master's lien on ship and freight, origin of, 389.

extent of, 389.

in England held none on ship, or freight, 389, and n.

in America, he has lien on freight, but not on ship, for his

'pages or disbursements, 389, 390.

but if merely called a master, he has lien on both for wages,

390, n.

on ship when he pays lien and is substituted for lien creditors, 390, n.

where he used his own money to repair her, in preference to

borrowing on bottomary, 390, n.

if directly responsible for seamen's wages, 390, n.

none for general account, 390.

has on cargo, for his disbursements, if it belongs to owner

of ship, 390.

if on freight, may detain goods against consiope or shipper,

when 390.

INDEX.

MASTER, DUTIES AND POWERS OF -- Continued.

for master's embezlement of goods, 392.

but not for goods shipped by his own privilege, 399.

shipped clandestinely, while owner is on board, 392, and notes.

for master's tort in smuggling goods, 392, n.

for money borrowed by master for his private purposes, 393.

owners of privateer, liable for torus of officers and crew, 393.

but not for their piratical acts, 393, and n.

rule making master responsible, 394, and n.

usage of port, or of trade important in making him liable, 394.

liability dependent on maritime law, 394.

may be increased by special contract, 394.

distinction raised in recent cases, 394.

for willf wrong of servant, though done in opposition to owner's commands, 394. See 392, and n.

as conductor detaining train in swamp over night, 394, n.

and engineer running train over forbidden track and causing collision, 395, n.

maxim of _respondent superior_, 395, n.

for master's misbehavior to, or ill-treatment of, passenger, 395, n.

for conversion of deceased passenger's money, 395, n.

for sailing away and leaving passengers, 395, n.

if damages paid, remedy against master, 395.

limitation of owner's responsibility for acts of master and manners to value of ship and freight, 395-406.

cesses by abandonment of them, 395.

by civil law : obligations _ex contracts_ and _ex delicto_, 395, n.

by marine ordonance of France of 1681, 395, 396.

whether this applies to contracts made by master within the scope of his authority, 396.

- in England, by statute, 396.

See American Statutes, poet.

under present statute, 396.

no right of abandonment, 396.

decisions under, aids to construction of ours, 396.

value of ship and cargo when to be taken into action against owner

for act of master, 396, 400, 401 ; 403.

how such value to be ascertained and what included in, viz. : what

freight, with what deductions for bottomary, mortage, plottage, tow-age, and seamen's wages, 397, and n.

other owners not deprived of benefit of statute by negligence of part-

owner on board and in command, 397.

part-owner negligent, to what extent answerable, 398.

when owners personally liable for costs, 398.

owners of a gabbert liable for accidental fire, 398, n.

Stat. 26 Geo. 3, e. 86, limiting liability for loss by fire, applicable to what, 398.

measure of liability where there are several claimants, 398.

owner may institute proceedings to determine the amount of his liability ; to distribute _pro rata_ and stop further suits, 398.

must do what to stay proceedings, 399.

costs on judgment obtained, against owner before such proceedings, to distribute, 399.

INDEX.

AND POWERS OF -- Continued.

being limited by statutes, giving ball when vessel arrested

ot increase is, 399.

ates limiting the owners' responsibility for acts of master and

ners, 399-406. See _English Statutes, ante._

as. and Maine, 399.

ht of abandonment by, 399.

if Maine construed to give it, 399, and n.

nor the Mass. statute applies to contracts of the master made within

a legitimate scope of his authority, 400, n. 1.

. of estimating value of ship and freight, under, 400, n. 1. See

J6, 401, 403.

be United States passed in 1851, 399-406.

visions of, considered, 400-406.

age. 3, not to exceed value of such owner's interest in ship and

freight then pending, 400, 401.

, sec. 4, owners of goods to be paid _pro vata,_ if not sufficient to pay

in full, 401.

roceedings specified for determining apportionment, 401.

hip-owners may transfer interest to trustees for benefit of shippers, 401.

questions arising respecting construction of these sections : first, as to

time of estimating value of ship and freight, 401. See 396 ; 400 ; 403.

second, whether same rule applies to breach of contract of affheightment and to collision, 401.

third, whether right of abandonment given by sec. 4, corresponds with

maritime law, 401.

its effect in determining time of estimating value of ship and

freight, 402.

fourth, whether abandonment is allowed in case of collision, 402.

all sections to be construed together, 402.

first part of sec. 4 not applicable to case of collision, 402.

grounds of such opinion, 402.

states, in derogation of common law, to be strictly construed, 403.

limiting liability of ship-owners, subject to same rule, 403.

owner liable by common law to full extent of damage, 403.

but right of action did not accrue at same time in all cases, 403.

in cases of tort, when, 403.

contract, when, 403.

contract of affheightment, when, 403, 404, and n.

when goods embexaled, 403.

when goods wrongfully sold by master, 403.

meaning of the phrases "for such claimants," "an interest in the

vessel," "freight then pending," in sec. 4 and sec. 2, 403, 404.

owner's liability for shipment of precious metals, etc., 404, 405.

effect of want of literal c

lev with status, 405.

provisions of English g

k 18 Vict. exempting owner from liability for loss of prec

als, unless, 405.

what description of box

it under this statute, 405.

owner when not liable :

p from accidental fire, 406.

U. S. act of 1851 not

e to vessels used in inland navigation,

406.

the great lakes wheethe

, 406.

OL. L.

**Index.**

MASTER, DUTIES AND POWERS OF -- Continued.

**IV.** 406-440. See _Bottomy and Respondentia_.

**V.** In other respects:

change of, indorsed on register, 33.

citizenship of, 87.

salo of ship by, 59-65. See _Sale of Ship, III_.

who is also part-owner, power of other part-owner to dispossess of command

of ship, 86.

liability of, for torus of those under him, 94, 95.

power of ship's husband supersedes, 99, n. 3.

authority of, as to supplies, repairs, and work, 111, 83, n. 1, 194, n. 1.

agent both of owner and shipper, in case voyage is broken up, 163.

negligence of, in regard to stowage of goods, 185.

evidence of, as to collision, 210.

power of, to make charter-party or other instrument under.scal, 231, and n.

accommodations of, on board vessel, 233, and n.

possession of ship, and ownership _pro lac vice_, by. See _Charter-Party_, II.

opinion of, as to ship's capacity, 243.

lien of, for wages and displacements, 256, 257.

duty of, as to consultation with crew, 313.

duty of, as to settlement of general average contributions, 830.

lien of, to enforce contribution in general average, 333.

compensation of, for extra labor, 448, n.

power of, over crew, and agreements with them as to wages, etc. See _Same_, II.

duty and discretion of, as to provisions and allowance. See _Same_, III.

duty of, as to sickness of seamen. See _Same_, V.

as to return of seamen to this country. See _Same_, VI.

power of, as to punishment of seamen. See _Same_, VII.

upon desertion. See _Same_, VIII.

duties, powers, and liabilities of, when pilot is on board. See _Pilots_.

MATERIAL-MEN AND THEIR LIENS, 489-502.

who are, 489.

as defined by Jacobsen, 489.

Lord Stowell, 489.

those who build, repair, or equip ships, or furnish them with tackle and necessary provisions, 489.

the question of lien considered, 116, 117.

builders of ships and furnishers of supplies to ships, while building, have no lien upon them by maritime law, 489, 498.

ship broker obtaining crew, has lien for services and for advances for wages, 489.

one lending money for use of foreign ship same privilege as material-men, 489.

stevedores no lien in rem for loading vessel, 489.

and cannot use in _persona_ in admirality, 489.

may proceed against remnants in registry, 490.

one employed to visit ship from time to time, to sea to her safety, ventiate her, and try her pumps, cannot use in admirality, 480.

if employed to navigate ship from one anchorage to another, ha can, 490.

employed to scrape bottom of ship, he cannot, 490.

no lien on ship for expense of compressing cargo, 490.

INDEX. 735 MATERIAL-MEN AND THEIR LIENS -- Continued.

nor for cost of advertising vessel for sea, portage, commissions for procuring

freight, or lighterem's vages, 490.

ship-broker has no lion for drawing contract between owner of horses shipped

and hostlers to take care of them, 490.

nor general agent of a steamboat for balance of account for money expended

for supplies, etc., 490.

what is deemed necessary, 490.

vessel owned in one State, and supplies furnished in another, master no

authority to give bottomy for, 490, n.

necessity authorizing master to impose lien in one case, and to give

bond in the other, distinguished, 490, n.

vessel owned in New Jersey, and supplies furnished in New York, no

lien by maritime law, 490, n.

a chain cable lent till one is made, vessel liable for both, when, 490, n.

water-casks included in materials, 490, n.

lien on ship by general maritime and civil law, 490 ; 116, 117.

not derived by maritime from civil law, 491, n.

enforced in admiarity courts in England, till reign of Charles II., 491.

since then, till statute in 1840, confined to person having possession of ship

for repairs, and enforced simply by law of bailments, except, 491, and n.

since statute of 1840 full lien to material-men in England, 491.

general maritime law in force in this country, 491.

all material-men have lien on ship by our admiarity law, 491.

supplies must be necessary, and such as could be obtained only on credit

of ship, 491.

proof that owner had no funds or credit, except ship, 491, n.

liens given by local law do not depend on same requirement, 491, n.

lien or "priilgeium " of civil and general maritime law extends to foreign

and domestic vessels alike, 492.

otherwise in this country, 492, 501.

none on domestic ship, unless given by State law, 492, 501.

if builder or repairer retain possession, common law lien, 492, n.

and enforceable in admiarity, 492, n.

but gone if possession parted with, 492, n.

on foreign ships, not dependent on possession, 492, n.

if in a home port, and held out as foreign, 492, n.

vessel in enemy's port pretending to be neutral, 499, n.

if in a foreign port, and owners present, 492, n.

each State foreign to the rest, 492, and n.

what primal _facute_ evidence that vessel belongs to a certain port, 493, n.

proof necessary to overcome it, 493, n.

how presumption strengthened, 493, n.

when enrolment conclusive, 493, n.

when doubtful whether a vessel built in Delaware, and brought to

Philadelphia, considered foreign, 493, n.

residence of owners determines whether vessel domestic or not,

493, n.

who considered owner, 493, n.

when charterter, so as to release vessel, 493, n.

when master, though charterter, can bind ship for necessary repairs in

foreign port, 493, n.

ship built here for aliens resident abroad, a foreign vessel, m.

for supplies for first voyage, 493, n.

ship built in Cleveland for parties resident in Buffalo, N. T., 493, n.

liens given by State statutes against vessels in home port, 433.

status of the different States, 493, n.

similarity of provisions, 494.

lien of builder in New York attaches when, 494.

statute does not apply to canal boats, 494.

does to a steambout fitted up as a theatre, 494.

and vessel liable for supplies furnished the theatre, 494.

debts for goods furnished not contracted till delivery, 494.

agreement to deliver not sufficient, 494.

lien lost if creditor suffers vessel to sail, 494.

but not if upon a trial trip merely, 494.

nor when she leaves State fraudulently, when not liable to arrest, 494.

lien for repairs on a boat running from New York to Albany under one general order, 494.

when every trip a departure within the statuto, 494.

same rule as to coal furnished at different times, under one agreement,

494, n.

wood for fuel, in New York, not " supplies," 495.

in Illinois otherwise, 495.

in New York within term " stores," 495.

lien in Maine, while building, and four days after launched, 495.

lost, if materials sold on time, and time not elapsed before four days

expire, 495.

materials must be actually used in construction, 495.

not sufficient that they were furnished under representations that they

were to be used, 495.

lien attaches if materials furnished for one vessel, used in another,

495, n.

if some used, and others not, and judgment obtained for amount of

whole, 495, n.

party furnishing materials must have reference to some particular vessel,

495, n.

if the particular vessel not begun to be built, 495, n.

furnishing generally to ship-builder no lion on any particular vessel, 495, n.

positive use of materials must be shown, 495, n.

if only part, material-men must show what part, 495, n.

materials furnished for two vessels built for same person, no lien on one for

whole materials, 495, n.

tools and other articles used by workmen not embraced in statute, 495.

no lien for materials or labor furnished to construct moulds of ship, 495, n.

nor for person procuring insurance on timber purchased for, and used in

construction of, ship, unless, 496, and n.

party procuring insurance not a furnisher of materials under the statute,

496, n.

liens under the statute of Massachusetts, 496, 497.

case at expiration of twenty days after departure, 496.

and in all cases after vessel's arrival at a port out of Commonwealth,

496.

**Index.**

**MATERIAL-MEN AND THEIR LIENS -- Continued.**

vessel sailing from Newburyport to Boston and obliged to put into

Portsmouth, N. H., Iben lost, 496.

by statute of 1855 given to persons for money due under any contracts

with owners, 496.

" owners" means special, as well as general, 496.

one repairing vessel under contract with special owner, 436.

for repairs done on vessel when in temporary possession of vendec and

which reverted for breach of contract, 496, n.

mode of enforcing; time of filing petition; proper mode of serving

petition, 496, and n.

trench made in front of launching ways to deepen water not a part of

them, 297.

under statute of Pennsylvania continues till vessel goes to sen, 497.

even if owner becomes bankrupt before departure, 497.

ship handler's lien for what, 497.

lien for arms where enforced, 497, n.

when a barge hired for a steamboat is a material furnished, 497.

money loaned to build a ship, when gives lien, 497.

if to pay wages, not, 497, n.

or for use of the boat generally, 497, n.

in Illinois if statute applies, lender must show that necessity existed, 497, n.

in Maine paying claim of one who has lien, gives no right to enforce it,

497, n.

nor indorsing note and paying it at maturity, 497, n.

goods furnished master to supply lost goods, not " supplies," 497, n.

lien for money loaned to enable a person to purchase a vessel, 497, n.

lien for goods furnished a master to enable him to purchase wood and other

necessaries, 497, n.

under statute of Ohio, whether lien by builder after delivery, 498.

in Michigan none for supplies furnished while vessel building, 498.

in Missouri when supplies considered ordered by master, 498

this lien extends beyond repairs, 498.

to the alterations and perhaps reconstruction, 498.

but not to original construction, 498; 499.

shipwright could not use _in_ rem for his wages in building a ship,

498, n.

whether rigging of a new vessel gives, 498, n.

contract for building vessel made with owners residing in another State,

498, n.

when contract to build not of a maritime nature, 498, n.

unless statute includes ship-building, 498, 499.

given by State statute to persons building vessel whether enforced in

admiralty, 499, n.

services not maritime, 498, n., 499, n.

statute liens take precedence of all other claims, 499.

lien of material-men preferred to claim of one lending money to build

the ship, 499, n.

lien of material-men enforceable though vessel ordered by court to be

sold to satisfy a mortgage, 499, n., and 500, n.

vessel may be proceeded against, though in the hands of a _load_ _file_

chaser, 500, n.

what will constitute a reasonable time, 500, n.

lost by delay, difficulty of reconciling the cases, 500, n.

creditor advancing money to a builder on mortage succeeds to place of owner, 500, n.

none for laborer employed for general work, or mechanic, 499, 500.

whether sub-contractors and day-labores have, 500, n.

in Maine person performing labor on a vessel has, 500, n.

sub-contractors furnishing supplies doubtful, 500, n.

cannot sue and attach the ship, but should sue contracts, 500, n.

action against contractor and owner as trustee, 500, n.

by Mass. statute of 1855, sub-contractors and day-laborers have lien, 500, n.

formerly otherwise, 500, n.

lien of party furnishing supplies to builder of ship in ignorance of her ownership, 500, n.

such lien exists in Ohio, 501, n.

so in Kentucky unless owner has paid the person who employed the sub-contractors, 501, n.

but none in New York, Pennsylvania, or Indiana, 501, n.

in Missouri when ship-expenter cannot create lien, 501, n.

created by maritime law or statute, enforceable against government ship as well as private, 501, and n.

or by State statute may be enforced in State court, 501.

sometimes in admirity, 501.

twelfth rule of Supreme Court in regard to, 501, n.

general doctrine of maritime law, giving admiralty jurisdiction of lien created by statutes, subject to this rule, 501, n.

lien of wharinger given by State statute why not enforceable in admirity under this rule, 501, n.

admiralty enforces lien on domestic ship, only because statute gives it, 501.

governed, in applying statute and enforcing lien, by terms of statute and not by maritime law, 501, 502.

governed in construing the terms by admiralty principles, 502.

lien when waived by giving credit on other stipulations, 502.

if duration of lien is fixed by law, and credit extends beyond time, 502, n.

if credit expire before, question of intention, 502, n.

credit given for definite time, lien suspended for the time, 502, n.

charging materials to the owner before vessel named or completed, 502, n.

the giving of a note as waiver, 502, n.

MEDICINE: CHEST, 445, n. 4, 456-458.

MERGER, of other debts by bottomry bond, 418.

MICHIGAN, statute of, allowing actions against vessels by name, 107, n.

See Part-Ourencs, VII.

MINOR. See Infant.

MISSOURI, statute of, allowing actions against vessels by name, 107, n.

See Part-Ourencs, VII.

**INDEX.** **739**

**MORTGAGE.** See _Sale of Ship_.

rights and liabilities of parties under. See _Osmera_.

how analogous to hypotension by bottomy, 118.

how distinguished from pledge, 118.

**MORTGAGEE, may take out register, 42.**

conflicting claims of, and creditors, under Ohio statute allowing suit against

reused by name, 106, n.

when responsible as owner. See _Osmers_.

for contracts or torts of mortgagor. See _Osmers_.

\*\*MORTGAGOR, liabilities of, as owner. See _Osmer_.

**MUTINY, when ship is unseavorthy, 455.**

**N.**

**NAME, of vessel, how to be painted, 82.**

change of, 36.

**NAVIGATION LAWS.** See _Rigistry and Navigation Laws_.

\*\*NECESSITY, justifying sale by master, 59-65. See _Sale of Ship_, III.

justifying bottomy or respondents. See _Bottomy and Respondentia_.

justifying sacrifice, which entitles to contribution in general average, 519-314.

See _General Average_, IV.

master's power arising from, 385-390, see _Master_ ; 118-120, 406-440, _Bottomy and Respondentia_.

**NEGLIGENCE.** See _Collision_.

liability of part-owners to each other for, 95.

of carrier, 184, n. 1.

\*\*NEGOTIABILITY, of bill of lading, 188, 141, n. 2, 359. See _Carriage of Goods_, II.

of lock warrants, 344, n.

of bottomy bonds, 440.

**NEGOTIABLE PAPER.** See _Bills of Exchange and Prominatory Notes_.

\*\*NOTICE, should be given by purchaser of ship at sea, to master, 79.

of sale, actual and implied by registry. See _Ilegistry and Navigation Laws_.

between part-owners, 108, n.

by ship-owner, or master, to consignees, of arrival of goods, 159, 154.

by consignor, sufficient to stop goods in _transitu_, 373-377. _Boe Stoppas in_

_Transitu_, VI.

**NOTORIENTY, as evidence of ownership, 44.**

O.

**OATH, necessary to registration or enrolment, 32, 38, 39.**

false, forfeiture for, 87.

taken insoently, 37.

of master only, enrolment upon, 29, 29, 32.

of ownership, applies to legal, 41, 42, 92.

\*\*OHIO, state of, allowing actions against vessels by name, 106, n., 107, n. _Boe Party_.

_Osmers_, VII.

**OLEROS, laws of, 6, 9, 10.**

**ORAL SALLE.** See _Sale of Ship_.

\*\*OUTPUT, duties of ship's hustand as to, 29.\*\*740 INDEX.

OWNERS:

I. LIABilities OF, 111-117. See Part-Owners, III., IV., V. for act of, or expenses incurred by, master. See Master. when liable for supplies, repairs, and work, 111.

put in against their will, 114.

who resist claim for, must prove what, 111.

master's authority as to supplies, repairs, and work, 111 ; 87, n. 2.

liability of owner _pro hoc vivo_, 111.

when charterre so considered, 111, n. See also, Charter-Party.

usual principle for determining liability, 111, n. 2.

when mortgage responsible as, 118-116.

mortgage out of possession, whether liable, 113-117.

should take possession, when, 112 ; 79, and n.

falling to do so, liable for what, 112 ; 79, and n.

actual, or apparently actual, possession, 118.

whether out of possession, or mortgage in, liable, 113.

If chooses not to take possession, what risk he runs, 113.

when protected as if he had possession, what the liability, 118.

liability of, for contracts or torts of mortgage who is also master, 115, n.

whether liable, depends upon three things, namely, giving of credit ; authorizing credit; reception of benefit, 118.

general principles sustaining these distinctions, 113, 114.

if owner retains an unauthorized benefit to his ship, which he cannot remove without injury to the ship, 114.

if party furnishes supplies, in ignorance of title of party sought to be charged, 114.

repairs against the will of owner or mortgage in possession, 114 ; 87, n. 1. See Part-Owners, III.

mortgage out of possession, not entitled to freight, 115, n.

parties may make any bargain, as to whom supplies, etc, shall be credited, 116.

bargain, how proved or inferred, 116.

lion of material-men, 116, 117. See Material-Men.

II. Use of the Shift BY. See Curriage of Goods ; Collision.

III. In other RBER INDEX. 741

P.

PACKETS, when common carriers, 174, 175, n.

PARTIAL LOSS. See _General Average_.

PARTICULAR AVERAGE. So _General Average_.

PARTNERS, distinct sales of ship by different partners, which is effectual, 80, and

81, n.

as distinguished from part-owners. See _Part-Owners_.

PART-OWNERS, 82-110. See _Owners_.

I. How Partnership in YESSELs is CRATED, 82-84.

by building or purchasing, 82.

tenants in common, not joint-tenants, 82, 83, and n. 5.

remark in Abbott controverted, 82, n.

equal shares presumed, 82.

share of each to be inserted in register or enrolment, 82, n. 2.

ship held in _partnership_, powers and duties of owners, 83.

quasi partnership for a voyage or adventure, 83; 96, n., 97, n., 101.

every such partner has lien, 83.

liable as partner, 83.

whether such partner may dispose of whole, 83.

part-owner cannot, 84.

whether all must be parties to bill filed on account of profits, 83. See 103.

distinction between partner and part-owner, 84, 87, n. 1, 88.

transfer by partner of his interest, 84.

transfer by part-owner of his interest, 84.

part-ownership presumed until partnership proved, 84.

II. Powers or Part-Owners, 84-88.

general rules of co-tenancy apply, 84.

sale by one, of share of others, void unless authorized or ratified, 84.

the other may maintain trover for conversion, 84, 85, n. 1.

but not for dispossession, 85.

the action of case between, 85, n. 1.

replicur does not lie between, 85.

whether trespass will, lie, 85.

if the vessel be lost or injured by. the negligence or malfeasance of one part-owner in sending ship to sea, whether another can recover damages, 85, n. 1;

86.

power of majority of, to control and employ ship, 86.

whether may dispossess master who is part-owner, 86.

implied authority of part-owner in absence of the others, 86, 87,

as to repairs, 87, n. 1. See also, _Owners_.

distinction between authority of ship's husband, and ordinary part-owner, 87,

n. 1, 88, n.

distinct of part-owner to voyage, events him from his sharp of loss, 88.

charge made to one part-owner, presumption of individual credit, 91.

rebutted by showing others not known, 91, and n. 2.

if negotiable paper of one, given in payment, be dishonored, others liable, 92.

negotiable paper absolute payment in Maine and Massachusetts courts of law,

93.

but not in admiralty courts, 93.

I liability of insurers after accepting abandonment, 93.

proportionally; not _in solido_, 93.

\*\*IV. LIABILITY of PART-OWNERS for THE TOSTS of THEIR EMPICES, 94, 95.

governed by law of agency, 94.

when tortotis act is that of owner and when of master, 94, 95.

**V. LIABILITY or PART-OWNERS to reach othern, 95, 96.**

whether liable for loss occasioned by negligence, 95.

liable for loss occasioned by destruction of property, 95.

insolvency of one part-owner, rights of the others, 95, 96.

lien of part-owner on share of insolvent for his indebtedness, 96.

distinction between lien of part-owners and partners, 96, n.

partnership may exist in cargo and voyage, but part-ownership in vessel,

96, n., 97, n. : 88.

**VI. THE SHIP's Husband, 97-101.**

general agent, 97.

how appointed, 97, 98.

distinction between, and ordinary part-owner, 87, n. 1, 88, n.

duties of, 98.

as to outfit and sea-worthiness, 98.

ship in port, 98.

ship's papers, 98.

freight and returns, 98.

cannot borrow money, 98, 99, n. 2.

nor surrender lie for freight, 98, 99, n. 2.

nor insure, 98, 99, n. 2.

nor purchase cargo, 98.

nor delegate his authority, 99.

power of, supersedes that of master, 99, n. 2.

whether can prosecute action at law, 99.

whether managing director or owner largely interested, can become, 98, n.

has no lien for advances on share, of other part-owners, 99.

acting within scope of authority binds other owners, 99.

creditor giving credit to ship's husband alone, 99.

liability of owners to, for his charges, 100.

if some are insolvent, 100.

lien, and rights of, 100.

**VII. LIENS of PART-OWNERS, AND Actions BY AND AOAIST THEM, 101-110.**

general principle on which law of lien rests, 101.

part-owners, as such, have no lien, 101, 102.

only as copartures, or agents, 101, 102 ; 83, 96, and n., 97, n.

\_DEX. 743

- s rule, 102, n. \*

be general principles of agency, 109.

units of one do not bind the others, 103.

astment of accounts, 103. See 83.

103, 104.

104.

low taken advantage of, 103-105, 106.

tion, 105.

me, 106-109.

e brought, 106-108.

arty should declare, 106, n.

situtional, 106, n.

I: Ien prior to seizure, 106, n.

aims of mortgage and creditors, 106, n.

i action will lie against vessel, 106, n., 107, n.

a till attachment, 107, n.

I declare, 107, n.

zanswered by salo, under one of several lines,

from judgment of justice of peace, 107, n.

in rem for wrage, 107, n.

attaches, 107, n.

enforced, 107, n.

judgment, how affecting superior or antecedent

7, n.

inration of Iien, 107, n.

t to issue till bond filed, 108, n.

a of the attachment, 108, n.

co of Iien, 108, n.

icoa and return sufficient, 108, n.

execution insufficient to warrant sale, 108, n.

om justice, 108, n.

owner may sue :

we of boat, on notice, 108, n.

ter has no Iben for

ces, 108, n.

etween part-own:

s, n.

f trespass in St.

Court of Common Pless, 108, n.

ader, under the r

108, n.

i services action

sustained, 108, n.

ts of affielemme

n.

vost liable, if or

ge party in possession is a tree-

er, 108, n.

aases of preferred

109, n.

of judicial sale to

ther Ibens, 109, n.

of sale under law

or State, 109, n.

ri of complaint,

Ricient, 109, n.

nd filed must sho

09, n.

in discharge of l

n.

sudings, if no bon

1, 109, n.

in will be sustain

cause of action arose in another

and n.

ers against each

**INDEX.**

**PART-OWNERS -- Continued.**

**VIII.**: **N DHERE RESPECTS:**

citienship of, 98, 29, 87.

presence of, effect upon master's powers to make bottomy bond, 417.

presence of on board ship, does not increase liability of other owners for acts

of master, etc. beyond value of ship and freight, 997, 998.

**PENAL**: \*\*SUM, in a charter-party, not a limit of liability, 283.

**PERSONAL**: \*\*PROPERTY, law of, how related to law of shipping, 25.

rules regulating sale of, how applicable to sale of ship, 69-81. See Sale of

_Ship_, V.

**PENALITY**, not enforced against seamen, 445, n. 4.

**PILOTS**, 479-488.

**I.**: \*\*Who PILOTS ARE, AND WHAT THEIR DUUTS ARE, 479-484.

pilot boats bound to what rules of navigation, 201.

formerly two meanings, -- see pilot and coast pilot, 479.

pilot for many purposes a mariner, 479.

has peculiar duties, 479.

office of, regulated by law, 479.

States ordered by congress to make their own laws as to, 479.

vessel going into or out of any water bounding two States may employ pilot

of either, 479, n.

questions arising under, cognizable in State courts, 479.

United States courts have concurrent jurisdiction, 479, n., 480, n.

States laws entitled to liberal construction, and why, 480, n.

constitutional, 480, n.

diffor somewhat, 480, n.

to act as, must be commissioned, 480.

unauthorized person may guide vessel, but can recover no compensation

allowed by law, 480.

nor any compensation, if he falsely pretended to have a commission,

480.

and is liable civilly in damages, and criminally for any losses or inj-

ries resulting, 480.

pilot should have evidence with him of his authority, and why, 481.

difficulty of piloting increases with draft of water, 481.

oldest and most experienced, only allowed to pilot largest ships, 481.

no vessel bound to take one on board, 481.

if one offers, and is ready, vessel must pay pilotage fees, 481.

but if he offers and is refused, cannot maintain a claim for work and labor

done, 481, n.

how master must approach pilot ground, 481, n.

what constitutes an offer entilting pilot to his fees, 481.

not necessary to go on board and tender services to master, 481.

when hailing vessel sufficient, 481.

association of pilots in some ports and for what purposes, 481.

in others, each gets what he can, 482.

advantage of latter system, 482.

whether those at great distances have same authority, rights, and responsi

bilities, as when nearer port, 482.

carried by some coasting steamers, 482.

absolute and exclusive control while on board in absence of master, and master not then liable for accident, 482.

ter, 489.

ids on deck, but not such as wholly to supersede

ifful injury by pilot, 482, n.

no of a steambox colliding, pilot being hired by 4, 482, n.

2 and 484, n.

nd disposses him of his authority, 483.

of pilot alone, owners not responsible, 483, n.

he master, 483, n., 488, n.

when vessel should be brought up, 483, n.

coming to anchor, 483, n.

rh, time and manner of dropping anchor, 483, n.

paratory to bringing up to take berth, 483, n.

duty to select berth, 483, n.

483, n.

master's duty to see that good look-out is kept,

master to have the management, of ship, 483, n.

orders to cut rigging when two vessels entangled,

gallant and main-royal yards, 483, n.

y far, and when, master may interfere, 483, n., 484, n.

few minutes, and gives command to second mate, and

y through fault of officer, ship responsible, 484, n.

ag hailed, without exercising his own judgment, own-

ter not an interference with, 484, n.

wain or master would be, 484, n.

pilot's act or default, 484, n.

desprosible for TORTS OF Pilot, 484-488.

from default of, why owner responsible, 484.

ressel held liable, 485, n.

! by statute owner not liable, 485, n.

! not liable, 485, n.

! of vessel by, _print_/\_ice attributable to him, 485.

show that pilot was alone in fault, 485.

of owners for fifteen years, owners held not liable, 485, n.

his duty, but cannot leave the ship by reason of storm,

! legal protection his presence gives, 485, n.

igh court of admiralty, 486, n.

regard to, in particular acus, 486, and n.

and Newcastle, 486.

two American vessels in Liverpool, held owners not

ilot on board, 484

ake on board or r

age, 486.

board by such

ion that owner not liable for his

,

authority in Engl.

deeisions, 486, n 746 INDEX.

PILOTS -- Continued.

being alone to blame owners not liable, 487, n.

in this country question, unsetiled, 486.

opinion of CYTEL, J., that owners not liable, 487, n.

opinions of GRIE and STORY, JJ., as to act of Pennsylvania that

every vessel shall be _obliged_ to receive a pilot, not compulsory, 487, n.

in California vessel in charge of a licensed pilot, owner not liable for

injuries through pilot's negligence or misconduct, 487, n.

but if master in fault, otherwise, 487, n.

ship neglecting to take one offering, owners answerable for the neglect, 487.

ship lost by neglect of exports to take pilot; liability of exports to owners,
487, n.

if none can be obtained, and the most judicious course for master is to go in

without one, owners not liable, 487, n.

plots themselves answerable for damage by negligence-or default, 487.

for negligently running into another ship, 488, n.

but not for collision when steering by direction of officer in charge,
488, n., 483, n.

where steamboat hired for towing vessel, and they are attached, 488, n.

liable in damages civilly and criminally for refusing to board a vessel,
488, n.

pilotage, how contributed for, 319.

PLATINA, limitation of carrier's liability for loss of, 404, 405.

PLEDGE, of unfinished vessel, 77, n.

how distinguished from Bottomry, Respondentia, and Mortgage, 118.

not to be made by factor, 368.

PORT, of registration, or enrolment, 32.

foreign; 415, n.

charges, 312.

of discharge, 444, n.

ports to be visited in what order, 445.

POTHIBER, 6, 18.

POSSESSION, as evidence of ownership, 44.

of property by the court, to warrant sale, 67, 68.

as affecting the question of sale, 58, 78-81. See _Sale of Ship_, **V**. 4.

what notice of ownership supersedes, 81, n.

of part-owner, 81, n.

of mortgagor, when of mortgage, 81, n. .

of mortgage, as determining his liability as owner. See _Ouner_.

of party who mans the vessel, 233.

under a charnet-party, 383-236.

constructive of vendor, so as to give right to stop in transitu. See _Siopage_

_in Transitu_, **III**.

PRECIOUS METALS, contributory value of, in general average, 323.

limitation of carrier's liability for loss of, 405.

PREFERED CLAMIS, four classes of, under Missouri statute, 109, n.

PRIMAGE, 311, 319, 379.

PRINCIPAL AND AGENT. See _Agenx_.

PRIVATEEB, powers of master of, 387.

liability of owners of, for the torts and acts of officers and crew, 393.

PRIZE. See _Forfeiture_.

sale of ship condemned as, 65.

748INDEX.

REGISTSTRY AND NAVIGATION LAWS -- Continued.

what recital in bill of sale necessary to new registration, 31. See also _Sale of Ship_, I.

private acts of congress, authorizing registration, 31, 32.

III. How Yessels may be redisferred on Exrolled, 32-34.

at what port, 32.

name to be conspicuously painted on stern, 32.

what oaths and certificates necessary, 32; 38, 39.

the disclosure of equitable interests, 32; 41, 42, n.

mortgage may take out register, 42.

registration bond and provisions of, 32.

steamboats, how registered, 33.

whale ships, if owned by incorporated company, 33.

temporary registration, 33.

change of captain, to be indorsed, 33.

loss of register, 33.

new register, upon sale of vessel, 33, 37.

after seizure, capture, or condemnation by, or sale to, a foreigner, vessel cannot be again registered, unless, 34.

IV. EFRECT or REGISTARY EXrollment, 34-46.

enrolled vessels must be licensed annually, 34, 35.

provisions of license, 35.

forfeiture for forging, or using another ship's license, 35; 38.

penalty for not complying with license, 35.

expiration and renewal of license, 35.

change of register for enrolment and vice versa, 35.

complications of the system, 35.

simpler method proposed, 35.

neither registration nor enrolment required, 36, 39.

disadvantages without, 36.

registration universal, 36.

change of vessel's name, how authorized, 36.

sale of enrolled vessel to foreigner subjects to forfeiture, 36, 37,

but of registered vessel, deprives her of American character only, 36, 37.

forfeiture for false oath, 37.

when the property in a forfeited vessel rests in the United States, 37.

sale by part-owner without registration, 38, 37.

false oath taken innocently subjects to forfeiture, 37.

when the master may be an American citizen resident abroad, 37.

but part-owner may not be, unless, 28, 29, 37.

forfeiture for for handment use of certificate of registry, 38.

temporary transfer to alien, for purpose of evading law of foreign country, 38.

in case of loss, register to be sent where, 38.

proof of infractions of registry law, 38.

enrolment upon oath of master only, 38, 39; 32.

productions of the English possessions in-the East Indies may be brought here in British vessel, 39.

registration wholly voluntary, 33, 39.

the register not a public, but a private document, 40, 41, 80, 81.

how far evidence of national character, as against party obtaining, 41.

as between third parties, 41, 46.

how far evidence of ownership, as against party obtaining, 39; 40-45; 80,

81; 389.

)EX. 749

\_.AWS -- Continued.

39 ; 40-46; 80, 81.

spiles to legal and not equitable ownership, 41,

i register, 42.

adic the register by showing equitable title in

i, and operation of law, 43.

recorded mortgage, agreement for sale, or claim,

at party holding recorded title, 42, 43.

so continuation of ownership, 43, 44 ; 80, 81.

acts conclusive, except, 43.

not conclusive, or exclusive, 83, 34.

of ownership, and notoriety, as evidence of own-

ice in favor of parties to it, 89 ; 44-46.

how affected by registration act. See _Sale of_

rifficate, 78.

inserted in register or enrolment, 82, n. 2.

is be registered, 281.

_in solido_, notwithstanding, 90.

obtain, criterion of master's power to sell ship, 60, n.

o, III.

i change ship, 72, 73, n. 1, 74, 75.

ter to procure, 87, n. 1.

or, 89-93. See _Part-Ounces_, III.

See _Oners_.

in repair. See _Oners_.

party, 238.

_Bottomy and Respondentia_, IV., F.

eral average. See _General Average_.

wind owners for. See _Master_.

: against an , 85.

: _Warranty_

p, 69.

burden of , and n., 338, n.

er, 238.

, as "A 1

, -840, and

0, n.

_otonary as_

_mtia_.

insband a' , n. 2.

:86.

o ship, 7'

, 6, 7.

to ship, 750 INDEX.

S.

SAILS, as apurutenant to ship, 72, n.

SAILORS. See _Samen_.

SALE OF SHIP, 47-81.

I. Sale without Writing, 47-55.

transfers of real and of personal estate compared, 47.

by English and American registry acts, change of title in the vessels must be indored on certificate of registry ; and the certificate of registry must be recited at length in instrument of sale, 31, 48.

English act avoids sale otherwise made, 48, 56, n., and 57, n.

American act # 1792 withholds the privileges of American vessels simply, 48, 57, n.

oral sale valid under this act, 59-55.

the want of constitutional power in congress the cause of this difference, 48-50.

provisions and effect of the registration act of 1850, 51, 55. See also post, II.

its constitutionality, 51, 55.

independent of statute no bill of sale, or writing, necessary to sale, 51-55, 56, n.

transfer without writing does not absolutely avoid national character, and bill

of sale may be executed at any time before application for new register, 56, n.

effect of forfeiture, 56, 57, n.

executory agreement to sell, 57, n.

miractical of certificate in bill of sale, 57, n.

transfer by operation of law, not affected by registry acts, 57, n.

II. Takayez BY BILL or Sale, 56-59.

grand bill of sale, 56, 57, 76, 77.

form of, 57.

effect of U. S. statute of 1850, upon State statutes, as to the recording of personal property mortgages, 57, 58. See also _ante_, I.

must be recorded at custom-house, where vessel last registered, 59, n. 1.

this act does not apply to charter-parties, 59, n. 1.

whether it abolishes State statutes, 59, n. 1.

licen on vessels for supplies need not be recorded under this statute, 59, n. 1.

if ship is at sea when mortgaged, 58.

mortgage of goods at sea, 58.

III. Sale BY THE MASTER, 59-65. See _Master_.

valid, when justified by necessity, 59.

no power to sell under several foreign ordinances, 59, n.

but might borrow on ship's credit, 59, n.

power not originally recognized in England, 59, n.

how the present doctrine grew up, 59, n.

not sufficient that sale be honest and for the benefit of all concerned, 59, n.,

60.

there must be _a necessity_, 59, n.

what is _a necessity_, 60, and n., 386.

_moral_ necessity, 60, n.

cost of, and ability to obtain, repairs, criterion of necessity, 60, n.

may sell, if ship is total wreck, 61, n.

or if cost of repairs would exceed value of ship, 61, n.

the master's opinion of the necessity, 61, n.

sale at Bhering's Straits to three sea captains held invalid, 61, n.

**INDEX.**

**SALE OF SHIP** -- _Continued._

whether the validity of the sale is to depend on the event of the vessel?s safety, 61, n.

actual danger, creating the necessity, not inconsistent with speedy escape, 62.

whether master may sell if product owner would have sold, 62.

the doctrine of "product uninsured owner," 62, and n.

whether want of funds will authorise such sale, 63.

sale must be of necessity, not of expedience, 64.

no distinction between sale on home and foreign shore, 64.

day of matter to communicate with owners before selling, 64.

if necessity existed, owner bond, 65.

**IV. Sale under a Dagght of Adimeater, 65-68.**

when valid and binding, 65.

when the courts of the country where the ship belongs will look behind a for

cigin decres, 65, 66.

sale of ship condemned as prize, 65.

on ground of forfeiture, 65.

to pay salvage, 65.

to pay brotomy bond or satisfy lien, 65.

on ground of unaseworthiness, 65, 66.

"

" * \[22\] M.

INDEX. 753

SALE OF SHIP -- Continued.

VI. IN other Resforest:

how affected by registry law. See _Registry and Navigation Laws_.

under lien by Indians statute, 107, n.

seamen entitled to their wages up to time of, 460, n.

SALVAGE, sale of ship, to pay, 65.

setled on a general average loss, 310, 311.

upon bottomary bond, 422.

SEAL, charter-party under, 231, and n.

master's power to make contract under, 384.

effect of, in admiralty, 447.

and signature, must be distinct and legible to secure official respect, 460, n.

SEAMEN, 441-478.

I. How SEAMEN are REOARD BT THE Courts, 441, 442.

peculiarly in need of, and entitled to, protection of courts, 441.

reasons therefor, 441.

wards of admiralty, 441, n.

their contracts regarded with rigid scrutiny, 441, n.

and set aside as inequality, if unjust and unreasonable, 441, n., 446, n.

statures in behalf of, 441, 442.

prohibition against foreign, in our ships, 441.

applied to subjects and citizens of what countries, 441.

statate seldom regarded, 442.

most important points of statutory provisions for, 442.

first, shipping articles, 442.

second, wages, 442.

third, provisions and substanco, 442.

fourth, sea-worthiness of ship, 442.

fifth, care of seamen in sickness, 442.

sixth, bringing them home, 442.

seventh, regulation of punishment, 442.

eighth, respecting des Insertion, and discharge either at the beginning or during

the voyage, 442.

II. Of THE SHIPIPHO Articles, and Wages, 442-452.

every master bound to have, 442.

penalty for each person not signing, 442.

must be signed by every seaman, 442.

must describe accurately voyage, and terms for which seaman shipped, 442.

general coasting and trading voyage within the act, 442, n.

extends to lakes and inland navigation, 442, n.

master must produce log-book and contract when required, or parol evidence

of them may be given, 442, n.

depositing originals with collector of port, at time of contract, 442, n.

distinct and reasonable notice if seamen want them, 443, n.

in absence of statement of seamen in libel, evidence of what, 443, n.

if owners prove reasonable excuse for not producing, may contradict by parol

mariner's statement of contract, 443, n.

admissible as evidence of what, 443, n.

against loose and indefinite language in, or unfair and unusual stipulation,

courts interfere, 443.

signed under duress and protest, invalid, 443, n.

doubt in meaning, seamen benefit of doubt, 443.

**SEAMEN -- Continued.**

voyage from place to place " and elsewhere," meaning of, 443.

from Baltimore to Curacoa and _discohere_, does not authorise voyage to St.

Domingo, 443, n.

void for uncertainty when, 443, n.

there must be a terminus _a you_ and _ad quem_, 443, n.

" from London to Batavia in East India seas or elsewhere and until final arrival

at any port or ports in Europe," seamen not bound, upon arrival at Covers,

to proceed to Rotterdam, 443, n.

what authorises voyage from Gibraltar to South America, 444, n.

what from Philadelphia to South America, 444, n.

shipments of seamen contrary to acts of congress void, 444, n.

what not a compliance with act of 1790, 444, n.

must be limits of time and space between the fixed termini, 444, n.

meaning of word " cruise " in, 444; n.

trading voyage does not include freighting voyage, 444, n.

nor whaling voyage a trading voyage to dispose of cargo when obtained, 444, n.

from the home port to Appalachichola or elsewhere for a market, sufficient description, 444, n.

meaning of a " port of discharge in the United States," 444, n.

a port in slave State where colored seamen remain in jail, not, 444, n.

" wherever freight may offer," how construed, 444, n.

when held not to cover a voyage from West Indies to Boston and back within

the period specified, 445, n.

" from Boston to one or more ports south, thence to one or more ports in

Europe and back to a port of discharge in the United States," sufficient

description, 445, n.

If port described in, as being " a final port of discharge," voyage not ended till

when, 445, n.

" and elsewhere " in, usage may give precise meaning to, 443.

same objection to word " elsewhere " does not apply in a whaling, as in trading

or freighting voyage, 444, n.

should declare explicitly ports of beginning and termination of voyage, 444.

if number of ports named, must be visited in what order, 445.

if by, master is to have discretion, courts will not interfere, 445.

other stipulations in, sustained or rejected as they seem to be fair or otherwise, 445.

if contraband goods found in forecast, that seamen should forfiti vages and

$&$10, 445, n.

penalty of $&$10 cannot be enforced, 445, n.

" to pay for medicine and medical aid further than the medicine chest affords,"

inequality, 445, n.

that seamen will sno for wages in common law courts, 445, n.

that all _differences_ between master or owners and crew shall be referred to

biration ; demand of wages not a difference, 446, n.

courts of admiralty in regard to, not confined to rules of common law, 446, n.

act as courts of equity, 446, n.

sipulations in, derogating from rights of seamen, will be held void, and why,

448, n., 446, n.

unless, either the cause be fully explained to them, 446, n.

or additional compensation adequate to restrictions and risk is given, 446, n.

that seamen might leave ship at end of three months, if in port and safety,

and captain sole judge, void, 446, n.

INDEX. 755

**SEAMEN -- Continued.**

should not sue for wages till vessel unladen, binding, if fairly made, 446, n.,

447, n.

stipulation that in whaling voyage seamen and officers shall receive proportionate share, if sick, 446, n.

stipulation contravening language or policy of statute, void, 446.

clauses lessening rights of seamen to wages, etc., allowed some fore in common law courts, none in admiralty, 446, and n.; 307.

in a divided voyage, clause that seamen should be entitled to no part of their

wages, if vessel lost before final port of discharge, void, 446, n.

or until the ship arrived at the port of discharge in Philadelphia, 446, n.

if special agreement fully explained, 447, n.

that seamen should not demand their wages till expiration of twelve months,

447, n.

agreement to accept half pay, in the vessel abroad, valid, 447, n.

admirily courts give no effect to receipt of sailor for his wages, unless actual

payment, 447.

a release of all complaint against officers of the vessel, signed in order to get

his wages, void, 447.

if sealed by marrinens and not master, whether assumpati will lie at common

law against them, 447.

sels of no effect in admiralty, 447.

stipulation in, as to wages, conclusive, 447.

nothing more can be recovered on special promise to pay for serer or extra

labor, 447, 448.

purev's steward receiving a specific salary from the crown, cannot recover

wages of pparser, 447, n.

if one ship as cook, at the request of a captain in the nary, can recover above

government pay by agreement, 448, n.

cook performing services, out of the line of his employment; can recover

additional pay, 448, n.

if captain paints his own ship, 448, n.

master may call on cook to do seaman's work while in port, 448, n.

when crew are deceired, and ordered to load guano, they can recover

extra wages, 448, n.

when wages of seamen, shipped during war, are diminished by declaration of

pence, 448, n.

promise to divide the wages of the deserting crew among those remaining, void,

448, n.

and, if paid in such a case by master, owners might retain the amount from

subsequent wages, 448, n.

if vessel becomes so short-handed at intermediate port as to be unseaworthy,

a note voluntarily given by captain for extra wages, valid, 448, n.

captain stipulating for extra pay for himself, in addition to fixed price for the

vessel, and the government paying all to owner, cannot recover of owner,

448, n.

promise of higher wages to a deserting seaman, void, 448, n.

effect of transfer, to another vessel, of seamen to whom higher wages had been

promise, 449, n.

promise of reward by a passenger not binding, 449, n.

if one of crew consents to become a hostage under promise of wages, binding

on owners, 449, n.

The number of groups is $n$, which is the number of groups, $n$, and $n$.

- 758 INDEX.
- **SEAMEN -- Continued.**

when medicine chest required, 456.

deduction from esamen's wages for support of marine hospital, 456.

this provision extends to boats, rafts, or flats on Mississippi

Biver, 456, n.

and to fishing and whaling vessels, 456, n.

by law-merchant, ship-owner and master must provide for sick, wounded, or

named seamen, 456.

when and what must be provided, 456.

what expenses seem entitled 0, if injured on duty, 457, n.

owners not liable for consequential damages, 457, n.

only for expenses while in their employ, 457, n.

if injured in service of ship, 457, n.

if injury received for executing an improper order, or wrongful violence of

an officer, 457, n.

whether requirement of medicine chest is a substitute for general requirements

of law-merchant, 457.

when attendance of physician charge on owners, 457, n.

cases requiring extraordinary assistance and surgical aid, 457, n.

mariness whose feet were frozen and partial amputation necessary, recovered

what, 457, n.

charge for nursing and attendance not affected by the statute, 457, n.

burden of proof as to sufficiency of medicine chest, on owner, 457, n.

captain not a proper person to prove sufficiency, 457, n.

effect of usage, that such seamen paid their own expenses in sickness, 458, n.

when expenses of being taken on shore for better medical treatment, or having

a physician from the shore, belong to seamen, 458, n.

right of care extends to officers of ship and master, 458.

owner liable for board, physicians' bills, and funeral expenses of a master paid

by consiose, when, 458, n.

if seaman put on shore for medical treatment for safety of crew, expense falls

on ship, 458.

if at his request it seems not, 458, n.

if asked to elect when sick with yellow fever, entitled to full wages, become

master's duty to send him ashorne, 458, n.

- **VI. Or the Return of Seamen to the Country, 458-463.**

right to be brought back jeolously guarded, 458.

shipping articles and shipping list under oath of master necessary, 458.

when obliged to present them to consul, etc. at every foreign port, 459, n.

must give bond to deliver to boarding officer persons therein named, 459.

if any missing, must account therefor, 459.

bond not forfitied, if seamen properly discharged, or died, or abeconded, or

impressed, 459, n.

what certificate of consul must state, as to absence, 459, n.

if seamen discharged at foreign port by master's or their own consent, what

master must pay over and above wages to consul or agent, 459.

in what proportion, and how paid, 459.

if seaman is left in foreign port, and vessel afterwards sold, whether he can

recover extra wages, 459, n.

when consul may discharge woman without requiring payment of three

months' wages, 459, n., 460, n.

consul's certificate that seaman's discharge was by his consent, conclusive,

459, n.

INDEX. 759

**SEMEN -- Continued.**

not enough to certify that be discharged him "lawfully," 459, n.

or "in accordance with the law of the United States," 459, n.

what is must set forth, 459, n.

signature must be legible, 460, n.

seal must allow vignette and motto to be distinguished, 460, n.

and to avail owner in suit against him for wages, what must appear, 460, n.

if seaman discharged without three months' wages, court would enforce pay-

ment thereof by libel in person against owners, 460, n.

but a court at law has refused to sustain such action, 460, n.

court of admiralty in England also refused to enforce this provision, and why,

460, n.

if vessel sold, seamen entitled to wages up to salo, 460, n.

if consult neglects to require and collect the amount, answerable to United

States and to seamen for their,wages, 460, n.

if discharge caused by disaster, and voyage thereby broken up, requirement

above not applicable, 460.

so provided by statute, where vessel wrecked, stranded, or condemned as

unft, 460, n.

when seaman injured by mate, and taken to hospital by police against his

consent, not entitled to benefit of above act, 460, n.

ship must be repaired, and seamen may hold on for reasonable time, 461.

if condemned in foreign port, as unesworthy, and sold, seamen entitled to

extra wages, 461, n.

reasons for such decision, 461, n.

if ship captured, all proper means must be used to regain her, and seamen

may wait, 461.

if discharged before, may claim extra wages, 461.

what grounds sufficient to authorise discharge by consal, 461.

to justify a master for not producing a seaman, how the discharge must have

been made, 461, n.

degree of misconduct justifying master in putting an end to contract"with seamen, 461, n.

not for slight or venial offence, 461, n.

nor for a single offence, 461, n.

but for inororigible disodelience and refusal to do duty, 461, n.

or continuous and rebellious conduct, 461, n.

or gross dishonesty, embeamlement, or theft, 461, n.

or if he is an habitual drunkard or stirrer up of broils, 461, n.

or if, by his own fault, he renders himself incapable odfoding duty, 461, n.

if sent home for a crime, be can recover no wages after, 461, n.

so if sent home by consal, 461, n.

seaman may be discharged by consal (and then entitled to three months'

wages) if vessel is unesworthy, or if master violates shipping articles, or

crually punishes seamen, 462.

even if sail desired, for this crally, 462.

refusing to bring home destitute seamen, penalty, 463, n.

action for, must be brought in name of government, 462, n.

foreigners, while employed in American vessels, entitled to benefit of the act,

462, n.

consal may require American ship to take home desterter, if destitute, 465, n.

consul's certificate, _primal facie_ evidence of what, 462, n.

760

INDEX.

SEAMEN -- Continued.

consuls may send home our seamen in our ships, which are bound to take them, 462.

at what price, 462.

duty of seamen so sent, 462.

penalty for discharging seaman af a foreign port against his consent and without good cause, 462.

the three distinct offences in section 10, act 1825, ch. 25, relating to leaving officer or manners in foreign port against their will, 462, n.

" implication" means what, in the act, 462, n.

seamen so discharged may recover what, 462.

wages up to successful termination of voyage, 463, n.

return of seamen to country where he was originally shipped, 462, n.

compensation intended to be complete indemnity for illegal discharge, 463, n.

how measured, 463, n.

when neither of the above rules as to vages applicable, 463, n.

wages earned on homeward voyage deducted from expense of return, 463, n.

but when mate came home More mast, not, 463, n.

seaman discharged from privateer unlawfully, entitled to his proportion of

price taken in his absence, 463, n.

breach of statute, subjecting master to penalty, does not destroy a seaman's right of action who is injured thereby, 465, n.

VII. Disobedience of Sramek, 463-469.

disobedience or misconoduct punishable with severity, 463.

necessity therefor, 468.

general orders from one officer no excuse for disobedience to specific orders

of another, 464, n.

hammer improper instrument to strike seamen with, 464, n.

what no excuse for its use, 464, n.

so a sword, 464, n.

"but a bucket of water not, 464, n.

a blow with a frying-pan or wiping a dirty knife on the face of one whose

duty to keep them clean, not an aggravated assault, 464, n.

a belaying-pin, or log of wood improper instrument, 464.

whether instrument used dangerous, question for jury, 464, n.

right of punishment formerly not specifically limited, 464.

administered by master in any form, 464.

for excos or cruelty, master anwerable criminally and civilly in damages to

seaman, 464.

government must prove the beating, the want of justifiable cause, and malic,

464, n.

though fogging now abolished, not a cruel or unnsual punishment under act

of 1835, 464, n.

when seamen may recover damages of a master for an assault, 464, n.

if mate, in obelelence to master's orders, assists in punishing a seaman, not

answerable as joint treepasser, 465.

seamen's right to protection of master against illegal violence of other officers,

465.

master's duty to hear complaints and prevent repetition, 465.

for refusal so to do, and for such illegal treatment, seamen entitled to discharge

when ship in port, 465.

INDEX. 761

**SEAMEN -- Continued**.

for past offence, only highest officer can punish, 465.

fogging abolished by act of congress of 1850, 465.

veals of commerce under that law finclude what, 465, n.

this not a penal law, 465, n.

what included in the law, 465.

blow with the hand, or stick, or rope, not necessarily included, 465.

punishment by, not justifiable under, 466, n.

what fogging is, 466, n.

degree of severity not material, 466, n.

statute intended to apply to deliberate and not sudden blow to produce

immediate obedience, 466.

officer may use violence in an exigency requiring instant obedience,

466, n.

punishments which may be resorted to now ;

forfuture of wages and irons, 466.

imprisonment, 466.

master may imprison on shore, when, 466, n.

imprisonment in foreign jails, of doubtful legality, 466, n.

when only justifiable, 466, n.

measure of safety and not discipline; never used for past misconduct,

466, n.

duty of master, when necessary to resort to it, 466, n.

if by authorities of foreign place for violation of its laws, costs and

charges deducted from seamen's wages, 467, n.

if by master, neither these nor pay for hire of another seaman deducted,

467, n.

certificate of consul not evidence nor justification for master, 467, n.

count may examine _de novo_ and determine whether justifiable, 467, n.

duty of consul as to deserriere, etc., 467, n.

if consul calls on local authorities, master not responsible for imprisonment of seaman, 467, n.

if consul absent, his assistant has no authority to do so, 467, n.

and if master imprison, he responsible, 467, n.

hard labor, 466.

what master must prove, to justify this punishment, 466, n.

offences for which forfeiture of wages imposed, 468.

a trivial act of irregularity not sufficient, 468.

misconduct, such as to endanger safety of ship and dae preservation

of discipline, 468, n.

disobelience must be of what nature, 468, n.

intemperance must be habitual, 468.

smuggling of goods by master or seamen sufficient, 468.

or owners may charge damage actually sustained upon their wages, 468.

mechanicalment by master or crew also works forfeiture, 468.

how far seamen liable, if embezzement has taken place, but the party

embezzling not known; principle of contribution, 468, n., 469, n.

whether certain seamen, who could not have been guilty, liable to contribute, 468, n., 469, n.

when the loss must be borne exclusively by the owners or master, 469, n.

not embezzement for seamen to sell part of cargo by mate's direction,

469, n.

64 \*

**762**

**INDEX.**

**SEAMEN -- Continued.**

**crew not liable for escape of slave who enters on board as seaman, 469, n.**

**in England whole wages forfatied, or none, 469.**

**here part may be forfatied, 469.**

**only wages earned before misconduct forfatied, 469.**

**if mate promoted and while master commit an offence, wages earned**

**as mate not forfatied, 469.**

**if seaman repeats and offurs to return to duty, master should receive him, 469.**

**and if he does so; this is condonation of offence, 469.**

**forfature considered remulted, if seaman severely punished, 469, and n.**

**VIII. Of THE THE DEERERITION OF SALKE, 470-476.**

**of great importance to prevent, 470.**

**distinguished from absence without leave, 470.**

**going on shore without leave to seek advice as to effect of articles not, 470, n.**

**fallest liberty to go before consult to lay complaints, 470, n.**

**extends to what complaints, 470, n.**

**have no right to refuse to do duty, to see consult, 470, n.**

**discretion of master as to time and mode of landing, 470, n.**

**when refusal to return after temporary separation is desertion, 470, 471.**

**justified when voyage changed without consent, 471.**

**but crew not justified in such case in sealing vessel and bringing her home, 471, n.**

**justified for cruelty, 471.**

**but a battery simply because excessive, not, 471, n.**

**what seaman must show to justify in such case, 471, n.**

**justified by insufficient provisions, 471.**

**if no provisions, clear, 471, n.**

**if for bad provisions, what must be shown, 471, n.**

**justified for unseaworthiness of ship, 471, and n.**

**if justification is that deserter a negro, and captain threatened to sell him as slave, what must be averred, 471.**

**return after, by seaman and acceptance by master or owner, condonation of offence and waiver of forfititure, 471, 472.**

**though clause to the contrary in articles, 472.**

**how and when he must be received, 473.**

**desertion by not rendering himself on board before voyage begins, what forfitiure, 472, and n.**

**may be completed to go on board under warrant of justice, 473.**

**justices of peace alone power to try and commit deserting seaman, 473, n.**

**United States commissioner's power to arrest and commit for trial, 472, n.**

**if forced on board, forfititure waived, 472.**

**receiving seaman on board, no waiver of penalty, 473.**

**desertion on voyage, he may be apprehended, 472.**

**if voyage broken up by disaster while seaman is imprisoned, he must be discharged, 473, n.**

**for such desertion forfitits what, 473.**

**and becomes liable for all damages and costs of owner in hiring another, 473.**

**statate provision in regard to forfititure of wages for, 473, h.**\* **INDEX.** 763

- \**SEAMEN -- Continued.*
- \**cont not bound to pronounce entire forfulture, 473, n.*
- \**desertion after majority, by one shipped by his father during minority, father*
- entitled to wages up to majority, 473, n.\*
- \**if minor ships after death of his father, he may avoid contract by desertion, and recover on*
- _quantum mervit_\*\*, 473, n.\*
- \**desertion on one voyage, no forfulture of wages earned on a prior voyage,*
- \**478, n.*
- \**how defined by statute ; and construction of statute, 373-375, and notes.*
- **s**utate does not supersede maritime law, 474, n.\*
- \**if seaman remains more than forty-eight hours without leave ; checking*
- \**redres before a tribunal, not, 474, n.*
- \**must be an exact entry of face of, on log-book made on day the absence begins, 474.*
- \**what entry must state, 474, n.*
- \**entry on day, a*
- _sine you non_\*\*, 474, n.\*
- \**the entries,*
- " they ran away," and afterwards\*
- " absent without leave," \**474, n.*
- \**entry necessary, though absence permanent, 474, n.*
- \**not conclusive ;*
- \**parol admissible to falsify it, 474, n.*
- \**whether desertion, if ship sails before forty-eight hours expired, and*
- \**seamen unable to return, 475, n.*
- \**intent of seaman at time of, 475, n.*
- \**seaman leaves at his own peril, 475, n.*
- \**ship not bound to wait for him, 475, n.*
- \**if return prevented by captain on forfulture, 475, n.*
- \**attempt to return at night by deserter without saying who he is or what*
- \**he wants, no return to remit forfulture, 475, n.*
- \**so if he return, but refuses to do duty, 475, n.*
- \**return must be unconditional, 475, n.*
- \**must be continued absence of forty-eight sucpesive hours, 474.*
- \**absence although not within statute definition may be an offence, and seaman*
- \**liable, 475, 476.*
- \**master's power to rotake person and confine him on shipboard in home*
- \**port, 475, n.*
- \**desertion before vessel moored at end of voyage, is within the statute, 475.*
- \**but, if after mooring, it is not a desertion and the law-merchant, 476.*
- \**got'ship-owners have claim for compensation in damages, 476, 475.*
- \**of part of the crew, no release of remainder from performing their duty, though more onerons, 476.*
- \**IX. Or the Contract of the Schazen, 476-478.*
- \**contract between seamen and owner, or master as his agent, a contract of*
- \**hiring and service, 476,*
- \**all that is implied by the law generally, belongs to their contract, 476.*
- \**modified by peculiar nature of statute, 476.*
- \**seamen hired and payment promised in four ways, 476.*
- \**for certain voyage and to receive certain proportion of freight earned, 476.*
- \**for a certain voyage, or by the run, and to be paid a round sum at the close,*
- \**on shares, 477.*
- \**mostly confined to whaling, fishing, and coasting voyages, 477.*
- **contract one of hiring, and not of partnership, 477, n.**
  764 INDEX.

**SEAMEN -- Continued.**

master's lien on seaman's lay for clothing, 477, n.

not personally responsible for wages of seamen when vessel lost and cargo sent home, 477, n.

acts as agents of owner, and not crew, 477, n.

for a definite voyage or voyages, or definite period on monthly wages, 477.

whether contracts for entire voyage at so much per month, or for so long as party remains on board, giving cause of action at end of each month, 477, n.

female serving in any capacity entitled to all rights as seamen, 478.

and subject to all disabilities, 478.

\*\*IN GREER RESER INDEX.
765
STATE STATUTES. See Statutes.

counts, jurisdiction of, and of United States courts in questions of pilotage,

479, 480.

laws, as to len of material-man, 492-494, and n., 496-502.

STATUTTES, rules of construction of, 403.

EnroliEst :

of 42 Ed. 3,

relating to

Priority of English Ships, 26, n.

of 5 Rich. 3,

766 INDEX.

STATUTTES. -- Continued.

of 1803 relating to Registry, 30, 459, n., 460, n., 461, n., 462, n.

of 1804 " " " 29.

of 1805 " " " Seamen, 456, n.

of 1811 " " " 456, n.

of 1813 " " " Foreign Seamen, 441, n.

of 1817 " " " Registry, 27, 39.

of 1825 " " " Registry of Stomboats, 83.

of 1825 " " " Seamen, 462, n., 464, n.

of 1829 " " " 473, n.

of 1831 " " " Registry of Whale Shipp, 38.

of 1835 " " " " Mutiny, 31, n., 465, n.

of 1837 " " Pilots, 479, n.

of 1838 " " " Regulation of Steamboats to prevent Collision, 193, n.

of 1839 " " " Registry of Whale Shipp, 30.

of 1840 " " " " " 31.

of 1840 " " " Shipping Articles, 442, n., and 443, n., 444, n., 450, n.,

451, n., 454, n., 455, n., 459, n., 461, n., 462, notes,

470, n.

of 1842 " " " Shipping Articles, 472, n.

of 1843 " " " Seamen, 456, n.

of 4849 " " " Navigation on Lakes, 193, n.

of 1850 " " " Sale, 51, 55, 57, 58, 82, n., 120, 231, 455, n., 465, n.

of 1851 " " " Owners, 129, n., 183, n., 399, 400, 404, 406.

of 1855 " " " Liens, 500, n.

of 1856 " " " Change of Name, 36.

of 1856 " " " Seamen, 460, n., 473, n.

AREFICAT: (Stat)

Maine, Rev. Stat. 1857, relating to Stoppage in Transit, 364, n.

" " Rev. Stat. 1864, 1857, " " " Torts of Master, 399, n. ; 401,

.: 402.

" " Rev. Stat. 1857, " " " Liens, 493, n.

New Hampshire, C. Stat. 1853, " " " 493, n.

Vermont, Rev. Stat. 1840, " " Collision, 195, n.

Massachusetts, Rev. Stat. 1836, " " " Sale, 58.

" " Rev. Stat. 1836, " " Torts of Master, 399, n.

" " Rev. Stat. 1836, " " " Pilots, 480.

" " Acta 1839, 1845, 1849, " " Stoppage in Transit, 364, n.

" " Acta, 1848, 1855, " " Liens, 493, n.

Rhode Island, B. S. 1857, " " Stoppage in Transit, 364, n.

New York, Act, " " Collision, 193 ; 195, and n.

" " Rev. Stat. 1830, 1859, " " Stoppage in Transit, 364, n.

" " Rev. Stat. 1 " Pilots, 480.

" " 2 Rev. Stat. Act, 1855, 1858, " Liens, 493, n.

Pennsylvania, Act, 1834, relating to Stoppage in Transit, 364, n.

" " 1858, " " Liens, 493, n.

Georgia, Act, 1851, " " " 106, and n.

" " 1852, " " " 493, n.

Florida, " 1847, 1848, 1850, " " " 106, and n., 493, n.

Alabama, " 1836, " " " 106, n.

" " 1852, " " " 493, n.

Mississippi INDEX. 767

STATUTTES -- Continued.

Louisiana, Act,

Arkansas, Rev. Stat.

"

#68 INDEX.

STOPAGE IN TRANSITU -- Continued.

third method :

that lien extends and goods are constructively in the seller's possession

till buyer's actual possession, 337,

true rule ; combination of first and third, 337.

cause of its adoption, 337,

founded on, and the exercise of, seller's lien, 337, 338, n. See 368.

law of lien devised to supply want of civil law, distinction between _jus ad ren_ and _jus in re_, 337.

abdo view sustained by cases, 337, 338, and n., 339, n.

attempt change law from lien to rescission, 338.

first cases on, 338, n.

founded on equitable rather than legal principles, 338, n.,

339, n.

opinion of Hardwicke, L. Ch., and Butler, J., as $\\psi$, 338, n.

" he who would have equity, must do equity," 338, n.

right or privilege not known before 1690, 339, n.

whether a lien or a right of rescission important, 339.

II. Stopfago in Transitu an Extension of Seller's LIEN, 339-342.

if stoppage in transitin rescinds or annuls sale, property rests in seller, 339.

therefore buyer cannot tender price and take the goods, unless, 339.

and seller no claim against buyer for deficit in price, 339.

and nothing necessary to complete seller's title, 339.

but he may resell at once and obtain profit, 339.

if only the exercise of lien by seller, wholly different effect, 339.

goods then in seller's hands as security, 340.

payment of what is due, discharges lien and destroys seller's right of possession, 340.

seller may treat the goods as pledged for the debt, 340.

to sell them, must do what, 340.

balance returned to buyer, if proceeds more than debt and charges,

340.

if not sufficient, balance due from buyer, 340.

if buyer insolvent, seller may take his dividend on balance, 340.

the latter the American theory, 340, and n.

the English theory, 340, and n.

surety for price has no right of stoppage, 340.

when held equitable lien and not a rescission, 340, n.

vendee or his assignees may recover the goods on payment of price, 340, n.

vendor may recover price, on tender of goods, 341, n.

vendor may stop goods for balance, if paid in part, 341, n.

lien exists only between vendor and vendee, 341.

consignor, virtually or substantially a vendor, may exercise right of stoppage,

341,

principal consigning to his factor, upon factor's insolvency may stop goods,

'$41.

and so without such insolvency, 341.

so, person remitting money for a particular purpose, 341.

if consignor send goods for a precedent debt, no right and why, 341.

not prevented by unadjusted account or uncertainty of balance, 341, and n.

nor by acceptance of negotiable paper, unless, 341.

if such bill be proved in insolvency and dividend paid, 342.

**INDEX.** 769

STOPPAGE IN TRANSITU -- Continued.

consignor need not tender back bill; 343, n.

nor actual receipt, of part payment, 342.

if part payment and seller stops afterwards, the buyer cannot recover back,

part payment, 342.

if a rescission be could, 342.

III. When THIS Right MAT BE EXERCINED, 342-366.

A. Constructive possessn of seller, 342, 343.

seller's actual possession of goods makes them his security, 342.

buyer's possession destroys seller's lien, 342.

stoppage only when neither has actual possession, 342.

consignor's right gone when goods reach consignee, 342, n.

constructive possession of buyer, and actual possession of seller, yet no right

to stop, 343.

when the opposite may be true, 343.

B. Of goods warehoused, 343-346.

warehouse-man agent of every depositor of goods, 343.

his possession, depositor's possession, 343.

when the seller permitted the buyer to leave the goods in the seller's warehouse for a charge, no right to stop, 343.

but if there upon rent charged and not paid when vendee fails, has right,

343.

effect of some act remaining to be done by seller, 343.

warehouse-man's order to weigh and deliver ; must be weighed first, 344, n.

sale of oil in casks to be measured, etc., 344, n.

seller's order for warehoused goods may not transfer goods, 344.

but buyer's delivery of the order to warehouseman will, 344.

so if warehouseman enter same in his books, or otherwise accept the order,

344, 345.

dock warrants not negotiable, 344, n.

when property passes to vendee who sells by sample goods in

vendor's warehouse, and parts of the same are delivered by

vendors on order of vendees, 344, n.

if buyer has acted under the order and removed part, 345.

transfer on wharfinger's books makes him ordinarily vendee's agent, 345, n.

when not agent, 345, n.

" we hold to your order," etc., given by a vendor of goods in his warehouse

to a vendee, 345, n.

seller may contermand order if he has an important thing to do on or with

goods, 345.

sale of oats in a certain bin, 345, n.

when a seller could not countermand the order, 345, n.

if seller has justified warehouse-man in certifying that he holds goods subject

to buyer's order, right to stop lost, 346.

transit ended when the carrier deposits the goods in his warehouse subject to

buyer's order, 346. See post, $\\mathbb{F}$.

goods most frequently stopped in carrier's hands, 346.

though the goods by bill of lading deliverable to consignee, 346, n.

C. When delivery on shipboard terminates the transit, 347-350.

if the ship is owned or chartered by buyer of goods; distinction, 347-349,

and notes.

- and if the goods are to be directly carried to buyer by such ship, 347, and n.

VOL. I.

**TOTOPAGE IN TRANSITU -- Continued.**

but how if sent in such ship to foreign market, 347, and n. But

see post, 349, 350.

cases discussing the right of vendor to stop-in transit after delivery on board

ship owned or chartered by vendee, 347-349, n.

vendee's instructions to vendor to send by a particular ship, 348, n.

goods shipped for a particular port ap a market, 348, n.

put on board for, and on the account and risk of, consigues,

348, n., 349, and n.

deliverable by bill of lading to the vendor's order, or assign's,

348, n.

goods ordered by vendee to be sent to another person, in transit

till they reach him, 349, 350.

But see _and_, 347, and n.

second buyer cannot defeat seller's lien, 350.

if seller takes receipt from master as for his own goods, he preserves his lien, 350.

so also by a demand for such receipt, 350.

D. _How the lien of the carrier affects this right_, 350, 351.

carrier by land or sea acquires lien for his charges, 350.

if vendee owns ship, cross lien may arise, 350.

ship-owner has lien for freight as against seller, 350.

seller has lien for the price as against ship-owner who is buyer, 350.

how the law adjusts these items, 350.

ship-owner having possession retains goods for his freight, 350.

seller by paying freight, and not otherwise, may acquire right to possession, 350.

trover by shipper against administrator or assignee of an insolvent, if freight

is tendered, not otherwise, 350.

relation of carrier to goods, and to buyer and seller, 350.

claimant of goods must pay freight, 351.

but only on goods stopped, 351.

while held by carrier for his lien, goods in transit, 351.

landing on consigue's what of part of goods by carrier, and taking that part

back and holding all, will not extinguish seller's right, 351.

payment of freight by buyer will not of itself terminate transit or take away

right, 351.

carrier agreeing to look to consignor for freight, cannot detain goods from

consignee for freight, 351.

and after demand, right would not continue, 351.

,

where carrier refused to deliver until old demand settled, 351, n.

E. _Goods lodged in custom house_, 351, 352.

when goods so lodged have completed their transit, 351, 352.

if any thing remains to be done by consignee, 352.

if goods pass to the warehouse because consignee no right to them by non-

payment of duties or otherwise, 352.

not entered on account of loss of invocice, 352, n.

-subsequent taking by government of goods once delivered to consignee, 352.

F. _Of constructive delivery of goods_, 352-354.

by carrier agreeing to hold, or to deliver to his customers as wanted, 353,

and n.; 346.

by marking, or taking samples or the like, without removal of any part, 353, n.

in such cases agency the test, 353.

**INDEX.** **771**

**STOPPAGE IN TRANSITU -- Continued.**

by deposit for carrier's convenience till he receives directions, 353, n.

by direction of goods to purchaser, 358, n.

by notice to vendee of arrival of goods, 353, n.

evidence of intention as to delivery not communicated to custodian

held admissible, 354.

by delivery to vendee, of key of vendor's warehouse, 354.

by receipt by vendor of rent of warehouse, 354.

by demanding and marking goods, by vendee's agent at the inn reached at

end of journey, 354.

by permitting goods to be re-sold and re-marked, 354.

by delivery to vendee's agent or packer, when, 854, and n.

if goods are to rest, where received by agent, 354, 855, and n.

if agent is still to forward them, 354.

G. _Whether consiope may kasten his own possession,_ 355, 356.

constructive possession, full effect of actual, 355.

corporal touch of vendee once held necessary, 355, n.

delivery on vendee's wharf simply, ends transit, 355, n.

six classes of cases wherein the transit has not ended, and right of stoppage

exists --

1. Where goods originally forwarded on board ship chartered by

vendee, 355, n.

2. Where delivery of goods to vendee deemed incomplete from his

refusal to accept, _id._

3. Where goods remained in custom house for duties unpaid, _id._

1. Where goods still in carrier's hands, or wharfinger's, or his agent's,

subject to carrier's lien for freight, _id._

5. Where goods, though at port of delivery, are on shipboard or in the

hands of ship's ligherman, to be conveyed to wharf, _id._

6. Where goods performed part of transit, and in middle-man's hands

to be forwarded by other carriers, _id._

consignee cannot terminate transit by taking premature possession, 356,

and n.

difficulty of laying down any rule on this subject, 356.

no loss of right by lapse of time merely, 356.

when vendee may take possession before arrival, 356, n.

what act at an intermediate plao will extinguish the right, 356, n., 357, n.

attachment by creditor of vendee, and pledge of goods by him to secure

bondman, 357, n.

reception by vendee at intermediate place, 357, n.

more demand by vendee at such place, 357, n.

order by vendee to intermediate forwarded to sell ; effect on goods sold, and

those forwarded to vendee, 357, n.

**H.**: _Of the delivery of part of the goods,_ 357.

whether'terminates transit, 357.

if contract severable, 357, and n., 358, n.

if contract entire, 357, and n., 358, n.

**I.**: _Of the effect of a bill of lading on this right,_ 358-366.

right of consignor by bill of lading to, 189, 141, 142.

depends entirely on the negotiable quality of a bill of lading, 358-366.

importance of this question, 358.

the question discussed, 358-366, and n.

**772**:

**INDEX.**

**STOPPAGE IN TRANSITU -- Continued.**

difference between English and American cases on this point, 359-361, and a.

bill of lading may be considered carrier's receipt for the goods, 358.

as such, little effect upon the right, 358.

how regarded by law-merchant, 358.

munmunent of title, 358.

quasi negotiable instrument, 359.

doubt of English courts, whether transfer by indorsement operated as actual transfer of goods, 359, 360, and n.

wherein differing from a bill of exchange or promissory note, 360, n.

shipper's right not affected by an appropriation of it without his authority, though indored in blank deliverable to his assigns, 360, n.

if stolen from him, rights of a subsequent _donide_ transferre, 360, n.

represents what, and what it transfers, 360, n.

if indored as a pledge to secure consignee's debt, consignor's right of stoprage

not gone, 360, n.

but holds subject to pledgee's rights, 360, n.

if consignee pledged his own goods also, consignor may compel appropriation

of all consignee's goods to pledgee's claim before any in bill of lading, 361, n.

consignor bound to tender specific advances on that bill, 361, n.

but not liable for general balance of account, 361, n.

word " assigns " or "order " in, effect of, in rendering negotiable, 361.

what elements make up its negotiability, 361.

if transferred without indorsement, carries no title to property, 361.

special indorsement, 361.

when a monument of property, transferable, and justifying third parties in believing consignee had right to sell, so that he may transfer and defeat right

of stoppage, 362.

if buyer from consignee knows the sale to be in fraud of original seller, ask

vodable, 362.

so if he knows of the present or prospective insolvency of consignee, 362.

sale by consignee to one ignorant of his insolvency, and to prevent stoppage

in transits, would not affect purchaser, 363.

sub-vendee's notice or knowledge that goods are not paid for, 363.

what notice or knowledge is necessary,363.

consignee must have power of sale by bill of lading, 362.

what results otherwise, 362, 363.

if consignee a factor only, can only sell for his principal, 363.

and no authority to pledge, 363, and n.

effect of consignor's sending his factor the usual and unrestricted bill of lading,

363.

whether factor can pass property in the goods, in such case to innocent party, 363.

status protecting such transferrees, 363, n., 364.

practice of continental merchants, 364, 365.

mere possession of bill of lading transfers no property, unless lawful, or tranverse justified in believing lawful, 365.

delivery of master's bill of lading to consignee conveys no title, 365.

but might strengthen an equitable title, 365.

deposit of bill of lading creates a lion on the goods to the amount paid on the

security, 365.

such a lion will prevail against seller's right to stop, 365.

INDEX. 773

STOPPAGE IN TRANSITU -- Continued,

but will not destroy it, 365.

what sufficient to give an equitable title, 365, n.

property may rest in consignee free from lien without a bill, 866.

IV. How far the Exercise of this Right XUST BE ADVERSE TO THE

BUTER, 366-368.

meaning of rule, that exercise of the right must be adverse to buyer, 866.

cannot be exercised under title derived from consignee, 366, n.

effect of stranger's taking possession of goods for consignor, 366, n.

exercise of, by consignor on notice from consignee of his inability to pay for
goods, 366.

declarations showing intent of consignee not to take possession of goods

landed on a whar where he usually received goods, 367, n.

action by vendor for price of goods, an election not to rescid, 367, n.

assignment of the goods by the consignee, to be disposed of for the censorship,

is an affirmance of the contract and destroys the right to stop, 367, n.

where a question of rescission and not of lien, 368.

See ante, L.

right of stoppage belongs to lien, not to rescission, 368.

if sale actually rescided, or if goods within vendee's power and he declines to

hold them, and seller subsequently obtains them, this is a preference as

against other creditors of vendee, 368, n.

goods put in vendee's warehouse though contrary to his order, transit terminated,

nated, 368, n.

V. What Insolvency will give the Right, 369-373.

if seller knew of buyer's insolvency when he sent the goods, cannot stop them,

369.

unless,so sending them, he had some special security which failed, 369.

whether insolvency must take place between sale, and exercise of right, 369,

and n.

only a vendor can stop goods, 370.

foreign merchant buying goods on his own account, and sending them,

responsible as vendor within meaning of law, 370.

or one sending goods, to be sold jointly for vendor and consignee, 370.

when an alien enemy may stop, 370.

a surety for consignee to the consignor cannot, 370.

his security by attachment, and not by stoppage, 370.

sender's lien must be a lien for price, to enable him to stop, 370.

property in goods essential to exercise of right, 371.

nothing but buyer's insolvency gives this right, 371.

or will allow consignor to interfere with consignment, 371.

need not be legal or formal insolvency, 371.

meaning of term insolvency, 371, n., 372, n.

in technical sense, means taking benefit of insolvent act, 371, n.

in popular sense, inability to pay debts, 371, n.

in mercantile sense, stoppage of payment, 371, n.

either insolvency sufficient to authorize exercise of right, 371, n.

but must be some overt act evidencing such insolvency, to authorize exercise

of right, 371, n.

mere inability to pay without such act, insufficient, 372, n.

vendee's admission of insolvency authorizes vendor to stop goods, 372, n.

attachment by vendee's creditors of goods in transit, 373, n.

seller, stopping, assumes the risk, 372.

65 * 774 INDEX.

STOPPAGE IN TRANSITU--Continued.

buyer may pay price and claim goods, 372.

malicious stopping by seller, 372.

acceptance of bills, or giving notes by solvent buyer for goods, defeats seller's right, 372.

buyer's refusal to comply with terms of sale gives seller the right, 372.

seller's right not defeated by any bargain between consignee and his assignee, 372.

or by claim, lien, or attachment of any other person, 372 ; 362, n. See ante, **III**, D.

when seller must discharge the claim, 373 ; 350.

precedence of seller's lien, 378.

attachment by vendee's creditor will not defeat vendor's right, 373, and n.

but if vendee takes such possession, as he can, right gone, 373, n.

VI. Now the Right or Stopfaox that be enforced and EXERCISED,

373-377.

buyer's insolvency alone will not operate as a stoppage, 373.

goods must be actually stopped, 373.

actual taking possession by seller not necessary, 373.

if possible, should be done, 373.

right justifies any mode not criminal, 873.

constructive possession sufficient when, 374.

how constructive possession obtained, 374.

notice to actual possessor of goods, 374.

if given to carrier's servant, 374.

to consignee's assignee sufficient, 374, n.

demand on vendee, while goods are in custom-house, insufficient,

374; n.

should have been on custom-house officers, 374, n.

notice given to principal, and not to carrier or servant, when sufficient to stop

goods, 374, and n., 375, n.

principal must use reasonable diligence, 375, n.

carrier's duty to comply with notice properly given, 375.

if he does not, seller's right not defeated, 375.

buyer's possession thus obtained, unlawful, 375.

carrier responsible for any injury to seller, 375.

if buyer insolvent, and goods come to his assignee's hands, trover lies

by the seller, 375.

delivery to buyer, by mistake of carrier after notice, will not defeat

right, 375.

carrier should demand indemnity where both parties claim the goods, 375.

no legal obligation to give such, and rightful claimant would recover goods,

375.

but he would recover no costs or damages, if carrier warranted in withholding

goods until indemnified, 375.

if goods in custom house, how seller may take possession, 375. See ante, **III**, E.

consignor may do by agent what he can personally, 376.

agent neglecting to stop goods when he has the power, liable, 376, n.

if agent acts without authority in stopping goods, effect of subsequent

ratification, 376.

question of "_quo animo "_ he acts, 376, n.

INDEX. 775

STOPPAGE IN TRANSITU--Continuised.

ratification must take place when party himself could lawfully have

done the act which he ratifies, 376, n.

on the continent of Europe stoppage unnecessary, 376.

in France law nearly like ours, 376.

reudor bound to indemify insolvent's estate for advances, expenses,

etc. 376, 377, n.

STORAGE, of provisions, sails, anchors, etc., 239.

STORES. See Supplies.

STORY, Mr. Justice, created American commercial law, 16, 17.

STOWAGE, of goods, if bad, when carrier liable, 185.

master's duty as to; 378.

STRANDING, voluntary. See General Average.

STATHAM, 5.

SUPERCARGO, master acting in the capacity of, 434, 435.

SUPPLLES, as expurtenant to ship, 72, n.

liability of part-owners for, 89-93. See Part-Owers, III.

owners for. See Owners.

bototmry bond for. See Bottomy and Respondentia, IL, F.

authority of master to bind owners by contract for, 378-440. See Master.

SURVEY, to determine anseworthiness of ship, 65, 454, 455.

SURVIVORSHIP, no right of, among part-owners. See Part-Owers.

T.

.TENANTS IN COMMON, owners of ship are, 82, 83.

TENDER, of goods, when operating as delivery, 151, n. 3, 152.

**THAMES, custom as to delivery of goods in the river, 158.**

\*\*' THIRD OFF, NEW FOR OLD," not the rule of damages in collision, except, 205.

TITLE, to vessels. See Registry and Navigation Lane, and Sale of Ship.

TOWAGE, contribution for, 312.

TOW-BOATS, when common carriers, 176, n.

when responsible for collision, 208, 209, n.

**T TRANSFER, of vessel. See Sale of Ship.**

TRANSSHIPMENT, of goods when voyage is once broken up, 158-173. See Carriage of Goods, IV.

TROVER. See Actions.

TRUSTS, under the registry acts, 43.

U.

UNITED STATES, when forfeited vessel rests in, 87.

UNSEAWORTHNESS. See Sea-Worthiness.

**USAGE. See Custom.**

**USURY. See Bottomy and Respondentia, IL, B.**

**V. VALIN, 6, 11.**

**VENDER AND VENDOR. See Sale of Ship ; Stoppage in Transitu.**

**VESSEL. See Slip.**

**VINNIUS, 6.**

**776 INDEX.**

**NOTAGES.** See _Seamen, IL_

distinct and double, 258.

agreement as to wages upon divided, 446, n. 3.

**W.**

**WAGES.** See _Seamen._

proceedings _in rim_ for, under Illinois statute, 107, n.

enforcement of, from mortgage of vessel, 115, n. See _Oomers._

**WAR,** Annals contract for carriage of goods, 274, 275.

**WAREHOUSE,** goods in; constructive possession of vendor, giving right to stop in

transitu.\*\* See \_Sloppage in Transitu, III., B, E.

**WARP,** right of vessel to obstruct navigable stream by, 211.

**WARANTY,** rules of, as applied to sale of ship, 69-71. See _Sale of Ship, V._ See

_Representations._

of sea-worthiness, 338, 454, n. 1. See _Surriage of Goods, L_

**WATCH,** duty of ship to keep.\*\* See _Collision._

**WHALING** VOYAGE,\*\* not foreign voyage, 30.

not trading voyage, 444, n.

to specified port " and elsewhere," 444, n. 1.

hiring of sailors in,,upon shares, 477.

what papers whale ship should take, 30, 31.

in whose name while ship should be registered, 33.

**WHARF,** delivery of goods on, 153. See also _Stoppage in Transitu._

**WHARFAGE,** liability of owners of chartered ship for, 251.

contribution, for, 312.

**WISBUY,** laws of, 6, 10.

WOOD, for fuel, whether material-men have lien for, 494, 495.

**WOORAN,** serving on board ship has rights and disabilities of sailor, 478.

**WORKING** DAYS.\*\* See _Lay Days._

\*\*WRECK, total, warranting sale of ship, 61, n.

**sale by foreign court after, 68.**

**WRITERS,** principal foreign, upon shipping, 3-17.

**INDEX TO THE APPENDIX.**

**ACTS OF CONGRESS :**

concerning Pilots; 1789, Chap. IX. (1 U. S. Stats. at Large, 53), 505.

for the Punishment of certain crimes against the United States; 1790, Chap. IX. (1 J. S. Stats. at Large, 112), 505-507.

for the Government and Regulation of Seamen in the Merchant Service; 1790, Chap. XXIX. (1 U. S. Stats. at Large, 131), 507-512.

concerning Consuls and Vice-Consuls; 1792, Chap. XXIV. (1 U. S. Stats. at Large, 254), 513-516.

concerning the Registry and Recording of Ships and Vessels; 1792, Chap. I. (1 U. S. Stats. at Large, 287), 516-531.

for enrolling and licensing Ships or Vessels to be employed in the Consiting

Trade and Fisheries, and for regulating the same; 1793, Chap. VIII. (1 U. S. Stats. at Large, 305), 531-548.

**INDEX.**

**ACTS OF CONGRESS -- Continued.**

for the Relief and Protection of American Seamen ; 1796, Chap. XXXVI. (1 U. S. Stats. at Large, 477), 548-550.

for providing Passports for the Ships and Vessels of the United States; 1796, Chap. XLV. (1 U. S. Stats. at Large, 489), 550, 551.

in addition to an Act, intitlted " An Act concerning the Registoring and Recording of Ships or Vessels," and to an Act, intitlted " An Act for enrolling and licensing Ships and Vessels employed in the Coasting Trade and Fisheries, and for regulating the same;" 1797, Chap. VII. (1 U. S. Stats. at Large, 498), 551, 552.

in addition to an Act, intitlted " An Act concerning the registering and recording of Ships and Vessels ;" 1797, Chap. V. (1 U. S. Stats. at Large, 523), 552.

for the Relief of sick and disabled Seamen ; 1798, Chap. XXXVII. (1 U. S. Stats. at Large, 605), 552-554.

in addition to " An Act for the relief of sick and disabled Seamen ;" 1799, Chap. XXXVI. (1 U. S. Stats. at Large, 799), 554, 555.

to amend an Act intitlted " An Act for the relief of sick and disabled Seamen ;" and for other purposes; 1802, Chap. LL. (2 U. S. Stats. at Large, 192), 555, 556.

providing for Salvage in case of recapture ; 1800, Chap. XIV. (2 U. S. Stats. at Large, 16), 557-559.

supplementary to the " Act concerning Consuls and Vice-Consuls, and for the further protection of American Seamen ;" 1803, Chap. IX. (2 U. S. Stats. at Large, 903), 559-562.

supplementary to the Act, intitlted " An Act providing passports for the Ships and Vessels of the United States ;" 1803, Chap. XVI. (2 U. S. Stats. at Large, 208), 562.

in addition to the Act, intitlted " An Act concerning the registering and recording of Ships and Vessels of the United States," and to the Act, intitlted " An Act to regulate the collection of duties on Imports and Tonage ;" 1803, Chap. XVIII. (2 U. S. Stats. at Large, 209), 562-564.

to repeal a part of the Act, intitlted " An Act supplementary to the Act concerning Consuls and Vice-Consuls, and for the further protection of American Seamen ;" 1804, Chap. LL. (2 U. S. Stats. at Large, 296), 564.

to amend the Act, intitlted " An Act concerning the registering and recording of Ships and Vessels ;" 1804, Chap. LII. (2 U. S. Stats. at Large, 296), 564, 565.

to amend the Act, intitlted " An Act for the government and regulation of Seamen in the Merchants' Service ;" 1805, Chap. XXXVII. (2 U. S. Stats. at Large, 330), 565.

to prevent the issuing of Sea Letters, except to certain Vessels ; 1810, Chap. XIX. (2 U. S. Stats. at Large, 568), 565, 566.

establishing Navy Hospitals; 1811, Chap. XXVI. (2 U. S. Stats. at Large, 650), 566, 567.

in addition to the Act, intitlted " An Act supplementary to the Act concerning Consuls and Vice-Consuls," and for the further protection of American Seamen ; 1811, Chap. XXVIII. (2 U. S. Stats. at Large, 651), 567.

respecting the Enrolling and Licensing of Steamboats ; 1812, Chap. XL. (2 U. S. Stats. at Large, 694), 567, 568.

for the Regulation of Seamen on board the Public and Private Vessels of the United States ; 1813, Chap. XLLII. (2 U. S. Stats. at Large, 809), 568-571.

**INDEX.**

**ACTS OF CONGRESS -- Continued.**

for the government of Persons in certain Fisheries ; 1813, Chap. IL. (s U. S. Stats. at Large, 2), 571, 572.

laying a duty on imported Salt ; granting a bounty on Pickled Fish exported, and allowances to certain Vessels employed in the Fisheries ; 1813, Chap. XXXV. (s U. S. Stats. at Large, 49), 573-576.

to continue in force " An Act entitled, An Act, laying a duty on imported Salt, granting a bounty on Pickled Fish exported, and allowances to certain Vessels employed in the Fisheries ; " 1816, Chap. XIV. (s U. S. Stats. at Large, 254), 576, 577.

concerning the Navigation of the United States ; 1817, Chap. XXXI. (s U. S. Stats. at Large, 351), 577, 578.

supplementary to the Acts concerning the Coasting Trade ; 1819, Chap. XLVIII. (s U. S. Stats. at Large, 492), 579.

to protect the Commerce of the United States, and punish the crime of Piracy ; 1819, Chap. LXXVII. (s U. S. Stats. at Large, 510), 580, 581.

in addition to, and alteration of an Act, entitled " An Act laying a Duty on Imported Salt, granting a Bounty on Pickled Fish exported, and allowances to certain Vessels employed in the Fisheries ; " 1819, Chap. LXXXXIX. (s U. S. Stats. at Large, 520), 581.

to provide for obtaining accurate statements of the Foreign Commerce of the United States ; 1820, Chap. XI. (s U. S. Stats. at Large, 541), 582-584.

more effectually to provide for the punishment of certain Crimes against the United States, and for other purposes ; 1825, Chap. LXV. (t U. S. Stats. at Large, 115), 584-587.

to authorize the register, or enrolment and license to be issued in the name of the President Secretary of any incorporated Company owning a Steamboat or Vessel ; 1825, Chap. XCIX. (t U. S. Stats. at Large, 129), 588.

to authorize the licensing of Vessels to be employed in the Mackerel Fishery ; 1828, Chap. CXIX. (4 U. S. Stats. at Large, 312), 588, 589.

to provide for the apprehension and delivery of Deserters from certain Foreign Vessels, in the ports of the United States ; 1829, Chap. XLL (4 U. S. Stats. at Large, 859), 589.

to authorize Surveys, under the direction of the Secretary of the Treasury, to enroll and license Ships or Vessels to be employed in the Coasting Trade and Fisheries ; 1830, Chap. XIV. (4 U. S. Stats. at Large, 372), 590.

to repeal the charges imposed on Passports and Clearances ; 1831, Chap. XX. (4 U. S. Stats. at Large, 441), 590.

to regulate the Foreign and Coasting Trade on the Northern, North-eastern, and North-western frontiers of the United States, and for other purposes ; 1831, Chap. XCVIII. (4 U. S. Stats. at Large, 487), 590, 591.

concerning Vessels employed in the Whale Fishery ; 1831, Chap. CXV. (4 U. S. Stats. at Large, 492), 591, 592.

in amendment of the Acts for the punishment of offences against the United States ; 1835, Chap. XL. (4 U. S. Stats. at Large, 775), 592, 598.

in addition to the Act of the twenty-fourth of May, one thousand eight hundred and twenty-eight, entitled " An Act to authorise the licensing of Vessels to be employed in the Mackerel Fishery ; " 1836, Chap. LV. (5 U. S. Stats. at Large, 16), 593, 594.

to provide for the enlistment of Boys for the Naval Service, and to extend the term of the enlistment of Seamen ; 1837, Chap. XXL (5 U. S. Stats. at Large, 153), 594, 595.

**INDEX.**

**ACTS OF CONGRESS --** _Continued_.

concerning Pilots ; 1837, Chap. XXII. (5 U. S. Stats. at Large, 153), 595.

to provide for the better security of the Lives of Passengers on board of Vessels propelled in whole or in part by Steam ; 1838, Chap. CXCL (5 U. S. Stats. at Large, 304), 595-598.

to cancel the bonds given to secure the duties upon Vessels and their Cargoes, employed in the Whale Fishery, and to make registers lawful papers for such Vessels ; 1840, Chap. VI. (5 U. S. Stats. at Large, 370), 599.

in addition to the several Acts regulating the Shipment and Discharge of Seamen, and the Duties of Consuls ; 1840, Chap. XXVIII. (5 U. S. Stats. at Large, 394), 599-603.

supplementary to an Act, entitled " An Act to establish the Judicial Courts of the United States," passed the 24th of September, 1789 ; 1842, Chap. CLXXXVIII. (5-U. S. Stats. at Large, 516), 603, 604.

to establish and regulate the Navy Ration ; 1842, Chap. CCLXVII. (5 U. S. Stats. at Large, 546), 604, 605.

ammediatory of "An Act for the'Relief of Sick and Disabled Seamen ;" 1843, Chap. XXIX. (5 U. S. Stats. at Large, 602), 605.

to modify the Act, entitled " An Act to provide for the better security of the Lives of Passengers on board of Vessels propelled in whole or in part by Steam," approved July 7, 1838; 1843, Chap. XXIV. (5 U. S. Stats. at Large, 626), 606, 607.

to amend the Act, entitled "An Act to provide for the Enlistment of Boys for the Naval Service, and to extend the Term of Enlistment of Seamen ;" 1845, Chap. XVII. (5 U. S. Stats. at Large, 725), 608.

extending Privileges to American Vessels engaged in a certain mentioned Trade, and for other purposes ; 1848, Chap. XXVIII. (9 U. S. Stats. at Large, 232), 608, 609.

to authorize the Secretary of the Treasury to license Yachts, and for other purposes ; 1848, Chap. XXLL (9 U. S. Stats. at Large, 374), 609, 610.

regulations to be observed by Vessels, Steamboats, etc., navigating the Northern or North-western Lakes ; 1849, Chap. CV. (9 U. S. Stats. at Large, 382), 610.

to provide for Recording the Conveyances of Vessels, and for other purposes ; 1850, Chap. XXVIII. (9 U. S. Stats. at Large, 440), 610-612.

making Appropriations for the Naval Service for the year ending the thirtieth day of June, one thousand eight hundred and fifty-one, and abolishing flogging in the Navy and on board Vessels of Commerce ; 1850, Chap. LXXXX. (9 U. S. Stats. at Large, 514), 612.

to limit the Liability of Ship-Owners, and for other purposes ; 1851, Chap. XXIII. (9 U. S. Stats. at Large, 635), 613, 614.

to amend An Act, entitled " An Act to provide for the better security of the Lives of Passengers on board Vessels propelled in whole or in part by Steam," and for other purposes ; 1852, Chap. CVL (10 U. S. Stats. at Large, 61), 615-634.

to establish certain Post-Roads, and for other purposes ; 1859, Chap. XXIII.

(10 U. S. Stats. at Large, 140), 634, 635.

authorizing the Secretary of the Treasury to issue Registers to Vessels in certain cases ; 1852, Chap. IV. (10 U. S. Stats. at Large, 149), 635.

compensation to Seamen sent home as Witnesses ; 1853, Chap. LXXX. (10 U. S. Stats. at Large, 168), 636.

to supply Deficiencies in the $\\beta$ appropriations for the Service of the fiscal year

## 3 Results

### 3.1 Results

The results of the experiments are presented in Table 1. The results are presented in Table 2. The results are presented in Table 3. The results are presented in Table 4. The results are presented in Table 5. The results are presented in Table 6. The results are presented in Table 7. The results are presented in Table 8. The results are presented in Table 9. The results are presented in Table 10. The results are presented in Table 11. The results are presented in Table 12. The results are presented in Table 13. The results are presented in Table 14. The results are presented in Table 15. The results are presented in Table 16. The results are presented in Table 17. The results are presented in Table 18. The results are presented in Table 19. The results are presented in Table 19. The results are presented in Table 10. The results are presented in Table 11. The results are presented in Table 12. The results are presented in Table 13. The results are presented in Table 14. The results are presented in Table 15. The results are presented in Table 16. The results are presented in Table 17. The results are presented in Table 18. The results are presented in Table 19.
