Transcriber's Note.

Apparent typographical errors have been corrected. The use of hyphens and of accents has been rationalised.

A notice of other works on shipping has been moved to the end of the book. In the Table of Contents the heading "APPENDICES" has been shifted to precede the lines that list the appendices themselves.

Appendix I (A Summary of the Navigation Laws of the United States) has a separate author and its own Table of Contents.

THE LAW OF THE SEA

SHIPPING SERIES
TRAINING FOR THE STEAMSHIP BUSINESS

EDITORS:

Emory R. Johnson Ph.D., Sc.D.
Dean of the Wharton School of Finance and Commerce,
University of Pennsylvania.

Roy S. MacElwee, Ph.D.
Director of the U. S. Bureau of Foreign and Domestic Commerce.

THE LAW OF THE SEA

A MANUAL OF THE PRINCIPLES OF ADMIRALTY LAW
FOR STUDENTS, MARINERS, AND SHIP OPERATORS

BY

GEORGE L. CANFIELD
OF THE MICHIGAN BAR

AND

GEORGE W. DALZELL
OF THE BAR OF THE DISTRICT OF COLUMBIA

WITH A SUMMARY OF THE NAVIGATION LAWS
OF THE UNITED STATES

BY

JASPER YEATES BRINTON

D. APPLETON & COMPANY
NEW YORK LONDON
1921

COPYRIGHT, 1921, BY
D. APPLETON AND COMPANY

PRINTED IN THE UNITED STATES OF AMERICA

EDITORS' PREFACE

This is the third volume of a series of manuals dealing with the business of ocean shipping and transportation. The first volume published dealt with steamship traffic operation and was written by Professor G. G. Huebner. The second volume was upon "Marine Insurance," the author being Professor S. S. Huebner. In the first volume published, the following preface appeared:

"This volume upon the management of ocean steamship traffic is the first of a series of manuals designed to assist young men in training for the shipping business. The necessity for such a series of manuals became evident when, as a result of the great war, the tonnage of vessels under the American Flag was, within a brief period, increased many fold. To carry on the war and to meet the demands of ocean commerce after the war, the United States Government, through the Shipping Board and private shipyards, brought into existence a large mercantile marine. If these ships are to continue in profitable operation under the American Flag, the people of the United States must be trained to operate them. Steamship companies, ship-brokers and freight-forwarders must all be able to secure men necessary to carry on the commercial and shipping activities that make use of the ships. A successful merchant marine requires ships, men to man the ships, and business organization to give employment to the vessels.

"In its Bulletin upon 'Vocational Education for Foreign Trade and Shipping' (since republished as 'Training for Foreign Trade,' Miscellaneous Series No. 97, Bureau of Foreign and Domestic Commerce, for sale by the Superintendent of Documents), the Federal Board for Vocational Education includes among other courses suggested for foreign trade training two shipping courses upon subjects with which exporters should be familiar, namely, 'Principles of Ocean Transportation' and 'Ports and Terminals.' Although such general courses are helpful to the person engaging in the exporting business, a training for the steamship business as a profession requires much greater detail in the knowledge of concrete facts of a routine nature. An analysis was made of the various divisions of the steamship office organization and it was suggested to the United States Shipping Board that as no literature existed of sufficient practicability and detail several manuals should be written covering the principal feature of shore operations.

"The response of the Shipping Board was hearty. The Shipping Board appointed Mr. Emory R. Johnson of its staff, then conducting an investigation of ocean rates and terminal charges, as its editor. The Federal Board for Vocational Education designated Mr. R. S. MacElwee, then engaged in the preparation of studies in foreign commerce. Before the project was completed Mr. Johnson severed his connection with the Shipping Board in 1919, and January, 1919, Mr. MacElwee became Assistant Director of the Bureau of Foreign and Domestic Commerce, Department of Commerce. The interest of the editors in the project did not terminate, however, and their close coöperation has been voluntarily continued out of conviction that the works will be helpful.

"The books have been written with a view to their being read by individual students conducting their studies without guidance, also with the expectation that they will be used as class text-books. Doubtless colleges, technical institutes and high schools having courses in foreign trade, shipping business and ocean transportation, will desire to use these volumes as class texts in a manner outlined in 'Training for the Steamship Business,' by R. S. MacElwee, Miscellaneous Series 98, Bureau of Foreign and Domestic Commerce, Superintendent of Documents, Washington, D. C. It is expected that evening classes and part-time schools, organized under the patronage of the Federal Board for Vocational Education, Chambers of Commerce, and other interested organizations will find the manuals useful. Should these volumes accomplish the desired purpose of giving the American people a somewhat greater proficiency in the business of operating ships, they will have proven successful."

This volume on "The Law of the Sea" is intended to present the principles of admiralty law in concise and practical form. It is a manual for the student, the owner, or the master of a vessel who may desire to acquire information concerning the main facts and principles of maritime law without attempting to acquire such a mastery of the subject as is possessed by an admiralty lawyer.

The Editors

AUTHORS' PREFACE

This book is not an exhaustive treatise or a compendium of authorities. It is designed to be an outline of the subject primarily for the student, more especially the student layman who desires to inform himself of the general principles of admiralty law.

It is impracticable in a work of this sort to reprint the statutes relating to the various subjects of admiralty jurisprudence, since the federal statutes alone would constitute a volume more extensive than this. The salient features of the statutes have been noticed and references given to all of them. They are to be found in the Revised Statutes, the Compiled Statutes, the Statutes at large, and in the compilation of Navigation Laws published by the Bureau of Navigation, U. S. Department of Commerce.

The subject of marine insurance is treated in another volume of this series and is, therefore, omitted here.

In the chapter on Collision, we have not discussed the fixing of liability under particular circumstances of navigation, such as collision between vessels meeting, vessels passing, etc. While these matters are treated in most text-books, their discussion belongs largely to navigation and is useful only in a legal treatise for the purpose of determining liability after an accident has occurred. It could not guide the reader to avoid collision liability, and is therefore omitted in a work intended rather as a guide for the avoidance of trouble than as a dictionary of remedies.

For the same reason, only the most cursory sketch of admiralty procedure has been given. That is the province of the proctor, who must be consulted when litigation has become necessary.

The reader will find that a few subjects treated in the body of the work are also covered in Appendix I (Summary of the Navigation Laws). This is due to the fact that the appendix was prepared for independent publication. The repetitions are not numerous and, as the treatment is different in form, it will be found advantageous to the student rather than otherwise.

Acknowledgment is made to Miss Florence A. Colford of the District of Columbia bar, for valuable and painstaking aid.

G. L. C.

G. W. D.

CONTENTS

THE LAW OF THE SEA

CHAPTER I
MARITIME LAW

1. General Maritime Law.—

Navigation and commerce by sea are regulated by maritime law. This is a branch of jurisprudence which developed out of the necessities of the business with which it has to deal. It is, therefore, as old as navigation itself and many of its rules can be traced back to antiquity. It extends over all navigable waters and is enforced by courts of admiralty.

This law is to be found in the statutory laws of different countries, the decisions of the courts and text-books on the subjects involved. Back of the laws of each particular country is what is termed the general maritime law or common law of the sea, which, like the common law of the land, consists of that general mass of usages and customs which exists by the universal consent and immemorial practice of those doing business by sea. It is effective within particular countries only so far as they consent to follow it, as is the case with international law, of which it is really a part. In general, however, it is recognized and enforced wherever the local laws are silent in regard to maritime transactions.

2. Sources in United States.—

In the United States, the maritime law is to be found in the Statutes or Acts of Congress and decisions of the Federal Courts. These decisions are published in the United States Reports, Federal Cases and Federal Reporter. In addition there are numerous text-books, among which may be mentioned Parsons on Shipping and Admiralty; Benedict's Admiralty; Hughes on Admiralty; Desty on Shipping and Admiralty; Spencer on Collisions and Flanders on Maritime Law. The highest authority is, of course, to be found in the Decisions of the Supreme Court of the United States.

3. Courts.—

The Constitution provides that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction; this jurisdiction is confided to the District Courts, of which there are several in each state; appeals lie from their decisions to the Circuit Courts of Appeals; there are nine of these, corresponding to the nine judicial circuits into which the nation is divided; the Supreme Court has a general supervisory jurisdiction over all other courts. While parties having maritime controversies may resort to state courts in cases where the common law affords a remedy, the admiralty jurisdiction of the federal courts is so much more effective in all matters pertaining to the ship that they handle practically all the litigation on the subject.

4. Jurisdiction.—

a. The Ship.—

According to the maritime law of the United States the ship is not within the jurisdiction of the admiralty until she is completed; while she is engaged in commerce and navigation, that jurisdiction is exclusive; when she becomes a wreck and passes out of the business for which she was intended, the jurisdiction relaxes and is finally withdrawn. Therefore our admiralty does not take cognizance of matters growing out of the building of the ship nor of the controversies arising after she is broken up.

It sometimes becomes a question of some difficulty whether a particular object is or is not a vessel and subject to admiralty jurisdiction. Rev. Stat., § 3, define "vessel" as including "every description of watercraft or other artificial contrivance, used or capable of being used as a means of transportation by water," and in General Cass, 1 Brown Adm. 334, it was said:

The true criterion by which to determine whether any watercraft or vessel is subject to admiralty jurisdiction is the business or employment for which it is intended, or is susceptible of being used, or in which it is actually engaged, rather than size, form, capacity or means of propulsion.

In one or two old cases it was held that a dredge was not a ship but the preponderance of authority is to the effect that a dredge is a ship and within admiralty jurisdiction. The question whether a raft of logs is a vessel has been variously decided. If it be a mere pile or series of floating logs it is probably not a vessel, but rafts made of cross-ties, used as a convenient mode of bringing them to market, manned by crew, who lived thereon during the voyage and propelled by the current and by poles and oars, have been held to be a ship and subject to admiralty jurisdiction.[1] So, also, a floating bathhouse, not permanently moored, but which was towed from place to place has been held to be a vessel; whereas a floating drydock, kept permanently moored, is not a vessel. The question whether barges and floats are subject to admiralty jurisdiction has been the subject of frequent adjudication, and while some old cases held that they were not, the tendency of the modern decisions is to hold that such crafts are vessels. In the Mac, 7 P. D. 126, the question was whether a hopper barge was a ship. It was decided in the affirmative by the English Court of Appeal, Lord Justice Brett saying:

The words "ship" and "boat" are used; but it seems plain to me that the word "ship" is not used in the technical sense as denoting a vessel of a particular rig. In popular language ships are of different kinds; barques, brigs, schooners, sloops, cutters. The word includes anything floating in or upon the water, built in a particular form, and used for a particular purpose. In this case the vessel, if she may be so called, was built for a particular purpose; she was built as a hopper-barge; she has no motive power, no means of progression within herself. Towing alone will not conduct her; she must have a rudder; and, therefore, she must have men on board to steer her. Barges are vessels in a certain sense; and, as the word "ship" is not used in a strictly nautical meaning, but is used in a popular meaning, I think that this hopper-barge is a "ship".... This hopper-barge is used for carrying men and mud; she is used in navigation; for to dredge up and carry away mud and gravel is an act done for the purposes of navigation. Suppose that a saloon-barge, capable of carrying 200 persons, is towed down the river Mersey in order to put passengers on board of vessels lying at its mouth; she would be used for the purposes of navigation, and I think it equally true that the hopper-barge was used in navigation.

b. The Waters.—

The waters included in admiralty jurisdiction are, first, the sea; second, streams in which the tide ebbs and flows; and third, waters which carry substantial water-borne commerce. The fact that a navigable stream may lie entirely within the borders of a single state and thus be unnavigable for interstate commerce, does not exclude the admiralty jurisdiction. Nice questions occasionally come before the courts in determining whether or not a particular body of water is navigable and therefore within the admiralty jurisdiction. There seems to be no precise test, beyond the capacity of the stream to carry substantial commerce.

5. Maritime Contracts and Torts.—

The general subject matter of admiralty jurisdiction is maritime contracts and maritime torts or injuries. A contract is maritime when it relates to the ship as an instrument of commerce and navigation. Thus the hiring of a master, the purchase of supplies, the charter-party or bill-of-lading, an agreement of towage, and the like are maritime contracts. The principle by which to determine whether a contract is maritime in its nature, was laid down by the Supreme Court in the case of the Belfast, 7 Wall. 624. "Contracts, claims, or service, purely maritime and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty courts." And in Insurance Co. v. Dunham, 11 Wall. 1:

As to contracts, it has been equally well settled that the English rule which concedes jurisdiction, with a few exceptions, only to contracts made upon the sea and to be executed thereon (making locality the test) is entirely inadmissible and that the true criterion is the nature and subject-matter of the contract, as whether it was a maritime contract, having reference to maritime service or maritime transactions.

*****

Perhaps the best criterion of the maritime character of a contract is the system of law from which it arises and by which it is governed. And it is well known that the contract of insurance sprang from the law maritime, and derives all its material rules and incidents therefrom.

The test is not altogether definite, nor always easy to apply. As was said in Grant v. Poillon, 20 How. 162: "It may be difficult, if not impracticable, to state with precision the line of this jurisdiction, but we may approximate it by consulting the decisions of our own courts."

A tort is a wrong, independent of contract, that is, it is the breach of a duty which is imposed by law and not by contract. A tort is maritime when it is committed on navigable waters. Injuries to sailors on shipboard, damage to cargo and collision at sea are maritime torts. Illustration of maritime torts and a distinction between land and maritime torts will be found in the chapters on Collisions and Maritime Liens, infra. The case of Hough v. Western Transportation Co., 3 Wall. 20, may be mentioned here. A vessel made fast to a wharf took fire by the negligence of the master and crew. The fire was communicated to the wharf and destroyed it with the buildings adjacent thereto. The court held that although the origin of the wrong was on the water, the substance and consummation of the injury occurred on land and the case was not within admiralty jurisdiction.

Salvage and general average are, strictly, neither contract nor tort, but are within admiralty jurisdiction by virtue of the general law.

6. Personality of Ship.—

In considering the maritime law, it is important to remember that one of its underlying ideas is that the ship has a personality of her own. In the common law, or law of the land, there is a similar notion in regard to corporations; they are legal persons quite apart from the stockholders who compose them. So the ship has a legal individuality quite apart from that of her owners. She may sue in the name of her owner and be sued in her own name. The principle has been expressed by the Supreme Court:

A ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron—an ordinary piece of personal property—as distinctly a land structure as a house, and subject only to mechanics' liens created by a state law and enforceable in the state courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction. She acquires a personality of her own; becomes competent to contract, and is individually liable for her obligations, upon which she may sue in the name of her owner, and be sued in her own name. Her owner's agents may not be her agents, and her agents may not be her owner's agents. She is capable, too, of committing a tort, and is responsible in damages therefor. She may also become a quasi bankrupt; may be sold for the payment of her debts, and thereby receive a complete discharge from all prior liens, with liberty to begin a new life, contract further obligations, and perhaps be subjected to a second sale. Tucker v. Alexandroff, 183 U. S. 424, 438.

7. Limits of Liability.—

It is important in all dealings with the ship, whether by way of investment of capital, or labor, or by entrusting goods to her for carriage, or by making repairs or furnishing supplies, to remember that the ship may be both the basis and the limit of financial liability, unless her owners in some way add their personal responsibility thereto. It was appreciated at an early day in the history of navigation that capitalists would not invest in ships unless there was some limit to their liability on that account. Ships are wanderers and capitalists can seldom navigate them. No form of investment can produce such large liabilities at any time. The owners can not supervise them in person but must entrust their operations to others beyond their control. Hence, out of the necessities of the situation, the doctrine developed that the ship must be treated as an individual, responsible for her own acts, and that the owner's responsibility was limited to his investment unless he personally went beyond this protection.

8. Equitable Principles.—

The maritime law proceeds on equitable principles and endeavors to accomplish substantial justice between litigants, with brevity, celerity and simplicity. It is impatient at technicalities and cunning bargains. Its jurisdiction is not limited by any financial amount or geographical boundaries, so long as the transaction is maritime in its nature. It is quick to redress unfair dealing or oppression. There is no distinction as to the persons who may invoke its aid. It is a very important part of modern commercial law, as it was originally of the old law merchant, and therefore is very practical and responsive to the demands of business; but it has also had the benefits of the accumulated wisdom of many progressive ages before this one, and is therefore cautious about untried innovations or thoughtless experiments. Its claim to the attention of mankind rests only on the inherent equity and justice of its rules and the celerity with which they may be applied to the solution of disputes, and without these characteristics it would have been long since absorbed into the common law of the land.

9. General Considerations.—

The study of maritime law has the double attraction of historical and practical interest. It deals with the legal affairs of one of the most important phases of modern commercial activity and its problems are solved by precedents from a remote past. It is not a law which is confined within the narrow circle of the present or the limits of particular countries. It is ancient and international. At a time when this country is on the threshold of a revival of its merchant marine, and when there is also a general feeling that it is necessary to proceed to a constructive readjustment and restatement of our entire body of law, the law of the sea, which is really part of the law merchant, must not be neglected. The present is imperfectly understood when the past is forgotten and it is difficult to appreciate any rule without considering its origin. Maritime law is not an exception. Its story presents all the attractions which incline the student to the study of history. It is profitable to follow here, as in politics, the development of ideas and customs, the efforts to accommodate the necessities of commerce by sea to those of the land, the methods of regulating the varied interests on shipboard and those between the shipowner and the ship's company, and the experiments towards ameliorating the age-long friction between the capitalist who supplied the ship and those who labored in her navigation. Through it all appears a constant search for justice, a sincere effort to accomplish what is right and fair for all concerned.

Here one may trace, for example, the rule of general average, the doctrine that what is sacrificed for the common benefit shall be compensated by a common contribution, a rule of such plain and simple equity that the failure of other codes to adopt it is a constant surprise. It appears in a fragment of Greek legislation and forms the text for a chapter in the Digest of Justinian. Its antecedents were probably Phœnician. It survived the Roman Empire in the traditions of seafaring men and reappears in the compilation of sea laws which Cœur-de-Lion revised on his return from the Holy Land, the Rolls or Judgments of Oléron. The Black Book of the admiralty preserves it in London. It may be traced through the Middle Ages down to the York-Antwerp Rules of 1890 and the practice of adjusters of the present day.

Or one may consider the treatment of employer's liability for injuries received in the course of the employment without his personal fault. Is vicarious liability the true test or the doctrine of fellow service? The merchants of the Mediterranean had the problem in the operations of a very large and extended commerce and the maritime law evolved the doctrine that justice requires that one injured in the service of the ship should be cured at the expense of the ship, and have his wages but no more. The last word on the real equity of this solution of a perplexing economic question remains to be said, perhaps, but the student can trace its development and application through many centuries down to the current decisions of our own Supreme Court.

On no other branch of law have tradition and custom exercised a greater influence. It grew out of the necessities of navigation and commerce by sea and remains substantially uniform in spite of forms of government, racial habits and local innovations. In its essence, it is less susceptible of statutory modification than the common law and careless legislation has had only local effects, diverting business into other channels but ineffective to change the substance of the law. Maritime commerce is naturally free and the wisest commercial governments are those which regulate it least. Its freedom is a direct implication from the doctrine of the natural freedom of the seas. The extent to which governments may profitably regulate it without impairing its usefulness or diverting the current to other shores may be found in the history of this law. Underlying principles are the same whether ships move by sail or steam or electricity or are great or small. There have been large vessels before the twentieth century and an equivalent commerce. The law has remained the same. Men pay damages every day in some of our ports for overlooking rules that were current in Roman times and needless litigation is carried through appellate courts because of professional and judicial failures adequately to investigate the underlying principles of the maritime law.

The opportunities for the student are large and inviting. If this country is to do its part in the commerce of the future, its own maritime laws must be restated and reformed. This means not only the formal statutes and department regulations but also the great mass of judicial opinions of more than a hundred years. All are intertwined with each other and the result is chaotic. The fault has not been in the underlying principles of the maritime law but in legislation and interpretation. Our peculiar system has left the final word in the majority of decisions to judges trained in the common law and not professionally acquainted with any other. The result calls for the treatment which Justinian administered to the incongruous compilations, statutes and reports of his time. The student, either of business, history or law, who will apply himself to an investigation of the law of the sea and ascertain its simple fundamentals will not only have an interesting and profitable occupation but also be in a position to contribute substantially to the public welfare.

REFERENCES FOR GENERAL READING

The American Admiralty, Chapters I-XII, E. C. Benedict. Albany, N. Y., 1910; Banks & Company.=Maritime Law, Chapters I-II, Henry Flanders. Boston, 1852; Little, Brown & Co.

Commentaries on American Law (13th ed.), Lectures XLV-XLIX, James Kent. Boston, 1884.

Marine Insurance, Introduction 1-55, John Duer. New York, 1845; Voorhies.

Introduction historique à l'étude du droit commercial maritime, Arthur Desjardins. Paris, 1890; A. Durand et Pedone-Lauriel.

Maritime Law, Albert Saunders. London, 1901; Sweet Maxwell, Ltd.

The Rhodian Sea-Law, Walter Ashburner. Oxford, 1909; The Clarendon Press.

History of Admiralty Jurisdiction, R. H. Dana. 5 American Law Review 581.

[1] "The first vessels were rafts. The raft is the parent of the modern ship" (Seabrook v. Raft, 40 Fed. 596).

CHAPTER II
TITLE AND TRANSFER

1. How Title Acquired.—

Title to a ship is acquired in the same ways as other personal property, by construction, purchase, gift or exchange. It may pass by delivery, without any bill of sale or other written document. This method, however, is neither advisable nor practicable where the value is substantial or active business is contemplated.[2]

2. Registration and Regulation.—

The United States, like other commercial countries, provides a complete system for the registry and regulation of all ships entitled to the privileges of American vessels. These laws do not require registry or enrollment unless such privileges are desired. The owner may acquire and dispose of his boat without reference to them, but, until it is registered or enrolled, it is not a vessel of the United States and cannot engage in any trade.

It is therefore usual to have all matters in relation to the title and transfer of a ship in writing and according to customary forms. This is a safe and salutary rule.

3. Shipbuilding Contracts.—

The builder of a ship is the first owner unless there is a special contract under which he merely performs labor upon materials which the other party supplies. This is unusual. The shipbuilder generally constructs the vessel upon an order or contract, which, if properly drawn, provides for the time when the title shall pass away from him. Such contracts should be explicit in their details, especially as to the terms of payment and state of the title as the work goes on. Otherwise, the title may remain in the builder until delivery; if so, and the vessel be injured or destroyed, it will be his loss; or, if he becomes bankrupt before delivery, the vessel may be appropriated by his general creditors in spite of the fact that the purchase price may have been largely paid.

In the United States v. Ansonia Co., 218 U. S. 452, a shipbuilder in Richmond, Va., became insolvent while engaged in constructing three vessels for the government; one war dredge for the War Department; one a revenue cutter for the Treasury Department; and the third a cruiser for the Navy. In each instance the shipbuilder was to furnish the labor and materials and perform the work and was to receive partial payments from time to time as the construction progressed. In the case of the dredge, the contract provided that the parts of the vessel as its construction progressed should become the sole property of the United States, although it was further provided that the government might subsequently reject defective work or parts and might even reject the completed vessel, should it fail to pass inspection. The contracts for the revenue cutter and cruiser, on the other hand, contained no provision for the passing of title before completion, but did provide that the government should have a superior lien upon the vessels for all payments made on account. The Supreme Court (Day, J.) said:

It is undoubtedly true that the mere facts that the vessel is to be paid for in installments as the work progresses, and to be built under the superintendence of a government inspector, who had the power to reject or approve the materials, will not of themselves work the transfer of the title of a vessel to be constructed, in advance of its completion. But it is equally well settled that if the contract is such as to clearly express the intention of the parties that the builder shall sell and the purchaser shall buy the ship before its completion, and at different stages of its progress, and this purpose is expressed in the words of the contract, it is binding and effectual in law to pass the title.

The court further held that the lien reserved in the contracts for the revenue cutter and cruiser was not superior to the liens of material men under the laws of Virginia.

4. Not Within Admiralty Jurisdiction.—

Until the vessel is launched and completed she is not within the jurisdiction of the maritime law but, like any other piece of construction, is subject to the local laws of the State wherein the work is carried on. The Admiralty courts of the United States decline jurisdiction of all contracts for the building of a ship.

5. Enrollment and Registration.—

When the ship is completed, she should be registered or enrolled as an American vessel. These words are synonymous; vessels in the foreign trade are "registered" and those in the domestic or coastwise trade are "enrolled"; (The Mohawk, 3 Wall. 566; Huus v. Co., 182 U. S. 392, 395). Vessels of less than twenty tons and more than five tons are neither registered or enrolled but should be licensed.

6. Ships Entitled to.—

This proceeding is accomplished at the office of the collector of customs of the district in which the home port of the vessel may be (Rev. St. § 4141, Morgan v. Parham, 16 Wall. 471). The home port is the port at or nearest which the owner, or managing owner, resides. The registration, enrollment and licensing of vessels is fully covered by Regulations originally promulgated by the Secretary of the Treasury under the navigation laws of the United States, which may now be obtained in revised form by application to the Department of Commerce at Washington.

Ships entitled to such registration or enrollment are:

1. Vessels built in the United States and owned by a citizen.

2. Vessels captured in war and condemned as prize, and owned by a citizen.

3. Vessels forfeited and sold for breach of the laws of the United States and purchased and owned by a citizen.

4. Seagoing vessels whether steam or sail which have been certified by the Steamboat Inspection Service as safe to carry dry and perishable cargo, wherever built, which are to engage only in trade with foreign countries, being wholly owned by citizens of the United States or corporations organized and chartered therein, the president and managing directors and the holders of the control of which shall be citizens of the United States; also vessels answering the foregoing description which are to trade with the Islands of Guam and Tutuila until February 1, 1922, and thereafter as governed by Sec. 21 of the Merchant Marine Act (see Appendix).

5. Vessels wrecked in the United States, and purchased and repaired by a citizen, if the cost of the repairs is equal to three times the appraised value of the wreck as salved.

6. Vessels of the United States Shipping Board sold to a citizen of the United States.

7. Steamboats employed in a river and bay of the United States and owned wholly or in part by an alien resident within the United States.

8. Yachts owned by citizens and employed exclusively for pleasure. These, although foreign built, may be licensed to proceed from one domestic port to another so long as they do not trade or carry passengers.

7. Incidents of Enrollment or Registration.—

The law provides that vessels registered pursuant to law and no others (except those qualified according to law for carrying on the coasting or fishing trade) shall be deemed vessels of the United States and entitled to the benefits and privileges pertaining to such vessels. When a vessel ceases to be wholly owned by citizens of the United States or a corporation created under the laws of the United States, control of which is held by citizens, or ceases to be commanded by a citizen of the United States, she forfeits her rights, benefits and privileges of a vessel of the United States. Pilots and officers having charge of a watch must be citizens of the United States.

A capital distinction to be borne in mind is that between vessels entitled to engage in coastwise trade and those not so entitled. No vessel of foreign registry may engage in that trade. No foreign-built vessel of American registry, with certain exceptions,[3] may engage in that trade under penalty of a fine, although it is within the power of the Secretary of Commerce to waive the imposition of such fine, and this has sometimes been done where an emergency arising out of exceptional circumstances has made it necessary for an unauthorized vessel to trade between ports of the United States. Vessels entitled to engage in the coastwise trade are those which, being built within and owned by citizens of the United States, are enrolled for that trade. Vessels owned by corporations may not engage in the coasting trade unless 75 per cent. of the interest therein is owned by citizens.

The coasting trade consists of trade between continental ports of the United States, either directly or by way of a foreign port; that is to say, if you depart from New York with merchandise for Miami, you are trading between American ports, even though you may touch at Bermuda en route. The test is whether you trade between ports of the United States as part of a single voyage, irrespective of nationality of the ship. The character of the voyage, whether foreign or domestic, is determined by its terminus (Tabor v. U. S., 1 Story 1). Thus a vessel bound from New York to Yokohama, via San Francisco, would be upon a foreign voyage. Such a vessel, flying a foreign flag, could not discharge any of her passengers or cargo at San Francisco.

Trade between the east and west coasts via the Panama Canal or Cape Horn is coastwise. Trade between ports of the United States and those of Hawaii, Porto Rico and Alaska is coasting trade, though the Shipping Board may issue permits to foreign vessels to carry passengers between Hawaii and the Pacific coast until February 1, 1922. Trade between ports of the United States and those of the Philippine Islands is by statute not coasting until February 1, 1922. Thereafter it is governed by Sec. 21 of the Merchant Marine Act, which will be found in the Appendix. Trade between ports of the United States and those of the Panama Canal Zone is not coasting.

By the coasting trade is not meant the mere putting in of a vessel at a port of the United States after leaving another port for bunkers or supplies (which is not forbidden) but trading between such ports, e.g., the carriage of cargo and passengers from one such port and their discharge at another.

8. How Obtained.—

This registration or enrollment is obtained by proof of the collector that the vessel was built within the United States, or otherwise meets conditions mentioned; and that no foreigner is interested in her (Rev. St. § 4142); her size, characteristics and other points of identification are shown by certificates of the master carpenter under whose direction she was built, and surveyors appointed for the purpose, in accordance with R. S. 4147-4153; security is given that the certificate obtained shall be solely used for the ship, and thereupon the collector issues in statutory form his certificate of registration or enrollment, as the case may be (Rev. St. §§ 4155, 4319).

The title to the ship may vest in one or more individuals or a corporation. In either case the residence or domicile of the owner is important. The law considers that for purposes of jurisdiction the ship is a part of the territory of the state or country in which the owner resides, and she continues for many purposes to be subject to its laws wherever she sails (Crapo v. Kelly, 16 Wall. 610; The Hamilton, 207 U. S. 398).[4] In the case of Crapo v. Kelly, just cited, the ship Arctic, registered at Fairhaven, Massachusetts, belonged to a firm of owners, residing and doing business in that state, who had become insolvent. The insolvent court of Massachusetts undertook to include the vessel among the assets of the owners within its jurisdiction, for the benefit of creditors. The vessel arrived at New York and was attached by a creditor of the owners residing there. Upon extended consideration, the Supreme Court held:

This vessel, the Arctic, was upon the high seas at the time of the assignment (for the benefit of creditors). The status at that time decides the question of jurisdiction.... We hold that she was subject to the disposition made by the laws of Massachusetts and that for the purpose and to the extent that title passed to the assignees, the vessel remained a portion of the territory of that state.

The ship's registry or enrollment, therefore, fixes her home port and she will be considered as belonging to the state in which such port is located and as foreign to all other states and countries. Ordinarily she is liable to taxation as personal property only in the state in which her home port is situated, but this is subject to the qualification that her situs as personal property is, for purposes of taxation, governed by the same rules applicable to other personal effects. The general rule is that the situs of personal property is the domicile of the owner, and a ship will be liable to taxation in the state where the owner resides, irrespective of the location of her home port as shown on the ship's documents. Thus in So. Pac. Co. v. Ky., 222 U. S. 63, a corporation organized in Kentucky, owned a number of vessels enrolled at New York. They were held taxable in Kentucky.

The law further requires that every change in the title, command or structure of the ship shall be promptly reported and placed for record in the Collector's office, so that at any time her present status, the name of her commander and entire past history may be fully shown upon its books, and the Collector will furnish on request an abstract of the title which his records disclose. This abstract, of course, becomes important whenever the ship is sold or used as security, although it will not show anything in regard to maritime liens upon it since these are, in their nature, secret.

Under present practice the owners of a ship usually incorporate. Such corporations take the complete title and are treated as the sole owner in all respects. There is nothing in the admiralty law which differentiates corporations from other owners. It is also popular to incorporate as "single ship companies" and in this way a double protection against liabilities in excess of the amount invested may be obtained.

9. Recording of American-built Foreign Ships.—

Vessels of foreign ownership built in the United States may be measured and recorded in the office of the Collector for the district in which they are built and a certificate of record issued. The advantage of having this is in having the official record already made in case the vessel subsequently becomes the property of citizens and entitled to registry. Changes of name and master of recorded vessels must be endorsed on the certificate of record and reported to the Collector at the port of record (Rev. St. §§ 4180-4184).

10. Name.—

A new vessel is registered under the name selected by her owners and must continue to bear that name—which is required to be painted upon her bows, stern, pilot house and lifeboats in letters of specified size,—unless permitted to change it. By Act of Congress approved February 19, 1920, changes of name may be made by the Commissioner of Navigation, United States Department of Commerce, "when in his judgment there shall be sufficient cause for so doing." Before authorizing a change of name, the Commissioner requires "such evidence as to age, condition, where built, and pecuniary liability of the vessel as may be deemed necessary to prevent injury to public or private interests," including the interests of the vessel's creditors. The purpose of these requirements is to prevent imposition upon the public by masquerading old, worn-out vessels under new names, and to prevent the loss of a vessel's identity, in fraud of her creditors, by changing her name.

11. Sale.—

The sale of a ship is usually evidenced by a bill of sale on a government form which will be furnished by the collectors. It is essential that it should include a copy of the last registry or enrollment and licenses, executed in the presence of two witnesses and acknowledged before a notary public. Mortgages may be made upon similar forms and the statute provides that, "No sale, conveyance, or mortgage which, at the time such sale, conveyance, or mortgage is made, includes a vessel of the United States, or any portion thereof, as the whole or any part of the property sold, conveyed, or mortgaged shall be valid, in respect to such vessel, against any person other than the grantor or mortgagor, his heir or devisee, and a person having actual notice thereof, until such bill of sale, conveyance, or mortgage is recorded in the office of the collector of customs of the port of documentation of such vessel." (Ship Mortgage Act, 1920, Subsection C (a). See Appendix, Merchant Marine Act, 1920, § 30.) While a prudent man will invariably evidence the sale of a ship by a written instrument, this is not essential to the validity of the sale, if the common law essentials to a sale of personal property—delivery or payment, in whole or in part, or both,—are present. The requirement of the statute (Rev. St. § 4170; Ship Mortgage Act 1920, Subsection H; See Merchant Marine Act 1920, § 30) that a bill of sale be given, containing a copy of the registry or enrollment, and recorded in the Collector's Office, is for the purpose of giving notice to the world of the transfer. Without these formalities, the sale is valid as against the grantor and persons having actual notice only; not as against any other persons claiming an interest in the ship. If an American vessel be sold to an alien without obtaining the Shipping Board's approval and without recording the transfer, the vessel is liable for forfeiture.

12. Transfer of Flag and Sales to Foreigners.—

The Merchant Marine Act of June 5, 1920 (see Appendix), provides that no American vessel shall be sold or transferred to any one not a citizen or placed under foreign registry without obtaining the approval of the Shipping Board. Any vessel transferred in violation of this provision is subject to forfeiture and fine. An American vessel may not be sold by order of a district court of the United States in a suit in rem in admiralty to any person not an American citizen.

13. Admiralty Sales.—

The title to the ship may also be transferred by a sale in admiralty. This passes a new and complete title to the purchaser and absolutely frees the ship from all existing liens, titles or encumbrances. Such a sale is only made in the course of a suit in admiralty against the ship for the enforcement of a maritime lien, or other matter within the jurisdiction of the court. A ship which passes through such a sale becomes in effect an absolutely new vessel so far as prior title or encumbrances are concerned, and all previous claims are relegated to the proceeds in the registry of the court (The Garland, 16 Fed. 283). The Ship Mortgage Act, 1920 (§ 30 Merchant Marine Act, Subsection O), which creates preferences in favor of certain mortgages, provides that, on the sale in admiralty of a ship upon which there has existed a preferred mortgage the court shall, on request of an interested party, require the purchaser at the judicial sale to give a new mortgage on terms similar to the old one and, if such new mortgage is given, the mortgagee shall not be paid from the proceeds of the sale and the amount of the purchase price shall be diminished by the amount of the new mortgage. It is essential that the court should have full and complete jurisdiction to make the sale. Such sales are made by the marshal under a writ issued in a pending suit in admiralty; neither the officer nor the court warrants anything and the title given depends wholly upon the regularity of the proceedings and the jurisdiction of the court. The essentials are simple and it is easy to ascertain if they have been complied with. For example, when the marshal seizes a ship under admiralty process, he is required to give public notice of the seizure and the return-day of the writ in order that all the world may be bound by the proceeding. This is accomplished by taking actual possession of the vessel, posting a copy of the writ in some conspicuous place, and publishing an appropriate notice in some newspaper within the district. Sometimes this publication is omitted or deferred to a later stage of the proceedings. In Gould v. Jacobson, 58 Mich. 288, the results of such an omission were fatal to the title of the purchaser at a marshal's sale of the Pickwick. The ship had been seized in admiralty and sold to pay her debts. The marshal had failed to publish notice of the seizure; the Court held that the sale was quite void and that replevin would lie in favor of the representatives of the original owner against the marshal's vendee.

14. Sales by Trustees and Executors.—

These will only transfer the title of the true owner if the conditions of the trust or power given by the will are strictly observed. The rules are no different than in sale of other personal property and create no further exemption from maritime liens or other encumbrances than sales by ordinary owners. The warranty is usually less sweeping.

15. Sales by Mortgagee.—

Foreclosures of vessel's mortgages are frequently by virtue of the power of sale contained in the instrument and, if that power is carefully observed, will convey all the title of the mortgagor.

Until the enactment of the Ship Mortgage Act of 1920, these proceedings were outside of admiralty jurisdiction. That act made substantial changes, not only in the status of mortgages of American ships, but in the manner of enforcing them. It is discussed under the title "Mortgage" infra and is printed in full in the Appendix (Merchant Marine Act 1920, § 30).

16. Sales by Master.—

In case of actual necessity the master may sell the ship and convey a good title to the purchaser, free of all liens. Such sales become necessities within the meaning of the maritime law, where the master cannot communicate with the owner and there is nothing better that can be done for him or the others concerned in the adventure. If the master has an honest purpose to serve those who are interested in the ship and can clearly prove that the situation required the sale, he will be entirely justified and the purchaser's title secure. Good faith and necessity must concur. If, within a reasonable time, the master can consult with the owner, he should do so, because, if possible, the owner's judgment must control; and, in any event, the master should not sell without the advice of competent persons on the spot, whose opinions should be taken as to whether it is better judgment to repair or sell. His authority does not depend on their recommendation, but if he acts on it, his justification will be the more secure. Where possible, the facts should be presented by a survey of the ship and the surveyors' report give in detail the steps they take and their conclusions, with the facts necessary to vindicate them. When a vessel is lawfully sold by the master all existing liens are divested and an absolute title passes. The liens attach to the proceeds, however, which become, in the view of the maritime law, the substitute for the ship. A good title will pass by such a sale even if no bill-of-sale is executed. A parole sale—that is to say, a sale by word of mouth, without bill of sale or other writing—and delivery will effectually pass the property; while formal documents are, of course, desirable they are not essential to its validity.

The principles governing the sale of a vessel by her master are set forth very clearly by Mr. Justice Davis, in delivering the opinion of the Supreme Court in the case of the Amelie, 6 Wall. 18: The Amelie on her voyage from Surinam to Boston encountered perils of the sea, and was obliged to seek the harbor of Port au Prince, Hayti, and was sold there at public auction by the master, and purchased by Reviere, the claimant. The owner of the cargo, because of its non-delivery, filed a libel and insisted that the sale of the vessel was not justifiable and passed no title to Reviere, the claimant; and even if the sale was proper under the circumstances, that Reviere took title subject to all existing liens.

The sale of a ship becomes a necessity within the meaning of the commercial law, when nothing better can be done for the owner, or those concerned in the adventure.... In order to justify the sale, good faith in making it and the necessity for it must both concur, and the purchaser to protect his title must be able to show their concurrence. The question is not whether it is expedient to break up a voyage and sell the ship, but whether there was a legal necessity to do it. If this can be shown, the master is justified; otherwise not. And this necessity is a question of fact, to be determined in each case by the circumstances in which the master is placed, and the perils to which the property is exposed.

If the master can within a reasonable time consult the owners, he is required to do it, because they should have an opportunity to decide whether in their judgment a sale is necessary.

At this point it may be observed that modern means of communication by cable and wireless render consultation with the owner feasible in many instances where it was not formerly possible, and there can be no doubt that it is the master's duty to avail himself of these means before selling the vessel. The court proceeds:

He should never sell, when in port with a disabled ship without first calling to his aid disinterested persons of skill and experience, who are competent to advise, after full survey of the vessel and her injuries, whether she had better be repaired or sold. And although his authority to sell does not depend on their recommendation, yet, if they advise a sale, and he acts on their advice, he is in a condition to furnish the court or jury reviewing the proceedings strong evidence in justification of his conduct.

In this case the ship was surveyed by competent surveyors, who made a full report and advised that the vessel be sold as the cost of repairs would exceed her value. The court continued:

After this advice, the master who was bound to look to the interest of all parties concerned in the venture, had no alternative but to sell. In the face of it, had he proceeded to repair his vessel, he would have been culpable. Being in a distant port, with a disabled vessel, seeking a solution of the difficulties surrounding him; at a great distance from his owners, with no direct means of communicating with them; and having good reason to believe the copper of his vessel was displaced, and that worms would work her destruction, what course so proper to pursue as to obtain the advice "of that body of men who by the usage of trade have been immemorially resorted to on such occasions?" (Gordon v. Mass. Ins. Co., 2 Pick. 264). No prudent man, under the circumstances, would have failed to follow their advice, and the state of things, as proved in this case, imposed on the master a moral necessity to sell his vessel and reship his cargo.

*****

It is insisted, even if the circumstances were such as to justify the sale and pass a valid title to the vendee, he, nevertheless, took the title subject to all existing liens. If this position were sound, it would materially affect the interests of commerce, for, as exigencies are constantly arising, requiring the master to terminate the voyage as hopeless, and sell the property in his charge for the highest price he can get, would any man of common prudence buy a ship sold under such circumstances, if he took the title encumbered with secret liens, about which, in the great majority of cases, he could not have the opportunity of learning anything? The ground on which the right to sell rests is, that in case of disaster, the master, from necessity, becomes the agent of all parties in interest and is bound to do the best for them that he can, in the condition in which he is placed and, therefore, has the power to dispose of the property for their benefit. When nothing better can be done for the interests of those concerned in the property than to sell, it is a case of necessity, and as the master acts for all, he sells as well for the lien holder as the owner. The very object of the sale, according to the uniform current of the decisions, is to save something for the benefit of all concerned; and if this is so, the proceeds of the ship, necessarily, by operation of law, stand in place of the ship. If the ship can only be sold in case of necessity, where the good faith of the master is unquestioned, and if it be the purpose of the sale to save something for the parties in interest, does not sound policy require a clean title to be given the purchaser in order that the property may bring its full value? If the sale is impeached, the law imposes on the purchaser the burden of showing the necessity for it, and this he is in a position to do, because the facts which constitute the legal necessity are within his reach; but he cannot know, or be expected to know, in the exercise of reasonable diligence, the nature and extent of the liens that have attached to the vessel. Without pursuing the subject further, we are clearly of the opinion, when the ship is lawfully sold, the purchaser takes an absolute title divested of all liens, and that the liens are transferred to the proceeds of the ship, which in the case of the admiralty law becomes the substitute for the ship.

The sale in this case was made by parole; the master delivered the vessel to the purchaser, without, so far as appeared, executing any document evidencing the sale. On this subject, the court said:

The title of Reviere, the claimant, was questioned at the bar, because he did not prove the master executed to him a bill of sale of the vessel. We do not clearly see how this question is presented in the record, for there is no proof, either way, on the subject, but if it is, it is easily answered. A bill of sale is not necessary to transfer the title to the vessel. After it was sold and delivered, the property was changed and no written instrument was needed to give effect to the title. The rule of common law on this subject has not been altered by statute. The law of the United States which requires the register to be inserted in the bill of sale on every transfer of a vessel, applies only to the character and privileges of the vessel as an American ship. It has no application to this vessel in this case.

Sales of vessels by their masters are less common now than formerly in view of the modern facilities for communication with owners. If such sales are subject to the restrictions of the recent acts of Congress, heretofore mentioned, it would appear to be practically impossible for a master to sell an American ship to a foreigner. Whether such sales, arising as they do, ex necessitate, under the general principles of maritime law, are to be regarded as outside of the provisions of these statutes, has not been decided. There is no reason to suppose that the requirements of the statutes are suspended in such cases.

17. Sale of Ship at Sea.—

Such vessels may be sold or mortgaged by delivery of a proper instrument without the actual presence of the property and are entirely valid if possession be taken within a reasonable time after it comes within the purchaser's reach. The new owner should record the title in the custom house for the district in which his residence is, and observe all the requirements of law in regard to a new registration if he desires to preserve her national character. To be safe, until the vessel returns, the mortgage of a ship at sea should be recorded at the home port, as shown by the outstanding document as well as at the new home port.

In the case of a transfer of a vessel at sea, where it is desired to preserve her nationality, it is necessary, upon her arrival at her home port, to deliver up her certificate of registration and obtain a new certificate.

In the case of United States v. Willings, 4 Cranch, 48, a share in an American vessel was transferred by parole while she was at sea; and, before she reached port, was re-transferred, also by parole, to the original owners. The government challenged her right to the American flag, but the court held that the requirement that, upon transfer, the certificate of registery be surrendered, did not mean that the ship would forfeit the flag unless such surrender were contemporaneous with the sale, since a sale may be made by parole, and, inasmuch as the ship carries her papers with her, the registration could not be attended to until she returned. The Court, speaking through Chief Justice Marshall, held that the ship, having been sold at sea by parole and bought back by her original owners, also, by parole, before she reached port, had been twice legitimately sold and as her ownership when she returned was the same as when she started, her nationality remained unchanged.

18. Appurtenances.—

A bill of sale or mortgage of the ship should describe the interest conveyed, either the whole or a fractional part, and include the appurtenances. These are covered by the usual phrase, "engines, boilers, machinery, masts, bowsprit, sails, boats, anchors, cables, and all other necessaries thereunto appertaining and belonging." Whatever is on board for the object of the voyage and belonging to the owners will ordinarily be included, like provisions, supplies, compasses, chronometers as well as new articles purchased for the ship but not yet installed on board. As in other cases of sales, the intention of the parties, so far as it can be ascertained, will control and it is desirable to have an inventory of separate articles in order to avoid misunderstandings or disputes.

19. Warranties and Representations.—

The law is the same as in other cases of sales. The buyer must take care. The seller must not deceive. Material representations made to effect the sale are equivalent to warranties. If the ship is built or sold for a particular purpose, there is an implied warranty of fitness for that purpose. If the contract is reduced to writing, the parole evidence rule will control as to prior stipulations.

REFERENCES FOR GENERAL READING

Shipping and Admiralty, Parsons, Vol. I, Chapter III.

Commentaries, Kent, III, Lecture XLV.

Sales, Benjamin (2d Am. ed.), §§ 336-339.

White's Bank v. Smith, 7 Wall. 646.

Fleming v. Fire Assoc., 147 Mich. 404.

U. S. v. Forester, Newb. Adm. 81.

John Jay, 17 How. 399.

Admiralty, Benedict, § 158.

Huus v. S. S. Co., 182 U. S. 392.

[2] Rev. St., § 4170, is as follows:

"Whenever any vessel, which has been registered, is, in whole or in part, sold or transferred to a citizen of the United States, or is altered in form or burden, by being lengthened or built upon, or from one denomination to another, by the mode or method of rigging or fitting, the vessel shall be registered anew, by her former name, according to the directions hereinbefore contained, otherwise she shall cease to be deemed a vessel of the United States. The former certificate of registry of such vessel shall be delivered up to the collector to whom application for such new registry is made, at the time that the same is made, to be by him transmitted to the Register of the Treasury who shall cause the same to be canceled. 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 certificate; otherwise the vessel shall be incapable of being so registered anew."

This is discussed in § 10, infra, this chapter.

[3] The exceptions are foreign-built vessels purchased from the United States Shipping Board and foreign-built wrecks repaired in the United States as indicated in § 6, supra, this chapter. Also all foreign-built vessels admitted to American Registry, owned on February 1, 1920, by citizens so long as they continue to be so owned.

[4] While a vessel is part of the territory of her home jurisdiction for jurisdictional purposes, the doctrine of her territoriality does not extend to treating her as part of the soil for all purposes. Thus the Supreme Court has held that foreign seamen brought to the United States to work on an American ship engaged in foreign commerce, were not engaged "to perform labor within the United States" within the meaning of the contract labor law. (Scharrenberg v. Dollar S. S. Co., 245 U. S. 122.)

CHAPTER III
OWNERS AND MANAGERS

1. Who May Be.—

The owner of an American vessel must be a citizen of the United States. The statutes provide that "Vessels registered pursuant to law and no others, except such as shall be duly qualified according to law for carrying on the coasting or fishing trade, shall be deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels; but no such vessel shall enjoy such benefits and privileges longer than it shall continue to be wholly owned by a citizen or citizens of the United States or a corporation created under the laws of any of the States thereof, and be commanded by a citizen of the United States" (7 Comp St., 1916 § 7707). Ownership may be shown by possession, under claim of title, as in the case of other personal property, but the best evidence is the formal bill of sale, possession, and a clean abstract of title from the records of the Collector of Customs of her home port. All persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the state wherein they reside. Thus minors, married women (except those having alien husbands), persons under guardianship, trustees, and corporations, like other citizens, may be owners.

2. Part-Owners.—

The ship may be owned in shares by any number of individuals. Such part-owners do not become partners by reason of such ownership. Each has a separate and distinct interest which he may sell or dispose of without the consent of the others. They are not partners in the absence of a special agreement to that effect. Each is liable for only his own proportion of the debts and none is responsible for the acts of the others beyond the amount of his interest in the ship, unless he has himself created such further liability directly or by reasonable implication.

Generally speaking, the part-owners of a ship occupy the legal status of tenants in common. They may, of course, become partners and subject to the legal incidents of partnership. If they so agree, or if they act in such a manner, they assume the attributes of partnership, one of the chief of which is the liability of each individual partner for the entire indebtedness of the firm (The Wm. Bagaley, 5 Wall. 377).

The Daniel Kaine, 35 Fed. 785, was a contest over the surplus remaining in the registry of the court from the sale of a tow-boat. This had been allotted to the several part-owners in proportion to their shares, but the master, who was one of the owners, claimed a lien against the entire fund for advances made by him on the theory that the owners held the vessel in partnership and not merely as individual coöwners. The Court said:

The burden of proof is upon Captain Cowan to establish the allegation contained in his petition, but which is denied in the answer thereto, that the shareholders in the Daniel Kaine were not tenants in common but partners in respect to the ownership of the vessel. Has he succeeded in this? The evidence bearing upon this point is as follows: The boat was built by James Lynn, George T. Miller, and R. W. Cowan, who from the first held her in defined shares,—Lynn and Miller each owning seven-eighteenths and Cowan owning four-eighteenths. Thus was the boat enrolled on February 8, 1882. Speaking of her enrollment, Captain Cowan testifies: "There was no other agreement among us than that the boat should be as set out in the registry." In April, 1886, George T. Miller transferred his seven-eighteenths in the boat to George B. Kaine. Captain Cowan further states that there was no written agreement between the owners of the boat as to how she was to be operated, nor any verbal agreement that she was to be run or operated in partnership. However, it seems that, by the tacit consent of all the owners, she was run on joint account. Her employment was in the towing of coal, and at first she was principally engaged in towing for two coal firms, in one of which Lynn was a member, and in the other Miller, viz., James Lynn & Sons, and George T. Miller, & Co. The bookkeeper who kept the books of the boat made out and furnished annually to the several owners balance sheets, in which the cost of the boat appeared as an item. Do these facts establish that the shareholders in the Daniel Kaine were partners in her ownership? I think not. That the cost of the boat appeared in the balance sheets which the bookkeeper made out is not a controlling circumstance, and, indeed, is a matter of little moment, when considered in connection with Captain Cowan's testimony, above quoted. According to the enrollment of the boat, her part owners were tenants in common, and there was no different or other agreement as to ownership. An agreement to run a ship on shares does not make the owners partners with respect to the vessel. Says Chief Justice Gibson in Hopkins v. Forsyth, 14 Pa. St. 38:

"Carriers may doubtless become partners, but not merely by becoming joint owners of a chattel, and using it for a common purpose. And the principle is peculiarly applicable to ships or other craft, the exceptions to it in respect to them being always founded in very special circumstances."

Now, where the vessel is not partnership property, according to the clear weight of authority in this country, one part owner has no lien for his advances and disbursements upon the share of his coöwner. Nor does it make any difference that the part owner making such advances was also the ship's husband. In treating of this subject, Mr. Justice Curtis, in the case of the Larch, 2 Curt. 434, State, after remarking that in England the law is now settled against the existence of the lien, said:

"There has been some diversity of decision in this country, but I think it has proceeded from diversity in the views taken of the particular facts of the cases, rather than from any real difference in principles. That the owners of a vessel may be copartners in respect to that, as well as any other property, and that, when they are so, each has a lien, can not be doubted. But where no such special relation exists, where they are merely part owners, and as such tenants in common, that one has no lien on the share of another for advances, I believe to be equally clear."

3. Corporations.—

Corporations organized under state laws may be the owners of American vessels. A corporation is a legal person having an individuality distinct from all its stockholders. It is the corporation, and not the stockholders, who owns the corporation property. For that reason the Attorney General has expressed the opinion (29 Op. 188) in a case in which a vessel was owned by a corporation of the State of New York, a majority of whose stock was held by aliens and whose directors were all aliens, except three, that, under the laws, so long as the corporation was legally organized and existing as an American corporation under the laws of New York, a vessel owned by it was entitled to American registry.

It is unlawful, without obtaining permission of the Shipping Board, to place under foreign registry, a vessel owned wholly or in part by an American corporation or to transfer such vessel to any person other than a citizen (Merchant Marine Act, 1920. See Appendix), and within the meaning of that act no corporation is deemed a citizen unless the stock control and management are vested in individual Americans. To enable a corporate-owned vessel to engage in the coasting trade, 75 per cent of the interest in the corporation must be American owned.

4. Majority Interest.—

The majority interest will usually control, whether the title is in a corporation or individuals. Thus the majority may direct or change the employment of the vessel, pledge her for supplies or repairs, and employ or dismiss the master and crew. If the master be also a part-owner, the majority still has the right to remove him, unless there is a valid written agreement to the contrary. In the Orleans v. Phœbus, 11 Peters, (U. S.) 175, it appeared that Phœbus was master and owner of one-sixth of the steamboat Orleans. He alleged that he had been dispossessed by the owners of the other five sixths, who were operating the vessel against his wishes. Speaking for the Supreme Court, Justice Story said:

The majority of the owners have a right to employ the ship in such voyages as they may please; giving a stipulation to the dissenting owners for the safe return of the ship, if the latter, upon a proper libel filed in the admiralty, require it. And the minority of the owners may employ the ship in the like manner, if the majority decline to employ her at all.

Similarly Justice Clifford, in The Wm. Bagaley, 5 Wall. 377:

Even where the part owners of a ship are tenants in common, the majority in interest appoint the master and control the ship, unless they have surrendered that right by agreeing in the choice of the ship's husband as managing owner.

If the owner be a corporation, the control of the vessel is usually directed by the Board of Directors, as in the case of other corporate enterprises, though the holders of a majority of the capital stock may determine the disposition of the vessel and all matters relating to her, by voting their stock at regular or special stockholders' meetings, called in accordance with the company's charter and by-laws and the laws of the state in which the company is incorporated.

5. Minority Interest.—

The minority interest, where the majority sends out the ship against its wishes, may compel the majority to give a bond for its safe return or the payment of the value of its interest. This may be obtained through a court of admiralty. When such security is given the dissenting owners, they are not entitled to compensation for the use of their shares or to any portion of the profits. In the same way, a minority, desiring to use the ship against the majority who prefer to lay her up, may obtain her. The rule was thus laid down by Justice Clifford in The Wm. Bagaley, 5 Wall. 377, heretofore cited:

Admiralty, however, in certain cases, if no ship's husband has been appointed, will interfere to prevent the majority from employing the ship against the will of the minority without first entering into a stipulation to bring back the ship or pay the value of their shares. But the dissenting owners in such a case, bear no part of the expenses of the voyage objected to, and are entitled to no part of the profits.... Unless the coöwners agree in the choice of a managing owner or the dissenting minority go into admiralty, the majority in interest control the employment of the ship and appoint the master.

The admiralty practice is governed by the old maxim that "ships were made to plow the ocean, and not to rot by the wall." So, if the owners be evenly divided in opinion, the party desiring to employ the ship will prevail, on giving security to the other. In Willings v. Blight, 2 Pet. Adm. 288; 30 Fed. Cas. No. 17765, decided by the United States District Court for the Eastern District of Pennsylvania in 1800, the court quaintly expressed the law as follows:

It is a principle discernible in all maritime codes, that every encouragement and assistance should be afforded to those who are ready to give their ships constant employment; and this not only for the particular profit of owners, but for the general interests and prosperity of commerce. If agriculture be, according to the happy allusion of the great Sully, "one of the breasts from which the State must draw its nourishment," commerce is certainly the other. The earth, parent of both, is the immediate foundation and support of the one, and ships are the moving powers, instruments and facilities of the other. Both must be rendered productive by industry and ingenuity. The interests and comforts of the community will droop and finally perish if either be permitted to remain entirely at rest. The former will less ruinously bear neglect, and throw up spontaneous products; but the latter require unremitted employment, attention and enterprise, to insure utility and product. A privation of freight, the fruit of the crop of shipping, seems therefore to be an appropriate mulct on indolent, perverse or negligent part owners. The drones ought not to share in the stores acquired and accumulated by the labor, activity, foresight and management of the bees. Although the hive may be common property, it is destructively useless to all, if not furnished with means of profit and support by industry and exertion; which should be jointly applied by all before they participate in beneficial results. Nor should the idle and incompetent be permitted to hold it vacant and useless to the injury and ruin of the industrious and active.

6. Suits between Part-Owners.—

The admiralty will sometimes entertain a suit for partition between owners who can not agree and sell the ship for the purpose of dividing the proceeds. Generally it will only recognize legal titles, that is, those shown by bills of sale or matters of record, and not merely equitable claims of ownership. Part-owners have no lien against each other where one has paid more than his share of the debts or expenses and therefore can not proceed against the ship directly. They can, however, have an accounting in equity or other proceeding in state courts for the purpose of adjusting the matter. One may sue the other for the loss of the vessel by negligence. A part-owner may have a lien upon the ship for wages or other maritime services, subordinate, however, to the liens of strangers to the title. Each is bound to pay to the others his own share of the expenses of the ship and, in the absence of an express agreement to the contrary, the law will imply a promise to repay an excess advanced by one over his share on which an ordinary action may be brought (Sheehan v. Dalrymple, 19 Mich. 239).

7. Authority of Owner.—

As between the owner and the master, the former is supreme. The relation is one of agency or employment and the master must obey. The owner has the legal right to take his ship from the custody and control of the master, at any time, and in whatever place. He may remove him at pleasure, and without assigning any cause, subject only to the ordinary responsibility for breach of contract if a contract be broken. This is because the owner is very deeply concerned in who is master of his ship and is so highly chargeable with his conduct that it is deemed proper that he should be permitted to dismiss him at any time. The relation is a confidential one and can not be forced to continue when confidence ceases.

8. Obligation of Owner.—

The owner is bound to provide a seaworthy ship. While the maritime law, in order to encourage investments of capital, endeavors to provide certain limitations of liability, the obligation of seaworthiness is supreme up to, at least, the amount invested in the ship. Subject only to a possible limitation of liability, the owner is absolutely bound to furnish and maintain a seaworthy ship; this obligation is analogous to that of an employer on land to furnish a safe place for his employees or of a carrier to furnish safe and roadworthy means of transport.

Seaworthiness is a relative term. The ship must be fit in design, structure, condition and equipment to encounter the ordinary perils of the voyage. She must have a competent master and a sufficient crew. Absolute perfection, of course, is not required; the real test is that the ship shall have that degree of fitness which the ordinary careful and prudent owner requires of his vessel at the commencement of the voyage in view of all the circumstances which may attend it.

The law does not insist that the shipowner shall in person attend to all his duties in respect of the ship. It recognizes that most of these must be met by agents. It contemplates that shipowners may avail themselves of the facilities common to business men and be relieved whenever they have properly employed competent agents to supervise the ship at sea and in port. In most instances where the maritime law may be applied the owner will not be responsible beyond his interest in the ship, for the acts or omissions of agents whom he has selected with due care.

9. Liability of Owner.—

The owner is liable for all the contracts and negligence of the master up to, at least, the value of his interest in the ship. In most cases, he may limit his liability to such value by abandoning the ship to the creditors. This is an underlying doctrine of the general maritime law and generally carried forward into the statutes of all maritime countries. There is a general exception, however, in regard to sailors' wages. The owner remains absolutely liable for these and cannot limit against them. He is also liable for all his personal contracts in regard to the ship as well as for his personal negligence. He will not be liable for the contracts or torts of the master outside of the scope of his employment, as on a bill-of-lading for cargo never received on board or an unauthorized assault on a passenger.

An illustration of the liability of the owner for contract of the master within the scope of his employment is to be found in a case in which the master contracted for extra pilotage. As the United States District Court remarked in the Cervantes, 135 Fed. 573, "In pilotage cases resort may be had to the vessel or the owner or the master."

The case of Chamberlain v. Ward, 21 How. 548, illustrates the liability of an owner for the tort of the master. It grew out of a collision in Lake Erie and was an action in admiralty brought in personam by the owners of one of the vessels against the owners of the other for damages, alleging the negligent operation of the respondents' vessel. The Supreme Court (Clifford, J.) held:

Owners of vessels, and especially those who own and employ steamships, whether propellers or sidewheel steamers, must see to it that the master and other officers intrusted with their control and management are skillful and competent to the discharge of their duties, as, in case of a disaster like the present, both the owners and the vessels are responsible for their acts, and must answer for the consequence of their want of skill and negligence; and this remark is just as applicable to the under officers, whether mate or second mate, as to the master, during all the time they have charge of the deck. That the mate in this case was substantially without experience in navigating steamers, and utterly destitute of the requisite information to fit him to determine the proper courses of the voyage, are facts so fully proved that it is difficult to regard them as the proper subjects for dispute; and what is more, the master knew his unfitness when he started on the voyage, and stated before the vessel left Cleveland, to the effect that he was afraid he was going to be sick, and that he had no confidence in the mate. Some of the owners also distrusted his fitness when they employed him, and made an effort to engage another person in his stead; and one of them, after having heard of the disaster, expressed his regret that the person to whom he first applied had not taken his place.

The case of Hough v. Western Trans. Co., 3 Wall. 20, was a libel in personam against the owners of the steamer Falcon. The vessel, while made fast to libellant's wharf, took fire through the negligence of the master and crew. The fire communicated to the wharf, which was destroyed with the buildings on it and those adjacent. While the court held that the tort was committed on land and, not being maritime, the admiralty court was without jurisdiction, it upheld the principle of the liability of owners for the negligence of the master and crew as follows:

The owner of a vessel is liable for injuries done to third persons or property by the negligence or malfeasance of the master and crew while in the discharge of their duties and acting within the scope of their authority. It is upon this principle that the defendants are liable, if at all, to the libellants for the damages sustained. The circumstance that the agents were in the employment of the owners on board the vessel, and that the negligence occurred while so employed, and which occasioned the damage, gives to the libellants the right of action.

This is, indeed, simply the general law of master and servant or principal and agent.

10. Temporary Ownership.—

The ship may be chartered so that the hirer will become, in law, her temporary owner. This is ordinarily accomplished by means of a written contract called a charter party. It may contain whatever agreements the parties choose but when its legal effect is to give the hirer exclusive possession, control and management, so that he appoints the master, runs the vessel and receives the entire profits, there is a demise or conveyance of the ship and the hirer becomes owner pro hac vice, or, for the time being. He is then responsible for her contracts and torts and may limit his liability as if he were the actual owner and the latter is freed from personal responsibility. The situation is like a lease of premises on land to a tenant. The officers and crew become the agents or employees of the charterer and, in matters of contract particularly, as for supplies and repairs, the ship may not be subject to maritime liens if the creditor has notice of the terms of the charter party which preclude their creation. To effect this change into temporary ownership, the terms of the instrument should be plain and explicit; if indefinite or ambiguous, the construction will be against a demise of the ship, the courts favoring an interpretation which preserves the liabilities and liens incident to the permanent title.

The temporary ownership of a vessel by a person other than the real owner does not relieve the ship herself from those liabilities which attach to her in any event: For example, her liability for damage caused others by her torts, as faulty navigation; or from liability under those contracts for which the ship itself is primarily responsible, such as contracts for bunkers and supplies and necessary repairs elsewhere than in the home port. This principle is laid down in the case of the Barnstable, 181 U. S. 464, as follows:

The law in this country is entirely well settled that the ship itself is to be treated in some sense as the principal and as personally liable for the negligence of any one who is lawfully in possession of her whether as owner or charterer.

And in the case of Sherlock v. Alling, 93 U. S. 99, where it was said:

By the maritime law the vessel, as well as owners, is liable to the party injured for damages caused by its torts. By that law the vessel is deemed to be an offending thing and may be prosecuted without any reference to the adjustment of responsibility between the owners and the employees for the negligence which resulted in the injury.

The claim of the true owner to his vessel will not, however, be defeated by fraudulent acts of the temporary owner to which the real owner was not privy, because in such a case the theory of the agency of the master or temporary owner for the real owner fails. This subject is discussed in the leading case of the Freeman, 18 How. 182. In that case the temporary owner caused the master to sign bills of lading, certifying that a quantity of flour had been shipped on board the schooner from Cleveland to Buffalo by the temporary owner consigned to the libellants. No such flour had in fact been shipped and the consignees, who had advanced money on the bills of lading, libeled the ship. The real owner filed a claim to the vessel. The Court (Curtis, J.) said:

Bills of lading themselves are not real contracts of affreightment, but only false pretenses of such contracts; and the question is, whether they can operate, under the maritime law, to create a lien, binding the interest of the claimant in the vessel.

Under the maritime law of the United States the vessel is bound to the cargo, and the cargo to the vessel, for the performance of a contract of affreightment; but the law creates no lien on a vessel as a security for the performance of a contract to transport cargo, until some lawful contract of affreightment is made, and a cargo shipped under it.

In this case there was no cargo to which the ship could be bound, and there was no contract made, for the performance of which the ship could stand as security.

But the real question is, whether, in favor of a bona fide holder of such bills of lading procured from the master by the fraud of an owner pro hac vice, the general owner is estopped to show the truth, as undoubtedly the special owner would be.

*****

We are of opinion that, under our admiralty law contract of affreightment, entered into with the master, in good faith, and within the scope of his apparent authority as master, bind the vessel to the merchandise for the performance of such contracts, wholly irrespective of the ownership of the vessel, and whether the master be the agent of the general or special owner.

*****

For the ground on which we rest the authority of the master, who is either special owner or agent of the special owner, is, that when the general owner intrusts the special owner with the entire control and employment of the ship, it is a just and reasonable implication of law that the general owner assents to the creation of liens binding upon his interest in the vessel, as security for the performance of contracts of affreightment made in the course of the lawful employment of the vessel. The general owner must be taken to know that the purpose for which the vessel is hired, when not employed to carry cargo belonging to the hirer, is to carry cargo of their persons; and that bills of lading, or charter-parties, must, in the invariable regular course of that business, be made, for the performance of which the law confers a lien on the vessel.

He should be considered as contemplating and consenting that what is uniformly done may be done effectually; and he should not be allowed to say that he did not expect, or agree, that third persons, who have shipped merchandise and taken bills of lading therefor, would thereby acquire a lien on a vessel which he has placed under the control of another, for the very purpose of enabling him to make such contract to which the law attaches a lien.

*****

There can be no implication that the general owner consented that false pretenses of contract, having the semblance of bills of lading, should be created as instruments of fraud; or that, if so created, they should in any manner affect him or his property. They do not grow out of any employment of the vessel; and there is as little privity or connection between him, or his vessel, and such simulated bills of lading, as there would be between him and any other fraud or forgery which the master or special owner might permit.

Nor can the general owner be estopped from showing the real character of the transaction, by the fact that the libellants advanced money on the faith of the bills of lading; because this change in the libellants' condition was not induced by the act of the claimant, or of any one acting within the scope of an authority which the claimant had conferred. Even if the master had been appointed by the claimant, a willful fraud committed by him on a third person, by signing false bills of lading, would not be within his agency. If the signer of a bill of lading, was not the master of the vessel, no one would suppose the vessel bound; and the reason is, because the bill is signed by one not in privity with the owner. But the same reason applies to a signature made by a master out of the course of his employment. The taker assumes the risk, not only of the genuineness of the signature, and of the fact that the signer was master of the vessel, but also the apparent authority of the master to issue the bill of lading. We say the apparent authority, because any secret instruction by the owner, inconsistent with the authority with which the master appears to be clothed, would not affect third persons. But the master of a vessel has no more than apparent unlimited authority to sign bills of lading, than he has to sign bills of sale of the ship. He has an apparent authority, if the ship be a general one, to sign bills of lading for cargo actually shipped; and he has also authority to sign a bill of sale of a ship, when, in case of disaster, his power of sale arises. But the authority, in each case, arises out of, and depends upon a particular state of facts. It is not an unlimited authority in the one case more than in the other; and his act, in either case, does not bind the owner, even in favor of an innocent purchaser, if the facts upon which his power depended did not exist; and it is incumbent upon those who are about to change their conditions, upon the faith of his authority to ascertain the existence of all the facts upon which his authority depends.

*****

On these grounds, we are of the opinion that, upon the facts as they appear from the evidence in the record, the maritime law gives no lien upon the schooner that the claimant is not estopped from alleging and proving those facts.

It should be noted that the mere record title does not conclusively establish ownership. That title may be only security for the real owner out of control. The real facts may be shown when necessary (Davidson v. Baldwin, 79 Fed. 95).

11. Managing Owner.—

The shore business of a ship is usually attended to by an agent or representative called the "managing owner," "ship's husband," "shore-captain," "port-captain," "managing-agent," or "manager." Different expressions prevail in different localities but they all mean substantially the same thing—an agent of the owners charged with keeping the ship in good repair and finding business for her. He has authority to direct all proper repairs, equipment and outfit, to hire the officers and crew, to make contracts for freight, to collect and disburse the earnings. He should see that the ship is seaworthy and supplied with all necessary and proper papers. He has no implied authority to borrow money, nor surrender a lien for freight, nor to insure; he cannot bind the owners to the expenses of a lawsuit without their special consent. It is doubtful whether he can, in any event, pledge the credit of the owners beyond their interest in the ship and it is probable that they are entitled to the statutory limitation of liability against all his contracts or torts in which they do not personally participate. If, however, the ship is owned by a corporation, it is not advisable that any of the directors or officers should also be the managing owner, as his "privity or knowledge" may thereby attach to the corporation.

In Woodall v. Dempsey, 100 Fed. 653, the Court found the facts to be as follows:

The suit is for $3,513, a balance due for repairs. The work was done at Baltimore costing $16,000. The home port of the vessel was Philadelphia, the owners being Patrick Dempsey and Henry Hess, who reside here; the former having four-fifths, the latter one. Dempsey, managing owner, ordered and superintended the repairs. Mr. Woodall sought the work for his company, and came to Philadelphia to obtain it. At that time it was supposed $5,500 would cover the cost. The vessel was subsequently taken to the libellants' place at Baltimore and the work commenced in pursuance of arrangements made here. It was afterwards found that much more must be done than had originally been contemplated, and a much larger bill incurred. On the completion of the work, notes (of Dempsey) were given for the $3,513 unpaid, and the vessel was delivered to the owners.

Woodall brought an action in personam against Dempsey and Hess for the $3,513. It appeared that plaintiff dealt with Dempsey alone and there was no evidence to show that he took any action or made any expenditure on the credit of Hess. The Court said:

In my opinion the case turns on the power of Dempsey, considered merely as managing-owner, to bind Hess by the contract for repairs. Upon this subject the decision in Spedden v. Koenig, 24 C. C. A. 189, 78 Fed. 504, relied on by the respondents, seems to be much in point. The syllabus of the case states correctly the rule applied by the court:

"In the home port, where all the owners reside, the managing owner, though registered as such at the custom house, can not, merely by virtue of that relation, order supplies and bind his coöwners to a personal liability therefor."

12. Compensation and Lien.—

The compensation of the managing owner or ship's husband depends upon contract, express or implied, with the owners. In some localities, usage may provide a commission on the amounts of money which he handles. Where he is not one of the owners, the law would doubtless imply a promise to pay him a reasonable compensation; where he is a part owner himself, it is doubtful if compensation could be recovered in the absence of a definite agreement; ordinarily tenants in common are not entitled to charge each other for services rendered in the care and management of the common property, in the absence of a statute or special contract. The managing owner is not entitled to a lien upon the ship for his compensation or disbursements but he may have a lien upon the profits of a voyage in his hands or upon the proceeds of the ship in the same situation.

REFERENCES FOR GENERAL READING

Shipping and Admiralty, Parsons, Vol. I, Chapter IV.

Admiralty, Hughes, Chapter XV.

Spedden v. Koenig, 78 Fed. 504.

Law of Part-Owners of Vessels, 88 Am. Dec. 364.

Gillespie v. Winberg, 4 Daly (N. Y.) 318.

Mitchell v. Chambers, 43 Mich. 150.

Maritime Law, Saunders, Chapters I and XV.

CHAPTER IV
THE MASTER

1. Appointment and General Authority.—

The master is the commander of a merchant vessel. He has full charge of, and personal responsibility for the navigation and control of the ship, passengers, crew and cargo as the representative and confidential agent of the owner. The position is one of the most dignified and responsible known to the law.

In order to have the ship seaworthy, an owner must provide a master who is fully competent in respect of care, skill and honesty, a man of sound judgment and discretion; and in general, there must also be provided one of sufficient ability to supply his place, in case of accident or disability. (The Niagara, 21 How. (U. S.) 7; 2 Parsons Sh. & Ad. 1.)

Correspondingly, he is an officer to whom great power and wide discretion are necessarily confided. His authority is summary and often absolute, especially at sea, and can seldom be resisted by those over whom he is placed—as Chancellor Kent has expressed it: "He should have the talent to command in the midst of danger, and courage, and presence of mind to meet and surmount extraordinary perils. He should be able to dissipate fear, to calm disturbed minds, and inspire confidence in the breasts of all who are under his charge, in tempests as well as in battle. The commander of a ship must give desperate commands; he must require instantaneous obedience. He must watch for the health and comfort of the crew, as well as for the safety of the ship and cargo. It is necessary that he should maintain perfect order, and preserve the most exact discipline under the guidance of justice, moderation and good sense."

Our statutes require that only those whom the law has examined and approved shall occupy that position. The master must be an American citizen (Rev. St. § 4139); he must have a license from the Inspectors, who are charged to examine into his character and habits, as well as his technical qualifications (§ 4439);[5] he is sworn to the performance of the duties of his office (§ 4445); he must exhibit his license to the public (§ 4446); he is subject to summary punishment for incompetency (§ 4450); and his personal liability cannot be limited, as the owners may by law. In short the law contemplates the selection of picked men as masters in the merchant marine, and forbids the employment of others.

No formalities are required in his appointment by the owner. Any authorization which would suffice to otherwise create the relation of master and servant, or principal and agent, is enough (The Boston, Blatch. & H. 309). His contract need not be in writing, even if for more than one year. His wages are a matter of contract; he has no lien on the ship (The Nebraska, 75 Fed. 598), unless, possibly, one is created by the local law of the ship's flag.

In case of disaster, his duty requires him to stay by the ship as long as there is any possibility of good resulting therefrom. The popular phrase that "the captain should be the last man to quit the ship" is well founded in law (The Niagara, 21 How. (U. S.) 7).

His authority is generally implied and is according to the law of the ship's flag. Generally speaking, he is the owner's agent and his authority extends to all matters within the scope of his appointment. Where the owner is present, or easily accessible, this authority is narrowed, but otherwise it may be very broad, and measured only by the necessities of the situation, and the use and employment of the ship.

On shipboard, his authority is supreme, except, possibly, in the presence of the owner.

He has power to enforce discipline and inflict punishment, not unlike that in the relationship of parent and child, or teacher and pupil, save that he is forbidden by statute to inflict corporal punishment (Act of March 4, 1915). The old flogging days, therefore, are over, and the master who inflicts corporal punishment is guilty of a crime. He may, in proper cases, discharge or disrate members of the crew.

On the other hand, the law charges him with the duty of seeing that the crew has sufficient provisions (§ 4564); proper medical care (§ 4569); protection against unlawful violence, and the like; and he is criminally liable for abandoning sailors in a foreign port (§ 5363).[6]

2. Personal Liability.—

His personal liability is practically unlimited. The owner may confine his liability to the value of the ship but the master has no such privilege. Thus materialmen may sue the master personally for supplies and repairs (General Admiralty Rule 12);[7] the sailors may sue him for their wages (Rule 13); the pilot, for pilotage (Rule 14); suits for collision may be brought against him alone (Rule 15), and he is responsible for moneys loaned the ship in a foreign port (Rule 17); so, also he is liable for cargo injured by the ship and may be sued by the underwriters therefor (Co. v. Dexter, 52 Fed. 152).

3. Restriction on Authority.—

The master is the owner's agent in all matters fairly within the scope of his authority but has no more authority to bind him than any other special agent. He is not a general agent and his powers are usually confined to the property in his charge. In cases of necessity, when the owner is not present, his authority is very broad but it is correspondingly restricted when the owner is present. He cannot bind the owner personally beyond the value of the ship and freight pending; he cannot vary or annul the owner's agreements; he cannot make a promissory note binding on the owner; or bind him for cargo not actually on board by a bill-of-lading;[8] or admit an invalid claim; nor purchase a cargo on his account.

In dealing with other persons on board his vessel his authority is as broad as the exigencies of his situation require and he may, in proper cases, and after exhausting pacific measures put even passengers under arrest. But he cannot delegate this authority to minor officials or others on board but must personally exercise such responsible duties and see to it that nothing unreasonable is done. It has been held that while he may restrain, or even confine, a passenger who refuses to submit to the necessary discipline of the ship, he ought not to inflict any higher punishment than a reprimand upon a passenger without first conferring with his officers and entering the facts on the log. His authority to punish members of the crew must be exercised with moderation and in reason. He has no authority to punish by flogging or the use of any illegal instrument and in testing the legality of punishment or chastisement the methods and weapons employed are important.[9]

4. Rights of Master.—

He is entitled, of course, to have his wages paid according to his contract—though he has no lien for them on the ship—and such a contract is valid and enforceable although made without writing and for more than one year. He is also entitled to recompense for all money advanced for the ship within the scope of his employment and to indemnity against loss or damage which he may sustain therein without his own fault. He is also entitled to care and cure for injuries sustained in the service of the ship, irrespective of his own fault, like other members of the ship's company. He is entitled to extra wages for services outside of his line of duty.

He has a lien on the freight[10] for his wages, disbursements, expenses and necessary liabilities. This may be asserted by withholding from the moneys collected by him or by an attachment or garnishment. When the ship is in charge of a licensed pilot[11] the master should remain in command except so far as the pilot's duties are concerned and see that there is a sufficient watch on deck and that the men are attentive to their duties; he may advise with the pilot and even displace him in case of intoxication or manifested incompetence. By virtue of his general agency for the owners in relation to the ship, he may sue in his own name, in their behalf, to recover for collision or for breach of contract of affreightment or on any other account connected with the business entrusted to him.

5. Wages.—

His wages depend on the contract with the owner and, where that is not express, will be allowed in accordance with the prevailing usage of the place and trade. The fact that he is a part-owner does not affect his rights in this respect. He may pay himself out of freight-money which passes through his hands. In case of wrongful discharge he may sue for his wages for the balance of the term in one action for damages for breach of contract or bring successive suits for each installment as it falls due. He is bound, however, to reduce his damages as much as he can by other employment. It has been held that where there is delay in paying him without due cause, he may claim extra wages like other members of the crew.

6. Lien.—

As has been remarked the general rule is that the master has no lien on the ship for his wages. In the Orleans v. Phœbus, 11 Peters 175, wherein Phœbus sought to enforce a lien on the steamboat Orleans for his wages as master, the Supreme Court said:

By the maritime law the master has no lien on the ship even for maritime wages.

This is supposed to be for the reason that he contracts on the personal credit of the owner and also because it would tend to impair the owner's personal confidence in his integrity. Another ground is that where the master collects the freight he can pay himself directly and so needs no lien. But a lien may be given by the terms of his contract or by a statute of the state from which the vessel hails; if it is, it will be enforced in the admiralty.

He has no lien on the cargo belonging to the owner of the ship, and, according to the weight of authority, no lien upon cargo belonging to any other shipper. He has, however, as has been said, a lien on the freight earned by the vessel for his wages, disbursements and necessary liabilities. This may be asserted by withholding from the moneys collected by him or by an attachment or garnishment. In the Arcturus, 17 Fed. 95, the vessel had on board a quantity of telegraph poles owned by a shipper and intended for delivery at Sandusky, upon which the shipper was to pay freight in the usual way. Before the poles were unladen at Sandusky, the vessel was seized by the marshal under a libel filed by certain creditors, so that the master could not and did not unload the poles, and the owner was compelled to pay $70 to have them unloaded. In addition to this, before they were unladen the owner of the poles was compelled to pay into the registry of the court the entire freight which would have been earned had the vessel delivered the poles to him. The master filed a libel, asserting that the whole freight money should be applied to his unpaid wages, and claiming also a lien on the poles, the cargo, for his wages. The court found that the master had no lien on the cargo for his wages beyond the amount of the freight; that he was only entitled to the freight actually earned by the vessel, that being the freight less what it cost to unload at Sandusky, and that he was entitled to a decree for that part of the freight so actually earned, to be applied on his wages as master.